One of our local judges running for re-election for district court has a long endorsements page on his website, with the meat of it being an essay from a retired Reno Police Chief. One of the passages caught my eye, and not in a good way.
[Judge Bob Perry] told me on one occasion that he would never become involved with criminal defense work because of his earlier work as an investigator and prosecutor. He said that his earlier work convinced him of the importance of law enforcement and that he could simply not bring himself to do criminal defense work.
This is a profoundly obnoxious statement, and anyone uttering it is simply unqualified to be a judge.
It’s not just that I’m a defense attorney and that the statement is personally offensive. (The statement clearly says that in doing what I do, I must not respect “the importance of law enforcement,” and that it takes a special disregard for nobility to “bring myself” to do it.” Ironically, his opponent’s chief criticism is that he’s “soft on crime,” although that doesn’t necessarily mean he respects the defense bar.) I fully understand that it’s not a job every attorney particularly would care to do, any more that I could sit and read over patents all day.
But the difference is that I could do patent work if I needed to. I just wouldn’t enjoy it nearly as much.
An attorney that tells you he “just couldn’t” take the opposite side of an issue from the one they usually find themselves on is not an attorney you’d ever want to give your money to. If you can’t see the case from the other side, how can you assess it accurately? How do you foresee your opponent’s strategy? How do you recognize the flaws in your own case?
But for a judge to not be able to see both sides of a case with dispassion is most troublesome. The most obvious problem is that you tend to give the benefit of the doubt to the side you prefer instead of the side the law is on. But it could also lead to a lack of confidence or understanding about an area of the law that leads to poor decisions the other way, or being too hard on the attorney’s representing that side because you might have done it better. Either way, it means that the law is not the only thing you must weigh when walking into that courtroom.
In other words, justice cannot tolerate a judge who is “pro- law enforcement” any more than it can tolerate one who is “pro-crime”. A judge must be on the side of the law, and no one else’s. To do so is to risk the free society we live in by allowing one man or woman to subvert the legitimately created laws of our society.
It may be that Judge Perry’s endorser was being a bit hyperbolic, and was exagerating in defense of his candidate’s “soft on criminals” reputation. (If so, the comments say more about the endorser than they do about the judge himself.) Let’s hope so. An attorney that couldn’t “bring himself” to argue the other side of a case is incompetent. A judge who can’t clearly see both sides is a threat to justice, both for the parties in his courtroom and the community at large.
“An attorney that couldn’t “bring himself” to argue the other side of a case is incompetent.”
I don’t think this is a fair statement. I recently helped on a case that involved the city screwing over a small business owner in an eminent domain taking. I knew exactly what the other side would argue. Frankly, it would be morally reprehensible for me to make an argument for the other side. So in that case, I could not bring myself to “take the opposite side of the issue” but by no means am I or was I incompetent.
It’s absolutely a fair statement, and I’ve unfortunately seen it in practice many times. A defense attorney who thinks every client is a victim of State oppression is incompetent, and so is a prosecutor who thinks they’re a Crusader Against Evil.
If you had said, “I could never bring myself to represent a government body in an eminent domain takings action,” then indeed you would be incompetent. Rather obviously, there are times when such takings are perfectly acceptable and the right thing to do. And that broad brush is what I’m talking about.
As a public defender, I represent people who do morally reprehensible things all the time. Representing a jerk (or a city “screwing over” someone) is not morally reprehensible, it’s part of the job of an attorney. Even jerks and reprobates should have representation in court. The key is to not act unethically in the course of the representation.
For example, if the city is truly screwing over someone, in that they are violating the law and established legal protections, then the attorney has an obligation to withdraw, and perhaps even inform the judge and the other side. But if the city is within its rights even arguably, believing that it is “morally reprehensible” to even represent them in court means that one’s judgment is clouded to the point of not being able to clearly understand the case – not just from the city’s point of view, but from that of the judge who likely isn’t emotionally invested in the case like the defendant is. At that point, you lose perspective and become incompetent. You can’t properly advise your client of his or her realistic chances, nor will your legal arguments be as persuasive (even if they’re correct).