Posts Tagged ‘the court system’

The High Price — and Catch-22 — of Parole

Thursday, February 26th, 2015

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Punishment, the first book in the trilogy known as The Justice Series, deals with a man who was found guilty of murdering his wife by using his trained pit bull dog to attack her repeatedly. The trial is loosely based on a real case that took place in my courtroom around twenty years ago. Following the jury’s verdict, I sentenced the defendant, who was in his mid-thirties at the time, to a minimum of fifteen years to life in the Ohio Penitentiary.

As the judge who presided over the case, I listened carefully to all the testimony presented by both the prosecutor and the defense counsel. I considered motions to exclude certain expert witnesses, read portions of the grand jury record of witnesses’ testimony, and studied legal precedent on a number of issues. At the conclusion of the presentation of evidence and closing arguments, I was prepared to instruct the jury on the law they should apply to the facts, as they found them, to determine their judgment in the case.

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As usual, I met with counsel for both sides to discuss certain aspects of the instructions I would give to the jury. I proposed that I would instruct the jury on the elements of a charge of murder and, additionally, that I would give them an instruction of manslaughter, a crime of passion for which the sentence was eight to fifteen years at the time.

The prosecutor agreed to the instruction, but it was vigorously protested by the defense. Their objection, as I described it in Punishment, was that they believed that no jury could find their client guilty of intentional murder and, that being the case, an instruction on manslaughter would allow them an “easy path” to a conviction where a mistaken verdict would be less onerous. Because a judge cannot overrule a defense counsel’s objection to a charge, the only instructions I gave the jury were for the murder charge.

Unlike the verdict in my book (no, not what you assume), the jury in the case in Cleveland found the defendant guilty. The verdict was upheld on appeal and the defendant remains in prison to this day.

Several months ago, I corresponded with the Ohio Parole Board regarding the defendant’s application for parole. I shared with them my view that while the evidence presented could have been, and was construed by the jury, to support a murder conviction, there was ample evidence to support a finding of manslaughter. The Board denied the parole request.

Punishment: A Legal Thriller by Linda RockerI suspect the denial of parole was based on the defendant’s refusal to admit that he was guilty of the crime for which he was imprisoned. It is a scenario repeated daily in prisons across the country. I deplore it for two reasons: First, the insistence on a guilty plea flies in the face of the increasing number of convictions for major crimes that are getting overturned — in some cases the defendant has already served decades of his or her sentence; and second, parole boards may easily overlook the consequences of decisions regarding jury instructions that doom a defendant to a Catch-22: either plead guilty to the charge or remain in prison — pleading to a lesser offense is not an option.

Judges enjoy immense power. It can be gratifying, but it can also be confounding and haunting because some decisions are made by others outside the judge’s control — juries and lawyers, in particular. And it is never the proper role of a judge to substitute her judgment for that of the jury in a criminal trial. (I admit to ordering a new trial in two unrelated civil cases where the jury’s verdict was blatantly against the “manifest weight of the evidence.” In one such case, the jury acquitted the defendant trucker because he testified that he drove President Kennedy’s casket from Air Force One to Bethesda Naval Hospital in D.C.).

All of this discourse brings me back to the reason I began this journey. If I do nothing else, I derive enormous satisfaction from the possibility that my books and stories will cause you to pay greater attention to the character and fitness of the people who don their long robes and make life altering decisions about our neighbors and families.

The Chinese Wall in American Courts

Friday, December 26th, 2014

great-wall of chinax30Corporations often employ the tactic of setting up an invisible wall between departments, functions, accounting and other areas where they have a conflict of interest. This also happens in law firms where the interests of one attorney’s client is directly connected (or opposed) to the interests of another client. How do you build a “Chinese Wall?” It’s simple, really. You pretend it’s there.

This is what we do in American courtrooms on a daily basis. When I was first appointed to a judge’s seat, I was shocked to discover the constant presence and pressure from the assistant prosecutors assigned to my court. We had, at the time, 34 judges, each with a full time, active docket of many hundreds of pending cases. The criminal cases consumed about 50% of the list, but they ate up more than 90% of our time. Each case on my docket was assigned to an assistant prosecutor whose “second home” was my antechamber (the public area where my bailiff sat, my scheduler hung around, and dozens of criminal lawyers chatted with one another and met privately with the prosecutor).

Here’s the problem. Access. The criminal defense attorneys made their pitch to the assistant prosecutor on their client’s case, often with a plea bargain as their aim. But after the dialogue was done, the defense lawyer was, as well. But the prosecutor remained, chatting up the judge, looking over the bailiff’s shoulder, sometimes denigrating the process or the people. Nothing illegal occurred, no laws were broken. But the access to the judge and his staff provided a special opportunity. And judges, elected in my state, were loathe to offend a prosecutor.

Honoré_Daumier_-_Two_Lawyers_Conversing_x10In my first year on the bench, I decided to woo the prosecutors by organizing a golf outing. The night before the scheduled event, I mentioned it in a conversation with my father, a retired judge. He was aghast.

“You what? Have you lost you mind?”

It didn’t take long to see his point. I had fallen into the same trap that had snared so many of my colleagues — thinking that the special relationship with prosecutors was an acceptable outcome of proximity, when in fact it was the opposite. I feigned illness on the day of the outing, much to the dismay of my “room prosecutors” who had looked forward to more proximity and access to me.

Once I realized that this cozy relationship easily fostered an inherent bias in favor of the attorneys for the state (that is who prosecutors are, after all), I implemented some changes in the operation of my court area. I remained as polite and friendly to the prosecutors as I had been, but the personal discussions, the off-handed comments about cases or other judges came to an abrupt halt. If a prosecutor wanted my ear, he had to come into chambers and make certain that, if it involved a pending case, the defense lawyer was invited.

I became one of the most unpopular judges on the court — but only with the assistant prosecutors. Did I mind? Sure I did — everyone likes to be liked. Did I change the way I ran my courtroom?

Not a chance!