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December 6, 2007

"Speak out, judges"

The title of this post is the title of has this op-ed by former state judge James Dolan in today's Boston Globe.   Here are snippets that I hope every judge involved in an important criminal case takes to heart:

During my 26 years on the bench, I frequently saw colleagues hammered for making "mistakes" - often in the context of a bail or restraining order hearing in which the judge released a defendant who went on to harm someone.

Most simply took the beating without responding, on the grounds that it would be an ethical violation to make a statement regarding a pending case....

Unfortunately, the failure of judges to promptly explain controversial decisions reinforces the public view that they are arrogant and unaccountable. This damages not only the judge but also the court system.... The public will tolerate a mistake, but people understandably refuse to accept the stonewalling evident in the stock phrase: "I cannot comment on a pending case."

There is a difference between commenting on a case and explaining a decision. Granted, the judge should not hold a press conference or go on a talk show. But where is the harm in writing a memorandum explaining the basis of a decision? Is a court proceeding jeopardized by a judge explaining a bail decision?

When a tragedy occurs, the public's rush to judgment is fueled by talk show hosts and the press, often reacting out of hindsight - and with little or no information about what prompted a judge's decision. Intent upon blaming someone for a tragedy, the judge who supposedly "should have known what was going to happen" is the obvious target.

In those circumstances, a judge's silence underscores the perception that the judge was wrong and his or her actions indefensible, and that the court system is unresponsive.

Judges balance the risks of flight and harm against the right of a defendant to be free pending trial. A judge who holds a defendant even when the risks are slight knows he or she is not likely to be criticized. But judges cannot and should not hold everyone. There is always the risk that a released defendant will harm someone. Tragedies have happened before, and they will happen again....

The public reasonably expects public officials to give reasons for their controversial decisions.... The public has a right to know. I expect most judges want the right to explain.

December 6, 2007 at 05:18 PM | Permalink


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There are dangers to commenting on cases, some of which are symbolic, but have long term consequences that are negative as well.

When a judge explains cases to the public, outside of a judicial opinion, it creates the impression that the judge is accountable to public opinion, rather than the law, and invites public involvement in the decision of ordinary cases by judges outside the jury system.

Judges often make bad decisions. They're human, and often the judicial process is designed to pick the most politically connected people, not the most impartial ones.

But, decisions judges most often get critized for after the fact, such as decisions about bail when a person released later commits a crime, and enforcement of defendant rights in notorious cases, often are not mistakes.

Heinous crimes will be committed by people on bail sometimes, even with the best possible decisions made by the brightest judges. Yet, I know of no state that systematically collects information on which judges get the best outcomes in bail decision-making, despite the fact that we rely almost completely on judicial wisdom rather than legal guidance for these decisions.

The public also has a hard time disentangling disagreement with the law from disagreement with the judge. But, simply communication of information is well within the competence of journalists and bloggers. Additional information from a rushed judge won't add to the conversation.

Posted by: ohwilleke | Dec 6, 2007 5:30:34 PM

While I think it is a good idea that judges, in general explain the reasons for their opinions, often it is unnecessary and impractical.

In most bail decisions, everyone involved knows what the reasons are. No new law is being made. Anything necessary for review of the case is in the record.

In other decisions, most judges are very hesitant to issue a rushed decision. After all, it might contain typos.

But, as the above poster said: the public really won’t understand what is going on anyway. Non-lawyers have little to contribute to the conversation because they will react in some silly political manner that has nothing to do with the legal or factual issues at stake.

Posted by: S.cotus | Dec 6, 2007 7:28:05 PM

Well, the other problem is the old saw, "Better to keep silent and have people think you a fool than to open your mouth and remove all doubt."

While there are many good judges, a significant minority of judges are just plain idiots.

Posted by: federalist | Dec 7, 2007 12:10:18 PM

From my experience, most judges dont have guts, they have pensions.

Posted by: M.P. Bastian | Dec 7, 2007 5:58:18 PM

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