Home » Blog » Criminal Defense » “Law and Order” Judges are to be Persuaded, not Feared

I knew a trial judge in my home state of Connecticut starting before he became a judge, and referred to him a few times to a family member as the “hanging judge”, because I was not fond to learn that he apparently was okay with the death penalty, which at the time was a rarity in the state (abolished there in 2012). My relative told the judge that I had asked if the “hanging judge” was in town, and he laughed in response. Was that a good natured laugh or a morbid one?

I was not fond when George Bush, II, nominated John Roberts as the Chief Judge of the Supreme Court. I am not aware of any prior conservative judicial nomination as masterful as this one. Chief Justice Roberts is solidly a conservative as judges go, with the courage to deviate from that when his conscience dictates. He apparently is not disingenuous, is brilliant, is good natured and means well, is widely well liked as a person, and seems generally to like people. He happily and personally handed out candy to trick or treaters on Halloween in his community up the road from me after ascending the bench. He is so young that likely will outlast many presidents as a chief justice. I never wanted him on the bench because of the case votes I expected from him, and still do not want him on the bench, nor do I want Justices Scalia, Alito nor Thomas on the bench. They are there, of course, four “law and order” justices, sometimes voting on the side I support. As for me, I am a civil libertarian who is not too fond of the Republican nor Democratic parties. Taking me away from any simplistic political label beyond civil libertarian, I have always agreed more with the Citizens United opinion conservative majority over the dissenters, knowing that substantial damage can come from giving so much power to money interests, but that the First Amendment would have been dishonored and damaged if the dissenters had their way.

Whether appearing before a seeming hanging judge, law and order judge, tyrannical judge, or prosecutor in black robes judge, a lawyer and litigant must make do with the judge they get, unless that judge changes one way or another, for instance if the court date changes and a different judge is assigned each time, or if the judge gets so busy that s/he asks another judge to step in.

Just as some justices who I do not want on the bench sometimes issue delightful rulings, so did Chief Justice Roberts open his recent dissent against another nail in the coffin of fighting criminal asset forfeitures, with delightful words, joined by Justices Breyer and Sotomayor (give it up for all three dissenting justices):

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense–the attorney he selects and trusts–by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.

Kaley v. U.S., ___ U.S. ___ (Feb. 25, 2014).

I figure that judges and their staff members are among my blog’s readers. Let them know that I see the potential for greatness in every judge, let alone for every human being. I make the best of it with each judge before whom I appear.