The difference between judges and prosecutors

It’s a trick question.

I was struck by the similarity in thinking between a prosecutor from Colorado named Martin Beeson (h/t Gamso) and the speech, previously cited in these pages, of Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit.

If you change the rhetoric and context a little, it’s the exact same speech, idea-wise.

Neither Jacobs nor Beeson are evil people (so far as I know).  Their main problem is that they are intellectually limited.  They operate under assumptions that they have not only uncritically adopted; they are not even aware of them.

There are sharply differing views on the nature and role of government.  Some believe that the government is a positive force for good, that it provides safety and security – and some think even material prosperity – to its citizens.  There are others who are deeply skeptical of government and regard it as a danger to freedom and balk at the notion that it can provide prosperity, indeed believing that government by and large impoverishes its citizens.  And there are many nuanced positions in between.

The older American tradition is firmly in the latter camp.  But like many traditions, it has been eroded over time.  Whereas previously one might have argued that the government favorable view was “un-American”, that’s a difficult case to make now.  The government favorable position has itself established a claim to tradition in American political discourse.

The danger of the Jacobses and the Beesons is that by virtue of their positions they are unintentionally corrupting the third branch of government – the judiciary.  It is one thing to have a political disagreement about the role of government in American life and battle it out in elections and other venues.  But it is not debatable that in the courts, the government must be just another party to a dispute, not the standard bearer of the “public interest”, not the protector of the “victims”.  And to the extent that those principles are allowed or adopted in the courts, the courts have in substance ceased to perform their function.

“The truth is that the vast majority of cases – well over 90 percent – involving criminal defendants end in conviction.”, says Beeson.  And he’s correct.  And that holds true not just for Colorado, but just about everywhere in the US.

That may not be the problem that it seems to be.  It probably is, but let’s shift to a more telling couple of statistics.

Appeals courts are mysterious places, even to lawyers.  There are legitimate reasons for the secrecy around them, but at least their decisions are publicly announced and available.  Sometimes there are written opinions.

One would think that there would be statistical studies of appellate court decisions, and there are a few pertaining to the SCOTUS, but by and large there are none for other appellate courts.  Which is too bad, since studies of that kind might demystify the appellate process in a healthy way.

In any case, noting the absence of professional statistical analysis, years ago I undertook an informal statistical survey of one appellate court.

Here’s one interesting tidbit:  on relatively rare occasions a prosecutor can appeal a lower court ruling.  When he does, his success rate in having the lower court ruling reversed turned out to be about 50%.

That doesn’t seem unbalanced at all, right?  He loses as much as he wins on appeal.  Seems fair.

Until you compare that with the success rate for criminal defendants.  It was about 1%.

Put another way, the prosecutor’s success rate was about 50 times higher than his opponents’ on appeal.

What happens in appellate courts eventually governs what happens in trial courts.  That’s the idea, anyway.  And the experience of lawyers doing criminal defense at the trial level is entirely consonant with the informal statistical study of appellate courts I did years ago:  50 to 1 odds against you feels just about right.

Jacobs’ and Beeson’s views, at this point, cannot be effectively challenged in the courts themselves.  They are axioms.  And they will remain axioms unless and until something changes from outside.

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Filed under Judicial lying/cheating, Striking lawyers

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