Judicial action can have wide-ranging consequences. Fairfax criminal lawyer discusses apt words from a colleague about what he wants to tell judges

Judicial action can have profound impact on criminal defendants and others. As a Fairfax criminal lawyer, I am blessed to know some of the best and most courageous criminal defense attorneys. They include Ernie Lewis, who is a past chief public defender lawyer in Kentucky who was one of my teachers at the 1994 Trial Practice Institute of the National Criminal Defense College. Ernie is a powerhouse of passion for criminal defendants whose low-key delivery makes his messages all the more powerful. Ernie posted this great list of the top ten things he would tell judges if a guest at one of their judicial conferences.

Fairfax criminal lawyer addresses three of the most important parts of judges’ oaths

My top three favorites from Ernie’s list about judicial action follow:

– “You do too see race when you make decisions.” Judges come from the general population, and the general population has too many people who treat people differently depending on their race, gender, religion, national origin and ethnicity. The goal must be to reach a day when we all people are color blind. How many people have come close to that goal? A judge’s oath bars him or her from considering the criminal defendant’s race in reaching a decision, other than when considering the defendant’s race when the defense makes a Batson challenge about whether the prosecutor has made race-based strikes to the jury pool.

– “You don’t really believe the police in your findings on motions to suppress.” Too many judges too often seem to presume the credibility, reliability and recall of police in an evidence suppression motion proceeding. However, putting a uniform and badge on a police officer provides no assurances that their testimony is any more reliable than with a lay witness. Moreover, police memories and perception can get affected by getting bombarded with data in a particular criminal defendant’s case. By the time of a court hearing or trial, the law enforcement officer has had that information bombardment compounded by many subsequent arrests, to the point that the officer often has little independent recall about the case other than in his or her police reports and notes, and in any incident video (which often starts after the events that lead to the initial contact, and often stops by the time of arriving at the jail or police station).

– “Don’t tell me you’re not thinking about your next election when you set a high bond.” Virginia judges’ terms in office only get renewed if the legislature approves a renewal. Virginia legislators hear from criminal defense lawyers, prosecutors, civil trial lawyers and others who appear before and observe these judges. Judges and jurors must not consider the fallout from the Virginia legislature, 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?

Virginia judicial action must enforce the laws’ protections for criminal defendants

Being human, judges can feel uncomfortable enforcing laws that they vehemently disagree with. However, nobody should become a Virginia judge if they are going to deviate from the law set forth in the state and federal Constitution and in published controlling appellate opinions. Certainly, judges must invalidate laws that are barred by the Constitution (for instance the Virginia courts should have invalidated the state’s former law criminalizing racial intermarriage, but the U.S. Supreme Court had to take care of that).  When a judge expresses discomfort or disagreement with a law or controlling Virginia appellate opinion, sometimes I 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 address seriously mistaken judicial action by inviting 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 misapplication of the law.

Will your Virginia criminal lawyer stand up to your judge to assure that s/he follows his or her judicial oath?

Injustice can come from anywhere, including from judicial action. Your Virginia criminal defense lawyer has an obligation to stand up for your rights regardless of the source of the threat to your rights, even when it is a judge. This can be accomplished through diplomatic yet clear and firm argument, but must be pursued, even if the judge barks and even shouts at the lawyer for doing so.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. See for yourself the powerfully beneficial defense that Jon Katz can provide you, through a free in-person initial consultation with Jon about your court-pending case. Call 703-383-1100 to schedule your meeting with Jon.