From On High
“If you shoot at a king you must kill him”.-Ralph Waldo Emmerson
Today’s post is about judges, the Honorable be-robed members of the bench. This includes looking at judges’ roles and powers, characteristics of good judges, and what options a practitioner has for removing a judge from hearing a particular case.
What Judges Do
Judges represent the highest end of the judiciary, one of three branches of government. As we learned in Civics, the three branches are broken down in their role with the law:
- The legislative branch writes the laws.
- The executive branch executes and enforces the laws.
- The judicial branch interprets the laws.
All branches have their checks and balances, but that relationship is beyond the scope of this post. For a detailed treatise on the interrelation of the branches, you can go here.
What is important for an attorney and their client is the division of responsibilities between a judge and a jury. In legal circles, the standard line is that judges decide issues of law and juries decide issues of fact. What does that mean?
Issues of fact include: Is this person credible? Was the defendant at the scene? And ultimately, did the prosecution prove the facts they needed to prove for a jury to find the defendant guilty?
Issues of law are more subtle, but much more pervasive. On the macro level, a judge can decide whether or not a statute that defines a crime is even constitutional. This situation is rare but it does come up once in a while. There are some things that come up every case.
A judge defines, with help from the attorneys, the instructions to the jury. The instructions are important because they tell the jury what they have to decide to find someone guilty or not guilty. There are pattern instructions for most crimes but judges have the final say on how the law defines a crime.
But the most common role for a judge is ruling on what is or is not allowed into evidence. The importance of these rulings can’t be overstated. If something is evidence the jury gets to see it. If it’s not evidence, the jury won’t.
Here’s a simple analogy: let’s say the ultimate question for a jury is whether a cat is nice. The jury decides on whether the cat is in fact nice. But first the judge will define what it means for a cat to be “nice”. The judge will also decide if the jury gets to see video of the cat, descriptions of the cat from neighbors, testimony from a cat whisperer, etc.
In the above example you can see why, based on how a judge ruled, a jury could have a very easy decision or a very difficult one. Rulings about evidence make a case unwinnable, or make it a fair fight. And hence judges wield enormous power over the outcome of a case, jury notwithstanding.
Aside from trial issues, judges also affect the case by granting or denying continuances, funding investigators, setting bail, and sometimes most relevantly, determining someone’s sentence. Added all up, a particular judge can create a very positive or a very negative experience for a defendant.
Why you would want a different judge
The Code of Judicial Conduct, the ethics rules for members of the bench, opines that a competent and impartial judiciary is the cornerstone of our legal system, and promotes confidence in rulings of the court.
And that’s certainly true. But judges are human beings, full of prejudices and preferences like every other human being. Judges are among our society’s most respected members, which again is as it should be. But no one’s perfect.
Believe it or not, most lawyers do not want a judge that always rules in their favor. As officers of the court, attorneys are bound to seek truth and equitable results. No one is always correct; everyone can and does lose a case sometimes. For a judge to always help out one attorney or one side means that justice is not being done, and society as a whole is diminished.
What I want in a judge, and what every other attorney I’ve ever asked about this wants too, is for a judge to listen to both sides, be rational, and make reasoned rulings. Win or lose, everyone wants a judge that will act professionally, read the briefing of the parties, and make a ruling based on the law.
So where judges get on attorneys’ radars is when they don’t embody these ideals. They either tip the scales in front of one group or another, or they simply don’t do the work they’re supposed to in order to make a fair ruling, or they’re excessively rude or condescending from the bench. Most judges are the paragon of reason but after a few years, every attorney encounters a judge that commits one of these sins.
What can someone do about an unprofessional judge?
In Washington, every member of the bench is elected. That means if there’s a judge that everyone loathes, democracy empowers the people to vote them out of office.
That’s a clean way to handle a poor judge, but it’s not a very speedy or reliable process. Terms only come up once every four or six years, and you can only vote a judge out if there’s someone running against them. And it certainly doesn’t help if you have a bad judge on a case right now.
The most common method of getting a different judge on a case is filing what is known as an Affidavit of Prejudice. The procedure is slightly different whether you are on a criminal misdemeanor case, criminal felony case, or civil case but the essence is the same. You file a document that alleges you cannot get a fair hearing in front of this particular judge and you want the case in front of a new one. For example, Seattle DUI cases the procedure is governed by CrRLJ 8.9. Civil cases are governed by RCW 4.12.050. Most of the big courts have a form for the parties’ use. Seattle Municipal Court’s looks like this.
I’m not ashamed to admit I have never executed an affidavit of prejudice. A lot of lawyers swear by them to avoid judges they feel don’t embody principles of justice, in that the judge is too slanted or too unprofessional for them to get a fair shake. But I think it’s a dangerous tool and that should only be used when you have concrete info that your client will really suffer under this judge.
It goes back to my quote at the beginning of this post. Nobody in the world wants to be told they’re not fair or unprofessional, judges most certainly included. I would rather be able to adjust to a judge’s tendencies than just hit the reset button. I believe in our system that showing up prepared and professional goes much farther in swaying the court than just if you happen to be a defense attorney or prosecutor. Judges appreciate you show respect for the court and, I believe, they respond with respect for the process. I’m not saying I’ll never do file the affidavit, just that my personal experience or a judge’s reputation would have to be very dire. And it hasn’t happened yet.
Besides affidavits, there are a few more ways to be in front of a different judge. One is an active or imputed conflict of interest with a particular judge. A classic example is if you donated a bunch of money to a judge’s campaign, the other side may ask the judge to recuse themselves. This article, talking about the Caperton v. Massey case, indicates that judge should do so or risk reversal by the U.S. Supreme Court. The George Zimmerman case out of Florida also had allegations of impropriety.
In law school I had four judges, active members of the bench, that were also acted as professors. I’ve since been in front of two of them on various matters. Each time the judge has disclosed the prior relationship and gives the other side the opportunity to have a different judge hear the case. No one ever has, possibly for similar reasons to my own. And needless to say, each judge has ruled fairly for each issue (i.e. win some lose some).
If you don’t execute a general affidavit of prejudice or allege specific problems or a specific relationship you’re usually stuck with a judge. Pennsylvania’s Supreme Court got one of its members removed recently, but needless to say those circumstances are almost unheard of.
Ultimately one should look to their attorney to advocate for their case. A judge will usually make the appropriate rulings for what’s in front of them. It’s the lawyer’s job to zealously advocate and produce the most effective arguments possible to give the judge the tools to make the best ruling. One should always respect the members of the bench. But your best bet for winning your case is to retain an experienced criminal defense attorney.