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Monday, June 10, 2013

Judges Gone Wild?

I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is  a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.

Cf. some of the problems of judicial discretion more generally.  And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.  

 

Posted by Dan Markel on June 10, 2013 at 05:50 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel, Sports | Permalink

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This is a classic example of the daily tyranny imposed upon criminal lawyers that is never imposed upon civil lawyers. The backside slap was nothing. Literally, the judge is punishing the defendant for the crowd's behavior because they laughed. That's all the judge talks about. If the judge was upset, a recess with the defendant in the holding cell until the court resumed the hearing would have impressed upon the defendant that a simple verbal response and a pat on the back is more appropriate. This judge's overeaction is an embarassment to the legal community. However,a criminal defense attorney lives at the mercy of the "unbiased" judge and can't complain for fear of retribution against future clients.

Posted by: Walt | Jun 10, 2013 7:48:55 PM

Can someone remind me why judges need to have authority to reject plea deals in the first place? Is the adversarial process really so frail?

Posted by: ctr | Jun 11, 2013 4:45:28 PM

Ctr (who i'm assuming is Chris?):
theoretically, judges should be there to mind the public's interest or the victim's interest, both of which may not be at the forefront of the prosecutors and defense lawyer's concerns. Fact bargains (e.g., what gun?) would be good examples where judicial involvement might benefit the public from being hosed by prosecutors who want to clear cases, get quick convictions, and get on the golf course...cynical, i know. Check out Bibas' book on the machinery of criminal justice (or watch the wire) to see how insiders vs outsiders dynamics work against each other.

Posted by: Dan Markel | Jun 11, 2013 5:05:18 PM

Completely abuse of power by a judge who, obviously, punished 85 because of what she saw as an affront to her position.

The judge can impose immediate punishment on a party for a "direct contempt of court." But, 85's conduct does not constitute such a contempt. And, she can only reject a plea bargain if such rejection is "in the interests of justice." Not as a proxy for an affront to her thin skin. Finally, after rejecting a plea bargain the defendant and the state are returned to the status ante -- the defendant is presumed innocent and has a right to trial.

Hopefully, someone will report this black-robed child-like person to the state's commission on judicial performance for an ethics (and brain-check) investigation.

Posted by: 25years-as-a-prosecutor | Jun 11, 2013 9:41:56 PM

FWIW: Recent reports state that the judge is legally blind and may not actually have seen what Johnson did. She may have been responding to the reactions (laughter) of the bailiff and courtroom observers.

Posted by: Howard Wasserman | Jun 11, 2013 9:52:49 PM

If, in fact, she is legally blind (and, presumably, didn't see the butt slap) and was simply reacting to the laughter of the bailiff and courtroom observers, that strikes me as even more troublesome.

At least if she saw what 85 did, she would have an argument (although a very weak one) that 85 was exhibiting disrespect to the court and, thus, was direct contempt. But, if her rejection of the plea bargain was a mere reflexive action prompted solely by her having heard laughter (and a presumption on her part that it was the result of some unseen disrespectful conduct by 85), IMHO her action was even more inappropriate.

Posted by: 25years-as-a-prosecutor | Jun 11, 2013 10:41:12 PM

While I feel that the judge overreacted, I understand his reason for doing it. Johnson is originally charged for domestic violence after hitting his wife.

Is it a courtroom a place where you have to conduct yourself in a professional manner? Is it a courtroom where someone's livelihood weighs in the balance by a jury of his peers?

Regular citizens are smart enough to understand the seriousness of being in a court of law.

I have a bigger issue with judges being influenced by politics when ruling on matters of a major nature, than I do with this. It's too bad that Lindsay Lohan and other high profile individuals doesn't get admonished when they don't take the court of law seriousness as regular citizens do.

Posted by: R.H. | Jun 12, 2013 12:00:08 AM

So we need the judges to have the power to reject pleas because of an agency problem between the prosecuting attorney and his ultimate client, the public. It is hard to imagine, however, a systematic bias among prosecutors towards leniency, given their role-attributions, self-selection into careers, and political incentives. Instead, it seems more likely to be a case of random error: prosecutors will err too high and err too low, and presumably defense attorneys will too. So then, should we see an equal number of cases in which judges reject pleas as being too strict as the number they reject as being too lenient?

Posted by: ctr | Jun 12, 2013 1:59:22 PM

CTR,
if you think it's possible that prosecutors are instead maximizing convictions, and optimizing time on the golf course, then the agency problem you identify isn't hard to imagine. Don't forget, prosecutors are interested in clearing cases, especially at the state level, where resources are more scarce.
Judges, from what I know, only rarely interfere with plea bargains where the recommended outcomes are too high/strict. Perhaps others will weigh in. It may come up in the context of Alford pleas, where the defendant contests his guilt but wishes to plea bargain anyway.

Posted by: Dan Markel | Jun 12, 2013 5:27:46 PM

She needs to review the replay footage and reconsider her call.

Posted by: Allen | Jun 13, 2013 12:58:04 PM

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