Saturday, December 15, 2007

Why are ex-Public Defenders so often bad judges

I always get excited when someone from my office makes it to the bench (someone good, that is - if the person's a total political tool, then it's not so exciting). It means that finally, someone with our perspective is sitting on the bench. So, I have to ask myself all of the time this question: Why do ex-PDs make such uniformly bad judges. I mean, there are good judges who were PDs (or private lawyers, for that matter), but so many of the best judges I know were either District Attorneys or worked in the federal system. And I don't know why.

I've heard the theories. One theory is that as a Public Defender, we've heard all of the bullshit that our clients put out and we no longer buy it. But, that would mean that only the most cynical Public Defenders make it to the bench (something that doesn't seem impossible, in light of the political process it takes to make it to the bench). But, it would seem that I would have noticed the cynicism of some of these people before they made it to the bench. Most of the time, I haven't seen it.

Another theory is that only the most politically adept PDs make it to the bench, so that when they get there they have thoroughly sold their soul to make it there, and they can't do what their conscience asks them to do when they hit that spot for fear of a backlash by the people that put them there. I guess that this is possible, but, again, I never noticed this personality trait in so many of the people that I knew beforehand who make it to the bench and completely disappoint when they hit that spot.

Another, along the same vein, is that as ex-PDs they are under a greater microscope looking for perceived pro-defense bias (something that will really get you bounced from the bench, in contrast to overt pro-prosecution bias, which will get you a sweet gig within the judging ranks, unless you go completely overboard and totally piss off every PD in the county, something that's hard to do). This holds more water, and sort of goes in line with the previous thought. By promising this independence from their prior profession to everyone under the sun, they at least feel as if they are being closely scrutinized for possible bias, and want to cover it up.

But, all of these theories work for perhaps some of my colleagues who've made it onto the bench. Do they explain all of them? Is there another reason I'm not considering? In general, I feel defense lawyers are better lawyers than most prosecutors (note the MOST, there are some prosecutors who are stellar lawyers, but the mean PD is better than the mean DA, as far as I've seen). They have spent their lives bucking the system, not playing along to get along, not following strict hierarchical rules that DAs have to follow, thinking independently. Why is it that once these people hit the bench, they do so much worse than these DAs who usually can't hold a candle to them as lawyers?

And with that post, I completely give up the chance to ever become a judge (unless people realize that maybe I'll be just as "bad" as all of those other ex-PDs that have been put on the bench, and they'll put me on as well).

Thoughts, anyone?


Anonymous said...

Do you think there's an effect where you judge them by a higher standard because you expect them to be better?


PD Dude said...

Undoubtedly that is an issue with me.

cs-legal said...

PD Dude,

This has been a subject of discussion with colleagues many a time…especially with PD’s and APD’s. I can’t offer much more wisdom. I suspect it’s mostly a combination of the first and third reasons you mention.

But I do feel that judges (be it former DA’s, PD’s or whomever) struggle when they are confronted with throwing out evidence or a case on what is perceived as “procedural” or “technical grounds.” Now, these are our constitutional rights and judges are supposed to know better than that. But they all to often disregard this principal and go the other way. And it is demonstrated repeatedly by the infrequency that we see them grant 1538’s, 995’s or the like.

Anonymous said...

I think two types of public defenders would be interested in becoming judges. The first type is concerned more with procedural fairness than with sentencing. They believe in the 4th, 5th and 6th Amendments, but if those have been satisfied, the 8th Amendment is a technicality. Those people would old the State to its burden and provide the defense with what it needs, but throw the book at sentencing. Some of those guys will become judges. The second type of PD is the type who cares more about substantive than procedural fairness. Fewer of those guys will become judges.
Where I've practiced, I've found that good prosecutors who become judges often hold sloppy and bad prosecutors to a much higher standard than other judges do. At the same time, they often tend not to demand that much from defense lawyers.
These are gross generalizations but I think there's something to them--the former defense lawyer who throws a fair trial but hammers those who have been convicted and the former prosecutor who dismisses cases because the prosecutor is sloppy and negligent. At least this is what I see in my neck of the woods--which is nowhere near yours.

Anonymous said...

i believe the pension system has a huge unspoken effect on judging. I've heard youmake it 20 years on the bench or you collect zero in retirement from the judge's pension, which is separated by system from the pds and das. so, if you can lose your whole pension by ticking off a prosecutor who in turn tells his supervisor and suddenly you ahve to stand for a real election, it seems more financially prudent to just lay low. if the pension scheme were different--say, you could segway right back into pd work--or if terms were strictly limited, so nobody was expecting a pension--i KNOW you'd see different rulings. at least i think you would; if i were ever apointed judge, I'd like to rpetend to myslf that i'd d the right thing whatever it was, but in reality, i think i' be worried abou making it 20 years ... sad, self-interested, but at least im honest. which is more than i can say for many of those chuckleheads on the bench. th system sucks!

Thane Eichenauer said...

All your hypothesis may be true, but I think adherence to the rule of law and the Constitution of (insert political district here) should trump them all. Of course that didn't keep Marc Victor in office long. Apparently the challenge isn't getting to be a judge, but staying one.

McNeill's Dirty Dozen said...

Here in Las Vegas, our judges are elected. If a former PD is somehow elected, they have to become "tough on crime" to stay elected. I always expect more, and am almost always let down.

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