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When your ideal judge disappoints

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Depending on the judge I get for my case, my response runs from hoping I have misread the judicial assignment, to figuring the judge is better than some and worse than others, to raising my hands in joy to the sky.

When one of the first two categories of judges rules well for my client, I am particularly pleased, because I did not have high expectations of them. When a judge in the final category repeatedly rules contrary to law or sound reason, I need to catch myself before shaking my head in disappointment.

I have appeared several times before one particular judge who was a local folk hero when a private criminal defense practitioner, for fighting effectively for his clients based on principle and a deep devotion to civil liberties. Depending on the case or the day, though, he is at numerous times indistinguishable from the second category of judges. Another judge whose assignment to my client’s cases would always make me smile, had me not smiling as much recently when I had my first trial before him, where I felt he was ruling incorrectly on some of the most basic rules of criminal procedure. I did my best not to respond in frustration, but to respond with as much persuasiveness and equanimity that I pursue with the first two categories of judges.

Ordinarily, the final category of judges are preferable to the first two. The bottom line is that judges are humans, humans make mistakes, and sometimes they make huge mistakes. That is among the reasons for shrinking our criminal justice system, by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per seblood alcohol content rules in the drunk driving laws.

Nearly two decades ago, my great mentor Steve Rench had already given me the answer about dealing with difficult judges and other difficult people involved in my cases (and which I revisit here): They will not make an effort to rise higher than I give them trust to rise to; and a difficult judge or prosecutor is like a boulder on the highway, which we can either choose to move in the course of sustaining a hernia, or drive around.

As for me, nobody forced me to become a criminal defense lawyer. I relish the work, but must never delude myself that my favorite judges will not sometimes disappoint, and disappoint big. To approach the matter otherwise is weakeningly dualistic.