The Decision Makers
About a year ago I wrote a post about judges. I wrote about how judges are powerful but largely not discussed in legal blogs. Certainly their decisions get a lot of attention, but the human being, in robes, at the bench rarely gets much ink. And it’s still true. Judges are far less discussed than legal opinions or other lawyers or juries.
So I was delighted to see the Seattle Times published an article about Judge Ron Kessler of King County Superior Court. And it wasn’t a puff piece. It focused on Judge Kessler’s decision to allow a convicted sex offender to go free. After the sex offender was released, he kidnapped and raped a young woman. The article highlighted the decision process a judge used and the multitude of decisions a judge makes in a day.
I suppose in the interest of full disclosure I’ll say I’ve been in front of Judge Kessler and I consider him a perfectly reasonable jurist. But what I liked about the approach taken by the article was that it focused on process, rather than end result.
As a defense attorney I get often get asked, “How can you defend these people, trying to get them on the streets again?” “Well,” I reply, “if people only earned a vigorous defense if they were innocent, the system would completely fall apart. Sometimes guilty people do go free to ensure innocent people are never incarcerated. But what someone does when they are released is their own business. I have no more control over what someone does with their life before I met them than after.”
And that’s usually enough to get them to see things from a process-oriented perspective.
My job, the judge’s job, even the prosecutor’s job, is to ensure a fair process. I usually don’t get too despondent if a judge rules against me, if I felt they reviewed my arguments and made a rational decision. As attorneys we don’t choose the facts we go to battle with. But as long as a client gets a fair shake, even if the facts seem particularly heinous, the system seems to work.
The flip side are the judges who are incredibly slanted in one direction, or worse, seem to have a vendetta against certain defendants. For example, I was sent another article about a judge, this one about an Israeli judge who said “some girls enjoyed being raped.” This is a ridiculous and offensive statement, the judge quickly resigned, and good riddance I say. Unfortunately, there are almost certainly some judges on the bench around the world whose rulings are poisoned by misogyny or other stereotypical views not befitting their station. Their process is faulty and, necessarily, so are the results.
Judge Kessler called releasing the sex offender a mistake. I wouldn’t go so far, because I presume his decision was based on a correct reading of the law. Contrary to some of the vitriolic comments of the article, Judge Kessler seemed to have done his job correctly. Judges have to make decisions based on the information they have and the law, not some amorphous worst-case future scenario.
So what do judges generally look for when making a decision? The Seattle Times article talked about what goes into Judge Kessler’s analysis. I don’t have the secret code to guaranteeing a ruling in my client’s favor. But recognizing that judges are human beings, and human beings generally try to do the right thing, I try to craft arguments that appeal to a sense of justice.
When setting bail, I may point to my client’s family needs or job needs that should be taken into account. I may also cite the rules that are supposed to guide a judge’s decision regarding release. For example, the judge may set a higher bail if a defendant has shown a history of failing to appear to court dates. If it’s true, I can argue that a client has no history of failing to appear, and thus no bail is warranted in a case. While some judges have preferences and idiosyncrasies, as I said last time, the great majority of judges are trying to make just decisions. My job as attorney and advocate is to show the judge the right thing to do in a particular case is to rule in my client’s favor. Often they do!
If you need a criminal defense attorney that will go to bat for you in front of any judge in the state, feel free to give me a call.