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A modest proposal for fairer criminal court proceedings

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Early on in my criminal defense career, a colleague spoke of three kinds of judges: Those committed to justice; those who just want to move along dockets; and prosecutors in robes. I add to that judges who are not qualified to be judges in the first place, and those who act on racist, sexist and xenophobic feelings. Judges being humans, they may have a combination of one or more of these traits at varying times and depending on the situation at hand.

Appellate courts generally overlook or sanitize the foregoing considerations by leaving a huge universe of decisions to trial judges’ sound discretion. In criminal cases, this sound discretion universe includes bail, deciding witness credibility, control of trial procedures, evidentiary decisions, and sentencing. Trial judges know that those convicted at trial (other than misdemeanor convictions in jurisdictions that then allow a trial de novo at the next highest trial court) are more likely to appeal than are losing civil litigants, which perhaps makes some or many judges more mindful of conducting an appeal-proof trial in criminal cases than in civil cases.

Whether appointed or elected, plenty of judges are elevated to the bench not because they are the most qualified — and judicial salaries deter plenty of qualified candidates from being willing to be judges, when they can earn plenty more in the private sector — but because they have the right political connections or have other political deftness. Based on all the considerations listed herein, the cold four corners of a trial transcript will not automatically reveal a judge’s failure to exercise sound discretion.

Even when an appellate court identifies a clear error by a judge, the appellate courts ordinarily proceed to analyze whether the trial judge’s error was harmless. For instance, yesterday, the District of Columbia Court of Appeals issued an amended opinion finding error in the trial judge’s prohibiting cross-examination into a witness’s potential bias towards the prosecutors whose office was prosecuting the witness in a separate matter, in his possible hopes of leniency as a result of his testimony for the prosecution. McClary v. U.S., ___ A.2d ___ (D.C., Aug. 18, 2011). McClary is a good case to pull out to argue in favor of leave to conduct robust cross-examination. Nevertheless, at the end of the day, McClary found the trial judge’s error to be harmless, and affirmed McClary’s conviction anyway.

What can we do to have fairer criminal trials and proceedings, in the light of the foregoing considerations? Here are some brief ideas:

– Criminal defendant should always have the right to a jury in all criminal cases, whether jailable or not. Criminal defendants should also have the sole right to waive a jury.

– Prosecutors should be more active and careful in screening prosecutions at the front end, to decide whether the prosecutions should proceed forward, and to decide which counts should proceed forward. In Maryland, court commissioners regularly issue criminal charges on the mere sworn statement of laypeople about such misdemeanors as assaults. In all jurisdictions where I practice, many common misdemeanor prosecutions can start by a police officer’s issuance of a citation without even needing the review of a judicial officer. However, prosecutors will not have adequate funds to do such careful screening before we shrink the criminal justice system, as discussed below.

– We will have a fairer, less expensive, and higher-quality criminal justice system by shrinking the system, through such approaches as legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per se blood alcohol content guilt-based rules in drunk driving prosecutions. By doing so, we will have a more manageable and less expensive criminal justice system that can focus more on doing true justice.

– Should judicial salaries be increased to attract more qualified candidates who would otherwise prefer higher pay in the private sector?

– As to leaving a wide universe of decision making to the sound discretion of trial judges, reducing such discretion could be a double-edged sword depending on who is the appellate judge. If the appellate judges would all be more favorable to the criminal defendant than the trial judge, of course I would wish to curtail the universe of decisions left to the trial judge’s sound discretion. However, that is far from always the reality.

– Appellate judges should be very careful before finding harmless error. It is best to err on the side of not finding harmless error than to do the opposite.