The Cadaver King, the Country Dentist and a Problematic Judiciary

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Michael Siegel

Michael Siegel is an astronomer living in Pennsylvania. He is on Twitter, blogs at his own site, and has written a novel.

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28 Responses

  1. Good piece with a lot to think and chew on. I think the argument, and the approach to judicial reform, is best viewed as you lay out. The justice system has become its own self sustaining eco-system. Piecemeal reform will be limited in its effectiveness. The components you speak of-militarized police, elected judges, misuse of expert testimony and evidences, broken appeals process-are all excellent points. “mob” influence on justice is not knew, but in the social media age it certainly has taken on a different form that has not be fully understood yet, or adjusted too. Appreciate you posting this, and I will add the book to my read list.Report

  2. Avatar Saul Degraw says:

    This essay would be helped by an exploration into the legislative origins into elected judges. Different states have different rules. In Wisconsin they seemingly elect their Supreme Court. In California, the Governor gets to appoint Supreme Court Justices but those Justices are subject to a retention election. Superior Court judges are also appointed and retained but there is more of an application process. Recently, there was an attempt to recall four superior court judges in San Francisco. The measure failed but the main beef was the upset of Aaron Perskey. The judges were Democrats but appointed by Republicans. Two were Asian. Two were White*. All the contenders were public defender attorneys running on a prison reform platform.

    I wonder if this is something that the U.S. always did or did it arise in the Progressive Era to combat corruption in the legislature and on the bench (and Lochner-esque judges who always ruled for corporations). There were a lot of reforms in the early 20th century that made sense then but less now.

    *At least one of the judges subject to recall doesn’t even handle criminal cases. He is in the complex civil divisionReport

    • Avatar LeeEsq in reply to Saul Degraw says:

      From what I’ve read Americans were electing judges since the early 19th century. I think on LGM I’ve read that Mississippi was the first state to do this during the 1820s. It was part of the entire Jacksonian Democracy movement.Report

    • Avatar Kolohe in reply to Saul Degraw says:

      Listening the Mike Duncan’s Revolutions podcast, electing judges was something the democratic and socialist sides of 19th century European revolutionary movements desired.

      eta – I imagine it’s the usual thing, in that whatever exists as part of The System is deemed a Bad Thing if you’re trying to overthrow it. If judges had already been elected, the position would have probably been the reverse.Report

  3. Avatar Em Carpenter says:

    My other personality of criminal defense attorney loves this article. But I see pros and cons of electing judges vs appointing them.
    Electing:
    Pros: accountable to public- see Aaron Persky effect. Cons: See Aaron Persky effect.

    Appointing (assuming appointment is lifetime or not subject to renewal):
    Pros: beholden to no one, fosters fair and independent judgment. Cons: beholden to no one, thus no accountability or temperance of judgment.

    In balance, I think I agree with you that appointment is preferable, if we can take for granted that most will try to apply the law fairly.

    On the topic of conviction at all cost and manufactured evidence, that is a HUGE problem I saw even as a prosecutor. A simple example is how often the “probable cause” for a traffic stop is “crossed the center line” or “weaving within the lane”. No proof, and none necessary- just the word of the officer is enough. No doubt it is more often than not true and has led to valid DUI arrests, but I suspect pretext in a great many cases that result in a search of the car and an arrest unrelated to driving offenses. The criminal justice system can be unfair and unbeatable, and that’s why I’m out of it.Report

    • Avatar dragonfrog in reply to Em Carpenter says:

      “Not beholden to low information voters” is not necessarily the same as “no accountability to anyone at all”.

      See e.g. former Canadian Federal Court judge Robin Camp.Report

      • Avatar Burt Likko in reply to dragonfrog says:

        In my experience, judges close ranks and protect their own when faced with challenges from off of the bench. This doesn’t have to be the case, but it can be.

        Generally, though, I agree that judicial officers are the best-suited to police one another.Report

    • Avatar Will H. in reply to Em Carpenter says:

      I am inclined to agree with your assessment in favor of appointments.
      However, the Breyer Report shows that complaints of judicial misconduct are taken seriously only on very rare occasion.
      Limiting permissible time on the bench should mitigate most negative considerations.Report

  4. But there is one other clearly aggravating factor: our nation’s unusual practice of electing judges.

    A generally excellent piece, but I’d like to pick some nits here. All federal judges are appointed. 28 of 50 states appoint their judges. Some of those states have retention elections where a judge can be ousted, but the replacement will be appointed (eg, California). I live in a state with retention elections; vote totals indicate most people simply ignore that section of the ballot; it takes a massive scandal to attract enough attention to kick a judge out. Let’s not paint the entire US with that particular brush.Report

    • Avatar greginak in reply to Michael Cain says:

      People leave ballots blank for judges because they have no frickin idea who judges are or if they should vote for them. We have retention elections, i work in the court and i end up leaving half the judge ballot blank since i don’t’ work with or know some of the judges. It’s generally not possible for citizens to vote in an even remotely educated manner about judges.Report

      • Avatar Michael Cain in reply to greginak says:

        We have a Judicial Performance Review Commission that issues a recommendation (with reasoning) for whether or not to retain each judge when their term expires. Every registered voter receives a copy in the mail. As far as I can remember, in 30 years there has been only one of the judges I could vote for/against where they recommended not retaining. She had turned into a crazy who treated everyone in her court so badly that an appeal was almost inevitable no matter what the decision.

        Myself, I’d be just as happy if they let the commission make the decision.Report

        • I should add that I’d be happy to let the commission make the decisions in large part because there is a significant lay membership. I think putting complete control within the judiciary branch or the legal profession would be a terrible idea.

          Also, in my state the time between retention decisions increases as you move up the hierarchy. For the state supreme court justices, it’s every ten years; most of them are up at most once in their entire career on that bench.Report

          • Avatar Will H. in reply to Michael Cain says:

            State disciplinary committees are touch-and-go.
            I’ve seen states where attorneys are routinely disciplined for failure to respond quickly enough to client requests for information.
            In other states, forgery and adulteration of documents is permissible, and court personnel cannot be restrained from tampering with public records in others.
            It should probably be examined to determine what elements contribute to robustness in the system.Report

    • Agreed. But most state judges face elections (I found a number of 87%, but that was from ten years ago, so maybe lower now). State judges have a lot of power — as they do in Radley’s Book. It’s rare that something gets into the Federal court system. My point was that we are only one of the countries the elect judges at all. I think only Switzerland and Japan do too. And it’s clear that this is having a corrosive effect as the voting public is more moved by “this judge is too easy on murderers” than “this judge is too hard on murderers”.Report

    • A growing trend in California is for those retention elections to remain open. This creates a pro-prosecutor, pro-majority bias built in to the electorate in terms of the equivalent of judicial appointment. As if those weren’t problems enough with an appoint-and-retain system.Report

  5. Avatar DavidTC says:

    Two points. First, there is a difference between ‘actual rapists who are correctly convicted of rape shouldn’t get lighter sentences because they are wealthy’ and ‘assume everyone brought in front of the court is guilty’.

    It is possible to argue that rich white criminals should not get lesser sentences than poor minority criminals while at the same time arguing the standards of conviction should be quite a lot higher. Heck, it’s possible to argue that sentence should be harsher in general, all across the board, while also arguing the standards of conviction should be quite a lot higher.

    And while it might be correct that judges who need to be reelected don’t see it that way, because the people who vote them out because they aren’t ‘tough on crime’ don’t see it that way…we’re never going to stop them from conflating the issue if the people who want reform conflate the issue, too.

    So I’d like to make a plea to people like me. People who think both that the criminal justice system is often a complete failure in actually identify the guilty party, and also think that honestly most jail sentences do more harm than good and a lot of offenses need lesser punishment: Maybe we should consciously separate those two things, instead of lumping them both under ‘reform’.

    You can even use jujitsu: If someone is arguing that someone of dubious guilt needs to be locked up and the key thrown away for committing an actually horrible crime, or kept locked up despite it being clear exonerating evidence exists but the courts refuse to deal with it, don’t point out how they’re keeping an innocent man in jail, point out that, if they’re wrong, they’re literally arguing to let the actual criminal go free. They’re standing there arguing that the criminals should never be punished because they absurdly set their sights on some random guy instead. Why are they, to use their own term, pro-criminal?

    We’ve left ‘tough on crime’ asshole defines the terms. Let’s take it back. Let’s redefine ‘tough on crime’ as ‘harshly punishing the actually guilty’, not ‘having a lower standard for determining built’. Let’s start declaring that the second thing is actually _weaker_ on criminals…because it is, as less actual criminals get punished if we convict innocent people in their place.

    The fact some of us also want lighter (Edit: Or less racist and classist inequality in) sentences is…an entirely different matter. It’s not relevant to the conversation when we bring up wrongful convictions.

    Second point: How many of the people wrongly convicted had lawyers that were able to spend a lot of time on their case?

    I don’t know if we need to not elect judges if we actually had a public defender system that worked, which honestly would require it to have ten times the resources.

    I’ve suggested this before, and I’ll suggest it again: We could solve this entire problem if we did not let people hire lawyers to defend them in court. If everyone, rich or poor, just drew a number from a bag and got whatever public defender was next. Holy _crap_ would our public defender system suddenly get funded.

    When I mention this, some people always seem to object, and their argument, as far as I can tell, is that it is unconstitutional for non-poor people to have bad representation in court. (Someone’s going to have to explain it better than that.)Report

    • Avatar Saul Degraw in reply to DavidTC says:

      “I’ve suggested this before, and I’ll suggest it again: We could solve this entire problem if we did not let people hire lawyers to defend them in court. If everyone, rich or poor, just drew a number from a bag and got whatever public defender was next. Holy _crap_ would our public defender system suddenly get funded.”

      One of those intriguing solutions that just doesn’t have a constitutional leg to stand on sadly.Report

      • Avatar Kolohe in reply to Saul Degraw says:

        Practically, all persons with means would need to do is hire ‘private investigators’ that would just then feed everything to the government appointed lawyer. Again, the rich are fine, but the middle class would be screwed, as private legal services would priced beyond their capability.Report

    • Avatar Will H. in reply to DavidTC says:

      The outcome of practically all criminal cases is determined at the pre-trial motion phase of the proceedings.Report

  6. Avatar Em Carpenter says:

    DavidTC: I’ve suggested this before, and I’ll suggest it again: We could solve this entire problem if we did not let people hire lawyers to defend them in court. If everyone, rich or poor, just drew a number from a bag and got whatever public defender was next. Holy _crap_ would our public defender system suddenly get funded.

    I love this!Report

    • Avatar Kolohe in reply to Em Carpenter says:

      It will match the equality we get in the public school system.Report

      • Avatar DavidTC in reply to Kolohe says:

        Yeah.

        I’d sorta like everyone to consider this hypothetical:

        In a different universe, voting is like incredibly complicated, like the courts. For some actual good reason I can’t come up with. Don’t read anything into it, I’m not saying the courts are overcomplicated on purpose, that’s just the hypothetical here.

        So, to actually vote, you have do some complicated geography or rocket science or whatever the heck is making voting complicated in this universe. It’s like a six-day process, and if you get any part of it wrong, your vote doesn’t count.

        For the longest time, wealthy people hired experts in this to do this for this. They knew exactly what to do, there had literally years of school to learn this. Although sometimes even the experts failed to manage to cast a vote..for the best outcome, you wanted _teams_ of experts.

        But in theory, anyone could do that. And thus, _in theory_, everyone had a right to vote. Actual voting, of course, was entirely determined by how much you could pay, but it was a nice theory.

        Well, not so fast, said the Supreme Court, decades ago. _Everyone_ should be able to have one of those experts. If you truly can’t afford one, we’ll appoint one for you.

        I mean, one for, like, a few thousand of you.

        Sure, they’ll have no real incentive to really work for you, they have almost no time to help you even if they do. But, I mean, _in theory_, now, the playing field is finally level! You can vaguely, maybe, slightly, get some sort of assistance.

        Even if most of that assistance was just the expert showing up completely unprepared and handing you a bunch of petitions, and saying, ‘Instead of actually voting, how about you sign this petition saying you support abortion? Or this other one saying you don’t? Does it really matter if you actually cast a ballot?’

        And so I say, ‘Yeah, people still don’t actually have the right to vote.’

        Or, rather, people still don’t have a right to a good legal defense.

        I don’t know the answer. Maybe we need to hire a bunch more of these experts. Maybe we need to simplify the system a bit. Maybe we need to rework the system from the top, somehow. There might be any sort of solutions.

        I don’t know the solution, but I do know how to generate solutions in politics: You just make the problem also apply to rich people.Report

  7. Mark Kruger Mark Kruger says:

    I picked up this book on Audible based on this review. I look forward to listening to it.

    In my view the prosecutors office is the one that needs reforming first. There’s an institutional rigidity in most of them that resists any sort of challenge to previous decisions. When challenged the automatic reaction is not to evaluate but to circle the wagons – even though there’s copious evidence that they often (very very often) get it wrong.

    In my view this comes in part from the thinly veiled disdain that DAs and police have for the defendant – a problem society wide. “Perps” are automatically deconstructed to be a single thing – a criminal. Prosecuting is no longer a sacred duty – a necessary evil. It’s an other’rising ritual that places groups outside the pale. Once other’rised they belong “over there” and no longer can be thought of as “us”.Report

    • Avatar Saul Degraw in reply to Mark Kruger says:

      Lawyers are highly competitive types. People who go into litigation are especially so. Lawyers have a duty to advocate for their client and this includes prosecutors (whose client is the people or the state). There is an additional ethical obligation to seek justice and not bring wrongheaded indictments but that is hard to prove that someone did.

      I don’t do criminal law but I firmly believe you can advocate for your client while maintaining courtesy and decency for the other side. This might be easier when money is the thing on the line though. Some lawyers do not agree with this philosophy.Report

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