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May 18, 2005

Neutral Factfinders?

Judges should never apologize to the prosecution after delivering a verdict of “not guilty.”


Posted May 18, 2005 09:14 PM | 2L summer

Ha! I've seen that happen more than once. It makes it sound like the presumption of doing right is that the judge will find the person guilty, and if he finds someone not guilty, it is either an error or a personal offense to the prosecutor. If I were a prosecutor, it wouldn't make me feel any better to hear the judge apologize anyway. If he thought I didn't prove the case, then he made the right decision and shouldn't apologize. If he thought I did, then have the guts to say so. I don't need no stinking apology!

Of course, I was once in a jury trial where the prosecutor could not lay the proper predicate for introducing a photograph. This was a fairly new prosecutor, but still. It's not that hard. She could not ask the right question of the witness. Consequently, I objected when she offered the photograph. Sustained. She tried again--still not asking the right question. Objection. Sustained. So, what does the judge do? He calls us over to the bench and literally tells the prosecutor what she needs to ask the witness to lay the proper predicate! We return to counsel table. She still asks the wrong goddamned question! Objection. Sustained. This time, the judge calls us up to the bench, tells the prosecutor to bring a pen and paper and has her write down word for word what he says as he recites the proper predicate question. She does. Then, she asks the right question and the photograph is finally admitted. Now that's a neutral arbiter!

Posted by: txpublicdefender at May 19, 2005 09:11 AM

No takers so far, huh?

Maybe the judge was saying it in kind of a 'sorry you're so incompetent that an obviously guilty person got off' sorta way.

Posted by: Steve at May 19, 2005 08:35 PM

Ha. That's a sad sad story, txpubdef. Have you ever seen the judge help the defense that way?

I've seen maybe a hundred trials (give or take) and the judges (different judges) have apologized for a "not guilty" several times. I find it sickening. And rather than being a "'sorry you're so incompetent that an obviously guilty person got off" kind of thing, it's more of a "sorry you couldn't find something better to charge, but you just haven't proven the elements of this." Maybe that's not so different, but it happens when the person is not "obviously guilty" too.

Rather than apologizing to the prosecutors, judges should more often admonish them for charging irresponsibly. When I'm a defense attorney I'm going to seriously look into the pros and cons of filing a formal complaint every time a judge apologizes to my opposition after finding in my client's favor. It's not just annoying; it strikes me as a serious breach of professional responsibility. I guess I should look up the rules judges are supposed to follow, but if they're supposed to be neutral, they just can't do crap like this. And yeah, I know there are bigger things to worry about as a defense attorney, but it seems to me that pressing small issues like this be a little reminder to judges that you expect them to do their jobs and you're going to hold them accountable if they don't.

Posted by: ambimb at May 20, 2005 06:39 AM

in a trial i saw in AK, both the DA and the PD were only a year or so out of law school, and the judge helped the PD to lay the foundation for evidence.

but with the PD's schedules, it's easy for them to forget how to do it.

Posted by: monica at May 24, 2005 04:07 PM

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