It’s got merit.  I’ve said it before and I’ll say it again, that Mark Draughn is a smart guy.  No wonder he never became a lawyer.

Mark is the Windypundit of Windypundit fame. For some unclear reason, he finds the law curious and maybe even fascinating, in some morbid way.  So he follows it, and see it through his geeky eyes.  Sometimes he sees things that we, lawyers, don’t see.  He did today.

Here comes another one of my radical ideas for criminal justice reform : Striking judges.

No, I’m not advocating smacking judges around, although I’m sure most criminal court attorneys—on either side of the aisle—can think of a few judges that have it coming.

I’m not talking about judges who are strikingly attractive, either, although the attorneys would probably appreciate that too.

Assignment of judges to cases is supposed to be largely a random process.  It isn’t always, for a variety of reasons, but that’s another issue.  The point is that you end up with the judge you end up with, having no say in the matter.  This could spell the different between dismissal or acquittal and life in prison.  Yes, it matters that much.  Lawyers aren’t fungible; neither are judges.

If Windy’s idea were to be put into play, one could expect that the judges on either extreme would be the ones struck, and the judge least objectionable would be selected.  This works out particularly well for the defense side, since we don’t have too many judges on our side at all, no less what one might consider extreme.  In other words, there’s very little downside for the defense.

But it would serve another purpose as well.  Extreme justices would find themselves without business, and this tidbit would become the legend of the courthouse.  It would be a way to tell judges that their impartiality is in doubt, and that they aren’t the people we want to try a case before.  It would apply to their judge-stats, which would be the subject of new stories and election advertisements. 

While elected judges, who just happen to be the ones that nobody wants to work with, will remain elected, this process would likely give rise to a cottage industry within good government groups, court watchers and the media to note who has nothing to do all day long in the courthouse.  It will not just work against any re-election campaign, but also serve to shame them into a serious change of attitude.  There’s nothing like a good public shaming to bring a person around to reality.

There are still some kinks to work out, but that’s just a matter of the details.  As for the basic, radical concept, I think Windy’s got a winner here.

Randazza thinks so too, but I won’t let that influence me at all.