Monday, January 11, 2016

Our "Justice" System, Part II

More people whose behavior contributes to the problem.


I rather like judges in the abstract. I generally favor broad discretion for judges acting on the cases before them. In the particular, though, judges can be problematic.

Judges start out as lawyers, and this often leads to problems. During their lawyer experience, judges often develop biases. Most lawyers, especially in urban settings, tend to work in narrowly defined areas of law. Criminal lawyers (no jokes, please); property lawyers, business lawyers; family lawyers (usually divorce lawyers); tort lawyers; banking lawyers. Many, upon being elevated to the bench, are assigned to work within the area of their expertise. I’ve seen this work both for and against clients.

If a bankruptcy judge worked for banks as a lawyer, he will tend to favor banks as a judge. He or she is liable to view all debtors as deadbeats. If the judge worked for debtors as a lawyer, he is liable to favor them as a judge as well. A judge who had been a criminal defense lawyer, or a Public Defender, he will probably be skeptical of everything the prosecution does and lend a sympathetic ear to criminal defendants and their lawyers. If a judge had been a prosecutor, a District Attorney, she will almost certainly treat criminal defendants as obviously guilty, because why else would they have been arrested and charged in the first place? Judges can rise above these attitudes, but this kind of prejudice is often apparent.

Judges are afraid of being overturned on appeal. There are two main ways for a judge to further his career: 1) ruthlessly clear cases from his calendar by dismissing cases; and 2) have a low record of being overturned. These things often work together.

A judge will carefully weigh the power and resources of the parties before him, and he will often decide a matter on the basis of what is best for him. Any time I said, “Frederick Ceely for the plaintiff, your honor,” and the other lawyer said, “Robert Miller (not a real person) for Gibson, Dunn and Crutcher appearing for the defendant,” I was in danger of losing, irrespective of the law and the facts. This is because the odds are that my client cannot afford to mount an appeal or a writ if we lose, while the defendant that can afford Gibson, Dunn can afford it and they will almost certainly file it. Gibson, Dunn has an appeals section for that, and they get paid, big time. If I lose, the judge is safe; if the other guy loses, the judge is in danger of being overturned. For many judges, this is an easy decision to make, and justice is not served.

God forbid the other lawyer should introduce herself as, “Jane Barton, appearing on behalf of the United States of America.” Those lawyers had resources, they’d appeal everything, right up to the Supreme Court if necessary. Judge just surrender and give them the ruling.  Small fry get pushed around, and they get pushed straight off the calendar before they know what hit them.

This works with the dismissal of cases, too. Dismissals on the pleadings most often happen when the targeted lawyers and their clients have meager resources to fight back.

Recall that judges were once lawyers, so it’s easy to believe that no judge ever believes a word that comes out of a lawyer’s mouth. They lied when they were lawyers; now they assume that all of the lawyers appearing in their courts are lying too.

Most do not like the guidelines, etc, with which the legislatures have saddled them, but many feel like it makes their jobs easier. Less work; someone to blame if something goes wrong; less emotional involvement.

I remember many good judges, men and women that I respected and in whose courts I felt safe that we were going to get a fair hearing. I also remember very well a large number of black robed devils who wreak havoc on a daily basis without a passing thought to justice.

Judges are just men and women, after all. Geniuses among them are rare, as they are rare among lawyers in general, or people in general for that matter. They do the best that they can, if you are lucky, but often that best is not very good and the only “best interest” that they serve is their own.


Disclaimer: I am a lawyer myself. I am admitted in the State of California, and in two of the Federal District Courts that are located in California. I claim no distinction for myself, but I will admit the status.

I worked in the trenches for twelve years or so. I made countless court appearances, most of them for matters of civil law and motion or bankruptcy hearings. Some trials, some arbitrations, some mediations. A couple of score of depositions. Sometimes I was even a party to the case! It was never a good fit for me, a bit too stressful. After ten years or thereabouts I realized that according to the published code of ethics it was often an ethical violation for a lawyer to tell the truth. Lawyers can often be sued for telling the truth. That was one of the last straws for me.

I was substitute teaching there for a while, looking for an alternative, and one wise guy in an eighth grade at some Jewish school asked me, “so, you’re a lawyer, that means that you lie?” I told him, “well, I try never to say anything that is actually not true out loud, but I do refrain from saying things sometimes, or try to spin them away from the question.”

Of lawyers, one hears the most complaints, and the most unhinged complaints, about “plaintiff’s lawyers.” This is a misplaced criticism. Plaintiff’s lawyers represent ordinary people in their struggles against insurance companies, soulless corporations, medical providers, and other predatory entities. Good for them. Criminal defense attorneys get a bad press too, but honestly, they are not “trying to get guilty criminals off.” They’re trying to get ordinary folks a fair hearing on the merits. Usually the best that they can do is prevent someone from being railroaded into a bunch of extra years. The best that they can usually do is get a guy two to five instead of seven to ten. No, the real abuses by lawyers happen on the other side, the prosecutorial side.

I have often said that a prosecuting attorney is someone whose job it is to put innocent people in prison. “Innocent” is not a word that I use frequently, because in our world of reality only tiny babies are truly innocent. What I mean here is that if a prosecutor is handed a case by his boss, and upon reviewing the file and doing a little bit of investigating he realizes that there’s no way in Hell that the guy did it, he’ll go ahead and try the case anyway. He’ll do his best to put the fellow in prison for as long as he can. It’s his career, after all. All prosecutors will describe this phenomenon in the same way: “it’s not my job to judge him; it’s my job to present the state’s case against him.” See? It’s that evil jury that puts him in prison, not the poor, humble prosecutor.

Prosecutorial excesses are all over the news these days. The legislatures have criminalized everything, so there’s always a laundry list for prosecutors to charge. And they charge defendants with everything under that sun. So the choice for a criminal defendant goes something like this. “You’re looking at a total of 228 years in prison if you are found guilty of all charges, or you can plead guilty to (something) and get only seven years.” What would you do? I’d take the seven years myself. Our prisons are full of completely innocent people who accepted the logic of this system.

I suppose that the real contribution of lawyers in general to the demise of our criminal justice system is that being reasonable when performing any function involving the legal system is just not possible. Everyone fulfills their role, with all of the contradictions and ethical shortcomings that it entails.

Or, they retire from the practice of law, flee to a developing country, and teach American law at a foreign university.  That’s what I did, and I’ve never regretted it.


Let’s put trial witnesses into three categories: regular folks; experts; and police. All three types represent an endless parade of mischief makers.

Trial courts try to discover what happened at some past date and time. This is never easy, since none of the professionals involved in the trial was there when it happened. Not the judge; not any of the lawyers; not the police that may be involved. Regular people who have seen something, or heard something, which might be useful as evidence, are invited to appear at the trail and answer lawyers’ questions about their experience. This most often produces testimony that is a hot mess.

Witnessing is hard. Many witnesses tell the truth, as best they can, but what they may have seen was almost certainly a shocking event. That will interfere with their perception of it, and their memory of it. Even a pretty run of the mill event is hard to describe, afterwards.

I witnessed a car accident one time. Not a criminal matter, but illustrative. My desk overlooked a busy intersection, and while I happened to be looking an accident occurred that involved about five cars, maybe six. I had been a lawyer for many years already, and had worked on numerous car accident cases. My eyes were on the event for the entire time. But I’ll tell you, when a bunch of cars start bouncing off of each other and spinning around, it’s very hard to recall accurately just who did what to whom. I made a diagram immediately, assigning fault to designating “Car Number One,” etc., in the manner of California police, and I showed it to my friends in the office. They could see where the cars where after it had all settled down, right out the window, and yet my diagram made little sense to them. How was it possible? I was a very qualified witness, but hardly credible, because it all seemed so unlikely.

Regular folks are often telling lies, too, let’s bear that in mind. They’re trying to help someone, to help the defendant in a criminal trial or the plaintiff in a tort case. It happens.

And police! I would never believe a word that a policeman said as a witness in a criminal case. No, believing them would be stupid. For one thing, they’re trying to hang the defendant, and for another thing, they’ve been thoroughly prepped by the DA’s office and they’ll say what they’ve been told to say.

Same goes for the experts. When I listen to expert testimony, I only have one question: who paid you? They’ll testify to whatever is good for their client. Or else they’ll never work again, that’s for sure. Remember what a mess the experts made of the O.J. Simpson trial?

I used to wonder if court appointed experts could be trusted. They, after all, are hired by the judge, who is supposed to be neutral. Now I wonder, though. They want the judge to hire them again, so they’ll probably do what they think that the judge wants them to do. Shouldn’t be too hard to figure out. So let’s not believe them either.


The whole idea of a fair justice system seems like a mighty big demand to make on reality. It just seems like a terribly hard thing to set up, in the best of situations.

Whatever system one could come up with, it would be administered by mere humans. Wouldn’t that insure that the entire thing would go wrong in a hurry? In a New York minute?

When it has worked better than it works today, that was possible because society and the people involved had a sense of how difficult it was. They left a certain amount of slack in it. Sure, occasionally a guilty party went free, but the idea was that that was preferable to innocent people going to prison.

Now we have legislators mishandling criminal defendants to get elected; prosecutors going along for the ride, drunk with their own power; lawyers just trying to make a living; and a general public that is conditioned to live in fear of crime, terrorism and minorities. The results are mass insecurity and mass incarceration.

Now, regarding this mass incarceration, who can say with confidence that it is not a conscious program of imprisoning people just to take them off the voter rolls, permanently? Would you put it past those legislators?

The least that any of us can do is to try to consider these problems and take small steps to insure that we don’t assist those who are trying to make matters worse. 

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