A reader asks:
"Doesn't it wear on you to make good arguments and have them rejected by judges who don't want to rock the boat?"
Well, to begin with I must say that with the possible exception of DUI law I cannot say that I've seen judges afraid "to rock the boat."1 Most judges are trying to do justice. I find that if I make solid, rational arguments before them (which I make citing case law with the cases in a file in front of me) that after a while they start to listen. They often do not agree but they listen because they realize there is a rational basis for your argument. Heck, after a while even some of the prosecutors will listen to you if you've been making good solid arguments.
Of course, there will always be Judge Smith in the city of Whatsitsname who's been sitting on the bench for well-nigh unto 30 years and doesn't want to hear you tell him that his understanding of the law is wrong (even when it most definitely is). I'd like to tell you that the appellate courts are there to fix this but I'd be lying. The appellate courts will reign in the worst of the worst but if the matter is close the deference given to the trial judge will beat you every time. A competent trial judge who does not want to be reversed knows better than to give the Defendant much of anything to work with. He won't explain why he's overruling your motion or making a particular finding; he doesn't have to. Then the appellate courts can pick thru the record and find the facts and theory most favorable to his finding and construct a defense of it. This is why those judges who explain their decision making process on the record are the ones who deserve our greatest respect because they are willing to stand by their decisions and not game the system.
Anyway, to get back on point, there's not much you can do about Judge Smith. You fight the good fight, develop a shell around your heart which keeps most things from bothering you too much, and bitch and whine like Hell to another Defense attorney after the trial about the absolutely insane decision that hang-em-high Smith came to today. Then the next day you have a trial in front of a different judge in a different court and you realize how good it is to practice in most courts where a judge will at least listen to your arguments.2
In the end I guess it all breaks down to self respect. If I have a serious issue but know that Judge Smith is going to ignore everything I say and rule the way he has on the last 25 cases of the same charge, I could slack. But then I'd be scum. And I don't like the idea of being scum. So I try my best to always provide the best argument I can. I know that most of the time it isn't going to work but that doesn't relieve me of the responsibility.3
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1 I have definitely gotten the feeling that some small minority of those on the bench worry about making DUI decisions which mitigate Virginia's draconian DUI laws because they will eventually have to go in front of the Legislature and explain those decisions if they want to keep their jobs. It is a flaw of having a judiciary which is a creature of the Legislature.
2 At this point I have to say a word for those out there who are PD's and get assigned rotations so that they are stuck in front of Judge Smith every day for 6 months. Or worse, they work in a county where Smith is the only judge. These people are yeomen and deserve our respect and/or pity.
3 Before anybody thinks I am trying to sound noble here let me say that nothing could be further from the truth. I just like to be able to wake up in the morning with the least guilt possible in my soul.
Poetry Ken. Damn refreshing to find blogs like yours. Thanks,
Speaking from the lofty heights of the appellate clerk I used to be, we were often frustrated in reviewing an appeal from "Judge Smith" types because the defense attorney had not preserved for appeal an issue that could have justified reversal.
With the best will in the world, the appellate judge cannot make bricks without straw. It has often been said that one tries a case differently if one plans to win at trial, than if one plans to win on appeal -- in the latter instance, one will go ahead and skeeve off the judge by making frequent objections & motions. Procedural waiver is also probably the biggest single reason for denying habeas corpus petitions.
Also, it helps if it is clear why the error the judge made actually affected the outcome of the case. You'd be suprised by how many defense attorneys don't bother to explain why the problem they want solved matters.
You are right that often things are not preserved at trial. I like the reasoning you give for why they are not preserved as well. Although, I must admit that even if I know that there's no way I'm winning at the trial court level I prefer to preserve one or two of the strongest arguments rather than object every couple minutes over some minor error.
However, for my point assume a well argued, well briefed objection, with supporting evidence at trial. If it looks like the argument is close but that the Defense should win a "Judge Smith" can find for the prosecution and then not give any explanation. Then, if the Defense attorney tries to get a reason he says something like "The facts speak for themselves."
I'm curious to know more about your DUI laws, and what about them you find draconian. I'm a new traffic prosecutor, and am only familiar with Illinois law.
Fantastic blog you got, I will be soon to check out your newest posting. In the mean time I have a blog/website you might enjoy.
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