So a “not guilty” verdict in a criminal trial is always unexpected, always something of a miracle. Many, many obstacles have been somehow overcome on the way. It has become so difficult to do in practice that the process often wrongly defaults to conviction, no matter what anybody does. In turn, because convictions are so relatively easy to obtain, they have become more plentiful. The United States now has incarceration rates more than seven times higher than such similarly situated nations as Canada.
Criminal defense attorneys stand athwart this mega-trend by themselves. In each and every case they confront the formidable collective forces arrayed against them and try to hold them back, or turn them back. In so doing they have to fight the world. And as every criminal defense attorney knows, “the world” will most often include the judge.
That has to change, somehow.
Despite the cultivated mystery that surrounds the rules of law and evidence, the truth is that they are not that complicated or difficult to apply. Theoretically they should promote fairness and objectivity in trials, but in practice they fail. The right to confront witnesses is not very meaningful when cross examination is curtailed whenever it might be too “prejudicial” to the prosecution. The right to compulsory process means nothing when the judge will not permit the witness to testify. The right to a fair trial or “due process” can be easily defeated when a judge intentionally telegraphs his preferences to the jury, when the prosecution threatens or intimidates or arrests defense witnesses with the judge’s knowledge and indifference – or worse.
Even Justice Scalia has stated that a trial presided over by a “patently biased judge” is not due process. The fly in the ointment is that bias is rarely “patent”, and that makes matters worse, not better.
Why are judges biased? There are many detailed reasons, but they all involve power: submission to power, currying favor of those in power, fear of power.
And power is a game disfavored litigants cannot win precisely because as disfavored litigants they are, relatively speaking, powerless.
The problem is not new. After all, we have juries because judges’ impartiality is not trusted. But what has happened in the justice system and among judges in the last 30 or so years mirrors what has happened in society generally: power has become more rigidly determinative; more recalcitrant; more irrational and unreasoning; more self-satisfied; ossified; decadent; destructive. We can see this in politics and economics, but it is more pernicious in the justice system, which is supposed to be the remedy for the excesses of power in politics and economics.
Striking is resorted to by the weak, labor mostly. Lawyers in the United States, even criminal defense lawyers, don’t think of themselves in these terms. After all, those brave enough to confront the intimidating dynamics of a criminal trial representing the defendant have an inner strength, at least, over which they could rightly boast.
But collectively, socially, this has been a failing effort. Statistics, in this case, don’t lie. Moreover, it’s getting worse, not better. Fair judges are increasingly rare. For our part, we chide judges for not standing up to power; but in truth we do nothing to help them. We want them to walk the plank by themselves. We’ll pat their back and tell them they’re wonderful, but we’re so powerless ourselves that they would have to face any consequences alone and unprotected. And do not think for a moment that good judges are not afraid to cross the police for very understandable and practical reasons.
We’re literally outgunned; but even if we weren’t shooting back would be the wrong remedy. The answer, as Ghandi showed in the 20th century, is a paradox: become even more weak, more passive, until you find at the bottom of it all…strength. Defeat power the only way it can be defeated – with powerlessness.
That is why we fight. That is why we strike.