A call came in a few days ago from a young lawyer who was feeling kinda lost. His question was simple: How do you do it? The background to the question was key. He was trying to do his job, to play by the rules, to represent his clients competently or better, and get them something reasonably close to a fair shake. The problem was the judge wasn’t playing along.
He had taken the responsibility of a shift in one of the new-fangled specialized courts, designed to move humans through the system like cattle by eliminating all the time-consuming niceties, like conferring with defendants before pretending to stand before a court and represent them, like arguing their cause and having a judge give the argument fair consideration.
The judge gave the young lawyer a second or two between meeting the defendant for the first time and going through the motions of representation. The judge then sent the defendant to jail, one after the other, which is where he intended to send them when he started his day and where they all ended up when the day was done. Quick, easy and eminently efficient. A fine day’s work.
The best advice I could offer the young lawyer wasn’t much at all. He could throw a monkey wrench into the well-oiled machine designed to incarcerate people as quickly and painlessly (for the system) as possible by refusing to play along. He could inform the judge that he could not speak to the defendant’s case as he had not had a sufficient opportunity to speak with the defendant, and until he did so, he would not stand next to a human being and pretend to be his lawyer.
The young lawyer sighed, fully understanding that such intransigence on his part would both get him into deep trouble with the judge, and replaced in the courtroom. Some criminal defense lawyer would happily earn a day’s pay for being a part of the machinery of incarceration. After all, it’s all about getting paid, and it’s not like defendants are really people.
There is nothing as frustrating and disheartening as the intransigent judge. Get a bad one and the system becomes a farce. Get a reasonably intelligent bad one and they can cover their tracks sufficiently to assure that they have destroyed any chance at fairness, at due process, while providing a sufficient appearance to get them past appellate review. As if an appeal is a sufficient remedy.
Judges are supposed to be honored. But then, they are supposed to be honorable. Some are. Some are less so. Some are just brutally awful. Get wheeled out to a really bad one and try to figure out a way to make sense of it to a defendant. It’s easy to explain that he had the monumental misfortune of getting a hanging judge, but it’s never sufficient.
There is no good explanation why the person wearing the black robe see the job as making sure every defendant goes down. That they will not get a fair chance. That they lost before they began. That there is nothing to do about it.
I’ve been there. We’ve all been there. I envy jurisdictions where they get a one free request for a different judge.
My advise to the young lawyer was to try, even though it was doomed to failure, because there was no other option. We can’t give up and walk away, any more than a defendant has the option of saying never mind and going home. And there is nothing that will change the frustration, the outrage, of knowing that another judge would have given a defendant half a chance, but this judge won’t.
What I often wonder is what the other judges think about all this. I remember a friend who went rogue and became a judge telling me about another judge who was intransigent. He was more prosecutor than the prosecutors, and never apologized for using his bench to push his agenda. My friend was well aware of the problem, and told me that they all knew what he was up to but could do nothing about it.
What he meant was that nobody was willing to take him on and risk their own position. Nobody wanted to make enemies, and nobody believed it was worth it. I told him he was a coward, and he told me I was naive and foolish. What good would it do for good judges to make waves and put themselves at risk, leaving only the bad judges on the bench?
I’ve never been able to come up with a solution for this problem, and my advice to the young lawyer was, frankly, pretty worthless. Just keep fighting, I said. And losing, but I didn’t say that part. His head already hurt badly enough from banging it against the wall, and there was no reason for me to make his head hurt worse.
Soon enough, I’ll have to tell another defendant that he drew the wrong judge, and he’s screwed. He’ll ask me what can be done, and I’ll tell him nothing. We’ll fight, I’ll say, and fight hard. But it won’t matter. The harder we fight, the more the intransigent judge will create excuses for the cops and prosecutors, and cover up whatever failings happened in the vague rhetoric of discretion and deference. It can take some effort to make sure a defendant hangs, but they’ll do it because that’s what they do. The intransigent judge will not be moved.
The only answer I’ve ever come up with is to keep fighting, because it’s the only thing we can do. And even old lawyers feel the pain of banging their heads against the wall, and frustration of explaining to their clients that they’re screwed. It never gets easier.
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Good article Scott. This is a problem we struggle with in the civil arena as well. Frankly, if judges don’t want to actually “judge” which is something that requires putting time and effort in, they should step down. You’re advice is about all that can really be said. Keep fighting and speak out as long as making a stand does not hurt our clients. If not us, then who?
“…one of the new-fangled specialized courts, designed to move humans through the system like cattle by eliminating all the time-consuming niceties, like conferring with defendants before pretending to stand before a court and represent them, like arguing their cause and having a judge give the argument fair consideration.”
IANAL, so I don’t quite understand what you mean by that phrase. I’m thinking it’s a specialty court — like a drug court maybe? But what’s with defense lawyers only having a short period of time to meet with their clients? That’s not even a fig leaf covering the obvious lack of representation, no?
Sir, regarding these rogue judges having documented habits / histories of preaching from the bench, ignoring Rules, Codes & Laws – Please tell us how to go about reporting his / her actions to the proper authorities?
FWIW, this sounds like a Cops episode. “Eight cops in a van, the john (defendant), the prostitute (lawyer), and the pimp (judge) Sting”. The one where the pimp bitch slaps her for striking out and the cops allow him to kick the john in the nuts. The whore wants an intervention but can’t afford to give up a paying gig because she has loans to repay. The drunk broke dick pedestrian goes to jail for Soliciting instead of P.I. just for replying to an age old sales pitch. The cops drive away and set up for the next passerby. A viscious cycle where everyone knows their role and does absolutely nothing about it because it pays the bills & rocking the boat isn’t cool. Thanks.
In the instance of the young lawyer who called me, he was doing a day shift in a court where he was expected to cover a lot of indigent defendants, none of whom he had ever spoken with before and without a meaningful chance to speak with them, etc., before standing up on their behalf.
It doesn’t always happen this way, and yes, it’s not representation in any way, which was one of the reasons he was so distraught about what happened. He knew too well that he did not provide effective representation, and it was breaking his heart.
There are grievance committees for judges, but don’t expect much. Short of a smoking gun, there is little they can do.
Perspective of a young(-ish) guy:
In my first job as a lawyer, fresh out of school, I was initially very skeptical of my boss’s professional judgment. In the privacy of my broom closet, I would roll my eyes at how crazy some of our arguments were.
But then we had a trial in front of one of “those” judges. And the dude was a goddamn HERO. It felt like the judge was just beating us (and our client) with a sack of doorknobs every hour or so for six weeks. The rulings were arbitrary and in some cases self-contradictory, and pointing this out only made things worse.
After the first two weeks, I felt broken and all I wanted to do was to escape from this bully’s courtroom. But my boss stood there and took it, sometimes picking fights he knew he would lose badly because we absolutely had to make a record.
It was the most awful and most inspiring thing I’ve seen. Whenever I despair of a case, I tell myself: “If he could keep fighting for the client, then I can too.”
Good story. We just keep fighting. And once in a while, we even beat the intransigent judge. But you never win if you don’t keep fighting.
Not everybody is cut out for this line of work.
An those of us in the cheap seats are supposed to have faith in the system? Sounds to me like a cortroom version of Slaughterhouse Five.
Those of you in the cheap seats don’t really get a choice. If your luck runs cold, you end up here. It’s wrong? Unfair? Tough nuggies.
Is it worth a revolution? Look over your shoulder and see how many people are ready to lay down their life over it.
And what do all the sweet-talking politicians say? How wonderful the judge is. And what do the other judges, the good judges, say? They sigh and pretend they didn’t hear the question, then walk away as fast as they can.
No, you really don’t get a choice. Other than to fight. That’s all there is.
Sir, so far we’ve learned about a young lawyer with an age old dilemma that reached out for guidance and struck out but left with his head up with sound instructions on how to continue. The doomed client(s) are an afterthought and therefore, collateral damage. Sadly, it didn’t (hasn’t) blow / blown up the SJ comment section with; the good, the bad & the ugly judges either defending or excusing. At this point who cares? Especially since everyone knows they’ve been allowed to become invincible.
In Texanees, “we say fucq ’em and the horses they rode in on”! We don’t ask for our French to be excused, cuz it aint French. The ‘R’ word has been evoked and watered down due to excuses. On behalf of the Client(s), I call bullshit on the; enablers, pansies, pretenders, ones infected with dilemmas based on a pay check, taxpayers that fund it & voters suffering from the vote just to be voting syndrome.
“OWS” was Part One of a mini-revolution aimed at calling bullshit on everyone’s behalf on; unscrupulous lawyers, rogue judges, crooked accountants, monkey money changers / hiders, & the ones they serve. Like-it-or-not & FWIW, it’s still alive and kicking. Part Two can and should focus strictly on an educational opportunity to restore faith vs. ignoring & hope it goes away. Today we learned about something that’s been going on for quite some time and we thank you. It’s not too late for someone with ‘juice’ to announce it’s time to do something about it & get the ball rolling. Thanks.
It’s disheartening when it is the judge that you have to fight against, rather than the opposing attorney. But it has to be done. The attorney is the ONLY person who can and will stand up. The other judges don’t have to, and won’t. The lawyer has the only chance to make a record and to get the issue up to appellate courts.
When the appeal courts see case after case with the same pattern of abuse, they know what is going on. But they won’t see them if the lawyers are afraid to stand and afraid to speak up.
You hit on the one, and maybe only, critical point:
That’s the most frustrating thing. For lawyers, at least we can continue the fight and, over time, take some comfort in winning against all odds. But for the defendant who suffer in the meantime, our comfort means nothing. They are, as you correctly say, collateral damage, and there is nothing we can do about it.
And of course those who suffer most from this are a segment of society that the majority of people don’t really care about. Not a group that politicians generally care to stand up for.