A phenomenon occurs in court where a person appears before a judge who seems to be on top of their case, aware of the issues, interested in the arguments and, maybe, even dubious of the prosecution.  To a defendant, it’s an exhilarating experience,  Hope, dreams of a positive outcome are lit, and the defendant walks out of the courtroom with his head held high and his spirit soaring.

This was experienced by  Joel Rosenberg, my pal Jdog, after his court appearance last March.  Judge Todrick Barnett ordered the parties to brief a critical issue, one that cut decidedly against the prosecution’s theory that because there was a spare courtroom on the third floor on City Hall, which also housed the office of the Chief of Police, an order prohibiting the carrying of guns in courthouses applied to the building as a whole.

With this big issue on the table. Joel’s lawyer, David Gross, prepared a bang-up memorandum.  The prosecution did a yeoman’s job.  The stars were aligned, a judge who grasped the issue and demonstrated not only an interest in getting to the heart of the matter, but the strength of intellect and will to hold the prosecutor to the law.  This judge wasn’t about to let the state wiggle its way around the law to nail Jdog when no crime occurred.

And with hope and trepidation, Joel returned to court on May 2nd.  The story is told by a fellow named Rob, a witness to the proceedings, though not necessarily in agreement with Joel’s methods.

The Judge Barnett I saw yesterday was much more apathetic about David Gross’ defense. To me, it appeared that he had just crammed through the briefs in the moments before the hearing.

The city did not meet the requirement to prove that the court has authority over the entire building, and Judge Barnette didn’t care. The judge did not consider the different signage, and was not able to make any strong statements (like he did at the March hearing).

The Judge Barnett I saw yesterday seemed afraid to make any interpretation of the law, the court order, or the court’s authority. He was all too happy to throw the case to a jury, over making any statements, or judgement that would set a precedence for anything, or be anything notable.

He simply wants to fly under the radar.

With Judge Barnett’s 180, Joel could be in trouble. This is an important case, with serious potential ramifications for permit to carry holders.

What happened?  It could be any number of things, from someone “reaching out” to Judge Barnett to remind him that getting along with the cops and prosecution would make his job easier going forward, to having had a lousy breakfast that morning and being unduly concerned about his fiber intake.  It’s impossible to know.

What is clear, however, is that the phenomenon that happened is hardly new, though one that seems to mysteriously elude judges since the dawn of the legal system.  They knew it when they were lawyers, and had every intention of avoiding it when they took the bench, yet it happens. 

The phenomenon is quite obvious, and one that’s experienced by every lawyer who has ever stepped foot in the well of a courtroom.  The judge who was so knowledgeable and focused, who seemed poised to take the bold step of deciding a hard issue against the might of the state, is nowhere to be found the next time you appear.  In his place is some disinterested, thoughtless and lackadaisical weenie who appears to have no clue why you bothered to put in forty hours of work on the memorandum he directed you to provide.  Indeed, he has no memory of even asking for it, and seems annoyed that you’ve handed him more work to do.  Who is this person in a robe that sits where my judge should be?

It’s heartbreaking to a defendant, to find that the hope you held gently in your chest the last time you appeared is gone.  It’s the same for the lawyer, who thought maybe this time, just maybe, the judge would do the right thing, would show the courage to smack their smirking faces in their ridiculous prosecution. 

Sure, one gets used to adverse rulings even though no reasonable person learned in the law would anticipate it.  The law is wonderful when discussed in theory, but it can be ugly, nasty and stupid in a trial court where all those fine appellate decisions gets watered down to a single word, denied.  They don’t teach this in law school, but it’s the first thing you learn in practice.

There is a very simple reason why a judge would much prefer a jury to rule in a defendant’s favor than to do the dirty work for which he’s paid.  It removes the onus from him and places it one twelve fools.  He can’t be held responsible, so when he goes to parties with other judges and important government officials, no one will look askance at his betrayal of the forces of justice.  The pressure can be powerful, often overwhelming, especially to a young judge who has a great future ahead of him if only he doesn’t blow it by siding with the wrong types. 

Or maybe he just had a lousy night’s sleep, or a fight with his wife, or trouble with his bowel movement.  All of these things can interfere with his performance in court on any given day.  So what if he wears a robe and is expected to remember on one day what he did on another.  Judges are only human.

Then again, defendants are only human too.