Dan Wise, former New York Law Journal reporter and always an excellent source for the ugly underbelly of the New York criminal system, reports that judges are not pleased with their aging-out Chief Judge, Jonathan Lippman.

Judges, both present and former, in Manhattan, Queens and the Bronx report in interviews that a wide swath of their colleagues handling criminal cases are adamantly opposed to Chief Judge Jonathan Lippman’s bail reform plan.

Welcome to the party, judges. But I somehow suspect that your problem with CJ Lippman’s parting shot isn’t the same as mine. So what’s your beef?

The judges say there is a widespread sentiment within the criminal bench that the Lippman plan is not reflective of the realities they face in setting bail; will sow discord among judges handling criminal cases; was rolled out in a manner that was demeaning to judges and the quality of work they do; and is at odds with statutory requirements and ethical restraints designed to protect the judiciary from outside influences.

So it’s all about you? CJ Lippman hurt your feelings by suggesting you weren’t doing a very good job of it?  Is that all there is?

The greatest irritant, cited by a number of judges, is that Lippman’s call for reform does not reflect “the real work that real judges do,” in the words of a judge sitting in Manhattan. A judge handling criminal cases in the Bronx echoed that thought, saying that the Office of Court Administration has “no idea what we do.”

And so what exactly is that “real work that real judges do” that OCA has “no idea” about?  Justice Edward McLaughlin (yes, that one), in a letter to the editor to the NYLJ,* explains.

Using the word “broken” and mockingly recalling Alice in Wonderland might raise press interest but it also surely further lowers judicial morale. The accusation is that daily countless judges in five boroughs, without consulting each other, knowingly made incorrect bail decisions. Merit judicial selection, as some call it, in place for decades, accounts for the vast majority of judges sitting in Criminal Court arraignments (selected judges of the Civil Court are the exception).

Judges appointed by every mayor from Koch to de Blasio are accused of presiding over a “broken” bail system. This accusation is false. Their actual bail decisions were correct. That they produce an unwelcome result does not mean the decision was wrong or that the system is broken. When diverse sincere people make determinations over time, independently of each other, the results should be accepted as fair. Judging is not – and should not be – results oriented.

While it’s certainly true that an “unwelcome result does not mean that the decision was wrong or that the system is broken,” it similarly doesn’t mean the opposite, either.

There is much wrong with CJ Lippman’s reform, not the least of which is that it’s administratively unworkable and totally lacking in statutory authority. But indulging in a tautology isn’t helpful. Justice McLaughlin doesn’t stop there, but goes to the stats:

For example, in New York City’s Criminal Courts to date in 2015, in the five boroughs, just short of 51 ,000 warrants were issued for such defendants. Nearly 34,000 of the warrants issued were for defendants who either had been released by judges who set no bail or had posted bail. Warrants issued in 2013 and 2014 practically were identical. Judges, from their experiences in arraignment and calendar parts, are aware of the plethora of past non-appearances as they begin each new arraignment assignment. They decide the day’s cases individually, using only appropriate criteria. Yet, no one suggests that the rampant non-appearance at, or following, arraignment in Criminal Court justifies factoring that data into bail decisions.

These numbers would seem, at first blush, to suggest that judges are doing a miserable job of setting bail, but in the opposite direction, being way too lenient given that bench warrants are being issued for tens of thousands of defendants. Of course, raw numbers neglect the bench warrants issued for people who show up late, come the next day, or fail to pay a fine because they’re broke.

There is also no mention of how many defendants sit on the rock for years because bail was set and they didn’t make it. But in there is a swipe at the heart of the matter.

They decide the day’s cases individually, using only appropriate criteria.

And therein lies the unspoken problem. Do they? The only information a judge has when setting bail is a rap sheet and prosecutor’s write-up handed to a baby assistant to speak aloud at arraignment. Neither tends to be a reliable source of information, but as many an arraigning judge has explained to a defense lawyer, arraignment is not the place to try their case.

So what if no crime happened, or they pinched the wrong guy? So what if that old bench warrant in the rap sheet was issued because the defendant appeared late because his child was sick? The prosecutor’s words are gospel. The defense’s words are blown off. None of the words are proven at the arraignment, and yet judges need to rule on something. The “appropriate criteria” is only meaningful if reliable facts are presented. Let’s not forget that little detail.

But Justice McLaughlin also provides a deeper truth in his letter, whether he meant to or not.

Noteworthy is the failure to provide contextual data about bail decisions made by the judges now faulted for setting the “too high” bail. The judges being criticized for detaining defendants are the same judges who release defendants. Discretion is designed to produce varying results. An independent judiciary, unfettered by interference, usually from without, is the guardian of our country’s democracy.

Such high purposes frame the thing judges hate most of all, and ironically expressed by a judge who, shortly after writing his letter, ended up being the fall guy for the very problem. When that one in a million defendant, to whom a little bit of mercy was shown, turns around and commits a heinous crime, all eyes immediately turn to the judge who cut him a break, as if his exercise of discretion was tantamount to pulling the trigger.

And that reality is never far from a judge’s mind when setting bail, that he doesn’t want to wake up to see his face on the cover of the New York Post, or have the Mayor of New York City blaming him for the murder of a cop.

As Justice McLaughlin astutely noted, they don’t hand you a crystal ball when they give you the robe. The system is deeply flawed, and so there will be errors. The question is whether the errors should favor release or not, liberty, due process and the presumption of innocence or theoretical safety.

And once a side is chosen, we need to suck it up and live with the consequences, the foremost of which is that defendants who are not released stand almost no chance of prevailing no matter whether they’re innocent or not. If that’s what we want of our legal system, then lock ’em up.

*Inexplicably, Justice McLaughlin’s letter to the editor was never published by the NYLJ.