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What would a criminal defense lawyer say to a judge if the lawyer’s words were immunized from fallout to the lawyer and client?

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Among the benefits of blogging is my having a productive place to talk about how to improve the judge selection and monitoring process; how judges can become better judges; and how judges’ actions tend to fall into combinations of judges upholding their oaths of office; judges chasing dockets to administer heavy time and financial burdens on the court, but too often at the expense of upholding their oaths; and judges who are prosecutors in robes.

It is not always possible or feasible time-wise, procedure-wise or fallout-wise for me to raise all my concerns to judges about their judging, although there are ways to productively do so to judges in court and in written court filings. One approach I have taken is simply to remind judges that if the legislature or higher courts have messed up to the benefit of my client, the only recourse for solving the mess up is through a legislative or appellate court fix, but not a fix in the trial court. Although judges frequently express irritation when a lawyer asks in court to revisit a matter upon which a judge has already ruled, sometimes a risk needs to be taken to diplomatically invite the judge to consider that his or her ruling was mistaken based on a mis-reading of the evidence or situation, or based on a mis-application of the law.

My National Criminal Defense College teacher Ernie Lewis this year boldly listed the top ten things he would like to tell judges at their judicial training conferences to which he never gets invited to speak. My top three favorites from Ernie’s list follow:

– " You do too see race when you make decisions." The goal must be to reach a day when we all are color blind. How many people have achieved being color blind?

– " You don’t really believe the police in your findings on motions to suppress." Judges seem to presume the honesty of police in an evidence suppression motion proceeding, even for those who know that too many police, being human (and the great majority of humans lie too often), are going to lie too often in court, or to guess in filling in gaps in their memories and police reports.

– " Don’t tell me you’re not thinking about your next election when you set a high bond." Judges and jurors must not consider the fallout from their friends, colleagues and employers from their decisions, and must completely and unfailingly follow their oaths as judges and jurors. How many judges and jurors succeed in not letting such considerations beyond their oaths craft their decisions?

Thanks to Ernie Lewis for sticking to his guns for true justice.