Of course, in any lawyer/client relationship the people involved will determine who makes the decisions.  However, in criminal cases there are two main decisions that only the client can make—

1.  The decision to plead guilty or to demand a trial.  Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not.  Therefore, he should be the one to make the decision to plead guilty.

Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense.  It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.

2.  The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury.  This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.”  Therefore, the defendant makes this decision.

In my many years of representing defendants, I always give them these decisions.  Often, a client will ask me if they should plead guilty or not—requiring me to make the decision.  I’ve never done that.  I always force them to confront the case and make the decision.  After all, they know if they’re guilty or not—I never know for sure.

When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant.  For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court.  He was facing a life sentence without parole—he’d never get out of prison before he died.  He was the accomplice in a brutal, senseless execution of two people who were robbed for money.

When he asked me about a jury or a judge, I suggested that he consider going with a judge.  I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders.  A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.

My client agreed, he waived a jury, and we tried the case before a judge.

The judge found the young man guilty but of a reduced degree of homicide.  He still had to go to prison but only for about eight years.  In that case, the defendant’s decision worked to his benefit.

On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.

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If you’ve ever been in one, you’ll remember they’re usually big.  The design is formal, barren, and plain.  The judge always sits on a raised desk behind a solid slab of granite.  The judge also wears a black robe.

Obviously, all the trappings project power and stability.  When I was a young lawyer, it sometimes bothered me that the judges used these trappings of power as if they were their own.  As I got older, I realized how important these symbols were and it didn’t bother me as much.  Because even the most violent of men would become calm when they entered the courtroom.  It was an amazing transformation.  Why?  Because of all the symbols of power and control.

Which brings us back to the robes.  In Minnesota where I practice, the judges wear a plain black robe that is pleated at the shoulders and hangs down below the knees.  It has a V-collar with a zipper front.  There’s no other ornamentation on their robes.

Some of the first robes for the judiciary were recorded in paintings by the Spanish master, Velasquez, in the 1600’s.  He painted judges wearing either black or red robes.  In the 1500’s in England, judges not only wore robes, they also wore long wigs.  Even today, in Great Britain, the judges still wear wigs in criminal trials and the lawyers wear the smaller wigs.  In Italy and Portugal, both judges and lawyers wear robes in court.

Interestingly, in China up until 1984, judges wore street clothes—perhaps a result of Mao’s efforts to bring everyone down to the same socio-economic level.  In 1984, they changed to clothing that resembled a military uniform.  (Scary!!)  Since 2000 the Chinese judges now wear black robes.  It’s also interesting to note that since 2000, the Chinese have consulted with many Western courtroom experts and law professors to try to make their system more like the Western courts.  That’s another subject for a blog in the future!!

So, what do judge in the U.S. wear under their robes?

Most are quite formal and wear white shirts with neckties or blouses for female judges.  Sometimes, in the summer, a judge will wear a golf shirt or a t-shirt and put the robe on over these items.  When they’re on the bench, it’s hard to tell they’re dressed so casually.  Then, there’s the story of a female judge I once saw running for the elevator on a hot summer day.

The judges had parking privileges in the basement of the Government Center where the courtrooms were located.  They could park underneath, take a back elevator, and come around behind the clerk’s desks to reach the elevators to their courtrooms.  I was walking in the opposite direction one afternoon when I saw a female judge hurrying from the parking lot.  She had bare legs, sandals, bare arms, and a bare neck under the V-collar.  She ran past me on her way to the elevator.  I’ve often wondered what she was wearing—-if anything—under her robe that day.  It sure looked suspicious!

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1.  One day I came into a judge’s chambers while his clerk rushed out.  He told me that he had to pick-up the judge’s shirts before the laundry closed.  As I got inside the chambers, I found the judge sitting in his chair.  The other law clerk circled the judge as she clipped away at his hair.  At least he wore his black robe to keep the gray hair off of his clothing.

2.  One hard working judge was notorious for the long hours he kept.  And he expected his staff to do the same.  When his law clerk started into labor to give birth to her second child, the judge called her on her cell phone.  He had a question about a pending case they had been working on.  She wouldn’t take the call!

3.  Another judge worked equally hard.  He’d been discussing a sticky legal issue with his law clerk.  The talk went on for over two hours.  When the clerk protested that she had to go to the bathroom, the judge delayed her for another half hour.  She finally jumped up and insisted it had now become an emergency.  She hurried out of the chambers.  The judge followed and kept talking.  It was only when she got into the bathroom and forced the door shut—that the judge stopped talking about the case.

4.  An older judge was known for his frugality.  When smoked was still allowed in the courthouse, the judge smoked several cigars through-out the day.  That was bad enough, but since he was so frugal he smoked the cheapest cigars.  And he always smoked them down to less than a half inch in length.  Many of the dead ones were always spread out in ashtrays.  He refused to let the cleaning people through them out because the judge may get a few more puffs out of each one.  I dreaded working with him in the afternoon because clouds of stinky smoke always gave me a headache.

5.  Two judge had an affair.  It became well-known around the courthouse.  I remember trying to talk with one of them, and the male judge came into the chambers.  The female judge kicked all of us out and shut the door.  We could hear giggles coming from inside the room.  They got toghether about three times a week for their fun. One day, when the female judge was assigned to a surburban courtroom, she took a break in the proceedings.  As she sat in the second floor chambers with a few of us lawyers, we could hear the sound of stones hitting the window behind her.  We looked out and saw the male judge on the ground, tossing stones up at the window to get her attention.  When he saw us looking at him, he blushed, waved, and had the strangest smile on his face!

6.  Here’s one judge’s behavoir that was so bad, the case was thrown out.

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In Minnesota, as in many states, the state court judges are elected.  The constitution of the state requires this.  However, if a judge retires before his term is finished the governor may appoint a new judge to fill the spot.  The federal courts are different.  Under the U.S. Constitution, all federal judges are appointed for life by the president.  We’ll look at the state system.  That’s where the controversy starts.

It sounds so democratic.  The judges selection process depends on the votes of the public.  Then why are respected commissions recommending that we trash the system?  And instead, rely on governor’s appointments only?  No more elections.

What are the pros and cons of each judges selection criteria?

Let’s look at elections first:

Benefits

• Minnesota constitution requires it
• It’s an open, transparent, and fair judges selection process
• The widest group of citizens can participate and choose

Problems

• Most voters are uninformed about the candidates
• Low turn-out so that a small percentage of the public has the power to elect
• Money in judicial campaigns may influence voters to elect a one-issue candidate.  He may be totally unqualified

Let’s look at the judges selection and appointment process:

Benefits

• A panel of experts checks-out each candidate prior to getting the job
• The best candidates would be recommended to the governor
• It’s still a fair judges selection process since any lawyer may apply to the panel for consideration

Problems

• There isn’t any voter input
• The process may become politicized depending on the candidate’s connection to the sitting governor
• It’s undemocratic and is controlled by an elite panel of people
• It may be influenced by financial contributions to the governor who could ignore the panel’s recommendations

With these problems, why are so many states looking at changing the judges selection process?  And instead rely only on a panel’s recommendations for appointments?

One issue candidates in several states have mounted expensive campaigns.  Many have won seats as judges in elections.  For instance, people who are anti-abortion may get behind a candidate for that issue only.  They put lots of money into the campaign.  Since voter turn-out is typically low, it only takes a small group of determined people to vote in their candidate—even if he’s unqualified in every other respect.

What do you think?  To change to an appointment process for judges selection, would require amending the constitution.  Are you afraid of one-issue candidates taking over?

The post The Truth Behind Judges Selection appeared first on Colin T. Nelson.

Why do judges wear robes?

Our law descended from English law and practice.  Originally, royalty wore robes of distinction to make them, well, distinct.  In an effort to emulate royalty and distinguish themselves, judge began to wear robes also.  They weren’t as fancy as royalty, but they let everyone know the judges were somehow special and distinct from other professions like blacksmiths, fishermen, and farmers.  And judges, who are also lawyers, are often happy to express their egotism in any fashion!

But why continue the practice in modern day?  Are they hiding something under those robes?  Golf shirts?  Zuba pants from the 80s?  Nothing?  I remember one hot summer day when I crossed the public area of our local courthouse, I saw a female judge coming in from the parking lot.  She wore a short black robe but her legs were bare, her arms were bare, and her neckline was bare.   With an odd smile on her face, she raced past me.  What did she have on underneath the robe she wore?

When I was a younger lawyer I often resented the pomp and circumstance of the elevated bench and the black robes.  In fact, we often used the expression, “black robe disease” to describe those judges who became arrogant and let their position and power go to their heads.

As I’ve gotten older, I’ve come to appreciate the value of the ritual and the black robes.  Some of the goals we want in a judicial system are a calm, non-violent, unemotional, and deliberative atmosphere in order to make fair decisions.  The rituals and the robes do a lot to create that setting.  I’m constantly amazed when extremely violent offenders come into the courtroom, they quiet down and are respectful of the person sitting high above them. cloaked with a black robe around their shoulders.  Very seldom have I seen defendants argue with a judge or even question the rulings.

The ritual and robes certainly help with this.  Even those defendants who are sentenced to life imprisonments by a judge, nod, maybe cry a little, and accept the ruling without argument or violence.  Amazing!

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