An independent and honorable judiciary is indispensable to justice…
~Massachusetts Code of Judicial Conduct
As a long time Massachusetts criminal defense lawyer, I know that no system of government, no matter how well conceived, functions any better than the men and women entrusted by that system with authority. In our government, the three branches of government act as counterbalancing sources of power. Judges, as the representatives of the judicial branch of government, are constitutionally obligated to act as a check on the power exercised by the other two branches, particularly the executive branch. They are charged with ruling on the constitutionality of legislation and reigning in the executive branch — law enforcement.
For the first half of this century, High Court judges have been cautious to the point of timidity in expressing any criticism of governmental action; the independence of the judiciary has been of a decidedly subordinate character.
Unfortunately, few Massachusetts judges are up to the task. These judges fail either because they lack the courage to stand up to law enforcement, cannot grasp their unique and vital responsibilities, or they share law enforcement’s goals. They refuse to hamper law enforcement’s efforts – constitutional or not – to punish the citizenry. Their passivity in the face of police and prosecutorial misconduct and overreaching only encourages more police/prosecutorial abuses. By turning a blind eye to police perjury, they aid and abet law enforcement’s duplicituous undermining of our constitutional protections and, in the process, allow themselves to be regarded as fools. There are few sights as pitiful as the robed stooge.
There is a certain degree of complicity on the part of district attorneys and even on the judge level [for police testifying], in the sense that they’re obligated to question what they believe is problematic testimony… Cops end up on the front pages, but everybody’s got a role to play here.
~William Bratton, former police commissioner for Boston and NYC
If these judges’ failures were limited to simple nonfeasance, their impact on the accused would be bad enough. But not only do they neglect their duty, they treat with unconcealed contempt the very citizens they are charged with protecting, as well as their representatives. They rarely bully members of the district attorney’s office – the real power of any county. And while some Massachusetts judges may criticize prosecutors, damn few would threaten an assistant district attorney with contempt, never mind hold an assistant district attorney in contempt of court.
[Judges] too are concerned mostly with their image. Few in black robes have enough steel in their spines to risk ruling in favor of an unpopular defendant.
~Roy Black, Black’s Law
These judges scold criminal defense lawyers for innocuous breeches of courtroom decorum, threaten them with contempt for having the temerity to stand their ground, use the rules of evidence and the rules of criminal procedure to hog-tie defense counsel, and lavish multiple continuances on ill-prepared prosecutors, even as they punish the accused for exercising their right to a trial.
A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity…
~Code of Judicial Conduct
By intimidating the criminal defense attorneys into errand boys, these judges rob the accused of his right to counsel. Too often the accused and his attorney are terrorized into abandoning the right to a jury trial by the very person entrusted with preserving that precious right. Criminal defense lawyers may resort to forum shopping, not for a softy, but for a human being.
Tyrannical judges are smitten by terms like “Your Honor” and phrases like “If it pleases the Court.” They sashay out onto the bench whenever they feel like it and excoriate the lawyers and litigants arriving minutes later. They love their black robes, their gavels and their elevated benches which permit them to peer down at those gathering before them.
I could carve out of a banana a Justice with more backbone than that…
~President Theodore Roosevelt
Too many judges demand the very respect they routinely withhold. But why are so many judges so out-of-control? Why are they so weak? Unfortunately, they have abandoned balance and perspective. They are too intimidated to check law enforcement and too impuissant to control their tyrannical tendencies. If these judges are too weak, immature, or gripped by fear to meet the requirements of the job, we need to take steps to either replace them or strengthen them.
Cambridge Criminal Lawyer’s Solution
No government official or office holder, including the President, members of the U.S. Senate and House of Representatives and members of the president’s cabinet, believes himself entitled to lifetime appointment, a robe, and a gavel, and to be addressed as “Your Honor,” or to have everyone stand at attention when he starts his work day — except, of course, the members of the judiciary. The lowliest district court judge, in some sparrow fart town, demands and receives all the accoutrements of his judgeship.
You can easily judge the character of a man by how he treats those who can do nothing for him.
~James D. Miles
Of course, a mature society would abolish these judicial relics. The ridiculous black robe needs to go the way of the equally ridiculous powdered peruke. No grown man or woman requires a gavel. The bench needs to be replaced with a simple desk. “All rise” replaced with “All respected.” These unnecessary judicial trappings, which can act like a tonic on the lesser men and women entrusted with meting out justice, poison the well from which we must draw justice.
For Heaven’s sake discard the monstrous wig which makes the English judges look like rats peeping through bunches of oakum.
Most importantly, lifetime appointments for Federal judges need to be discontinued. Few judges can resist the corrupting effects of a lifetime of power and privilege. Too often, they become cold, bitter, petty, infantile and insane. Yes, insane. No reasonably perceptive criminal defense attorney could, after just a few years of practice, deny that he had appeared before a judge whose mind was ravaged by mental illness. Disassociated from the people, and in some cases reality, these tyrants can quickly become a greater threat to the rights of the accused than the police.
Four things belong to a judge:
to hear courteously,
to answer wisely,
to consider soberly,
and to decide impartially.
~Socrates, 470-399 B.C.
We can, as highly regarded trial lawyer Gerry Spence suggests, simply select our judges, for one four year term, at random from the most competent trial lawyers. The very knowledge that one day soon he could be appearing before the very trial lawyers over whom he now presides would curb the heavy-handed tendencies of the nastiest judge. Some will argue that the quality of the judging will suffer if we replace the judges every four years. That is highly unlikely. In truth, we could do no worse.
There are, no doubt, courageous Massachusetts judges. These few brave souls fulfill their constitutional roles of restraining the executive branch (the prosecution). But to fulfill that role, they often must endure unflattering and even hostile media coverage, the venom of prosecutors, the enmity of their fellow judges, and/or persecution by the Commission on Judicial Conduct. To maintain his courage, a judge must be a man or woman of true conviction, elevated character, and indomitable temperment.
Judging is a lonely job in which a man is, as near as may be, an island entire.
Few judges are criticized for being too tough on the “criminals.” But let a judge reject the notion that only by pouring hot coals onto the head of a defendant can he uphold the sanctity of the law and demonstrate his compassion for the suffering of the victim, and the media will pounce. Yet, the courageous judge marches on, unbowed. He knows instinctively that one can show mercy to a defendant while having empathy for a victim. He is not afraid to reveal his humanity. He deprives not the accused a fair trial in the name of expediency. The courageous judge is, without a doubt, very often the bravest and most noble figure in the courtroom.
Kevin J. Mahoney is a Cambridge, MA criminal defense attorney, on-air legal analyst, and author of Relentless Criminal Cross-Examination.