The Politics of Criminal Justice

...Thus, by the time a judge is measured for the black robe and the relative tranquility it represents, habits of political obeisance have been so firmly ingrained as to need no reminders...

...criticism, cabals, opposition are not fondly regarded...

...I am not referring here to the persistent, but un-proven...

...If we are to refurbish our criminal justice system, we must penetrate beneath its trappings...

...Working as a New York State special assistant attorney general investigating gambling and political corruption in Saratoga County, I got wind of the evening meetings between the special prosecutor and the judge assigned to the inquiry...

...and sometimes, for ignoble reasons, the ones that are dropped include entirely valid charges...

...5. Finally, and perhaps too idealistically, the selection of judges should be separated from party politics...

...Plea bargains continue to be struck in the name of expediency, judges approving them with no knowledge of the defendant's background or prognosis for his future, and with little information about the particular crime to which the defendant is entering his reduced plea...

...Supreme Court level: Former Associate Justice Abe Fortas' activity as an advisor to President Lyndon B. Johnson was one of the reasons his nomination for Chief Justice was ultimately withdrawn...

...For the lawyer whose skills are so limited that the job market may be somewhat barren, the clubhouse often represents the road to economic security...

...When a prison riot, a spate of irate news stories about court congestion, or a speech deploring injustice succeeds in provoking judicial comment, its substance is invariably: "Budget insufficiencies make the implementation of sound administrative measures impossible...

...it is his political club and his leader's endorsement...

...This reached its peak-or nadir-at the U.S...

...Other overt political activities include participating in their own clubs' periodic fund-raising wing-dings, officiating at swearing-in ceremonies for their organizations' new officers, and openly aiding political cohorts campaigning for office...

...Consequently, the guiding motto of these subalterns is not "Do Justice," but "Protect the Judge...

...Most judges will not routinely participate in plea bargaining...

...4. The press should recognize that what does not happen in the courts can be far more important, in the long run, than what does...

...The interminable calendar delays, the prison riots, the high street violence-these require firm, purposeful handling, not the abdication of responsibility...

...The two are not synonymous...

...Defendants today are seldom sentenced for the crimes they commit...

...A New York Times story announcing a new crop of judges offers a fair cross section: "A Queens man recommended by the John V. Lindsay Association . . . and the brother of the Bronx District Attorney were among 10 new judges sworn in yesterday by Mayor Lindsay...

...With tens of thousands of indictments returned annually in New York City alone, it is evident that significant numbers of them should never have been voted, that many wrongly accuse innocent persons of criminal wrongdoing, and that some are likely to be calamitous for the accused...

...It will vary as well with pressures to dispose of cases, the significance of statistical accomplishment to the prosecutor, the disposition of the assistant prosecutor who happens to be handling the particular case, and the initiative and diligence of the defense attorney (understandable, but nonetheless invalid considerations...

...Judges persist in interrupting trials before them-keeping jurors, witnesses, and counsel waiting interminably-while they handle sentences and other calendar business that might be attended to, as in the Federal courts, in the early morning or late afternoon...

...When a senior, vastly experienced, New York City Legal Aid attorney colorfully put down appellate judges as "whores who had become madams," he was brought up on charges initiated by the appellate court...

...If a charge is dropped, the prosecutor can appeal, and the judge could be embarrassed...

...This elevation may have its source not only in the tradition of English courts, but in our early religious training...

...Secondly, the quality of a judge's legal work is affected when his staff-especially the people theoretically responsible for helping him perform his official duties-has been politically recruited...

...Ar outright rape of the law is uncommon, but a contested decision may go in one direction when the application of sounder legal principles would see it move in another...

...Ordinarily all communications of counsel to the judge intended or calculated to influence action should be made known to opposing counsel...

...In the criminal courts this canon is so vastly more honored in the breach than in the observance that, I venture, prosecutors and judges who have spent a lifetime handling criminal matters would register surprise on learning of its existence...

...Prosecutors usually have far greater access to press coverage than do defense counsel, too, and district attorneys have been known to blast judges discomfortingly for their temerity in dismissing indictments...

...Basic to the rottenness of political recruitment is the unhappy fact that our ablest young people tend not to make long-term commitments to clubhouse politics...

...Judges are required to read the grand jury minutes and dismiss indictments when, even assuming the complete truthfulness of the witnesses, the evidence is insufficient to sustain criminal charges...

...the vacations are long (in some cases from July 4 until Labor Day, plus a week or two at Christmastime...

...Sub rosa, judges play loosely with the separation of powers fundamental to American government by counseling old fellow politicians in nonjudicial public office...

...3. Laws should be enacted against political activity by judges and their staffs...

...2. To stop the perpetual passing of the buck from judge to judge, current rotation policies should be terminated, along with the prosecutors' ability to choose particular judges for specific cases...

...Of course, ex parte rehearsals and reviews can serve as a form of protection for the judge who is modest about his abilities, frequently with good reason...

...Resolved, that the appointive system of choosing judges is preferable to the elective," provides a hot topic for high school debates, but as for lessening the effect of the judges' political loyalties and indebtednesses, it offers no more than a Tweedledum-Tweed-ledee choice...

...The relationship between the offense charged (and more-often-than-not committed) and that to which the accused may be encouraged to enter his "guilty" plea will vary with the strength of the prosecutor's proof, the circumstances surrounding the crime, and the potential public danger shown by the defendant's prior criminal record (all legitimate considerations...

...In fact, when I have suggested as much, their cynical replies have insinuated that my boy scout training was going too far...

...There is no evidence that mayors and governors are any less political in choosing judges than are assembly district leaders...

...the time off is abundant (all legal holidays, many days or at least afternoons immediately preceding them, frequent Friday afternoons, and various times to attend funerals of other judges, officials, and ex-officials...

...The fact that an innocent man may have to suffer an indictment's awful cloud is of secondary importance...

...But our image of the judge-always austerely robed, the flag at his right hand, a state seal of heavenly reminder ("In God We Trust") carved into the wall behind him-places him above the mundane let alone the political...

...In 1923 Learned Hand noted that "indictments are calamities for honest men...

...Judges, however, should actively participate in the plea process...

...Unfortunately, our judges do not regularly follow this procedure...

...It is also common for judges, faced with difficult legal questions during a trial, to summon appellate attorneys on the prosecutors' staffs for legal advice...

...And like kings, judges perform their official duties in "court" and are surrounded by hosts of sycophants: robing clerks, bailiffs, confidential attendants, aides, secretaries, correctional personnel, clerks...

...The buck stops with no one...

...Neither the innocent nor the guilty receive justice, for they are handled alike, mindlessly, randomly, hurriedly, blindly...

...they spoke in thunder and lightning...

...Forewarned as to what may be coming in the courtroom, and with his positions formulated extrajudicially, he is spared the embarrassment of truly judging...

...Some pool attorneys are extremely knowledgeable, others are not...

...The evils of the system were brought home to me in 1956, when I helped form a group of Greenwich Village volunteers for Adlai Stevenson (which subsequently became the insurgent Village Independent Democrats...

...The judge was later promoted to the State Supreme Court...

...In New York City's busy courts, "pools" of attorneys exist to rule on motions, both criminal and civil...

...Judicial clerkships are among the regular legal positions doled out to the faithful...

...The Canons of Judicial Ethics, simple rules setting forth minimum limitations upon the conduct of judges, specify in unmistakable language: "A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him...

...Judicial screening committees have proven equally illusory in the drive for an improved judiciary...

...There are a number of steps that could be taken to improve our criminal justice system: 1. Our highest appellate judges, those charged with the administration of the judiciary, should keep themselves directly informed of what is going on in the courts...

...There are also indirect ways that our judges manifest their political loyalties...

...junketing British lawyers deferentially address American judges as "Your Lordship...

...Being removed from the combatants' respective aggressive interests, they are in the best position to underscore the interests of justice, and to eliminate ad hominem factors...

...Indeed, the late Supreme Court Justice Felix Frankfurter often cautioned, in the language of Oliver Cromwell (neither of these gentlemen having themselves epitomized humility), "I beseech you, in the bowels of Christ, think it possible you may be mistaken...

...Scratch a judge and...

...They can assure, on the one hand, that prosecutorial vindictiveness does not prevent a fair plea in a proper case, burdening the courts with a needless trial, and on the other, that a timorous prosecutor afraid of risking a loss in our adversary system does not "give away the courthouse" to a defendant who clearly threatens to be a future danger...

...Qu'te apart from the high cost of lawyers and bail, and the time lost in court waiting out interminable adjournments before the trial that might clear you, what impact would the mere existence of these criminal charges have on your relationships with your employers, your friends, your family, not to mention your peace of mind...

...An additional benefit might be improved use of the court's "probation" facilities: Social histories (the so-called "pre-pleading reports") might more often be prepared before guilty pleas are entered...

...Most of those involved in felony cases plead to and receive punishment for lesser transgressions...

...Their power to remove judges, now scant indeed, should also be extended and far more liberally exercised: not merely for moral derelictions, but for laziness, excessive delegation of judicial responsibilities, continued political activities after ascension to the bench, employment of part-time help at full-time pay, and the like...

...Presentence reports are routinely ordered, and the 6-8 weeks they require are permitted to delay sentencing, but once completed many judges do not take the time to read them...

...They are the rewards for decades of day-in, day-out politics in elective office or in minor public service...

...It serves the double purpose of expiating the guilt of an abysmally run judiciary and promising an ever-larger share of political plums...

...Clearly, the yield per judge could be markedly increased...

...I am not saying that this always happens...

...When slip-ups have occurred, both appointing and nominating officials have considered themselves free to ignore the recommendations of their own screening bodies...

...Then come more lucrative guardianships and other court assignments, from judges who have themselves traveled this route...

...Instead, he spent a lifetime as a respected assistant district attorney because, early in his career, he had the temerity to fight the county leader for political control...

...the added monies have simply been used to create additional "trial parts," even though the old ones have not been working full days and weeks...

...if the dismissal motion is denied, ordinarily no appeal will be allowed, for there is still a trial to be had...

...The group was reasonably representative of those who serve on the bench in most cities across the nation...

...Nor are they disposed to listen to significant argument or dismissal motions...

...Straight-faced, with no hint of impropriety or embarrassment, he suggested that we abandon our efforts and link forces with the regulars (who were sitting out the Presidential race...

...Or a lesser plea is cajoled by the judge-probably without too much effort, for in most counties the prosecutor is a product of the same system...

...One need not be a highly trained management consultant to note the two faces of the same coin...

...About a year ago, New York's highly independent Police Commissioner, Patrick V. Murphy, told the city's bar that "the court system must accept the giant share of the blame for the continual rise in crime...

...Judgeships generally do not come quickly...

...Later, during my years in the New York City prosecutor's office, I learned that such meetings were a regular and unquestioned practice...

...Parallel situations in local politics are considered perfectly normal...

...Besides refraining from upsetting the status quo themselves (and certainly our appellate and administrative judges could take major steps to root out some of the rottenness), they are apt to be ill-tempered toward those who would lance the judiciary's pustules...

...The young pol with polish, and a little neighborhood charisma, may receive his leader's blessing to run for the City Council, the State Assembly or Senate: The quid pro quo for this sponsorship is, of course, loyalty...

...Court administration...

...While not an unusual occurrence, when it comes to light-as allegedly happened in 1971 when a Supreme Court justice retired during hearings on his judicial fitness-it is recognized as improper...

...Family Court and Criminal Court justices are appointed by the Mayor...

...were our key appellate judges to sit...

...The court's sole concentrated doses of book work, ruling on motions, are bunched before a single judge who handles all motions for a month at one time (a minimum of several hundred decisions...

...A new administrative judge was brought in who succeeded in straightening out the court without Parkinsonian manpower increases...

...Pretrial motions...

...The foremost qualification for the $22,450-a-year job of law secretary to a New York State Supreme Court justice is not an applicant's legal acumen, law school standing, distinction as a lawyer, or ability to express himself clearly...

...The political system produces an occasional Benjamin Cardozo (that thoughtful, kind, and classically articulate jurist was the son of an old-time Tammany politico...

...My naivete was first jolted shortly after graduating from law school...

...the pay is generous (more than $40,000 annually...

...Presidents, governors and legislators must cater to their constituencies-by kissing babies, pumping hands, donning hard hats, eating knishes or hot dogs while smiling interminably-and we are not surprised to see them at work in shirt-sleeves...

...The rationalization is that the attorneys who may have to fight in the higher courts to sustain convictions if they are returned should be consulted in advance about the legal questions likely to be raised upon such appeals...

...it is the surest path to the bench...

...At the outset, the club may produce a ragtag of legal business: neighbors calling with problems...

...On the other are the interminable time pressures, the delays, congestion, overcrowding, and law assistants doing judges' work...

...Judgeships being the Grail at the end of the politician's quest, and political loyalty being the sword, shield and armor advancing that quest, what is the impact of all this on the administration of urban criminal justice...

...Still, the best that can be said for the justices politics provides is that, as in most lines of work, the overwhelming majority of them are mediocre...

...But the canon applies with equal force to ex parte meetings between prosecutors and judges...

...In the Federal courts, criminal cases are ordinarily assigned by lot, and the same judge oversees a given case from the moment it enters the courts until it is disposed of...

...Imagine that a grand jury had unjustly charged you with felonies, and that those charges were given broad currency in the press...

...Then, after years of doorbell ringing and praising the leader, we too might ultimately find ourselves on the path to success that our "counselor" was traveling...

...Further, criminal sanctions should be applied to full-time employes on the public payrolls who put in less than full working hours, and to their supervisors...

...Nor are they eradicated by "bi-partisan judicial selection," that much heralded panacea...

...In England, political activity of any sort is almost certain disqualification for judicial robes...

...It is they who too often make the decisions and draft the opinions that appear over our judges' signatures...

...Indictments are sometimes dismissed...

...Whether the process decided upon is an appointive or elective one, it should entail true searches for men whose legal talents alone make them worthy of a place on the bench...

...Most of them have been charged with recommending a handful of nominees for each vacancy...

...In England, appellate judges periodically handle trial chores...

...daily...

...in the U.S...

...the staff is ample (a law assistant, a confidential assistant, a secretary, and miscellaneous court attendants...

...A man widely recognized as one of Brooklyn's ablest lawyers never got to don the judicial robe...

...In addition, the street wisdom politicians are likely to bring to the bench embraces realities that are useful in dealing with the men who appear before them...

...Even local part-time justices of the peace are reverentially called "Your Honor...

...Truth," said Lord Eldon a century and a half ago, "is best discovered by powerful statements on both sides of the question...

...The clamor for "more, more, more"more judges and concommitant staffs, at great public expense, rather than increased efficiency in managing our courts is eagerly joined by our judges...

...Detailed coverage of daily motion calendars when judges wave away argument, of the decision process carried on by unknown law clerks, of plea-bargaining conducted between counsel and ratified in semi-ignorance by judges, would do far more to improve the administration of criminal justice in most cities than any number of front-page spreads on sensational murder trials or alleged Black Panther plots...

...New justices have been known to boast of retaining a veto power over the selection of their law assistants ("I told my leader he'd have to get me someone satisfactory to me"), but rare is the judge who has chosen his aides wholly on merit...

...say, one month a year in the courts, they would be better prepared to perform their administrative functions...

...And as a defense attorney, I have heard judges and prosecutors so freely refer to their ex parte conferences together that it was obvious they sensed no impropriety...

...Supreme Court...

...Even jury charges and proposed sentences are rehearsed by judges with prosecutors...

...The Biblical judges were sages, wise men...

...In Lewis Carroll's Alice in Wonderland, the solemn royal procession and the carrying of the King of Hearts' crown on a crimson velvet cushion did not render fair and just his Queen's incessant screaming of "Off with her head...

...Granted that trials have drama, they represent no more than about 5 per cent of all felony cases...

...together they review the day's events and prepare for the morrow...

...And once we have chosen judges who are truly committed to judging, we must see to it that they remain dedicated acolytes at the altar of justice-even if this takes some seemingly unbecoming prodding...

...Since few designees have been noted for their opulence, it would seem unlikely that they had the supposedly requisite $50-100 thousand lying idly about...

...That is pure hokum...

...Because an indictment can be catastrophic to one who is innocent, our civilized judicial system provides machinery for purging improper charges before trial...

...But virtually all of them receive-and retain-their jobs through their clubhouse activities or connections...

...Bestowed as a reward for loyal party service, a place on the bench is seen as the most honorable sort of quasi-retirement...

...The Canons of Ethics and the Minimal Standards notwithstanding, judges-in court daily with the same group of prosecutorsoften begin to see themselves as part of the prosecution team: They feel an obligation to be helpful to the "law and order" side of the bar...

...Two of the three Bronx appointees were recommended by the Bronx Democratic organization, and one of the two Brooklyn appointees by the Brooklyn Democratic organization...

...By handling all the dismissal, discovery, suppression, and exclusion motions involved, judges would become more familiar with the cases assigned to them...

...Most important of all, the ultimate responsibility, if a judge plays his cards wisely, is nil...

...By remaining aloof, they can elude criticism if a particular bargain backfires, since it was struck by the lawyers and the judicial role was simply one of passive acceptance...

...Confronted with such a volume of cases, he could not possibly give proper attention to their prompt disposition, even if he were truly diligent and possessed the brain of a Holmes or a Brandeis...

...To begin with, it has a distinct bearing upon judges' decisions...

...But who are our city and state judicial Olympians...

...The American Bar Association's Minimal Standards governing a prosecutor's conduct declare: "The prosecutor should not engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before him...

...A stalwart of Carmine De Sapio's Tam-awa Democratic Club, a City Court judge wholly insensitive to the idealism that had brought us into the Stevenson fold, offered some friendly advice to the leaders of the new group...

...Relatively rarely is an American judge recruited from the ranks of notable barristers or top-ranking legal scholars...

...From this list the designating officialsa mayor exercising his appointive power, or a number of political leaders arranging a nominationare supposed to make their choices...

...rumor that judgeships may be bought in New York City and elsewhere with sizable cash contributions to political leaders...

...For those State Supreme Court justices who will so have it, the hours are short (roughly 10 A.M.-4 P.M...

...The rule against private meetings between the judge and either party to a litigated dispute is obviously sound: The courtroom can be of little value as a forum if the decisions have already been made elsewhere without equal benefit of argument from both the prosecution and the defense...

...Consider the following practices: Plea bargaining...

...far cry from the Olympians implied by the courts' panoply, substantiating the frequently heard charge that much is rotten about the selection of judges...

...This interferes directly with the judicial process...

...After several years of such day-to-day adulation, the most self-effacing of humans is apt to regard his views as quasi-holy writ...

...They are truly the judges: anonymous, untitled, unrobed "law assistants," not high on the city's payroll...

...On one side are the bankers' hours, the funeral directors' pace, the madhouse's inefficiencies, the jet setters' frequency of holidays...

...Civil Court justices are elected, and vacancies are filled temporarily by the Mayor...

...Although genuflection is not a feature of our courts, as it is in England, all must rise upon His Honor's coming in and going out, cued by the banging, clanging, or oyezing of the appropriate bailiff...

...Unperturbed by a new "ready rule" that compels prosecutors to answer "ready for trial" once a case has aged six months, in most counties district attorneys continue to determine what cases will be tried, when, and before which judges by their control over court calendars...

...The results, interestingly, are not all bad...

...This is not to suggest that they are unaware of strictures upon a judge's hearing from the defense ex parte (without the opposition being present...

...Hence the law assistant's ingrained caution and political sense incline him toward nondismissal, saving critical action for the trial judge...

...The courts have come to this low esteem in New York City largely because our judges have permitted them to drift...

...He lost, and the rest of his professional life was a dead end...

...when "lesser pleas" were discussed, they would have a far better idea of their appropriateness...

...The important point is that due to judicial neglect, too many persons are held for trial when the cases against them should not have survived the motion stage...

...In 1969, this led Francis T. P. Plimpton, a former Ambassador to the United Nations and then president of the New York City Bar Association, to observe: "Unless screening committees or some other procedures for removing the selection of judges from unworthy hands are set up by law, preferably in the [State] Constitution, with enforceable sanctions, there is in my judgment little chance for improvement...

...Yet there are judges who meet daily with assistant prosecutors whose cases are on trial before them...

...No face was lost, and no Supreme Court colleague had to fear the uncomfortable wrath of a determined new broom...

...It "has broken down," he charged...

...the bone marrow is absolute, unquestioning loyalty to the club and its leader...

...Plimpton was bemoaning the system of selecting judges "by wheeling and dealing among the political bosses...

...For the sake of protecting the judge, indictments that should be dismissed may be sustained...

...they are busy working day and night at clubhouse politics, assuring the system's self-perpetuation...

...Symbolic of the political role judges retain are the dinners where their presence is the honey that attracts those flies of the bar and of the citizenry who enjoy greeting luminaries of the bench...

...The present sporadic day-tours of inspection cannot begin to provide a sense of their wheel-spinning and frustrations...

...and the perquisites are jolly (including a revered title and a special tab for one's car...

...In massive New York City there are so many judges, and they rotate their assignments so thoroughly (this is now being modified in civil cases), that what Judge Jones fails to clean up this month is casually left for Judge Smith the following month and may be passed on to Judge Brown the month thereafter, ad nauseum...

...Until a few years ago, for example, New York City's Criminal Court-which handles felony arrangements and misdemeanor dispositions, and processes over 100,-000 defendants annually-was deeply mired...

...God-anointed, they were larger than life, leaders of the sorely tried flock of Abraham, Isaac, and Jacob...

...Moreover, judges literally perform their functions from an eminence: They sit higher than the rest of us behind a polished wooden altar called the "bench," and they are set further apart by the physical presence known as the "bar...

...But some of the candidates are always politically palatable, for the screening committee members are invariably designated by, or with the approval of, those who do the final picking...

...Furthermore, many judicial staff members virtually disappear from the courthouse at primary and election times...

...New York City, for example, has a mixture of both systems: Supreme Court justices (the higher trial court) are elected, though vacancies are filled until the next general election by the Governor...

...The sinews of local organizations are the tiresome tasks of door-bell ringing and envelope licking...

...Despite new funds, the criminal sections of New York City's Supreme Court remain administrative nightmares...

...Ex parte meetings...

...For that matter, consider a President's appointments to the U.S...

...in all probability, beneath you will find a former city councilman, state senator or assemblyman, a local political leader or a leader's spouse, a commissioner or deputy, a judge's aide or similar official...

...Neither does the veneer of dignity provided by robed judges, flags, sacred mottos, attendants, high benches, and the rest, transmogrify into justice the daily charades acted out in our courts...

...This curbs the tendency to adjourn unnecessarily, and it minimizes the practice of giving short shrift to motions...

...In other words, they are a far...

...His predecessor, a fine, warm and courteous gentleman, having proven a failure at running the lower court, was kicked upstairs to become administrative judge of the Supreme Court-then in bad shape although not in the extremis that the Criminal Court had been at his departure and that the higher court soon fell into...

...Frequently, even where a judge does agree to "hear" a pretrial dismissal motion, he is not the one who actually studies the legal papers both sides submit...

...A lighter sentence than usual is sometimes imposed where the defendant, or his attorney, has the right political friends...

...If anything, the impact of political loyalties is intensified when both major parties (and sometimes the minor ones as well) nominate the same candidate: The electorate loses even the theoretical power of saying "No," and candidates for judgeships agreeable to leaders of mixed political stripe are likely to be those who have succeeded in not antagonizing or offending anyone...