Mark Bennett, the Texas Tornado, came home from New York to a surprise: An order signed by a judge based on a motion that says it was served on him, as required, beforehand. Except it wasn’t. This, for you non-lawyers out there, is what we call an ex parte communication, where one side communicates with the court and the other side knows nothing about it. It’s generally considered a very bad thing.
Bennett asks some important questions, though I’m sure he knows the answers. They do it because they can. And they can because Court’s let them get away with it. Not just the ex parte communication, but the affidavits of service that never happened, class A misdemeanors.
While the problem of prosecutors neglecting to serve papers isn’t one that I’ve experienced in New York (although they routinely screw up the sequence by serving the court by hand with papers including an affidavit of service, and then mailing the papers out to defense counsel a day or two later), Mark’s secondary question to the judge is the one that intrigues me the most.
Mark asks why judges allow, tolerate, facilitate illegal conduct by prosecutors. Mark pushes further:
Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that’s not really appropriate, but it’s going to happen however much I fuss — even if you don’t care whether the state wins, you naturally want the state’s inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?
It’s a fascinating irony that the less experienced, less competent a prosecutor, the more a judge will involve herself in assisting the prosecutorial function. Sure, we talk about an adversarial system, but when the judge gets down from the bench and starts showing the prosecutor what to do, you start to get the sense that they’re ganging up on you.
The answer to the question is precisely what Mark suggests. The prosecutorial function is for the benefit of the State, the Commonwealth, the People, whatever they are called in your jurisdiction. The defense represents the defendant. One person versus society at large.
The prosecutor is often a youngster, inexperienced and undertrained. The fact that they are pompous and flush with power and authority has nothing to do with their skill level. So the judge takes it upon herself to be a part of the training process of baby prosecutors by helping them along. Is it so wrong that judges want to make sure that violent criminals don’t walk free because of some kid’s inexperience? Doesn’t society have an interest in putting bad guys behind bars?
Of course society cares. Even criminal defense lawyers, when not in the well, admit that we want bad guys convicted. We just want it done fairly and properly. It is not the judge’s role to play super-prosecutor. This leads to rank partiality, even when the judges believe that they aren’t favoring the prosecution.
This also leads to judges cutting prosecutors a break on the “technicalities” of criminal prosecutions, like serving motions and filing false affidavits. They don’t mean it. They just don’t know any better. What do you expect from them?
A very slippery slope, when perjurious affidavits become routine and incompetence is rewarded by judicial facilitation.
Some wags might suggest that the training of baby prosecutors be left to grown up prosecutors. Worse still, some might suggest that judges are doing no favors by easing prosecutors into the job, encouraging sloppy work and bad institutional habits.
But what do the judges think? That they’re just leveling the playing field between experienced and vicious criminal defense lawyers, ready at the drop of a hat to rip some young prosecutor’s heart out through his nose if he makes the slightest mistake, and young, well-intended, over-burdened prosecutors trying to do their best to serve the public good. And they don’t see this as presenting a bit of a problem with impartiality.