Judges - Constitution or Not?

Judges -- Constitution or Not?

B29 [16] "As Judge William Cranch wrote, courts have a duty to decide the legal issues before them 'undisturbed by the clamor of the multitude.' Often that includes protecting the rights of various minorities -- political, racial, and ethnic. Unlike legislatures or executives, courts are not expected to gauge public opinion by resort to focus groups or public opinion polls before making their decisions. Judges are expected to enforce the law, whether it be the First Amendment of the radical right or the radical left to publish the Pentagon Papers, or the right of a suspected child molester to a fair and impartial trial.

"The greatest threat to the rule of law comes from those judges who remain in courts, but refuse to enforce the law in instances when an unpopular outcome could jeopardize their careers. Once a judge compromises his or her oath by refusing to enforce the law in order to stay in office or advance to a higher court, both the judge and the court are irreparably diminished.

"The overall quality of justice is affected when courts are composed of judges who seek to produce certain results."

A3 "We have witnessed a subversion of the very idea that criminal defendants have rights. The blindfold that Lady Justice is supposed to wear to assure that cases are decided with indifference to the outcome have been shredded. Now, as a matter of law, judges are supposed to peep through the blindfold, survey the outcomes which their rulings would produce, and tip the scales to avoid unwelcome outcomes, most notably the releases or even the re-trials of guilty-looking perps."

Judge Paul Czajka certainly lived up (or perhaps, down) to this latter yardstick.

B9 [308] "Courts have a duty to protect the rights of minorities -- political, racial, ethnic -- no matter how [309] unpopular their rulings may be. Legislators or executives may base their decisions on focus groups or public opinion polls, but judges may not. Judges are expected to enforce the law...As Edmund Burke put it, the judiciary serves as a 'safe asylum' during times of crisis."

[328] "The Bill of Rights is regularly denigrated in political discourse in the United States today as nothing more than a collection of technicalities. Someone needs to step forward and remind everyone that the procedural guarantees of the Bill of Rights are fundamental principles that distinguish the rule of law from the rule of the lynch mob."

G1 [147] "[A] judge should be ruling on a case based on the law, not polls. The founding fathers understood this and made federal judges appointees for life."

B5 [794] "[T]he sentencing decisions of some judges are a foregone conclusion."

[795] "The Bill of Rights guarantees an accused certain procedural safeguards, regardless of whether those safeguards are supported by popular sentiment at the time of the trial, in order to protect the accused from the passions of the moment."

[814] "As Justice Jackson wrote: 'The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'" *

[832] "[O]nly federal judges have the independence and job [833] security that enable them to enforce the protections of the Constitution when doing so would be vastly unpopular. If the Constitution is to serve its purpose as fundamental law that protects us from 'our baser selves' when there is 'a demand for vengeance on the part of many persons in the community against one who is convicted of a particularly offensive act,' ** its enforcers must be judges who cannot be swept from office for making a controversial decision.

"Justice Hugo Black once observed that '[u]nder our constitutional system, courts stand against any winds that blow as havens of refuge for [834] those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are. . .victims of prejudice and public excitement.' *** against such winds, Judge Paul Czajka's courtroom functioned as a veritable wind tunnel .

K10 [1351] "Over the years, a pattern has emerged where judges [1352] routinely engage in practices that violate the constitutional rights of defendants who come before them, and which run counter to the ethical conduct that we have a right to expect and demand from those empowered to engaged in critical decisions concerning the liberty of our citizens."

[1405] "As the Supreme Court stated in Bordenkircher v. Hayes:

'To punish a person because he has done what the law plainly allows him to do [i.e., insist on a trial] is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional."'"

The latter is precisely what Prosecutor Peter Torncello did, in lambasting Nickel for 'forcing' those boys to get up on the stand and recount what (supposedly) happened to them (as if they were defense -- as opposed to prosecution -- witnesses).

A11 [23] "Sometimes, state courts seem to deny defendants' constitutional claims reflexively...At other times, meritorious claims may arise out of distasteful facts. Unpleasant facts can sorely test a court's ability to exclude evidence based on abstract constitutional doctrine."

S54 [1483] "When I was a public defender in Philadelphia, I appeared before a judge who was known both for her fierce intelligence and the formality with which she conducted court.

"I loved this judge...She took judging seriously. She did not suffer fools gladly. She made you step up.

"Because this judge was also among the most fair-minded and thoughtful judges on the Philadelphia bench...[1484] she was known as 'defense-oriented.' When, after some years on the bench, she learned of her reputation, she was surprised and, at first, a little concerned. She didn't think of herself as defense-oriented; she saw herself as scupulously nonpartisan. Then she thought about it further and concluded that she was flattered. If this means that I ensure that a defendant is presumed innocent, the government bears the burden of proof, and the accused is given the benefit of the doubt, why, it's a compliment, she said. Our system of justice is built around protecting the rights of the accused. Judges are supposed to be defense-oriented.

"The problem is that most judges are not. Though most judges no doubt consider themselves evenhanded and impartial, they fail to recognize how skewed the system is against the criminally accused and how they play into the prevailing bias in favor of law enforcement. Deliberately or not, most judges have lined up with the law-and-order politicians in this country...who, unsatisfied with having the highest incarceration rate in the world...seem unconcerned about abridging rights in the name of security...Sadly, it is the rare judge who [1485] bends over backwards to ensure that the 'system-called-justice' comports with the principles underlying the Bill of Rights.

"In this essay, I argue in favor of so-called 'defense-oriented judges.' Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, we need judges who are truly neutral and disinterested. Instead of judges who actively assist the prosecution and handicap the defense, we need judges who, at the very least, allow the adversarial system to play out."

[1486] "I have been a criminal trial lawyer for more than twenty years, practicing mostly in state courts. I have defended the accused in four states -- Maryland, Massachusetts, New York, and Pennsylvania -- and the District of Columbia. I have appeared before hundreds of judges. Some of these do their jobs superbly, presiding over cases with wisdom, compassion, fair-mindedness, and humility. But far too many judges do not. Far too many judges preside over cases with an imperiousness that suggests they ought to be called 'Your Majesty' instead of 'Your Honor.' Far too many judges seem incapable of wisdom, compassion, and fair-mindedness.

"I am not alone in this experience. As Alan Dershowitz states,

'Lying, distortion, and other forms of intellectual dishonesty are endemic among judges. In my. . .experience in the practice of law, I have been more disappointed by judges than by any other participants in the criminal justice system. That is partly because I, like so many [1487] others, expected so much of these robed embodiments of the law...'" ****

[1488] "It is hard for many judges to resist the corruption of vanity and self-importance. Frankly, I can live with vanity and self-importance. It's unfairness, meanness, willful ignorance, and refusal to see things from anyone else's perspective that gets me."

[1491] "In contrast to judges who are basically 'robed prosecutors,' accepting improbable police accounts in order to sustain a questionable search or seizure, making rulings that ensure convictions, and putting offenders away for a long as possible, defense-oriented judges make sure that the government is put to its burden of proof."

Commentary/application to the Nickel case:

'Our system of justice is built around protecting the accused. Judges are supposed to be defense-oriented.' Could Judge Paul Czajka have possibly been any more pro-prosecution (without running a serious risk of Nickel's convictions being overturned)? He sought to re-direct the prosecution's entire theory of the case.

Commentary/application to the Nickel case:

'The sentencing decisions of some judges are a foregone conclusion.' That was certainly true of Judge Paul Czajka , who habitually sentenced those unfortunate enough to appear in 'his' court to the maximum possible.

'Only federal judges have the independence and job security that enable them to enforce the protections of the Constitution when doing so would be vastly unpopular.' Unfortunately, due in large part to restrictions imposed upon them by the so-called 'Anti-Terrorism and Effective Death Penalty Act (AEDPA),' many federal judges will go through their entire careers without overturning even a single state criminal conviction. (See Habeas Corpus section below.) Put another way, the AEDPA provides ample grounds (if such were even required) for a lazy and/or pro- prosecution judge to deny appellants any relief whatsoever. (And in fact, U.S. District Court Judges Thomas McAvoy and Randolph Treece , who 'heard' Nickel's federal appeal, have never issued a decision that resulted in the release of a state prisoner.)

'A demand for vengeance...against one who is convicted of a particularly offensive act': This most certainly applied to Nickel .

'Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are...victims of prejudice and public excitement.' In Nickel's case, rather than a refuge the case, simply in order to get the defense's proposed photography expert off the stand as quickly as possible, declining to allow him to testify as an expert. His rulings on objections overwhelmingly favored the prosecution; and even when he did ostensibly rule for the defense on a significant issue, he refused to actually enforce such rulings. When the prosecution was twice caught buryuing evidence helpful to the defense, he imposed no meaningful sanctions or remedies. And, last but not least, he took all of two minutes to 'deliberate' his verdicts, convicting Nickel of serious offenses that simply (and quite obviously) never happened. (See Judges -- Pro-Prosecution section immediately below.)

'We need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them.' Instead of putting the government to the test, at every opportunity, Czajka let it off the hook . As our analysis of Czajka's Interjections during trial demonstrates, he was quick to save prosecution witnesses from embarrassment, as well as cause embarrassment to defense witnesses.

'Instead of judges who are nothing more than rubber stamps for prosecutors, deferring to prosecutors at every step...': Several times during trial, Czajka asked the prosecutor to clarify a legal issue; not once did he ask such a question of the defense attorney. Czajka also gave the prosecutor numerous 'opportunities' to save the count regarding 'Chris,' who failed to testify about anything sexual occurring whatsoever.

'Instead of judges who actively assist the prosecution and handicap the defense...': Our analysis of Czajka's Interjections demonstrates that, in 9 out of the 10 times he interrupted in a substantive way, it functioned to assist the prosecution or handicap the defense.

'Far too many judges preside over cases with an imperiousness that suggests they ought to be called "Your Majesty" rather than "Your Honor."'

'Lying, distortion, and other forms of intellectual dishonesty are endemic among judges.' The phrase 'intellectual dishonesty' immediately brings to mind Czajka's bizarre questioning of the defense's proposed photography expert regarding the 'issue' of whether the latter could say what Nickel 'looked like' at the time the sex photo was taken. The reason why this was so deeply dishonest is because Nickel only had 'away visits' with 'Arthur' for a very short period of time -- about a month. This was far short of the time that would be required for any of his physical features (which this expert used to exclude Nickel as the adult depicted in the photo) to have substantially changed . But this was all really just a ruse, to get this proposed expert off the stand as quickly as possible.

'It is hard for many judges to resist the corruption of vanity and self-importance...[but] it's unfairness, meanness, willful ignorance, and refusal to see things from anyone else's perspective that gets me.' 'In contrast to judges who are basically "robed prosecutors"...: At numerous points in the Day One and Day Two annotated trial transcripts, we note how Czajka functioned as a de facto second prosecutor. Initially, we had thought he was rather unique in this respect. But perhaps not.

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* West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

** Furman v. Georgia, 408 U.S. 238, 344-45 (1972) (Marshall, J., concurring).

*** Chambers v. Florida, 309 U.S. 227 (1940).

**** [FN16:] Alan Dershowitz, The Best Defense xvii (1982).