Judges - Pro Prosecution?

Judges -- Pro-Prosecution

C9 [1171] "Ample evidence...suggests that judges are often biased toward the prosecution. A large part of the bench is populated by former prosecutors. These former prosecutors often have difficulty shedding their former roles. Regardless of background, judges often form relationships with prosecutors who appear regularly itn their courtrooms, and many think of themselves as part of a 'law-enforcement' team. In addition, electoral politics drive many judges to more pro-prosecution positions. Some judges even campaign overtly on being 'tough on crime' or 'hard on criminals.' Actually innocent defendants tried before such judges are often led to believe, probably correctly, that they will not get the benefit of the doubt should they go to trial."

Judge Paul Czajka was (Columbia County) District Attorney prior to becoming a judge. Then, he went back to being DA. In reality though, he functioned as a prosecutor the entire time.

B5 [811] "Unfortunately, more than a few prosecutors who become judges continue to prosecute from the bench."

[827] "Appellate courts routinely defer to findings of fact of state trial judges, and review decisions of trial judges under the highly deferential abuse-of-discretion and clearly-erroneous standards on critical issues...[828] Federal courts, when reviewing state court judgments in habeas corpus proceedings, are required to give a presumption of correctness to findings of fact by the state courts. The notion that the trial judge, having observed the demeanor of the witnesses and heard all of the evidence first hand, is in a better position to make determination[s] of credibility forms much of the basis for the deference accorded the trial judge. This deference also rests upon the prevailing legal fiction that assumes [the] impartiality of judges. In reality, however, political considerations may be more important than legal principles or the demeanor of witnesses."

'Unfortunately, more than a few prosecutors who become judges continue to prosecute from the bench.' See Day One and Day Two (annotated trial transcripts), where we note numerous times when Czajka functioned as a de facto second prosecutor -- particularly where he re-directs Torncello's theory of the case concerning the sexual photograph.

'The prevailing legal fiction that assumes the impartiality of judges': It is, indeed, a legal fiction . (When asked for comment after being convicted, Nickel noted that Czajka doing so was "politically easier.")

D12 [473] "[P]erhaps the most reprehensible reason for the knee-jerk accreditation of police testimony is rankly political. Particularly in high publicity cases and major offenses (but not exclusively so), judges don't want to be seen as 'soft on crime.' Whether elected or appointed, state court judges in particular are subject to significant pressures from the press, the public, and from the political powers that be. There is nothing worse for a judge, ever mindful of the political future, than having her picture and name on the front page of a city tabloid, with the headline decrying a pro-defendant ruling. Even life-termed federal judges -- presumably insulated from such political pressure -- are not above such concerns."

Judge Paul Czajka was never in danger of having his 'picture and name on the front page of a city tabloid, with the headline decrying a pro-defendant ruling.'

G1 [154] "The ones that drive us [two long-time, high-profile California defense lawyers] nuts are the judges who are smart, know the law very well and understand how it should be applied, but seem [155] to have an agenda. They twist the law to reach a disingenuous result. Nothing upsets a defense lawyer more than a judge who pretends to be listening, asks a number of relevant questions that indicate he or she knows the law, and then issues a decision that is clearly not based on the law but rather on the judge's fear of being in the newspaper or alienating the D.A.'s office. The intellectually dishonest ones are the judges who drive us crazy. We would have a lot more respect for a judge who skipped the pretense and just called us to the bench, looked us in the eyes, and told us that he or she couldn't afford to find in our favor and have it backfire."

'Judges... who seem to have an agenda.' Is there any doubt that Czajka was such a judge?

'They twist the law to reach a disingenuous result.' Once again, the mental gymnastics Czajka performed in order to exclude the defense's proposed photography expert is a perfect case-in-point. Czajka proceeded as if the defense were permitted to even address who was depicted in the sex photo only because prosecution witness Ronald Bates had done so, thus establishing a (false) ceiling beyond which the defense was not permitted to go. But that 'twisted the law' beyond all recognition. In fact, because the identity of the persons depicted in the photo was central to the defense's entire case, it absolutely had the right to have such a person provide expert testimony. His pretensions re: there being no need for such expertise was belied by the fact that such experts routinely testify for the prosecution (i.e., in bank robbery surveillance photo cases).

K10 [1373] "A defendant may expect partiality from the prosecution, but it shouldn't have to expect it from the judge."

[1383] "When a judge feels that he is not accountable, then the arrogant abuse of power may flourish."

F3 [Second Circuit (NY) Court of Appeals decision discussing the case of Jesse Friedman, who was coerced into pleading guilty to child sexual abuse charges that many observers have come to regard as false:]

[150] "[A]fter [county court] Judge Boklan's threat [that if he went to trial and lost, she would sentence Jesse to the absolute maximum], [Jesse] told [his lawyer] that he wanted to plead guilty 'because he believed that if he went to trial he would be found guilty and would spend almost the remainder of his life in jail."

Judge Paul Czajka did sentence Nickel to the absolute maximum.

R11 [from Abstract:] "Drawing on a sample of 798 Ohio criminal justice professionals (police, prosecutors, defense attorneys, judges), the authors examine respondents' perceptions regarding the frequency of system errors...and wrongful felony conviction."

[459] [from Table 7:] "Perceptions of Four Types of Judicial Error

1-never; 3-infrequent; 5-moderately frequent; 7-very frequent; 9-always"

"Error resulting from judicial bias:

Police 2.90; Prosecutors 2.36; Defense Attorneys 5.07; Judges 2.69"

Whereas police, prosecutors, and judges said this happened less than infrequently, defense attorneys said it occurred moderately frequently. Also interesting is the fact that prosecutors were a bit kinder to judges here than judges themselves were.

"Error concerning admissibility of expert testimony:

Police 2.79; Prosecutors 2.54; Defense Attorneys 4.25; Judges 2.94"

Here, judges were actually a bit harder on themselves than police and prosecutors were. On the other hand, defense attorneys were the hardest of all.

[464] "Criticism of judges primarily revolved around personal bias, competency, and judicial pressure exerted on the plea-bargaining process. One defense attorney wrote,

'Most judges in my county are less than impartial in criminal cases. Individuals very often confess to a crime they did not commit because most judges will tell [465] the defense attorney they will max your client's sentence if they go to trial and lose.'"

S52 [673] [This Michigan study is very similar (including many assessment measures) to the Ohio study above.]

[from Table 4:] "Perceptions of Defense Attorneys and Judicial Error (Mean Responses):

Judicial Bias:

Police 2.69; Prosecutors 2.74; Defense Attorneys 4.97; Judges 2.65"

Similar to Ohio results above.

"Admissibility of expert testimony:

Police 2.61; Prosecutors 2.78; Defense Attorneys 4.83; Judges 3.09"

Again, similar to Ohio results.

U13 [522] "Unlike Guthrie...I do not think that the vast majority of trial judges are good or that most 'try to get it right but are occasionally influenced by their attitudes or deeply held beliefs.' Instead of neutral and detached jurists who fairly and impartially apply the law, a significant number of judges are 'bad judges,' whose strong biases and prejudices usually control [523] their decision making."

[525] "Like many students, I entered law school with a naive view that judges were generally men and women of even temper, great intellect, and wise judgment who discharged their responsibilities in an evenhanded, detached manner. The more I read, however, the more my perspective began to change. Working in a clinic during my third year of law school, in which we defended people charged with municipal ordinance violations, it became readily apparent that few judges measured up to my lofty expectations. I witnessed curious rulings, short tempers, and judgments that seemed totally at odds with the law or my sense of what justice required."

[528] "Prosecutors routinely offer inflammatory evidence or present irrelevant but damaging information in an argument knowing full well that the judge will rule the evidence inadmissible or even berate counsel for the argument. Yet prosecutors continue to offer such evidence and make such arguments precisely because they believe that exposing the judge to such information is likely to affect the judge's rulings or the final sentence."

[529] "A significant number of judges presiding in criminal cases were former prosecutors before taking the bench. Given the highly competitive nature of the adversary system, it is understandable that judges who are ex-prosecutors might find it difficult to referee disputes between their former colleagues in the prosecutor's office and their former adversaries on the defense side...[A] significant number of judges with prior prosecutorial experience bring a decidedly pro-prosecution attitude to the bench, and that attitude invariably influences their decision making."

[543] "Most judges, especially those with prosecutorial experience, presume that most defendants are, in fact, guilty, even though some are, in fact, innocent. This presumption of guilt, pro-prosecution perspective not only affects the manner in which many judges rule on motions, evaluate witnesses, and exercise their discretion, but it also affects the willingness of many judges to police law enforcement agencies and prosecutors. Judges tolerate sloppy police work because they do not want to be viewed as micro-managing the police. Judicial reluctance to let the guilty go free has meant decreased use of the exclusionary rule. Similarly, courts are hesitant to dismiss cases because of Brady violations or take other steps to reign in prosecutorial misconduct."

Commentary/application to Nickel case:

'A significant number of judges are "bad judges," whose strong biases and prejudices usually control their decision making.' Paul Czajka was such a judge.

'I entered law school with a naive view that judges were generally men and women of even temper, great intellect, and wise judgment who discharged their responsibilities in an evenhanded, detached manner.' Nickel himself went to trial with this same naivete. (See So Naive to Believe section of homepage.) Let us now analyze Judge Paul Czajka in light of the above qualities:

1) Even temper. He may be said to have possessed this re: the prosecutor -- indeed, to a fault . Tornicello's brazen defiance of court rulings met with little or no rebuke from Czajka. On the other hand, Czajka grew increasingly and openly frustrated with defense counsel's insistence that his photography expert be permitted to keep testifying. And then there's Czajka's conduct at Sentencing .

2) Great intellect. Czajka repeatedly asked the prosecutor about points of law, and completely misrepresented the law regarding production vs. mere possession of child pornography. He belabored an irrelevant 'point' concerning what Nickel looked like at the time the sex photo was taken, and appeared to be completely ignorant of the need -- and regular use -- of photogrammetry experts.

3) Wise judgment. Despite 'Arthur' being indisputably wrong about each and every detail regarding Nickel's home about which he testified, Czajka convicted Nickel of the most serious offense (which supposedly took place there) anyway.

4) An evenhanded, detached manner. Czajka's effective rulings on objections consistently skewed in the prosecution's favor (see Objection Analysis ), and he attempted to re-direct the prosecution's theory of the case regarding the sex photo (so that he could get the defense's proposed photography expert off the stand as quickly as possible).

'Prosecutors routinely offer inflammatory evidence or present irrelevant but damaging information...precisely because they believe that exposing the judge to such information is likely to affect the judge's rulings or the final sentence.' Prosecutor Peter Tornicello did precisely this to great effect with Judge Paul Czajka ; see Propensity section. (Moreover, Czajka also sentenced Nickel to the absolute maximum.)

W25 [133] "In several of the child sexual abuse cases in which we have been involved, judges have acted in a manner [Alan] Dershowitz describes as 'cheat elite.' This includes erroneous findings of fact which directly contradict documentary and sworn testimony...[134] A number of judges have been hostile to the defense and have consistently ruled so as to hamper the defense and facilitate the prosecution. In some cases facts introduced into evidence have been ignored and findings declared as if the testimony had never been presented."

It is as if the above authors actually attended Nickel's trial.