Editors Note:

This is Part I of a serialization of an article published in the Fall of 2003 by the Northern Kentucky Law Review. It is the first extended critique published in this country of the critical role played by judges in causing wrongful at the trial level, and then sustaining them on appeal. The extensive footnotes are omitted from this reprint, but ordering information of the complete article from the NKLR for $10 is at the end of the article.

The Complicity of Judges In The Generation of Wrongful Convictions

by Hans Sherrer

Justice:Denied magazine, Issue 24, page 10

I. Introduction

Wrongful convictions do not occur in a vacuum of judicial indifference. Every wrongful conviction results from a deliberative process involving law enforcement investigators, prosecutors, and one or more trial level and appellate judges. Although prosecutors, police investigators, defense lawyers and lab technicians have all been lambasted in books and magazines for their contribution to wrongful convictions, judges have, by and large, been given a free pass. This hands-off attitude may be due to the fact that sitting in their elevated positions, judges are often thought of by lay people and portrayed by the news and other broadcast media, as impartial, apolitical men and women who possess great intelligence, wisdom, and compassion, and are concerned with ensuring that justice prevails in every case. Reality, however, is far different from that idealistic vision.

In Courts on Trial: Myth and Reality in American Justice, one of the few serious critiques of this countries judiciary by an insider, Judge Jerome Frank wrote, “Our courts are an immensely important part of our government. In a democracy, no portion of government should be a mystery. But what may be called “court-house government” still is mysterious to most of the laity.” Judge Frank’s book was in stark contrast to what he referred to as “the traditional hush-policy concerning the courts.” That unspoken policy continues to obscure the inner workings of the courts.

Peering beneath the public façade that has long protected judges from serious scrutiny, reveals that from their lofty perch they are the most crucial actor in the real-life drama of an innocent person’s prosecution and conviction. This theme is explored in the following seven interrelated sections: Part II: Judges are political creatures, Part III: The violence of judges, Part IV: The judicial irrelevance of innocence, Part V: The control of defense lawyers by judges, Part VI: Appellate courts cover up the errors of trial judges, Part VII: Why the judiciary is dangerous for innocent people, and Part VIII: The unaccountability of judges.

This critique of the judiciaries contribution to creating a broad group of legally disadvantaged people – those who are wrongly convicted – is offered in the spirit of increasing an understanding of the nature of their involvement in the process. It is only by criticisms such as this that a constructive dialogue can hope to be initiated toward lessening the judiciaries enabling role in the wrongful conviction process, without which their can be no expectation of a reduction in their incidence.

II. Judges Are Political Creatures

Contrary to their carefully cultivated public image of being independent and above the frays of everyday life, judges are influenced and even controlled by powerful and largely-hidden political, financial, personal and ideological considerations. Renowned lawyer Gerry Spence clearly recognized in From Freedom To Slavery that judges are, first and foremost, servants of the political process:

We are told that our judges, charged with constitutional obligations, insure equal justice for all. That, too, is a myth. The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power, in power. Judges, as Francis Bacon remarked, are ‘the lions under the throne’. . . . Our judges, with glaring exceptions loyally serve the . . . money and influence responsible for their office.

Despite never ending proclamations of their independence, members of the judiciary, all the way from a local judge in small town USA to a U. S. Supreme Court justice, are inherently involved in all manners of political intrigue and subject to a multitude of political and other pressures. The political nature of judges that affects their conduct and rulings is an extension of the fact that there is not a single judge in the United States, whether nominated or elected, whether state or federal, that is not a product of the political process as surely as every other political official whether a city mayor, a county commissioner, a state representative, a member of Congress or the President.

Vincent Bullions, the former L.A. deputy D.A. most well known for prosecuting Charles Manson, clearly understands that every judge in this country is only a thinly veiled politician in a black robe:

The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer, people would have an opinion of them lower than a grasshopper’s belly. But on the contrary, the mere investiture of a twenty-five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. As an example, judges have, for the most part, remained off-limits to the creators of popular entertainment, being depicted on screens large and small as learned men and women of stature and solemnity as impartial as sunlight. This depiction ignores reality.

A high level of knowledge, understanding, compassion and independence of thought is not a necessary prerequisite for a person to become a judge. A person typically goes through the motions of being a judge while neither doing the grunt work and studious research required to do a competent or conscientious job, nor having the critical thinking skills necessary to do so even if they wanted to.

However, the depth of a person’s loyalty to the prevailing political ideology, which is an indicator of how they will rule once in power, is an essential attribute for an aspiring judge. Law Professor John Hasnas explains in The Myth of the Rule of Law that if a person’s world-view is inconsistent with the prevailing political ideology, they will not knowingly be considered, nominated or otherwise endorsed to be a state or federal judge:

Consider who the judges are in this country. Typically, they are people from a solid middle-to upper-class background who performed well at an appropriately prestigious undergraduate institution. . . . To have been appointed to the bench, it is virtually certain that they were both politically moderate and well-connected, and, until recently, white males of the correct ethnic and religious pedigree. It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values.

Although state judicial candidates are typically “merit” rated by a professional organization, such as a state bar, and federal judicial candidates by the American Bar Association, all so-called “merit” valuation processes are fraught with political considerations and an undercurrent of backroom wheeling and dealing by power brokers. The inherently political nature of the judiciary stands in stark contrast to what children are taught in school: that judges should be venerated as fountains of wisdom protecting the rights of the people and trying to do the right thing. Given that a judge’s political leanings and societal position has a profound impact on his or her perspective and decision making process, it is to be expected that their rulings will be consistent with the multitude of factors making up his or her roots. As noted in Injustice For All:

Until laws are applied to facts, they are paper law only. Until facts are selected out of the variety each side urges, their weight is purely hypothetical. The judge brings both to earth and life. He chooses for belief particular facts; chooses that law which, he states, applies to those facts; and declares his ruling – backed by government’s coercive power.

That observation emphasizes the role of a judge’s belief system in how a case turns out, because it dictates every aspect of how he or she deals with it.

The existence of identifiable voting blocks among appellate judges from the Supreme Court on down that are definable by the political leanings of the judges belonging to them, is just one indicator that regardless of an issue or the relative merits of an appellant, the political inclinations of the judges is the most identifiable factor deciding how they vote. The politically less powerful party, particularly in federal court, is the least likely to be the winner of these voting contests.

That is to be expected considering the economic, educational, and ideological world of judges is far removed from the poor, modestly educated or otherwise politically impotent segment of society occupied by the people most often attacked by the law enforcement process. Since such people are outside the caste from which judges are drawn, it is not a political priority for them to be protected, and no judge will unduly risk using any political capital to do so. A consequence of politically impotent people being most often subject to a criminal prosecution is that they are also the most common victims of a wrongful prosecution and conviction. A prime example of that are the four lower class, politically impotent innocent men on Illinois’ death row who had to be pardoned by Governor George Ryan on January 10, 2003 because judges had failed to release them.

Thus, the political nature of the state and federal judiciary significantly contributes to the immersement of innocent men and women even deeper into the quicksand-like depths of the law enforcement system without their innocence being detected. Those people are at best only peripherally related to the attainment or retainment of a judge’s position, so their welfare is not a political necessity for a judge to be concerned about.

The political and ideological circumstances underlying a judge’s position results in the philosophical alignment of his or her decisions with the biases and prejudices that naturally follow from them. A judge’s loyalty to the roots of his or her power results in their adoption of the amoral attitude of aligning a decision to be consistent with them, and not to the letter or the spirit of the law. Thus when a judge actually exercises the independent judgment one would expect from such a person on a daily basis, it is not only newsworthy, but it can be suicidal for his or her career. In Breaking the Law, Bending the Law, Michael W. McConnell wrote about what can happen when a federal judge actually exercises independent judgment and makes an unorthodox decision that he or she considers in their mind and heart to be consistent with the dictates of their conscience, and not just politically correct:

Federal Judge John E. Sprizzo will never again be promoted or advanced, for he has committed an unpardonable act of courage in defense of conscience. On January 13, 1997, in the U. S. District Court in Manhattan, Judge Sprizzo acquitted an elderly bishop and a young priest of the crime of “quietly praying with rosary beads” in the driveway of an abortion clinic, in violation of a court injunction and the Federal Access to Clinic Entrances Act. His reasons? That these two offenders did not act with “bad purpose” and, even if they did, he would exercise a judicial version of jury nullification. Because their act was ‘purely passive’ – meaning nonviolent – and ‘so minimally obstructive,’ it justified ‘the exercise of the prerogative of leniency.’ Because the parties waived a jury trial, the judge’s decision is equivalent of a jury verdict of acquittal, and cannot be appealed.

It is only because of the pervasive influence of politics and everything it encompasses in the judiciary of this country that the act of Judge Sprizzo is considered to be courageous, and not something that all judges are expected to do every day. All too often the influences on a judge’s decision work to give short shrift to the men and women who appear before them, so that the guilty and the innocent are incestuously commingled and not distinguished.

Part II will be in the next issue of Justice:Denied. To order the complete 27,000 word article, send $10 (check or m/o) with a request for - Vol. 30, No. 4, Symposium Issue to:

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