Dust Up In The Virgin Islands

So this judge in the V.I. deals with a lying prosecutor, tries to enforce a plea agreement and gets slapped down by a higher court.  He doesn’t like it, says so in a 31 page opinion and recuses himself from the case.  (H/T John Kindley at People v. State)

The reaction of many attorneys to this story is astonishing to me.

Over at Volokh, which is pretty much an attorney haunt, many commenters weighed in on the story with the idea that the judge was out of line, I guess for speaking his mind in an opinion.

Scott Greenfield’s take is very interesting, though.  He kind of likes what the judge did, but with reservations:

In this instance, some might say that’s a good thing.  But then, if Judge Kendall can do it here, what’s to stop another judge, ordered to dismiss an indictment against some notorious bad guy, from refusing to do so because the judge is certain that the defendant is guilty?

You always have to remember that the shoe can be on the other foot, and usually is.

Notably, Judge Kendall’s reaction, aside from providing his thoughts about the Supreme Court’s mandate that directed him to ignore Bethel’s misrepresentations and its own facile manipulation of the plea offer to make a contract a non-contract because, well, it said so, was to simply refuse to be the judge who did the dirty deed.  By recusing himself, it would be left to another judge to deal with the case, and the mandate of the Supreme Court would be done.  Just not by him…And Judge Leon Kendall no longer sits on the bench to call out liars, cowards and sycophants of the prosecution.  The system is back to working the way is was meant to work.

 

As I sometimes do, I’m trying to think this through.  Okay, what’s good for the goose is good for the gander.  If a judge can pull the system’s plug because of unfairness to a defendant, another judge can do the same because of unfairness to “the people”.

Is that really true, though?

I mean, it might be true in practice.  But it is not true in theory.  The reason is that “the people” have no “rights” in a courtroom.

I’ve often heard prosecutors claim that “the people” have a right to a fair trial, or a “right” to this or that or the other thing.  This represents a profound misunderstanding of the whole system.  It would not be wrong – in fact, it might even be obligatory on some level – to bring such a prosecutor before disciplinary authorities due to fitness concerns, or at least to be re-instructed on the proper nature of the system and his role in it.

In other words, a judge might have to act defiantly in response to the abuse of a defendant’s rights, but he never has to do so in response to the abuse of “the people’s” rights, because the people have no rights to abuse.

That does not mean, of course, that some judge might not do exactly what Greenfield suggests, and make a big show of defying a higher court in favor of cops and prosecutors.  In fact I agree with him that it is likely:  pandering to DA’s and law enforcement would be far more rewarding to a judge.  At least in the short term.

But speaking for myself, I’d like to see this kind of thing out in the open more.  I’m not sure the LE establishment would win in the long run; in any case, I’m willing to find out.  It may be that their heavy handedness, their self serving sophistry, and their often cruel indifference to the suffering they cause, once paraded in plain view as a result of an open fight, would precipitate a correction going the other way.

And in the meantime we might see a far more robust, honest and meaningful system than the one we have now.

It’s a little distressing to me – and perhaps it’s because it hits a little close to home – that when a judge finally shows a little integrity and some balls, he gets at best equivocal and half-hearted approval from colleagues and the defense bar.  Defense lawyers may be feral cats who can’t agree on much of anything, but there comes a point where a reflexive contrariness is just destructive and stupid.

And the argument that it’s better to hang in there and hold the line enough so you get to keep your job and someone worse doesn’t take over breaks down at some point:

Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was under persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces unler Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the events proved, there is much truth in this also.

 

Socially, I don’t know when that point is reached.  But reach it we will, if on an individual level, or in an individual case, the utterly unconscionable is given a pass.