Cover Image

January

Previous Story | Next Story

Lawyers Journal

Media's portrayal of judges falls short

I have spent much of my professional life dealing with the adverse consequences of drinking and driving. When the crashworthiness doctrine took hold across the nation after the U.S. Court of Appeals for the 8th Circuit issued its decision in Larsen v. General Motors1 in 1968, individuals involved in high kinetic energy collisions began filing lawsuits against motor vehicle manufacturers in significant numbers. Since I represent motor vehicle manufacturers, I defended many, many lawsuits where the injured persons were occupants of vehicles operated recklessly by impaired drivers. Drunk drivers can do great damage to themselves and to others.

With that personal history in mind, one might understand why I was loathe to criticize The Boston Globe for publishing its three-part "Spotlight" series on the perceived inadequacies in prosecution of drunk drivers in bench trials in the state district courts. Drunk driving is a serious crime that deserves the full attention of our police departments, vigorous prosecution by our District Attorneys, and swift and sure punishment by our judicial officers when the crime has been proved.

As each part of the series appeared in print, I read them with trepidation, 
fearing that The Globe's investigative reporters would "out" judges for making rulings based on some hidden quid pro quo. Memories of "Operation Greylord" in Cook County, Illinois, came to mind. There, attorney Terrence Hake, posing as a corrupt Cook County prosecutor, led the FBI to a ring of judges, lawyers, clerks and police officers who fixed criminal cases (including murders) in exchange for bribes. Fifteen judges and 48 lawyers were convicted in federal prosecutions. Dan Webb and Tony Valukas, the U.S. attorneys supervising the litigation, became preeminent lawyers as a result of 10 years of highly publicized prosecutions.

But, with the last of the three Globe articles, I breathed a sigh of relief. There were no allegations of corruption; there were no bagmen secretly delivering cash to judges in exchange for acquittals; there was no quid pro quo. Some District Court judges were criticized by The Boston Globe for being too lenient in bench trials, holding the prosecutors to a standard of proof that reporters thought was improvident. The Globe did not comment in any substantial way on the judicial officers' constitutional obligation to uphold the law and to demand that the state prove its cases beyond a reasonable doubt. And The Globe failed to offer up even a scintilla of evidence that the targeted judges acted improperly in any specific case.

Not satisfied with the impact of its three-part "spotlight" series, The Boston Globe later published a fourth article on its front page above the fold. Upholding journalistic "standards" set by the News of the World, the Daily Mail and the (other) Globe, The Boston Globe trashed several District Court judges for sitting in cases where the defense lawyer had some ephemeral connection to them. One judge was criticized for attending a female friend's daughter's wedding (because her estranged husband was a renowned criminal defense lawyer who routinely practiced in that court). Attending a friend's wedding is, in The Boston Globe's view, the sine qua non of impropriety. How ridiculous. And how terribly unfair.

The bar has an obligation to stand in defense of judges who are unfairly targeted by such gutter snipes. And we shall do so. Sensational journalism, and the overly aggressive and mean-spirited tactics that underlie it, raises a more fundamental problem for the bench and the bar. In striving to assure our citizens a fair, efficient, scholarly and neutral system of justice, we demand that serious candidates for judicial office demonstrate a rich and varied legal experience, professional engagement with the legal academy and the bar and a history of service to their 
community.

We search out candidates with demonstrable judgment and an appropriate judicial temperament wizened by decades of experience and success as lawyers, and by a life well lived among society at large. We want judges who have a life -- not a life reflected in a rearview mirror. We want judges who have a current, ongoing understanding of their communities -- not a memory based on years gone by. Judges are, or should be, stalwart members of the communities they serve. They should be held up high by their neighbors as examples of how citizens should live. Judges should not be seen as old codgers living in darkened houses behind drawn drapes. Judges should not fear engagement with society; they should not have to abandon lifelong friendships just by taking office. How does driving judges into cloistered lives make any sense?

Sensational journalists, who paint ordinary social behavior as illegal, improper or corrupt, do a great disservice to the public. The Code of Judicial Conduct does not require candidates for judicial office to sever their lifelines to friends and colleagues once they take office. Canon 4 explicitly authorizes judges to speak, write, lecture, teach and participate in other activities concerning the law. Likewise, Canon 5 provides that judges may write, lecture, teach and speak on nonlegal topics, participate in civic and charitable activities and engage in sports, social and recreational events.

Disqualification from a proceeding under Canon 3 arises where the judge has a personal bias or prejudice toward a party (or has personal knowledge of disputed facts concerning the proceeding), served as a lawyer in the matter in controversy (or practiced law with a lawyer who did), has a financial interest in the matter, or a close relative (within the third degree of relationship) is a party or lawyer in the proceeding. In mandating that a judge conduct himself "in a manner that promotes public confidence in the integrity and impartiality of the judiciary," Canon 2 explicitly recognizes that judges will necessarily bring to the bench "family, social or other relationships" and instructs him to avoid having such relationships influence his  judicial conduct. Judges are parents, neighbors, friends and people with opinions, habits and world views. And that is a good thing.

District Court judges routinely see the same Assistant District Attorneys, Bar Advocates, private defense lawyers and police officers over and over again. A Judge's knowledge of the players in a District Court criminal session is an unavoidable reality, but also a very practical benefit to the Court and a constituent element in the just and speedy resolution of the Court's criminal docket. That a Judge may attend a wedding, play in a golf tournament or share a cocktail at a bar event with those same prosecutors, defense lawyers and police officers says nothing at all about the integrity of the Judge or the fairness of proceedings in his Court.

The Massachusetts Bar Association insists that trial judges be fair and impartial, and that, in accordance with Canon 1, they observe high standards of conduct so that the integrity and independence of the judiciary is preserved. Holding the Commonwealth to its burden of proof in all criminal cases is certainly part of a trial judge's sworn duty.

When I bring to mind the cadre of experienced and successful members of the trial bar, I wonder who among them would actually want to take the bench in today's environment. The pay is wholly inadequate, if not second-rate; the working conditions are horrible; and the media stands ready to sell newspapers at the price of a lawyer's lifelong effort to build a reputation. There is little that the bar can do to prevent judicial assassinations by tabloid journalists. But the bar can and should make known to the media, legal commentators and self-proclaimed ethicists and the public at-large that judges can and should remain vital members of their communities.

1 391 F.2d 495 (8th Cir. 1968)

 

©2014 Massachusetts Bar Association