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There is no penalty for prosecutorial misconduct in the vast majority of cases, because it has to be proved and it has to be shown to be prejudicial to the defendant’s right to a fair trial. So even where misconduct is clear, there may be no remedy.

Many judges are ex-prosecutors or otherwise are inclined to support the prosecution or law enforcement. A judge is ethically required to be neutral, objective and impartial, but they are also human and a few of them don’t try to hide their partiality. I have heard at least four judges state that they believed that their job is community safety – that means they start each and every criminal case with a bias against the person accused of endangering community safety. Instead of starting with the constitutional presumption of innocence, these judges start with a presumption of guilt. A presumption of guilt makes it much easier for them to repeatedly rule against the defendant and in favor of the state, and some judges do that as a matter of habit. A relatively few judges are so biased that they must be removed from every criminal case, or every criminal case of a particular kind.

It baffles me how judges cannot see their own bias and recognize the wrongness of it; it baffles me even more why any judge would be biased. Judicial bias threatens individual freedom like little else can. The judge is the person who must honor our constitution and the judge bears the responsibility of providing a fair trial to every person; not just those in the judge’s social circles.

There are only two requirements to be a judge in this state: (1) the person must be admitted to the bar, and (2) the person must get elected or appointed. Most judges are elected; a few in the smaller municipal courts are appointed by the mayor or city council. So, many judges forget their duty of impartiality and only consider the reality: the persons who gave them the office must be kept happy if they want to keep the job.

This is entirely realistic; in fact, federal judges are appointed for life to avoid this very type of pressure. On the other hand, appointment for life makes it very difficult to remove a judge. There appears to be no perfect solution.

That being said, there are some very good judges in this state who are objective, neutral, impartial and able to ignore tremendous political pressures. But think about this: how many people do you personally know with these qualities: courage, honesty, integrity, exceptional intelligence and objectivity? Many people today scoff at these values as outdated; it is frightening how many people today from all walks hold that it is OK to lie to obtain what you want, or demand that someone else take care of you. Judges are not kings and queens (a quote attributed to Jefferson: “The monarchists will hide in the judiciary”), yet some of them act like it. There is no special judicial school that instills a judge with wisdom or courage.

At present in this state, a judge cannot be sued for actions taken within his or her duties as a judge, with only a very, very narrow exception. Thus, there is little that can be done with a bad judge, other than the ballot box, and it is very difficult to get the voters to understand this.

The answer to the question how often judges look the other way or assist the prosecution: it depends entirely on the judge and the jurisdiction.


A big “Thank you!” to all the Network Affiliated Attorneys who responded to this question! We will wrap up the rest of the responses in the May edition of this journal. We deeply appreciate the contributions all of our Affiliated Attorneys make to this column, as well as their other services to Network members.

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