01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

Step 7
A Judge Is Assigned to Hear the Case
❖
01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 N 30 L In the previous two chapters, we learned about the two attorneys in the courtroom drama, the prosecutor and the defense attorney. In this chapter, we turn our attention to the third member of the courtroom work group, the judge. We will learn what judges do and how they become judges. Then, we will look at judges’ discretion and how it affects their relationships with others.

INTRODUCTION
Judges are by far the most easily recognized member of the courtroom work group, both by their conspicuous robes and by their prominent position in the courtroom. They are also the subject of many stereotypes because the public wants to believe that judges combine patience, wisdom, and compassion to arrive at fair decisions, while they eschew the character flaws that sometimes form the basis of decisions by others, including prejudice, intolerance, favoritism, and hostility. Unfortunately, judges are human and their decisions occasionally reflect such a reality. One West Virginia judge, for example, became so enraged at a defendant who began cursing at him in court that he jumped down from his bench, tore off his judicial robe, and bit the tip off the defendant’s nose (Smith, 1998). He served five days in jail on state assault charges, and was then tried in federal court for violating the defendant’s civil rights. Before he was acquitted of those charges, he acknowledged that his behavior was “bizarre and weird,” and that he had reacted poorly in an emotionally charged situation. While this incident is isolated, it shows that judges are sometimes far from the ideals to which the public holds them. We will return to the subject of judicial misconduct later in the chapter. For now, let us look a little at what judges do and what they “look like.”

ISBN: 0-536-16544-0

174

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Here Comes the Judge: Judicial Responsiblities

175 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

HERE COMES THE JUDGE: JUDICIAL RESPONSIBILITIES
Judges are responsible for many tasks in the courtroom. Most individuals are aware of their referee-like role during trials and that they serve as sentencing agents in criminal cases. These are but two of the many roles judges fulfill. Judges are involved in a myriad of significant decision points in the justice system, whenever decisions are made that can have important consequences for a person accused of committing a crime (in the criminal court system) or violating a civil contract or norm (in civil court processes). Judges oversee these justice decisions long before any trial and continue to do so throughout the appeals process. See Box 7.1 for a summary of the steps.

BOX 7.1 Some Decision Points at Which Judges Are Involved
Sign search or arrest warrants

Alter arrest procedures through appellate rulings

Set and/or revoke bail

Preside over preliminary hearings

Hear pre-trial motions

Approve plea bargains

Oversee jury selection

Manage day-to-day courtroom concerns

Preside over trials

Rule on objections during trial

Serve as sentencing agent

Hear and decide appeals including requests for postconviction relief
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

176 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

Judicial Involvement Prior to Arrest
Before an arrest, judges may be called upon to sign warrants authorizing either the search of some premises or the arrest of a person suspected of breaking a law. Warrants are essentially documents granting permission to conduct a search or make an arrest. Before either of these documents can be issued, a law enforcement official must convince a judge or magistrate (the term magistrate is typically used to describe judicial officials who have limited powers, such as justices of the peace or traffic magistrates, or who are authorized to conduct only certain functions, such as issue warrants and conduct preliminary or pre-trial hearings) that the search or arrest is necessary. Although a law enforcement official may make an arrest without a warrant (assuming he or she has probable cause), having one places the burden of proof on the defendant to show that no probable cause existed because a judicial official has already reviewed the facts presented by the officer and agreed that probable cause existed for an arrest. Without a warrant, the arrest may be declared invalid. Likewise, a search warrant may be issued when a judge is persuaded that someone has property that was stolen or is linked to an offense (i.e., it has been used or will be used to commit a crime). In both cases, an officer provides specific facts that demonstrate the need for a warrant. Whether a person is actually guilty of breaking a law is irrelevant when a judge considers whether a warrant may be issued, as are a police officer’s hunches or suspicions. When deciding whether to sign warrants, judges may consider only those facts that would lead a reasonable person to believe that a search is appropriate or a person is guilty of the crimes he or she is suspected of committing. If that level of proof cannot be established, the judge cannot sign the warrant. Through appellate court rulings, judges may affect the offenses for which, and the conditions under which, arrests are permissible. For example, the courts in many states have disallowed arrests for consensual homosexuality, and miscegenation laws (which prohibit whites from marrying other races) have been declared unconstitutional. Appellate judges may also alter the rights suspects have at the time of and following an arrest. Three landmark cases, which were discussed in detail in Step 3, occurred during the 1960s and clarified defendants’ rights to an attorney (Escobedo v. Illinois, 1964; Gideon v. Wainwright, 1963) and the right to remain silent during questioning (Miranda v. Arizona, 1966). Although this type of ruling is made following appellate court hearings, they affect the pre-arrest decisions for future individuals accused of breaking the law. Civil court processes are also influenced by appellate court rulings.

Judicial Involvement after Arrest, but Prior to Trial
After arrest, judges become more visible as decision-makers. As discussed in Step 10, judges are responsible for setting bail in most jurisdictions. In this role, judges
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Here Comes the Judge: Judicial Responsiblities

177 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

must first determine whether to grant bail, then they must decide what amount is sufficient to guarantee that the individual will appear for future hearings. Like most decisions made by judges, the determination to grant bail involves input from other parties in the justice system, especially the defense attorney and prosecutor. After bail is set, it may be revoked by a judge (e.g., if a defendant breaks a condition of bail). Judges have an important role at the time of the preliminary hearing. As discussed in Step 3, preliminary hearings are like bare-bones trials. The defense and prosecution are allowed to present their cases, and a judge determines if there is enough evidence to justify holding a trial. If the judge is persuaded that a crime was committed and that the accused was probably the perpetrator, he or she will order the accused to stand trial. If the evidence is insufficient, the accused must be released. Judges seldom find that the evidence is insufficient, however, because most prosecutors would rather wait until they have a solid case to present than risk being ruled against at this important step. Judges also play a strong role during pre-trial motions. As discussed in Step 12 (on trials), judges hear arguments from the attorneys and issue rulings on pretrial motions. Pre-trial motions are important because they shape the character and nature of the trial. For example, a confession may be ruled inadmissable during a pre-trial motion to exclude evidence, requiring the prosecution to rely on other evidence or develop another trial strategy. A ruling on a change of venue (i.e., a request to move a trial from the jurisdiction where a crime occurred to one where there is a better chance of securing an impartial jury) could have profound effects on the outcome of a trial. Rulings on pre-trial motions may form the basis of a future appeal, so judges’ decisions must be consistent with existing laws and prior court decisions, especially U.S. Supreme Court rulings and those handed down by their state’s supreme court. If the defense and prosecution agree to plea-bargain, a judge must approve the arrangement. As discussed in Step 11, judges typically approve plea bargains, but they reserve the right to reject any agreement that does not meet their criteria for justice. In light of this possibility, the two attorneys must be careful that the bargains they craft are not too out of line with the ideals of fairness and local legal custom because judges have been known to throw out bargains that appear too lenient or too harsh given the circumstances of the offense. Judges, of course, vary in their level of involvement in plea bargaining. Some judges prefer to ratify deals brought to the table by the prosecution and defense attorney, while others take a more hands-on role and participate in the negotiations or actually negotiate with defendants themselves (especially in lower courts where defendants seldom have private counsel who can engage in plea bargaining for them and are not assigned publicly funded attorneys until their arraignment hearings, but many plea bargains are wrought during arraignments meaning that judges may participate in negotiations). As discussed more fully in Step 12, judges oversee the jury selection process. In some states, such as New Jersey, they also conduct the questioning of potential
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

178 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

jurors. Even where the attorneys do the questioning, the judge manages the procedure, determining whether potential jurors seem unable to be impartial and ruling on objections raised by the attorneys. Rulings during the jury selection process may form the basis of an appeal, so judges must be careful to follow acceptable policies.

Judicial Involvement During and After Trial
Judges are responsible for managing the day-to-day concerns of their courtrooms. This is especially true for the courts of limited jurisdiction; in addition to maintaining their own paperwork, some lower court judges do their own typing and xeroxing (e.g., Ashman, 1975). It is in this management function that judges must decide what forms of media to allow during hearings; that is, whether photos or video footage will be allowed and the circumstances under which they may be used (e.g., some judges may disallow depictions of the victim or victim’s family while allowing the defendant’s image to be printed or broadcast). In rare situations, judges may exclude the public from a trial (e.g., during a juvenile victim’s testimony in a trial, or during juvenile court or family court proceedings to protect the child). In their most conspicuous role, judges preside over trials. During jury trials, judges fulfill a referee-like function and instruct the jury at the conclusion of the trial about their duties in determining guilt (or penalty, depending on the type of case and jurisdiction). Jurors are often called upon in capital cases to determine whether a convicted murderer should receive the death penalty or be sentenced to prison. During bench trials (i.e., those presided over by a judge with no jury), judges serve as referees and make determinations of guilt. While jury trials are more common than bench trials (roughly 3 percent of misdemeanor and felony cases filed by a prosecutor result in bench trials, compared to roughly 5 percent that involve juries [adapted from Boland and Sones, 1986, pp. 6, 26]), judges make almost as many determinations of guilt as jurors.1 As discussed below, however, regular practice does not always mean that judges are comfortable deciding whether the defendants who appear before them are guilty. During the trial, judges rule on objections raised by the attorneys and ensure that the decorum of the trial process is maintained. It is important to note that judges almost never initiate objections, even when an obvious error has been made by one of the attorneys. For example, if a defense attorney does not object to the inclusion of a piece of evidence that was illegally obtained by law enforcement personnel, the judge will allow it to be introduced because it is the attorneys’ responsibility to recognize and raise objections. Judges sometimes object when the mistake negatively impacts the formality accorded to the courts (e.g., if an attorney berates a witness without objections from the other side or is engaging in questionable methods, such as questioning a witness to a crime about his or her sexual preferences when such information appears unrelated to the case). And even then, they
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Here Comes the Judge: Judicial Responsiblities

179 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

typically call a sidebar conference (i.e., a conference between the attorneys and judge that the jury cannot hear) or quiz the offending attorney about the purpose to his or her actions. As discussed below, it is important that judges appear impartial in the cases before them. Another well-known role played by judges is that of sentencing agent. In this capacity, judges must determine appropriate penalties. As discussed in detail in Steps 13 and 14, this function presents a dilemma for the sentencing judge. He or she must choose a penalty that fits both the offense and the offender, and this is no simple task. Although they get input from both attorneys and from probation staff, judges still complain that sentencing is a difficult art. Some judges complain about the difficulties of imposing mandatory penalties that they feel are unjust (e.g., Forer, 1994), and others lament that they cannot effectively address crime through the sentencing options that are available to them. Demonstrating the personal strain that sometimes accompanies having to impose harsh sentences on those in their courtrooms, one minority judge noted: “I am responsible for locking up [minorities] and breaking up families” (personal interview, 2000; also, see Box 13.2 for another judge’s complaint that he cannot end the cycle of drug use by relying on jail and other nontreatment options that are available to him as a judge). Even after the verdict is in and the sentence has been pronounced, judges continue to be involved in the case. As discussed in Step 15, appellate level judges hear the case if it is appealed. Some appeals are automatic, such as in jurisdictions that provide automatic reviews of all cases in which the death penalty is imposed. A few appeals are based on the discovery of exculpating evidence (e.g., the recent cases of men whose rape convictions have been overturned by the discovery of DNA evidence that shows they were not the rapists) or other courtroom mishaps (e.g., corrupt actions by prosecutors or mistakes made by jurors). The vast majority of appeals, however, are those that are based on legal errors attributed to the judge who presided over the trial. For example, the defense might argue that a trial court judge erroneously allowed a certain piece of evidence to be introduced during the trial, permitted a certain witness to testify, or gave incorrect jury instructions. Judges may have some difficulty applying the law when it is unclear how they should act, and the defense or prosecution may object even to decisions that are soundly based in accepted legal practice. Appellate court judges, then, often review decisions made by trial court judges. It is important to note that different judges may be involved at different decision points. In fact, judges from a variety of levels may be involved in the same case as it progresses through the justice system. Even in felony cases, a lower court justice might set bail or preside over the preliminary hearing. After the preliminary hearing, the case would be transferred to the felony level courts, where a different judge may hear pre-trial motions and preside over the trial. Then, if the case is appealed, appellate level judges would become involved. If the appeal involves a constitutional issue, a federal appellate judge or panel of federal appellate judges
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

180 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

may hear the appeal. It is a rare occurrence that a misdemeanor case makes it to the U.S. Supreme Court, but it is possible and has happened (e.g., the case of Jon Argersinger, discussed in Step 6, who, following his unsuccessful appeal to the Florida State Supreme Court in 1970, filed a famous appeal with the U.S. Supreme Court, which guaranteed counsel to misdemeanants who faced even brief jail [Argersinger v. Hamlin, 1972]).

Two New Court Programs That Are Changing Judicial Involvement
There are two new court programs that deserve mention here as they have transformed the role of judges in substantial ways. The first are drug courts, which were created in the late 1980s in response to growing drug court dockets (Gebelein, 2000). These are offender-centered courts that seek to rehabilitate drug users through a combination of tough love and effective supervision. The programs typically pair drug treatment with programs designed to provide personal and family counseling, and job training and other skills. Not all drug defendants are offered the opportunity to participate in drug courts (e.g., many programs bar defendants

The nine best-known judges in the country are the justices of the U.S. Supreme Court. Wearing their judicial ascots are the first two women appointed to the nation’s highest court: Ruth Bader Ginsburg and Sandra Day O’Connor. Justice Clarence Thomas is the second African American to sit on the court—Thurgood Marshall was the first. Front row (L-R): Antonin Scalia, John Paul Stevens, Chief Justice William Rehnquist, Sandra Day O’Connor, Anthony Kennedy. Back row (L-R): Ruth Bader Ginsburg, David Souter, Clarence Thomas, Steven Breyer. SOURCE: Photo by Richard Strass/ Smithsonian Institution, courtesy of Supreme Court Historical Society.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Here Comes the Judge: Judicial Responsiblities

181 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

with a history of violent offenses); those who agree to complete the programs plead guilty or sign a contract with the court in order to participate. In drug courts, the judge’s role is not simply to oversee the work of lawyers in one or a sequence of impersonal hearings. Rather, the judge becomes more of a “parent,” who regularly interacts with the offenders and the drug court team (not to be confused with the courtroom work group, drug court teams work together to ensure that offenders are provided appropriate services and supervision aimed at enforcing a drug-free lifestyle). The judge gets to know each participant well due to their regular courtroom appearances (sometimes more than once a week) and congratulates those who do well in the program while punishing those who break the rules with brief stints of incarceration or other sanctions. At this time, it is hard to ascertain the effectiveness of drug court, but a number of former drug addicts have credited the programs with turning their lives around. These court programs are among the few that feature treatment providers working side by side with other justice workers, being treated as equals. The second innovative court program is the community court. Community courts were developed as a way to serve local neighborhoods that are faced with crime on a daily basis and may have become frustrated in their efforts to better their neighborhoods (Feinblatt and Berman, 2001). Whereas drug courts focus exclusively on drug (and sometimes alcohol) offenders, community courts focus on nonserious misdemeanor offenses that can better be described as quality of life issues. These are offenses that mainstream courts often refer to as junk cases, and may not take seriously. When processed through the mainstream courts, such offenses normally result in time-served sentences, minor fines that may not even be paid, or light community service sentences (Feinblatt and Berman, 2001, p. 2). In community courts, these very cases define how the court operates. Like drug courts, there is a team feel to community courts. The members of the community court drama are in regular contact with one another, and social workers work alongside attorneys on a daily basis. Offenders sentenced in community courts are often ordered to improve their communities through working on sponsored work projects in addition to dealing with their own drug and health problems through a sophisticated network of social service providers. One court, the Midtown Community Court in New York City, reports that offenders complete $175,000 a year in community service work for their communities (Feinblatt and Berman, 2001, p. 2). The Midtown community court also reaches out and provides voluntary services to at-risk individuals who have not yet come to the attention of authorities for breaking any laws but who are likely to do so if they continue in their current lifestyles (e.g., suspected prostitutes and homeless individuals). Both of these innovative court programs rely on a team approach and pair legal system personnel with social workers who are plugged into a vast network of services. Both programs rely on jail and other retributive sanctions only when other sanctions fail to work, and hold as their goal the treatment of the individual
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

182 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

offender. When offenders seem unwilling or unable to focus on helping themselves, punishment is used to remind them of the court’s power. These programs view justice as eliminating an individual offender’s participation in future crime, thus reducing crime in the community. Viewed together, drug courts and community courts try to “make the court more than just a courtroom” by bringing together social services and legal personnel with the goal of eliminating future crime through helping offenders resolve their various problems (Feinblatt and Berman, 2001, p. 4).

PUTTING A FACE ON JUSTICE
Now that we know what they do, we need to take a look at what judges “look like.” One similarity among judges is their legal education. Most judges were born in the state in which they attended law school and serve their judicial post (Blumberg, 1967, p. 119; Emmert and Glick, 1987, p. 231; Glick and Emmert, 1986, p. 110; Myers and Talarico, 1988, p. 29; Vines, 1962, p. 105). Not surprisingly, most judges have at least some legal experience at the time of their appointment, although not necessarily in criminal law. In California, for example, candidates for lower court judgeships must be admitted to the state bar and have five years practice in law (California Constitution, art. VI, sec. 15). California is typical in requiring practical experience as a lawyer prior to their judgeships; forty-three states require that at least some levels of judges be admitted to their state bars before assuming their judgeships (Rottman et al., 2000, pp. 50–55).2 Although lay judges (i.e., those without law degrees) are becoming less common in the general jurisdiction courts, most states still allow non-lawyers to serve in the lower courts, especially as justices of the peace (JPs) who hear minor cases for which jail cannot be imposed.3 If you appear before a newly appointed JP after you have completed this book, chances are that you will know more about American courts than he or she does, but I do not recommend trying to show off your knowledge. In a recent survey of lower courts across America, only 3 percent of magistrate court judges in New Mexico (who preside over misdemeanors and can impose up to 364 days in jail) were trained in the law and only 7 percent of Texas JPs had a legal education (Rottman, Flango, and Lockley, 1995, pp. 22–23). In West Virginia, only one of 154 magistrate court judges was educated in the law (Rottman, Flango, and Lockley, 1995, p. 24). This lack of legal education may result in problems when judges do not understand the rules of evidence or know the basis of the legal system they are representing. One rural Texas JP, for example, refused to evict strangers who had moved into one woman’s home because she did not have a lease. The homeowner debated with the JP, showing him her home ownership papers, but the JP was adamant: no lease, no eviction. After the hearing, the woman called one of the authors of this text, who suggested that she go to the local
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Putting a Face on Justice

183 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

stationary store, purchase a blank lease, and fill it out listing herself first as owner and then as leasee. When she returned to court, the JP promptly ordered the eviction because the woman was able to produce a lease. While this may sound like something from the nineteenth century, this case happened in the 1990s and it illustrates how JPs may not fully understand even basic legal issues. History is full of quaint tales about justices of the peace and their misadventures in American law. Despite their similarities, judges are far from exact replicas of one another. Demographic similarities do not translate into similar backgrounds, beliefs, and philosophies, especially with regard to sentencing. Like others in the courtroom drama, judges represent every walk of life and every belief possible, and their personalities range from agreeable to caustic. Unfortunately, judges’ personalities may have influences on perceptions of justice and fairness in their courts. See Box 7.2 for one student’s observations regarding defendants’ interactions with two different judges, one “friendly” and one not. While the public may consider distant or hostile judges to be less competent than their amiable counterparts, this is not always true.

Women and Minority Judges
Demographically, judges tend to be cut from similar cloth. Judges, on the whole, tend to be white males (Feeley, 1979, p. 63; Flango and Ducat, 1979, p. 30; Myers and Talarico, 1988, p. 29), although increasing numbers of women and minorities are obtaining judgeships, especially at the lower court level (Emmert and Glick, 1987, p. 230; Glick and Emmert, 1986, p. 109; Graham, 1990, p. 30; Meyer and Jesilow, 1997, p. 49). This is not to say that the integration has been evenly applied throughout the country; black judges, for example, are much more likely to serve in predominately black communities, indicating their marginal acceptance in other districts (Cappell, 1990, p. 112). In fact, minority and women judges are much more likely to gain their positions through appointment rather than election (Graham, 1990, p. 32). The differential may be due, at least in part, to efforts by appointers to “bend over backward” to boost the numbers of underrepresented judges (e.g., Carbon, Houlden, and Berkson, 1982, p. 301), and to the advantage that incumbents often enjoy during elections. President Jimmy Carter, who appointed forty-one women to the federal bench, is credited with doing the most to integrate women into the judiciary (Martin, 1982, p. 307). Before that time, only eight women had served as federal judges. The most famous of his forty-one female appointees is probably Ruth Bader Ginsburg, who later joined the U.S. Supreme Court. It has only been during the past twenty-five years that large numbers of women have gained entrance into the judiciary (Berkson, 1982; Carbon, 1982, p. 285). As with other careers, women’s entry into the legal workplace was hindered by outdated ideas about women as incapable of being good lawyers. As late
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

184 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

BOX 7.2 Does a Friendly Judge Make a Difference?: One Student’s Observations
Many people may think that the sole duties of a judge are to supervise court proceedings and sentence criminal defendants. . . . They probably would not imagine that the typical court case involves a lot of interaction between the judge and the defendant. . . . From [months of] observations, I have noticed that the defendants in one courtroom interacted more with their judge than did the defendants in the other courtroom. The courtroom, which involved more communication was led by the friendlier of the two judges, [Judge A, who] . . . speaks kindly to [his] courtroom and seems to be helpful and/or sympathetic. . . . The other judge [is] Judge B. Judge A is a man of approximately fifty to fifty-five years of age. Upon entering the courtroom, he does not require everyone in the room to stand while he approaches the bench. Instead, he simply sits down and asks everyone how they are this morning. He then requests that people show, by a raise of hands, the offenses with which they have been charged. As people raise their hands for their respective offense, Judge A will inform the court what the minimum sentence is for the particular offense. He makes it very clear to the court that if at all possible, he will try to give the defendant the minimum sentence required if they choose to plead guilty. Judge A calls up his cases one at a time, while joking with the court in between cases. Such joking includes talking about the game the other night or, if numerous names are called consecutively and all of the defendants obviously have failed to appear, Judge A will call Hannibal Lector to the bench just to see if everyone is listening for his or her name. After the defendant stands in front of the court, Judge A will ask the defendant if he or she wishes to say anything. This may account for the higher magnitude of interaction in [this courtroom]. Judge B is a forty-five- to fifty-year-old woman. Before entering the courtroom, she has the bailiff summarize the rules of her court. The bailiff then shows the court a video whereon Judge B appears to explain further rules and procedures. Upon entering the courtroom, everyone in the room is asked to stand and pledge allegiance to the flag. Judge B greets the court and then proceeds to call up cases. She will call seven to nine cases at one time and have all of the defendants stand before her. Judge B will then address each defendant independently until she is finished with the group, after which she will call up the next group. She does not make any small talk with the court; she simply states the charge, asks for a plea of guilty or not guilty, and then gives the sentence. . . . The apparent friendliness of Judge A and Judge B seemed to affect the degree of communication between defendants and their respective judge. The defendants in Court A seemed to request community service in lieu of fines or jail sentences much more frequently than those defendants observed in Court B. . . . Although some defendants in Court B asked for community service, most did not request it unless it was offered to them. . . . Some defendants in Court A even went as far as to ask the judge for advice. . . . The defendants in Court A seemed much more relaxed, more talkative, and less scared than the defendants in Court B. . . . [Judge A] also told the court that he may suggest that certain defendants speak to the district attorney before entering a plea [and] asked the court to trust him and follow such a suggestion because it could be to their advantage. . . . Judge A also displayed fairness when interacting with individual defendants as they stood before the court. . . . Judge A usually asked if the defendants were able to pay their fines. If a defendant replied that he would be unable to fulfill such a responsibility,

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Putting a Face on Justice

185 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Judge A would offer him community service or a payment plan. Such helpful and sympathetic behavior, as exhibited by Judge A, may be a partial explanation for why most defendants did not hesitate to ask for community service or for lighter fines. Judge A made the defendants feel like he was on their side and would be as fair to them as possible.
Source: Written by Sophie Kim (1993). Used with permission.

ISBN: 0-536-16544-0

as 1869, the State of Illinois denied Myra Bradwell admission to their state bar because she was a woman. See Box 7.3 for a few excerpts from the U.S. Supreme Court when it upheld the state’s decision. That same year, the State of Iowa admitted Arabelle Mansfield to their state bar, making her the country’s first female attorney (Berkson, 1982). The number of female judges increased at the time of the women’s movement in the 1970s. At the beginning of that decade, about five percent of the judiciary were women (U.S. Bureau of the Census, 1973). By the 1990s, nearly one-fourth (23 percent) of judges were female (U.S. Bureau of the Census, 1992). Research comparing women judges to their male counterparts has shown that they are younger, probably due to their recent entry into judicial positions, and more likely to have attended private law schools (Carbon, Houlden, and Berkson, 1982). They also differ in other ways; women appointed by Jimmy Carter to the federal bench, for example, were more likely than his male appointments to assume primary responsibility for their households and to experience conflict between their judgeships and parental roles (Martin, 1990). Women judges appear to have different philosophies regarding the law. Women appellate court judges in one study, for example, were more likely than their male counterparts to support claimants in employment discrimination cases and defendants in search and seizure matters (Davis, Haire, and Songer, 1993). A survey of state and federal women judges reported that they felt female justices brought “unique perspectives” to the bench and were “more sensitive” then male judges to claimants alleging sexual discrimination (Martin, 1993). Another study (Meyer and Jesilow, 1997, p. 120) found that women judges in lower courts were more likely to state that concern for crime victims played a role in their sentencing of offenders, whereas male judges focused on the crime itself and the offender when deciding sentences. The female judges were also more likely to mention entering the judiciary to help others. This is not to say that all women judges act in more nurturing ways; some may not do so as it would be politically unwise to abandon their status as “neutral decision-makers” in a profession that is still dominated by men (Davis, Haire, and Songer, 1993). Alternatively, some may feel expected to adopt a nurturing role. Like female judges, minority judges may “inject new perspectives into the law” (Martin, 1993, p. 173). The increase in the number of minority judges parallels that of women. The first black judge, Robert Morris, sat on the Boston Magistrate

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

186 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

BOX 7.3 A Few Excerpts from Bradwell v. Illinois (1872)
From the U.S. Supreme Court’s opinion to uphold the state of Illinois’ decision to ban Myra Bradwell from the legal workplace because she was a woman: On Mrs. Bradwell’s application first coming before the court, the license was refused, and it was stated as a sufficient reason that under the decisions of the Supreme Court of Illinois, the applicant—“as a married woman would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client. . . .” [T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . . [A] married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor (p. 141). . . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases (pp. 141–142). Postscript: Myra Bradwell continued to work as the publisher of the successful Chicago Legal News, a weekly legal newspaper, advocating for women’s rights through her writings. As she was dying of cancer, her husband campaigned on her behalf and she was admitted to the Illinois state bar in 1890 and was admitted to practice before the U.S. Supreme Court in 1892. She died in 1894, before she was able to enjoy her new status as a recognized lawyer (Wheaton, 1997).

Court in 1852 (Spohn, 1990, p. 1197). From that humble beginning, minorities have made significant strides in becoming judges. In 1970, fewer than three percent of judges were minorities (U.S. Bureau of the Census, 1973). By 1990, however, four times as many (12 percent) were minorities (U.S. Bureau of the Census, 1992). A new field of research has taken on the task of examining how justice is being transformed by the introduction of more minorities and women into judicial positions. The findings have been positive. Minority judges appear to be more blind to offender race (Holmes et al., 1993; Welch, Coombs, and Gruhl, 1988,

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

The Path to a Judgeship: Methods of Judicial Selection and Training

187 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Justice Laverne Johnson of the Navajo Nation Judicial Branch is one of a growing number of women in the judiciary. Since the 1970s, the number of female judges has been on the increase. Some researchers suggest that women judges bring new perspectives to justice and that they may be more sensitive to some parties in their courtrooms. One prominent researcher, Carol Gilligan (1982), found that women “speak in a different voice”; that is, they answer moral dilemmas through empathy and compassion, whereas men focus on the rights of the individuals involved. Based on Gilligan’s work, one would expect women judges to bring a nurturing, collaborative, and cooperative spirit to the practice of law. SOURCE: Courtesy of Judge Laverne Johnson, Navajo Nation Judicial Branch.

p. 132), and female judges seem to be more blind to gender (Gruhl, Spohn, and Welch, 1981, p. 318). In other words, the historic favoritism shown to females and whites is less pronounced in cases presided over by minority and women judges than in cases managed by white male judges.

THE PATH TO A JUDGESHIP: METHODS OF JUDICIAL SELECTION AND TRAINING
People do not become judges by simply waking up one morning and discovering a black robe in their bedroom closets. The paths individuals take to their judgeships are varied, differing both by level of court and geographic location. Judges are appointed or elected to their posts as discussed below.

Methods for Selecting Federal Appellate Judges
ISBN: 0-536-16544-0

Federal appellate judges are appointed by the President of the United States and are subject to Senate confirmation. As provided for in Article II of the U.S. Constitution,

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

188 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

candidates for the Supreme Court are nominated and appointed for by the President with the advice and consent of the Senate. This means that the President’s candidates must pass review by the Senate. While some candidates’ applications are approved in an almost routine manner, appointments to the U.S. Supreme Court may generate a lot of controversy. The 1991 appointment of Clarence Thomas by President George Herbert Walker Bush, for example, was in danger when charges of sexual harassment were levied by one of his former employees, Anita Hill. The Senate conducted extensive hearings before allowing the appointment to take place. Sometimes, senators are accused of holding up the confirmation hearings to achieve political payback against a President who has submitted the candidate for a judgeship. Federal appellate judges hold their positions for life, unless they are impeached or removed from office for an inability to perform their duties (e.g., due to illness). The guarantee of lifetime positions during good standing is intended to create judicial independence. If federal judges were accountable to anyone in particular (e.g., a political leader), their decisions might not reflect their true views based on the merits of the cases before them. Instead, decisions made by judges who do not enjoy lifetime appointments may reflect the wishes of those who control the selection process. While Circuit Judicial Councils were created to inquire into complaints of misconduct by federal judges, “their disciplinary powers are narrowly circumscribed” (Lubet, 1998, p. 59). We will return to a discussion of Circuit Judicial Councils later in this chapter.

Methods for Selecting State Appellate Judges
State level appellate judges obtain their positions through a variety of ways, which are summarized briefly in Box 7.4 and are discussed here. A number of states (twenty of fifty) rely on the merit system (Rottman et al., 2000, pp. 21–24). This method is also called the Missouri Plan because Missouri was the first state to adopt the American Bar Association’s 1937 proposal to transform judicial selection (Warrick, 1993, p. 5). Under the merit system, judges are appointed by the governor with input from a judicial nominating commission composed of judges, lawyers, and lay citizens. The commission evaluates potential judges and provides the governor with a list of three to five names from which he or she may appoint individuals (Warrick, 1993, p. 5). Although free to choose whichever candidate he or she prefers, the governor is limited to the names on the list. After their appointment, judges selected through the merit system are subject to a confirmation election in which the voters are asked whether the judge should be retained (Flango and Ducat, 1979, p. 26). In five of the twenty states, a modified merit system is used since the selected appellate judges are not required to stand for a confirmation election. The District of Columbia also follows a modified merit system, and because it has no governor, the president of the United States appoints the judges with confirmation by the Senate. See Box 7.4 for a table summarizing the selection methods used for state appellate court judges.

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

ISBN: 0-536-16544-0

BOX 7.4 Methods of Selecting State Judges

The following table has been adapted from Rottman et al. (2000). How are judges in your state selected? How are judges in the states that border your state selected? As you compare the selection of appellate and trial court judges, which type is more likely to have been elected? Are there any patterns to the types of selection? Appellate Court Judges
Appointments (n=7) Elections (n=23)

Merit System (n = 20 + Washington, D.C.)

Merit system: Alaska Arizona Colorado Florida Indiana Iowa Kansas Maryland (also requires state senate approval) Missouri Nebraska Oklahoma South Dakota Tennessee (nonpartisan retention election) Utah (also requires state senate approval) Wyoming

Modified form of merit system, requires third-party approval in addition to judicial nominating commission, but does not require retention election by voters: Delaware (state senate approval) Hawaii (state senate approval) Massachusetts (governor’s council approval) Rhode Island (does not required third-party approval and judges have life tenure) Vermont (state senate approval, retention is through legislative election)

Appointed by governor: California (must then stand for unopposed retention election) Maine New Hampshire (requires approval of elected executive council) New Jersey (for supreme court and requires approval of state senate, appellate judges appointed by chief justice of state supreme court) New York

Legislature appoints: Connecticut Virginia

Partisan election: Alabama Arkansas Illinois New Mexico North Carolina Pennsylvania Texas West Virginia

Nonpartisan election: Georgia Idaho Kentucky Louisiana Michigan Minnesota Mississippi Montana Nevada North Dakota Ohio Oregon Washington Wisconsin

Elected by legislature: South Carolina

189

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

District of Columbia (President makes appointment with U.S. Senate consent)

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

BOX 7.4 (continued)
Trial Court Judges (general jurisdiction court):
Appointments (n=6) Appointed by Legislature appoints: governor: Connecticut Maine (requires Virginia approval of state senate) New Hampshire (requires approval of elected executive council) New Jersey (requires approval of state senate) Rhode Island (requires approval of state senate) Partisan election: Alabama Arkansas Illinois Indiana Missouri (has merit system for one-ninth of circuits) New Mexico New York Pennsylvania Tennessee Texas West Virginia Nonpartisan election: Arizona (uses merit system in two counties) California Florida Georgia Idaho Kentucky Louisiana Michigan Minnesota Mississippi Montana (uses merit system for specialized courts) Nevada North Carolina (uses gubernatorial appointment for special courts) North Dakota Ohio Oklahoma Oregon South Dakota Washington Wisconsin Elections (n=32) Elected by legislature: South Carolina

Merit System (n = 12 + Washington, D.C.) Modified form of merit system, requires third-party approval in addition to judicial nominating commission, but does not require retention election by voters: Delaware (state senate approval) Hawaii (state senate approval) Maryland (state senate approval and participates in contested election one year later) Massachusetts (governor’s council approval, no retention process) Vermont (state senate approval, retention is through legislative election) District of Columbia (President makes appointment)

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Merit system: Alaska Colorado Iowa Kansas (partisan election in fewer than half the districts) Nebraska Utah Wyoming

The Path to Judgeship: Methods of Judicial Selection and Training

191 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

In five states, appellate court judges are appointed by their respective governors without the input from a judicial nominating commission. In one of these states (California), appellate court judges are appointed by the governor, but then must stand for an unopposed retention election (this is not considered a merit system because there is no input from a judicial nominating commission). In two states (Connecticut and Virginia), the legislature appoints appellate court judges. Elections, which began in 1812 when the State of Georgia moved to elections for lower court judges (Warrick, 1993, p. 3), are fairly modern methods of selecting judges. By 1832, Mississippi required all of its judges to be elected, in part due to concerns by the public that the judiciary was controlled by property owners who did not represent their interests (Warrick, 1993, p. 3). Appellate court judges in twenty-three states are elected in popular elections. In eight states, this occurs through partisan elections (where the candidates are identified by political party), and in fourteen states through nonpartisan elections (where the candidates do not mention their party affiliation). In the remaining state (South Carolina), appellate court judges are elected by the legislature rather than in popular elections. Unlike their federal colleagues who sit for life, state appellate court judge terms vary from five to fifteen years, except in Massachusetts and New Hampshire (where they hold their judgeships until age seventy), and Rhode Island (where they are elected by the legislature for life terms; Rottman et al., 2000, pp. 26–29).

Methods for Selecting State Trial Court Judges
Trial court judges at the court of general jurisdiction level are much more likely than appellate judges to be selected through elections (see Box 7.4 for a breakdown of the methods used to select trial court judges). In twelve states, they are selected using the merit system or modified form of the merit system in which judges are selected using input from a judicial nominating commission but are not required to stand for popular retention elections (Rottman et al., 2000, pp. 34–49). In addition, judges in the District of Columbia are selected using the modified form of the merit system. It is not always clear what methods of selection are used for trial court judges, as some states employ multiple methods as noted in the table in Box 7.4. What is clear, however, is the merit selection is used far less often than it is with appellate court judges. Elections seem to be the norm for trial court judges. In the majority of states (a total of thirty-one of fifty), judges are chosen through popular elections, on either partisan (eleven of fifty) or nonpartisan (twenty of fifty) tickets. In these states, potential judges campaign for their positions, much like candidates for other elected positions (although they are expected to refrain from the “mudslinging” associated with other campaigns). In one state (South Carolina), judges are elected by the legislature, bringing the total number of states that rely on elections to thirty-two.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

192 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

In four states, trial court judges at the general court level are appointed by the governor, sometimes with input from the legislature (Rottman et al., 2000, pp. 34–49). These appointments are politically oriented in some states, while some states attempt to eliminate favoritism from their selection processes by utilizing nonbinding recommendations made by their state bar or other associations. In the remaining two states, the general court level judges are appointed by the legislature. The path to a lower court judgeship is much more complicated because many states have multiple methods of selection for lower court judges, depending on district or court type. Elections seem to be the most common form of selection; eleven states rely on partisan elections, twelve on nonpartisan elections, and two on both partisan and nonpartisan elections (Rottman et al., 2000, pp. 34–49). In addition, another four states have elections for at least some of their lower court judges, while the other lower court judges in the state are selected through other means. The judges in the courts of limited jurisdiction are appointed by the governor in eight states, the local governing body (e.g., mayor) in three states, higher court justices in three states, the legislature in one state, and a special magistrate commission in one state. Two states’ rules for judicial selection are locally determined, and two states (Illinois and Minnesota) have no courts of limited jurisdiction (while South Dakota has no courts of limited jurisdiction, it does have judges who hear traffic and other “limited jurisdiction” type cases). Trial court judges sit for terms varying from two to fifteen years, depending on state and level of court, except in Massachusetts and New Hampshire (where they are appointed until age seventy) and Rhode Island (where they are appointed for life; Rottman et al., 2000, pp. 34–49).

Comparison of the Four Methods of Judicial Selection
The manner in which judges are selected has elicited some interest from citizens and scholars alike. The four selection styles have different advantages and disadvantages. The benefits of appointing judges are that the individuals making the appointments will try to avoid selecting inadequate candidates due to fear of embarrassing themselves or their political party. Only a foolish political leader would appoint a personal friend whose qualifications were weak and whose decisions would attract a lot of unwanted attention from citizens’ groups and the media. A drawback of the appointment system is that it is typically very partisan (i.e., Democrats tend to appoint Democrats whereas Republicans favor Republicans), and that many good candidates are never even considered because they do not have connections to the individual making the appointments. If a political leader is unaware of a particular individual, for example, that person certainly cannot be appointed no matter how good a judge he or she would make. Finally, the public may feel that a judge has been imposed on them by a political leader for the duration of the appointment.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

The Path to Judgeship: Methods of Judicial Selection and Training

193 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Elections, on the other hand, give the judges legitimacy through being chosen by the public. Citizens may be more likely to accept decisions made by a judge whom they elected (versus one who was appointed for them). Partisan elections, due to their political nature, often mean that local party leaders play a strong role in who gets elected. This means that although the judges are technically “appointed” by the local leadership through their selecting which judges are able to run in an election, those leaders have a much lower level of accountability than those who appoint judges directly. Of course, political party leaders are unlikely to support those who might cause their party great embarrassment, but this level of accountability is greatly reduced. Nonpartisan elections remove the party politics, but provide no accountability by an outside individual (i.e., there is no individual who screens the judges prior to election). In addition, the candidates in a nonpartisan election are on their own when it comes to financing and running their campaigns, thus eliminating some candidates from the contest who do not have those resources. In addition, elections are not always as democratic as they appear. A quick case study will help illustrate the dynamics of partisan elections. Philadelphia lawyers who wanted to become judges in the early 1980s had to “suck up” to Democratic leaders who were in charge by doing pro bono work for them and by paying $20,000 directly to the Democratic City Committee (Ferrick, 1999). Once they got noticed, they could be included on the ballot, and because most people vote by party, the candidate was a shoe-in. Now, the process is more complex because not all districts use the same ballot. This means that judicial hopefuls must pay the general endorsement fee ($30,000 in 1997) and win over enough of the sixty-nine ward leaders, each of whom requires endorsement fees of $500 to $3000, to guarantee their election (Ferrick, 1999). In 1967, Blumberg (p. 120) noted that the “going rate” for judgeships in New York City was two years’ salary “contributed” to one’s political party and that “buying” judicial positions was a common practice; even those jurisdictions that did not require outright “buying” involved huge amounts of time and money being donated to party activities in order to build the political base required to win an election. Some people might liken this to buying a judgeship, which may erode their faith in the judges who serve them. Regardless of your opinions about the process, however, this illustration shows how the citizens of Philadelphia do not really select their judges, despite their participating in what appears to be a clean election. The fourth selection type, the merit system, was designed to combine the best of appointments and elections, while eliminating the disadvantages associated with both methods. The merit system is not without its drawbacks, however. The judges selected through the merit system tend to represent the values and interests of the judicial nominating commission or bar association leadership. And, all traces of politics are not removed as some judicial nomination commissioners are appointed by the governor, and the governor is presented with a list of candidates
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

194 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

from which he or she is free to choose. In the end, the role of politics is merely transformed rather than truly eradicated.

Does Method of Judicial Selection Affect Justice?
One scholar’s research on judges in two cities illustrates how justice may be based, at least in part, on the characteristics of judges and judicial selection methods. Levin (1977, p. 48) noted that judges in Minneapolis, Minnesota, were essentially selected by the local bar association, a method that largely precluded influences based upon political affiliation. Due to the bar’s involvement in approving candidates, the Minneapolis judges were usually from private legal practice, many from large law firms. The Minneapolis Bar Association had even sponsored a law in the 1950s that forced new candidates for judgeships to name which incumbent he or she sought to replace in upcoming elections; this law prevented judicial candidates from running against “the entire field of incumbents up for re-election in the hope of at least receiving more votes than the lowest incumbent” (Levin, 1977, p. 53). In general, the Minneapolis judges tended to be legalistic and society-oriented; that is, they emphasized protecting society rather than protecting defendants’ rights (Levin, 1977, p. 101). In Pittsburgh, Pennsylvania, however, Levin found a very different situation. The Pittsburgh judges were elected on a partisan basis for ten-year terms. Local politics dominated the selection of judges and restricted the role played by the local bar association. In fact, the local county bar association often “considered the party committee’s candidate unacceptable,” but it never “even attempted to support an opposing candidate” (Levin, 1977, p. 55). Judicial selections were heavily party-oriented, meaning that governors generally appointed judges from their own political parties (Levin, 1977, p. 55). The Pittsburgh judges tended to be defendantoriented; that is, they emphasized protecting defendants’ rights and “giving defendants a break” when they deserved leniency (Levin, 1977, p. 117). As might be expected given the differences discussed above, the punishment philosophies of the judges in the two cities also varied immensely. The more defendant-oriented Pittsburgh judges felt that prison was not an effective punishment because it did not address the true causes of crime (Levin, 1977, p. 124). The more society-oriented Minneapolis judges, on the other hand, readily used incarceration because they felt it was a useful penalty due to its deterrence and incapacitative value (1977, p. 109). By these two examples, we can see that the process for judicial selection may play an important role in how judges dispense justice in their courtrooms. In general, judges who are elected may be more likely to represent local sentiment, as they must gather the local population’s support to win enough votes to secure their judgeships. Appointed judges, on the other hand, may vary in their levels of agreement with the attitudes of those in the communities they serve, as they may be chosen by agents who do not live in those same communities (e.g., governors). Of course, judges who are appointed to temporarily fill slots (vacated by
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Judicial Training

195 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

elected judges who retired or resigned) must some day be subject to some form of election themselves, but research has shown that judicial incumbents have a strong upper hand in elections and that fewer than 10 percent are voted out of office (e.g., Vines, 1962, pp. 114–15).4 In addition to affecting sentences, selection method may be fundamental when determining the type of person who chooses to become and is chosen to become a judge. As previously mentioned, for example, minority and women judges may stand a better chance of obtaining a judicial position under schemes that rely on appointment rather than election.

JUDICIAL TRAINING
Our country’s justice system seems to place a high value on the input of amateurs. In addition to utilizing jurors, who rarely have any training at all in law, our judicial selection methods sometimes seem to be designed to ensure that the least experienced individuals are selected to be judges. While the candidates are typically well-trained in the law itself, they usually have little experience in the courtroom, and law school provides minimal or no training on how to be a judge. Until about forty years ago, there was very little training offered to those who wished to become judges. Due in part to complaints voiced by legal scholars and research teams about the quality and training of judges, judicial education programs were introduced and are still offered today. These programs, however, tend to be short in duration. The National Judicial College (NJC), established in Reno during the early 1960s, for example, offers a number of judicial training and sentencing seminars to those judges whose jurisdictions can afford to send them. The NJC courses are typically three to five days long and cover a wide variety of topics. Some judges attend NJC on a regular basis as part of their ongoing education. Three states (Nevada, New Hampshire, and Wyoming) require their general jurisdiction judges to attend NJC before beginning their judgeships (Rottman, Flango, and Lockley, 1995, pp. 86–89). Another popular training source is the Administrative Office of the Courts (AOC); thirteen states require AOC training programs for their general jurisdiction court judges. Federal judges attend orientation sessions offered by the Federal Judicial Center. Individual states also sponsor training programs, but these courses last only a few days and tend to focus on issues specific to the jurisdiction the judges will be serving, such as how to complete paperwork needed in that jurisdiction. Some jurisdictions now assign judges to observe other judges for a period of time, similar to an apprenticeship. Despite the trend toward judicial education, twenty states still require no specialized judicial education for those who will preside over their courts (Delaware, however, is currently developing a program, and all Arkansas judges attend training though it is not required; Rottman et al., 2000, pp. 60–63). When our nation’s methods of training judges are compared to countries that offer
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

196 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

special judicial tracks in law school or other forms of specific and sustained training for potential judges, one can readily see that our system has some room for improvement in this area. Some judges have never even been in a courtroom before they are chosen to preside over one. The merit system, discussed earlier in this chapter, ranks judges based on their bar association qualification ratings. Those chosen through this method, though excellent attorneys, are often employed in business law or other noncriminal fields and may have no experience with the types of cases over which they will preside, including criminal cases. Of course, gubernatorial appointments and popular elections also result in judges who have little or no courtroom experience because the selection criteria seldom include whether the candidate is a seasoned courtroom participant (Vines, 1962, p. 116). See Box 7.5 for an anecdote about the problems caused by one attorney’s inexperience in the criminal courts. Judges who preside over civil cases do not appear to be any more likely to have prior courtroom experience, meaning that the day-to-day concerns of their new career may be as foreign to them as they are to their brethren in the criminal courts.

BOX 7.5 One Attorney’s Courtroom Nightmare
A probate attorney in rural New Jersey had registered under the state’s mandatory pro bono law. Originally written in the wake of Gideon v. Wainwright, 1963 (which guarantees the right to free counsel), this law is still used to provide lawyers to criminal defendants in rural areas that cannot afford to fund a public defenders’ office. The attorney was dismayed one day when he found in his mail an order to serve; in fact, he had been assigned to represent a drug offender. Rather timidly, he went to the local jail to meet his new client. He informed the client that he had never represented an accused in a criminal trial, knew very little about criminal law, and had never even been in a criminal courtroom. He then told the client he had one choice and one choice alone: plea-bargain. The attorney met with the prosecutor on the case and worked out a plea agreement, though he still admits he is not even sure if the bargain was a good one. In addition to influencing the justice outcome for his client, the attorney’s inexperience in the criminal courts illustrates that attorneys who work in fields other than criminal law may have little criminal courtroom experience. Ironically, it is often these very attorneys (those with little experience in the courtroom, that is) who receive high bar association ratings for judgeships due to a variety of factors, including the weight assigned to the schools from which candidates graduate. But graduates from the better law schools rarely go into criminal law due to perceiving that field of law as less desirable and less lucrative than other types of practice. Instead, they prefer to go into civil or other branches of law that guarantee them more prestige and upward mobility. In the end, attorneys in the criminal law arena may have more courtroom experience but significantly lower bar association ratings.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Judicial Discretion and Relationships With Others

197 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Even those who have previously held other courtroom roles as prosecutors or defense attorneys quickly find that their experience was in a vastly different capacity. Attorneys are expected to be zealous advocates, but judges are supposed to be neutral arbitrators. “Unlearning” that role may be difficult; one new judge reported that early in his judicial career, he kept jumping from his seat, prepared to object to a variety of legal issues (Wice, 1985, p. 120). It took this judge a while to overcome the ingrained desire to raise objections during the trials he was hearing. It is not hard to imagine that he faced other difficulties adapting to his new, more neutral, role.

JUDICIAL DISCRETION AND RELATIONSHIPS WITH OTHERS
Judges have an incredible amount of discretion in their work. Unless their decisions are bizarre enough to warrant removal from office, most judges do not suffer ramifications from making the occasional bad choice. Despite the presence of mandatory sentencing schemes (e.g., “three-strikes” laws) and sentencing guidelines, the vast majority of their decisions are relatively unfettered by rules and regulations. Instead, judges are expected to apply the law in a fair manner. And, remarkably, judges seem capable of fulfilling that role. While some people may be unhappy with individual decisions made by judges, wholly corrupt or mean-spirited judges appear to be quite rare. The public does become outraged at judges for their handling of specific cases or types of cases. One need only remember the ire incurred by Judge Lance Ito for his handling of the O.J. Simpson case. Then, when another judge granted O.J. Simpson custody of his children, enraged citizens mounted an unsuccessful campaign to have her removed from office (e.g., Attorney defends O.J., 1997). Like the two justices in the Simpson cases, other judges have attracted and survived their share of negative attention from the public when they made unpopular rulings. See Box 7.6 for the story of a justice whose unpopular written dissent nearly cost him his appellate judgeship. Sometimes judges are attacked for decisions they make that go awry. One New York city judge, for example, attracted condemnation from the public and his governor when a domestic abuser he released on bail murdered his victim, who had implored the court to protect her. The judge had released the abuser because he was underwhelmed by the victim’s injuries, saying “There is no actual physical injury, is there, other than some bruising? . . . I am not suggesting that bruising is nice, but there is no disfigurement” (Two ex-judges, 1996). And, another New York judge was removed from office after telling his clerk, “Every woman needs a good pounding every now and then,” when a domestic violence victim asked for a protection order against her husband (Judge removed, 1997). Because her protection order was denied, her husband could not be removed from her home during a future violent episode, and the woman was forced to flee with her children.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

198 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

BOX 7.6 A Judge Whose Unpopular Dissent Almost Cost Him His Job
While seated on the California Appellate Court, Justice J. Anthony Kline issued a dissenting opinion in a case in which he said he “cannot as a matter of conscience” support a state supreme court precedent regarding a controversial legal issue.5 Within a few months, Justice Kline had formal charges filed against him by his state’s judicial fitness commission, accusing him of “willful misconduct” for writing the dissent. It is important to point out two significant facts. First, Justice Kline’s was merely one of several votes and the appellate court ruled as a whole to support the precedent. Second, his dissent was based soundly in legal reasoning. The only offensive action he engaged in was his asking the court to revisit and reconsider the controversial precedent. For this questioning of a prior decision by his state’s supreme court, he faced termination by the judicial fitness commission. More than a year later, the commission formally dismissed the charges, possibly due to the immense support of the legal community given to Kline. The commission’s final report mentioned the importance of judicial independence: “It is fundamental to our system of jurisprudence that they feel free to break new ground, challenge existing assumptions, present novel legal reasoning, and experiment with different approaches. In most instances they must be able to do so free from fear of discipline for the free expression of their ideas” (adapted from: Lubet, 1998; Ofgang, 1999). (For the story of a Supreme Court justice whose unpopular rulings cost her her judicial position, see Box 15.5 in Step 15.)

Despite their extraordinary discretion, judges rely on others in the courtroom drama to help them make decisions. In many jurisdictions, judges count on probation officers to help them with sentencing concerns, but others also play a role in judicial decisions. In many cases, from mundane day-to-day concerns to serious rulings, judges rely heavily on their fellow judges, using informal and formal meetings to gather and share information (Meyer and Jesilow, 1997, p. 67). In addition, prosecutors and defense attorneys help shape every stage of each case, from whether or not bail should be allowed to what sentence is appropriate in a given case. In addition to counting on them for assistance, most judges “play along” with the courtroom work group. Decisions that are out of line with how the other members of the courtroom work group choose to act can attract condemnation from them. Judges who gain reputations for being difficult to work with may find themselves the subject of courtroom gossip or suffer other sanctions. Some judges, on the other hand, have gone a bit too far in their congeniality toward the courtroom work group. A Washington judge resigned after an investigation showed that he drank beer with the prosecutor and defense attorney while a jury deliberated on a drunk-driving case, in violation of laws regarding the consumption of alcohol in the courthouse (Brandt, 1998).
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

The Dilemmas of Being a Judge

199 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

THE DILEMMAS OF BEING A JUDGE “Good” Versus “Bad” Judges
Bad judges are fairly easy to recognize. They are prejudiced or oppressive, hateful or corrupt. Some of them appear unable or unwilling to perform the duties of their office. They may sleep during trials (e.g., Reeves, 1997) or act bizarrely, such as the judge who signed court papers “Adolf Hitler” and threw firecrackers into his colleagues’ offices (Bedlan, 1998). They may use their offices to line their pocketbooks with bribes (e.g., Two ex-judges, 1996), or they may wage private wars against individuals they dislike (e.g., McQuiston, 1996). Some of them use the sentence of jail illegally, such as the judge who repeatedly jailed poor workers until they made payments on their debts, although this use of incarceration is illegal in the United States (Dillon, 2000). Other bad judges put their needs before the needs of society or the defendants appearing before them. They are a generally despicable class of individuals whose decisions appear to be rooted in some anti-societal, self-serving sentiment. Well, not always, but truly bad judges are still fairly easy to spot. Good judges, on the other hand, are much harder to identify. Try to design a way to recognize a good judge—it is hard to do. Those who do not to act in inappropriate ways are not necessarily good judges, further clouding our task. Are good judges those who vote their conscience? What if their consciences are not in line with the rest of society? Are good judges those who react to public wants and desires? What about those who do whatever the public wants to keep their constituents happy, even if what the public wants is unconstitutional or unfair (e.g., impose long prison terms on panhandlers because the public is tired of feeling harassed by them)? Are good judges those who are compassionate toward defendants? What about those whose compassion leads them to sentence to probation those convicted of serious offenses? As you can see, it is fairly hard to recognize a good judge.

Judicial Ethics
One characteristic of good judges is that they behave in an ethical manner. There are canons of judicial conduct established by the American Bar Association and the Judicial Council, which regulate how judges must act. First, judges are expected to remain dispassionate in the matters before them; that is, they must be neutral about their cases and apply the law in an impartial manner. It should not appear that judges are favoring their own beliefs or trying to make a name for themselves, like the judge who ordered $1 million bail for a ship captain who was charged with misdemeanor charges stemming from a serious oil spill off the Alaskan coast although the prosecutor had requested only $25,000 bail (King, 1989). The second canon says that judges must be uninvolved in the actions they handle; that is, they must be impartial. If they cannot be impartial, they are expected to
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

200 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

recuse themselves, as one judge did when the defendant’s lawyer accused him of having Alzheimer’s disease (Fried, 1997). He said he was afraid he could not be fair toward the defense given the comment, so he stepped down from the case as he should have. Another judge was asked to recuse himself from a number of breast implant cases he was hearing because his wife could benefit from class-action suits due to her own breast implants (Corneliussen, 1997). While he said his wife was healthy and that her implants would have no effect over his courtroom decisions, the case highlights the importance that judges maintain the appearance of impartiality. A third judge came under fire when he presided over a tobacco regulation case even though he had been a former lobbyist for the tobacco industry; to the relief of many, however, his decision to allow regulation of tobacco as a drug was based on what he felt the law required rather than on his own leanings toward the tobacco industry (Thompson, 1997).6 Judges may be challenged if either the defense or prosecution questions their impartiality and can demonstrate that the judge might be too connected to the case to act in a fair manner. Judges who appear to be biased, regardless of whether they actually are biased, can find their decisions questioned by appellate courts. This is what happened to federal District Court Judge Thomas Penfield Jackson when his ruling to break up Microsoft was overturned and the case was remanded to another judge; he had appeared biased during and following the trial, going so far as to comment on the case to the press and discuss it in speeches, referring to Microsoft CEO Bill Gates and the corporation in rather unflattering terms. It is not an admission of wrongdoing or favoritism when a judge recuses himself or herself from a case; it is the proper thing to do when questions exist about a judge’s possible impartiality. If you were a criminal court judge, would you be able to ignore the fact that your best friend was appearing before you for sentencing? Surely not. Having friends is not the problem; trying to act as though friendships would not matter, on the other hand, is a serious issue. Recusal would be your best choice; no matter what sentence you imposed, people would assume your friendship played a role, and such perceptions erode the public’s confidence in the judiciary. A controversial example is the recent U.S. Supreme Court case in which presidential hopefuls Al Gore and George W. Bush challenged one another in a rapid whirlwind of legal challenges. Bush v. Gore (2000) may earn the distinction of moving from state court of general jurisdiction to U.S. Supreme Court in the shortest time interval, one month total. After issuing a ruling that the vote recounts then underway in Florida were not to be resumed, thus making George W. Bush president of the United States, the public maelstrom began. Accusations had already begun to fly that one of the justices (Antonin Scalia) should have recused himself because his son worked for the firm representing Bush. After the ruling was found to have been perfectly divided down political lines, with all five Republican appointees voting in favor of Bush and all four Democratic appointees voting in favor of Gore, the public was furious and the media complained about the role the U.S. Supreme Court played in the “stolen election.”
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

The Dilemmas of Being a Judge

201 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

This case demonstrates two important factors when dealing with the courts. First, no outcome in this case could have satisfied everyone—it was politically charged and on the forefront of every news channel in America as well as many of those in other countries. Regardless of our beliefs, we must recognize that the U.S. Supreme Court does not exist solely to make people happy; it exists to apply our legal principles to problems and to find legally responsible solutions to those problems. The second factor illustrated by this case is the important role of impartiality in justice. Regardless of whether politics played a role in this case, many members of the public felt it did. These individuals felt that the justices had not been impartial, and that they let their personal beliefs interfere with justice. Had all nine justices recused themselves based on personal connections or beliefs, as some individuals called for, however, no one would have been left to hear the case. The third canon says that judges must avoid doing things that could bias them or create an appearance of bias. For this reason, they tend to avoid joining citizens groups, such as the NRA (National Rifle Association). They also avoid rallies, even for issues they support. Can you imagine having a drunk-driving case heard by a judge who is a vocal leader in MADD (Mothers Against Drunk Driving)? Unfortunately, avoiding potentially biasing actions also isolates judges from their friends and communities. Those who had prior legal careers find that they must discontinue close friendships with former colleagues lest they appear to be inappropriate (Morgenstern, 1994, p. 60). Sometimes, maintaining friendships with lawyers can get judges into hot water. Every year, several California judges are formally disciplined with advisory letters when it becomes known that they had social relationships with attorneys in their courts (e.g., Panel tells of judges’, 1998). Judges who were former prosecutors, which is a popular path to take toward judgeships, must sever ties with law enforcement officials with whom they may have become friends. See Box 7.7 for one judge’s view of the isolation being a new judge caused her; she had to break ties with former work associates and experienced problems with other acquaintances who were not certain how to treat her once she became a judge. Once elected or appointed, judges often feel obligated to resign from board positions with such agencies as the YMCA and March of Dimes (Morgenstern, 1994, p. 61). When judges do not discontinue these activities, they may be accused of being biased on the bench. A recent appointment to Massachusetts’ Supreme Court is illustrative; some citizen’s groups had opposed one candidate’s elevation to the court because she had once served on the board of trustees for an abortion clinic, and they felt she could not be impartial if she were asked to rule on an abortion case (McMillan, 1999). Judges also risk formal sanctions from ethics commissions if membership in a group “would cast doubt on their impartiality” (e.g., Egelko, 1995). In the end, the canon that judges have to avoid activities that could bias them often contributes to isolation that is overwhelming and contributes to judicial burnout.
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

202 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

BOX 7.7 One View of the Isolation Caused by Becoming a New Judge
The following interview excerpts with a judge who was recently appointed to a judgeship shows a few of the differences she saw between her career as a prosecutor and her new career as a judge. The greatest differences were that she could no longer socialize with other members of the criminal justice system and had to cope with the public’s newfound view of her as a dignitary who inspired awe, rather than as the everyday person she strove to be. JUDGE: It is funny because being a judge is so isolated. Is it more isolated than being a prosecutor? JUDGE: Oh, prosecutor or any of that. I had a gay old time; I would have police officers come in and we’d eat stuff from Taco Bell, or if we were doing a search warrant, we would order out for a pizza; we would sit there with everybody involved and we would talk about what we were going to do, how we were going to do it. I had defense counsel coming in saying “Oh, hey, someone bought some pie.” We’d sit down and have some pie and discuss a case. I had victims come in even though their cases were closed. They’d come in and just to talk to me, just to have someone listen to them. I had a lot of kids that I took through court that would come in and tell me that they were doing okay, that they were doing fine. Oh gosh, just—I had all kinds of people. . . . I never told anyone, “I’m too busy, I’m sorry I can’t talk to you.” When people would come [and ask if I was busy, I would invite them into my office]. How has that changed now? JUDGE: I don’t have anybody [coming] back here [to her judicial chambers], it’s really lonely. I compare myself to the Maytag repair man. I don’t know the way people perceive you as a judge. People say, “So, what do we call you?” I say “I have never had my name changed or anything. The title that I have is just a new job that’s from 8 to 5, that is just my job.” But it carries beyond that, it’s like, “Oh my gosh, you are a judge!” I went to a wedding recently, and they needed some people to help finish cooking and things like that. I am not one to stand there and watch people have a hard time, so I washed my hands, started cooking, started helping here and there, wherever I was needed. I did it because that is how I was taught. Someone looked at me and said, “Oh my gosh, that’s a judge!” They were saying “Judge, that’s all right.” I said, “No, ‘Judge’ isn’t my name, my name is [——].” I said, “Judge—I do that 8 to 5 Monday through Friday. I am on emergencies if someone needs something done right away, but if I’m not working, if it is after hours, and I am not doing an emergency case, this is what I do, this is how I handle things.”
Source: Personal interview conducted by author, 1999.

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Dealing With Corrupt or Incompetent Judges

203 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Fourth, judges must not make comments on litigation before them. Even if they have strong opinions about a case, they are not allowed to grant interviews. They are also expected to keep details of cases confidential from their families and friends. Not making comments prevents the media and others from characterizing judges as biased. Consider the case of a New Jersey judge who was banned by his state’s supreme court from serving as an unpaid commentator for Court TV and Rivera Live; the court reasoned that his appearances violated a state rule that bars judges from commenting on any case, even those in other jurisdictions: “By prohibiting judges from commenting on pending cases in any court, we avoid the possibility of undue influence on the judicial process and the threat to public confidence posed by a judge from one jurisdiction criticizing the rulings or technique of a judge from a different jurisdiction” (Curran, 1997). Finally, judges must not allow themselves to be influenced by ex parte communications (i.e., communications from noncourt personnel). Generally, judges refuse to discuss their cases and try to avoid contact with those who might try to sway their opinions. The extent to which the courts may strive to protect judges from ex parte communications may sometimes appear excessive. When the Navajo Nation Supreme Court (many Native American tribes, including the Navajo Nation, have their own independent court systems) was invited to argue a case in 1999 at Harvard University, for example, a Harvard staffer stood outside the door when the chief justice used the restroom to prevent anyone from approaching him during that private moment. This was not only to provide him with additional privacy; the staffer was also to prevent potentially biasing contact from taking place.

DEALING WITH CORRUPT OR INCOMPETENT JUDGES
As mentioned earlier, judicial corruption is infrequently reported. Despite its rarity, judges do commit crimes or become incompetent while in office. The question then becomes how to deal with those individuals. Federal judges who are found to be corrupt can be removed by the Senate following impeachment by the House of Representatives. The process is similar to that experienced by President Bill Clinton following the Monica Lewinsky scandal. As detailed in the U.S. Constitution, a two-thirds vote by the Senate removes the judge from office. As we learned in the Clinton-Lewinsky scandal, impeachment is not an actual conviction. Instead, it is more like a grand jury indictment. Therefore, impeached judges must be tried for their crimes if they are to be punished beyond losing their judicial positions. State judges can also be removed from office by impeachment, but that is not the only method of removal available. The most common method of removal is failure to re-elect the judge. Judges who invoke enough public condemnation can also be subject to a recall election, such as what some citizens tried to do to the
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

204 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

judge who granted to O.J. Simpson custody of his children. To hold a recall election, enough signatures must be obtained on petitions asking for the procedure. The investigations branch of any state’s judiciary can also suspend or remove judges for violating certain rules and laws. State legislatures, relying on processes outlined in their respective state constitutions, can remove judges from office, but this is rarely used; the Washington State legislature, for example, has attempted to remove only two judges since Washington became the forty-second state in 1889 (Stone, 1999). Finally, the court where the judge served can be eliminated, but this is extremely rare. Incompetent judges are sometimes removed by their respective judicial branches, usually on the suggestion of a judicial council or fitness commission (discussed below) or some other decision-making committee. Judges who are incapacitated by illness or other means, for example, cannot serve as judges and may be asked to take a leave (e.g., disability leave) or retire early. Judges can be denied new cases if they refuse to obey orders to step down.

Judicial Fitness Commissions and Their Role in Policing Judges
One important force in the supervision of judges was the creation of judicial fitness commission, known by various names (e.g., Commissions on Judicial Conduct, Commission on Judicial Performance, and other names). These commissions are legislatively created panels of lawyers, judges, and citizens who hear cases of suspected judicial misconduct and decide how to deal with the cases. The commission in New York, for example, was created through an amendment to the state constitution. The first permanent judicial fitness commission was established in California in 1960, and by 1981, all fifty states and the District of Columbia had commissions (Lubet, 1998, p. 60). Although commissions differ in their “structure, composition, and procedure,” their general purpose and processes are similar (Lubet, 1998, p. 60). A judicial fitness commission is able to consider a range of reactions to complaints after conducting an investigation. It may privately reprimand a judge, by sending him or her a letter, sometimes ordering the judge to change his or her conduct. It may also publicly reprimand or censure an offending judge. In serious cases, a commission could suspend or dismiss a judge. Judges who are under investigation by a fitness commission are entitled to counsel, and some attorneys specialize in the field of judicial and lawyer misconduct proceedings. Federal judges are supervised by Circuit Judicial Councils, but the councils are not as powerful as state fitness commissions due to the guarantee of lifetime positions for federal judges during good behavior. Circuit Judicial Councils may dismiss complaints, privately reprimand a judge, publicly censure a judge, order that no new cases be assigned to the judge for a specified period of time, or ask the
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Some Everyday Worries of Trial Court Judges

205 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

offending judge to retire. In the case of suspected disabilities that would impair one’s ability to serve as judge, the council may certify that a disability exists so the judge will be forced to retire. Misconduct includes such things as accepting bribes, using one’s judicial office to benefit friends or family, violating judicial canons of ethics, and other abuses of power. In those states that have adopted the Model Code of Judicial Conduct (which nearly every state has done), judges may be investigated for engaging in any action that “demeans” the judicial office (Canon 4A); writing or speaking publicly (Canon 4B); engaging in “government, civic, or charitable activities” that do not directly concern the law (Canon 4C); becoming involved in business or other financial ventures with attorneys or others who might come before the court on which the judge serves (Canon 4D); and many other actions that are obviously grey areas that might be difficult to police. Misconduct does not, or at least should not, include making unpopular or incorrect rulings (unless the ruling resulted from bribery or other abuse of the office). Simply making bad decisions should not be enough to get a judge sanctioned. One of the hallmarks of American justice is the value we place on judicial independence; this is why federal judges are appointed for life. Some scholars argue that fitness commissions may overstep their bounds and try to intimidate judges whose views or rulings are unpopular (e.g., Lubet, 1998). When this happens, judicial independence is negatively affected.

SOME EVERYDAY WORRIES OF TRIAL COURT JUDGES
Like other members of the courtroom work group, judges worry about legal and nonlegal issues in their lives. Much of their concerns deal with the day-to-day running of their courtroom. Judges are expected to clear their calendars of cases, and sometimes crushing caseloads interfere with their ability to easily accomplish that task. Lower court judges may have caseloads of several hundred cases per day, and they feel this affects their ability to effectively deal with defendants in a just manner. One judge complained: “I’ve got 3.8 seconds per personal encounter” (personal interview). Another judge said that his “personal record” was 400 cases in one day, which made him question his ability to do his job: “The nature of the judiciary has changed where we’re less judges and more case processors” (personal interview). The caseload pressures are not limited to lower courts nor are they new; one felony court judge wondered in the 1960s: “Did John Marshall or Oliver Wendell Holmes ever have to clear a calendar like mine?” (Blumberg, 1967, p. 123). Other judges worry about pressures put on them by their local and state legislatures. Mandatory sentences, for example, have attracted a lot of condemnation from judges who feel that discretion is important in their ability to dispense justice in their courtrooms: “Once you start doing mandatory minimum sentences, politics
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

206 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

gets involved in it too much rather than justice and fairness, in my opinion. If you want to have mandatory sentences in everything, why need a judge? Just have a computer up there and when the guy is charged guilty, just punch the computer and it will pop up the sentence for it” (personal interview). Other judges worry about the pressures to extract money to support state projects from defendants who are otherwise “good” people: “I don’t personally feel that I am under any obligation whatsoever to balance the budget on the backs of people like that coming into court. And I won’t do it” (personal interview). As demonstrated by these quotes and research by others, judges often resent infringement on their discretion and particularly dislike mandatory minimums that they feel are unjust (e.g., Forer, 1994; Peyser and Foote, 1994; Mandatory minimums, 2000). Like other individuals, judges have their pet peeves. Some dislike certain types of cases. One judge detested drunk-driving (DUI) cases, so she used the courtroom network to her advantage by starting a rumor that her daughter had been killed by a drunk driver; whenever she was assigned a drunk-driving case, the defense attorneys would do everything in their power to get the case switched to another judge (personal interview).7 Other judges worry about cases that are emotionally difficult to deal with. A number of the judges interviewed by one of the authors mentioned their dislike for child abuse cases: “I’ll tell you which ones I like the least—child abuse and child molestation cases. Those really hit close to home and emotionally because I have . . . kids of my own. . . . I’m too emotionally involved in those cases and I try to avoid those if I can” (personal interview). Real or imagined, these dislikes and others like them may have important effects on the justice doled out in courtrooms across the country. Some judges work around mandatory sentences through creative means, but this does not always work or sometimes attracts the attention of the legislature, which promptly closes the utilized loopholes (e.g., Meyer and Jesilow, 1997). Some judges worry about defendants lying in court, which will be discussed further in Step 14, as it is a factor that may be used to enhance sentences. As was discussed earlier in this chapter, some judges worry about maintaining friendships and appearing impartial. Other judges worry about being reversed on appeal. A few worry whether they are doing what is right in their courtrooms. These are real concerns for judges and their presence can contribute to judicial burnout.

CONCLUSION
In this chapter, we learned about judicial responsibilities and the many roles judges play in the justice drama from arrest to appeal by signing warrants, assigning bail, presiding over preliminary and pre-trial hearings, accepting plea bargains, overseeing jury selection, presiding over trials and ruling on objections, imposing sentences, and hearing appeals. We also examined briefly the demographic characteristics
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Conclusion

207 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

shared by judges and how they might affect justice. We looked at the increasing role played by women and minority judges and the pre-judicial education received by those who hear our disputes and settle our differences. Then, we turned our attention to the methods of selecting judges and the pros and cons of those methods. Finally, we explored judicial discretion and how it is shaped by the canons of judicial conduct. See Box 7.8 for some concluding observations on judges, written by students. The next chapter will describe the roles played by other key players in the courtroom drama, such as defendants, victims, witnesses, bailiffs, clerks, jurors, bail bondsagents, translators, victim-witness assistants, spectators, and courtwatchers. You will learn how these individuals are viewed by the criminal justice system and how they are important in shaping the face of justice.

BOX 7.8 Some Student Observations Regarding Judges
Anne S. (1997) noted that one judge, in addition to explaining the adversarial system to defendants, also seemed to encourage defendants to plead guilty: When the judge entered the courtroom, the first thing he did was set down his “ground rules.” He stated that everyone was presumed innocent and that it was the job of the state to prove beyond a reasonable doubt that the defendant was guilty. He said that plea bargaining was permitted and also if anyone was not satisfied with the decision of the court that that person had twenty days to appeal the decision. The judge believed that “silence is golden” and anyone who thought that this rule did not apply to them would be “dealt with in the proper manner.” Finally, he said that those who plan to plead guilty would be given preference and those cases would be handled first because those who plead guilty are people who “acknowledge their responsibility.” Herbert Nix III (1997) was surprised that a judge admitted in open court that jail overcrowding affected the sentences he imposed: XX is the next defendant to come forward. In this case, the defendant, who is in his mid-forties, has pled guilty to [threatening to hurt another person]. XX has no prior convictions. The judge sentenced the defendant to four years’ probation. The judge said that threats should not be taken lightly, but unfortunately because of the overcrowdedness in the criminal justice system, his hands are tied and he was unable to impose the preferred sentence. Stacy Walter (1999) noted that judges can get angry with defendants who act out of line or have bad days, both of which can spell trouble for defendants appearing before them: In comes the judge. All rise! Judge T takes his position overlooking the crowd from the bench. He looks to be in a good mood tonight. I have witnessed Judge T before
(continued)
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

208 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case

and if he has had a bad day, I guarantee you will have a throat clenching evening. Opening [announcements] were made. No cell phones, beepers, stereo/radio equipment, and most importantly, no whiny children. It is a courtroom not a nursery. . . . The second case was another DUI charge. . . . [the defendant] talks back to the judge. How stupid can this guy be? Judge T threatens to send him to jail if he does not shut up. . . . After these two cases Judge T is perturbed, because he lashes out at the people coming in and out of the courtroom doors. Silence fell over the courtroom. . . . [Another defendant] leaves the courtroom and slams the door. Judge T sends an officer to go get her and bring her back into the courtroom. She comes back into the courtroom and the judge asks her why she slammed the door and she replies, “I didn’t know the door was that light.” Judge T tells her to respect others, and she is dismissed from the courtroom. N.P. Rainey (1997) observed a judge socializing defendants to let their attorneys speak for them rather than bogging down proceedings by trying to speak themselves: The judge recommends that if the defendant has an attorney that they let the attorney speak for them.

DISCUSSION QUESTIONS
1. What do you feel is the most important of the roles fulfilled by judges? Could others in the justice system fulfill any of the other roles? Why are these roles assigned to judges? 2. Scan your local newspaper for stories that discuss decisions or actions by judges. Classify the actions based on the decision points at which judges are involved. 3. Do you feel that drug courts and community programs are a good investment? Do you feel that the roles filled by judges for these two programs could be fulfilled by others in the justice system? How does the “air of the judicial office” help these programs function? 4. Contact your local courts or find their Web page. How do the judges in your community “look” demographically? Are they similar to the demographic picture presented in this chapter? If they differ, why do you think that is true? 5. Why might female and minority judges be more “gender- and colorblind” than their male and white counterparts? Consider the research discussed that suggested that female judges and male judges might approach cases differently. Why might this be? 6. Why is judicial diversity important? How might it influence public perceptions of courts, judges, and the legal process? 7. It is clear from the table in Box 7.4 that merit selection is used far less often to choose trial court judges than it is with appellate court judges. Why do you think this is true? 8. Why is judicial independence important? How might each of the methods by which judges are selected help preserve or compromise judicial independence? 9. Consider the situation in those states where judicial hopefuls must come up with significant sums of money in order to qualify for selection as a judge. How might these financial requirements screen out good potential judges? How might such requirements threaten judicial independence?
ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Notes

209
10. How much does the public really know about the selection and training of judges? Were you surprised to learn that some judges may never have been in a courtroom prior to taking the bench? What kinds of training do you believe that judges should have before taking the bench? 11. How could judicial fitness commissions play a more active role in policing judges? Is this a good idea? What are the pros and cons of a process that more closely monitors judges?

NOTES
1. Of the 11 percent of felons who were convicted in 1994 after a trial (the remaining 89 percent plead guilty), the proportion of jury (52 percent) and bench (48 percent) were roughly equal (adapted from Langan and Brown, 1997:8, Table 9). Many of those jury trials were for violent offenses; 83 percent of the trials resulting in convictions for violent offenses were heard by juries. For all other categories of offenses (i.e., property, drug, weapons, and other), bench trials were more common. 2. The seven states that do not specifically require that judges be admitted to their state bars before assuming their judgeships are: Illinois, Indiana, Iowa, Massachusetts, Nevada, Oklahoma, and Wyoming. We counted as requiring admission to the state bar eight states that require prior legal practice in the state, but do not specify if that is as a member of the state bar: Alabama, Alaska, Arizona, Arkansas, Mississippi, Nebraska, Ohio, and Texas. In addition, the state of Tennessee requires only that judges in that state be “qualified to practice law.” 3. Whereas most states do not require a law degree for all judges in their courts of limited jurisdiction, only six states do not have this requirement for their general jurisdiction court judges: Kansas (about one-third of state’s District Court judges are “District Court Magistrates” and the Kansas Supreme Court may approve those who do not have law degrees for this position), Maine, Massachusetts, North Carolina (which does not mandate law degrees for “special judges” or those who were elected prior to 1981), Oklahoma (about one-third of the state’s district court judges are “special judges” who need not have a legal education), South Dakota (about three-fourths of the full-time judges are lay magistrates or clerk/magistrates and do not necessarily possess a law degree; Rottman et al., 2000, pp. 50–56). In addition, the state of New Hampshire does not specify whether judges must possess a law degree for general jurisdiction judges, but requires them for lower court judges, leading one to believe law degrees are required for general jurisdiction judges in practice even if not by law. 4. When judicial positions are vacated before the expiration of the judges’ terms, the governor (or other legislatively selected individual or group) temporarily appoints a judge to fill in until the next election. This process may impact the justice system as it allows some individuals to bypass the formal structure of judicial elections; even temporary appointees actually run as incumbents during the next election (which means they are more likely to win the election). In some jurisdictions, a special election can be called to fill judicial vacancies. 5. The controversial practice was the use of “stipulated reversals,” in which parties, as part of a settlement, ask an appellate court to reverse a trial court decision rather than dismiss an appeal, thus allowing the original defendant to better defend himself or herself in expected future claims. If an appeal is dismissed, the original decision stands, which means the original defendant cannot relitigate the issues brought up in the case. If the decision is reversed, on the other hand, the legal reasoning that attributed blame for the tortious behavior in question is eliminated. 6. Some could argue that his ruling was intended to show that he was not “biased” toward tobacco. To avoid any accusations of impropriety, the judge could have recused himself from the case altogether.
ISBN: 0-536-16544-0

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

210 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case 7. Although one could argue that the judge’s integrity should be questioned for attempting to manipulate her caseload through false rumors, she may actually have done the defendants a service by helping them get their cases heard before judges who did not share her dislike for DUI cases.

REFERENCES
Argersinger v. Hamlin, 407 U.S. 25 (1972). Ashman, A. (1975). Courts of Limited Jurisdiction: A National Survey. Chicago: American Judicature Society. Attorney defends O.J.’s custody. (1997, February 17). Associated Press Wire. Bedlan, B. (1998, March 24). Board: Fire suspended Omaha judge. Associated Press Wire. Berkson, L. (1982). Women on the bench: A brief history. Judicature, 65: 286–293. Boland, B., and Sones, R. (1986). The Prosecution of Felony Arrests, 1981. Washington, DC: National Institute of Justice. Blumberg, A.S. (1967). Criminal Justice. Chicago: Quadrangle Books. Bradwell v. Illinois, 83 U.S. 130 (1872). Brandt, A.L. (1998, April 7). Judge resigns after drinking flap. Associated Press Wire. Bush v. Gore, 531 U.S. 98 (2000). California Constitution, art VI, sec. 15. Cappell, C.L. (1990). The status of black lawyers. Work and Occupations, 17: 100–121. Carbon, S. (1982). Women in the judiciary: An introduction. Judicature, 65: 285. Carbon, S., Houlden, P., and Berkson, L. (1982). Women on the state bench: Their characteristics and attitudes about judicial selection. Judicature, 65: 295–305. Corneliussen, A. (1997, January 17). Implant judge may step down. Associated Press Wire. Curran, J. (1997, January 25). New Jersey judge fights TV ban. Associated Press Wire. Davis, S., Haire, S., and Songer, D.R. (1993). Voting behavior and gender on the U.S. courts of appeals. Judicature, 77: 129–133. Dillon, S. (2000, January 30). Small-town Arizona judge amasses fortune, and indictment. New York Times Wire. Egelko, B. (1995, October 19). New ethics code for judges is shaping up: But panel drafting rules is accused of secrecy. San Diego Union Tribune, p. A3. Emmert, C., and Glick, H. (1987). Selection systems and judicial characteristics: The recruitment of state supreme court judges. Judicature, 70: 228–235. Escobedo v. Illinois 378 U.S. 478 (1964). Feeley, M.M. (1979). The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation. Feinblatt, J., and Berman, G. (2001). Responding to the Community: Principles for Planning and Creating a Community Court. Washington, DC: Bureau of Justice Statistics. Ferrick, T. (1999, January 31). The high cost of judgeships. Philadelphia Inquirer. Flango, V.E., and Ducat, C. (1979). What differences does method of judicial selection make? Selection procedures in state courts of last resort. Justice System Journal, 5: 25–44. Forer, L.G. (1994). A Rage to Punish: The Unintended Consequences of Mandatory Sentencing. New York: Norton.

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

References Fried, J.P. (1997, May 15). Judge recuses himself from Gigante mob case. New York Times.

211 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 N 42 L 43

Gebelein, R.S. (2000). The Rebirth of Rehabilitation: Promise and Perils of Drug Courts. Washington, DC: National Institute of Justice. Gideon v. Wainwright, 372 U.S. 335 (1963). Gilligan, C. (1982). In a Different Voice: Psychological Theory and Women’s Development. Cambridge: Harvard University Press. Glick, H., and Emmert, C. (1986). Stability and change: Characteristics of state supreme court judges. Judicature, 70: 107–112. Graham, B.L. (1990). Judicial recruitment and racial diversity on state courts: An overview. Judicature, 74(1): 28–34. Gruhl, J., Spohn, C., and Welch, S. (1981). Women as policymakers: The case of trial judges. American Journal of Political Science, 25: 308–322. Holmes, M.D., Hosch, H.M., Daudistel, H.C., Perez, D.A., and Graves, J.B. (1993). Judges’ ethnicity and minority sentencing: Evidence concerning Hispanics. Social Science Quarterly, 74: 496–506. Judge removed for anti-woman remark. (1997, June 10). Associated Press Wire. King, J. (1989, April 5). Spill tanker captain held on one million dollars bail. Reuters Wire. Langan, P.A., and Brown, J.M. (1997). Felony Sentences in State Courts, 1994. Washington, DC: National Institute of Justice. Levin, M.A. (1977). Urban Politics and Criminal Courts. Chicago: University of Chicago Press. Lubet, S. (1998). Judicial discipline and judicial independence. Law and Contemporary Problems, 61: 59–74. Mandatory minimums in drug sentencing: A valuable weapon in the war on drugs or a handcuff on judicial discretion? (2000). American Criminal Law Review, 36: 1279–1300. Martin, E. (1982). Women on the federal bench: a comparative profile. Judicature, 65: 306–313. Martin, E. (1990). Men and women on the bench: Vive la difference? Judicature, 77: 204–208. Martin, E. (1993). The representative role of women judges. Judicature, 77: 166–73. McMillan, J. (1999, October 13). Woman named Mass. chief justice. Associated Press Wire. McQuiston, J.T. (1996, October 16). N.Y. court upholds judge’s dismissal. New York Times Wire. Meyer, J.F., and Jesilow, P. (1997). ‘Doing Justice’ in the People’s Court: Sentencing by Municipal Court Judges. New York: State University of New York Press. Miranda v. Arizona 384 U.S. 436 (1966). Morgenstern, B.L. (1994, July). An uncomfortable distance. ABA Journal: 60–61. Myers, M.A., and Talarico, S.M. (1988). The Social Contexts of Criminal Sentencing. New York: Springer/Verlag. New York criminal court judge faces removal. (1996, February 16). Washington Times Wire. Ofgang, K. (1999, August 20). CJP formally dismisses misconduct charges against Court of Appeal Presiding Justice J. Anthony Kline. Metropolitan News-Enterprise, p. 1. Panel tells of judges’ misdoings: 58 in California disciplined last year. (1998, April 14). San Diego Union Tribune, p. A3. Peyser, M., and Foote, D. (1994, August 29). Strike three, you’re not out. Newsweek, p. 53. Reeves, J. (1997, September 17). Alabama suspends blind judge. Associated Press Wire.
ISBN: 0-536-16544-0

Rottman, D.B., Flango, C.R., and Lockley, R.S. (1995). State Court Organization 1993. Washington, DC: National Institute of Justice.

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

212 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

A Judge Is Assigned to Hear the Case Rottman, D.B., Flango, C.R., Cantrell, M.T., Hansen, R., and LaFountain, N. (2000). State Court Organization, 1998. Washington, DC: U.S. Department of Justice. Smith, V. (1998, May 7). Ex-judge acquitted in civil case. Associated Press Wire. Spohn, C. (1990). The sentencing decisions of black and white judges: Expected and unexpected similarities. Law and Society Review, 24: 1197–1216. State of Florida ex rel. Argersinger v. Hamlin, 236 So. 2d 442 (1970). Stone, G. (1999, November). External trends affecting the practice of law in Washington State: State legislative impacts. Washington State Bar News, pp. 37–40. Thompson, E. (1997, April 26). FDA-Case judge had tobacco ties. Associated Press Wire. Two ex-judges and lawyer guilty of tainting California court. (1996, October 20). New York Times. U.S. Bureau of the Census, Census of the Population 1970. (1973). Subject Reports: Occupational Characteristics. Washington, DC: Government Printing Office. U.S. Bureau of the Census, Census of the Population 1990. (1992). Supplementary Reports: Detailed Occupation and Other Characteristics from the EEO File for the United States. Washington, DC: Government Printing Office. Vines, K. (1962). The selection of judges in Louisiana. Tulane Studies in Political Science, 8: 99–119. Warrick, L. (1993). Judicial Selection in the United States: A Compendium of Provisions (2nd ed.). Chicago: The American Judicature Society. Welch, S., Coombs, M., and Gruhl, J. (1988). Do black judges make a difference? American Journal of Political Science, 32: 126–136. Wheaton, E. (1997). Myra Bradwell: First Woman Lawyer. Greensboro, NC: Morgan Reynolds. Wice, P.B. (1985). Chaos in the Courthouse: The Inner Workings of the Urban Criminal Courts. New York: Praeger.

ISBN: 0-536-16544-0

The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.