I once represented a guy charged with a sex offense. The case went to trial.
Right before the trial I acquired a lot of information about the alleged “victim”, also known as the chief complaining witness, including that she had an extensive psychological history. The details indicated that this person might have been quite unstable.
I worried that if she were cross examined the way I intended to she might harm herself. I called the ADA prosecuting the case to inform him of what I had learned, outlining these concerns, and suggesting that a conviction was hopeless and the risk to the victim didn’t justify proceeding. The “hopeless” part was an exaggeration, to put it mildly: obtaining convictions is ridiculously easy.
The ADA already knew about the psych history; I wondered when, if at all, he had planned on telling me.
But that’s not the point.
I subpoenaed the relevant psychologist. The ADA moved to quash the subpoena. We went before the judge on the day the trial was to begin, the day we would pick the jury.
The psychological information is privileged, said the ADA. Yes, the information is privileged, said the judge. I agreed. It was unarguable that if the witness invoked it, the privilege applied. But, if the witness invokes a privilege, I said, I am entitled to an instruction from the judge to the jury that the jury is allowed to draw what is known as an “adverse inference” regarding her testimony.
The judge refused to give the instruction, and precluded me from asking the witness anything about her psych history, so that she wouldn’t have to invoke her privilege in open court.
I made a big fuss, because I was right and he was wrong, and he was trying to screw over my client.
After a heated exchange in which voices were raised and the ADA didn’t really put up a fight, me being right and all, we ended up like this:
Well, that’s my ruling. If you don’t like it you can take an appeal.
What makes you think I am going to have to take an appeal?
Now, comparatively speaking this guy was not a bad judge. Not bad at all. He was smart and more friendly to me than many other robed overseers.
Which makes the matter all the more illustrative. To the judge, conviction is the natural and expected outcome of a criminal case. Consciously or not, he is guiding the proceedings to a conviction, because in some very deep recess of the lizard brain, he firmly believes that is where it is going. Everyone who matters agrees. I think they even expect that at some level the defense lawyer – who, let’s face it, doesn’t matter – agrees.
I’ve seen the look of puzzlement, bordering on panic, on the faces of the typical judge “presiding” over a criminal trial when the defense has scored a significant point that might result in an acquittal. They rebel at that result, as if by instinct.
I have referred to this as “judicial lying/cheating”, but that may be a little unfair. This is a complicated phenomenon. It’s occurring at a very deep, non-verbal, subconscious level.
We think of judges as being powerful because they make all these rulings, but in some important respects they don’t think of themselves that way. They see themselves as being pushed in this direction or that. And actually, it’s really only one direction they feel they are pushed in.
Some of them, the better among them, might even be grateful to be pushed in the opposite direction for a change.
We should accommodate them. Help them.
But not that guy in New Orleans. He beat up and jailed one of our colleagues. He was 100% wrong and our colleague was 100% right. He should suffer some opprobrium for what he did.