The Judge's Stake

An important rule of appellate procedure says that before a party can complain on appeal about a ruling by the trial judge, one must first have complained to the trial judge. This reflects the broader principle that parties should be required to make their positions known as early as possible, so that any errors otherwise creeping into the process may be corrected quickly and efficiently. A related concern is that a party should not be allowed to deliberately obstruct and delay a final result, as would inevitably happen if the law allowed one to deliberately withhold an objection until something happens that one doesn't like -- like a verdict for the other side -- then unveil one's objection and force the court to wind the suit back to some earlier point. This would not only be unfair to the opposing party; it would also be an unjustifiable imposition on the judicial system, wasting person-hours and resources for which the public largely foots the bill.

So understood, the rule should have, and does have, its limits. Sometimes the party has an excuse for not raising the objection sooner. Sometimes the party supposedly aggrieved by the delay was instrumental in bringing it about. Sometimes it may appear that the objection would not have done any good if raised sooner, even though it is meritorious. Sometimes a refusal to consider the objection will produce greater inefficiency than going ahead and considering it now. In these and perhaps other situations, the rule should give way -- and in an enlightened court, it does.

But some courts have suggested that this rule -- which I will call the requirement of predicate objections -- rests on a further rationale: that it is unfair to the trial judge for a higher court to consider some claimed defect in the proceeding that he had no opportunity to correct
because it was never brought to his attention. This proposition provides an interesting springboard to questions like, Does a judge have an interest (stake) in the suit before him? If so what is it? Does it influence his rulings? Can we prevent that?

In the rationale for the rule of predicate objections that I last mentioned, we find a rare and perhaps unique acknowledgment of one of the great unacknowledged facts of our jurisprudence -- and perhaps, to varying degrees, of any functioning jurisprudence -- which is that judges have a stake in the proceedings before them. This point will not surprise everyone. But surprising or not, it deserves close attention and study because it colors the entire judicial process in ways that should influence the way people, from ordinary voters to lawmakers to law professors to judges, look at and think about the law.

The notion that parties must apprise the judge of his errors out of fairness to him acknowledges that in every case, the judge has a stake in getting it right. He has an interest in not being made to appear a poor judge by having an appellate court correct him. Toward this end, the posited rationale requires the parties to warn him when he is making a mistake, and to bear the blame for it when they do not.

The judge's interest in not being corrected has several components. One is psychological: the judge wants, as we all do, to be perceived as capable and competent. He wants to be positively mirrored in the eyes of his fellow judges, lawyers, and citizens. Least reducibly, he wants to be positively seen in his own eyes. This desire may be mediated by other concerns; for instance, he may hold the appellate judges who review his work in low regard, such that their rejection of his work does not much affect his judgment of his own competence. He may know that his fellow judges, or some of them, feel similarly, and will view any appellate correction more with sympathy than censure. Or he may know that existing law provides no sure guide to the problem before him, and that no one will blame him if the appellate court exercises its paramount authority to decree a solution that differs from his.

Another component of the trial judge's interest in not being corrected is more concrete and practical. Appellate correction typically means that the case will be remanded for further proceedings. In the simplest situation, this means that the case will come back to the same judge and be added to his workload. No builder can relish the thought of some higher authority directing him to tear down his work and start again, especially if he already has plenty of work to do. In a trial court with more than one judge, a remand is likely to translate into more work for all of the judges, if only by a redistribution of their other cases. This translates into another kind of peer pressure than the one already noted. A judge who may sympathize with your being corrected by a court you both hold in low esteem may nonetheless complain about the added burden this inflicts on the court as a whole, a share of which will presumably be borne by him. Again, the weight given to these concerns will vary from psyche to psyche and situation to situation, but the fact is they are at least potentially present in every case and every ruling.

Yet a third strand of self-interest is implicated in the possibility of appellate reversal, and that is the judge's concern with his career. This factor may loom to predominant proportions or shrink to virtual invisibility depending on variables including the attitudes, ambitions, and abilities of the individual judge. One judge may be perfectly happy where he is and secure enough in his own tenure that an appellate reversal will not trigger even the merest ripple in his equanimity. Another may be zeroed in on a higher position and most anxious to avoid anything that may trigger unfavorable attention of any kind on the part of those who may influence his future.

Once we have acknowledged factors such as these, it is difficult not to follow the lines of inquiry they suggest into other potential stakes a judge may have in proceedings before him. One is a variation, albeit a more disturbing one, on the point just mentioned. Insofar as a judge might be influenced by the desire to be appointed to a higher court, the effect may be relatively innocuous. This might be supposed, at any rate, so long as the net result is only to cause the judge to more closely adhere to paramount authorities. Much of the time it will only induce him to do what a higher court would probably order him to do anyway.

But what about a judge who hopes to go into private judging? His natural interest lies not in correctly anticipating the views of an appellate court, but in cultivating a good reputation with the kind of litigants who hire (and pay top dollar for) private judges. To put it most nakedly, he has a natural interest in not ruling against insurance companies if he sees them as future customers whose interest in his services may depend on the kind of record he is building right now, on the bench. This is just one of many ways in which the judge's natural stake in a case may tend to favor socially dominant interests, rather than minority ones.

Criminal cases provide their own risks to judges, giving them various stakes in the outcome, or at least the outcome as perceived by the public and other actors. To begin with a simple example, imagine yourself a juror -- which makes you a judge for present purposes -- in a case where the defendant is accused of murdering an innocent citizen in the mistaken belief that the citizen was a member of a rival gang. The evidence at trial clearly shows that the defendant is a very violent person, apparently capable of a crime of this type. Indeed it shows that the defendant probably did commit the offense. The question you are sworn to answer, however, is not whether the defendant is a bad person who probably committed this murder and might commit other similar acts if he remains at liberty. The question you are sworn to answer is whether the evidence you have heard at trial shows beyond a reasonable doubt that the defendant in fact committed this murder.

You find this question difficult. The witnesses' descriptions of the killer somewhat resemble defendant, but they are not so specific or so accurate as to rule out mistaken identity. There are small but bothersome gaps in the evidence. There are no fingerprints, no DNA, no smoking gun. In short, you are not entirely satisfied with the prosecution's case.

You are satisfied, however, that the defendant is an extremely dangerous individual. Furthermore, the evidence at trial gives you reason to fear that if he is freed he will seek to retaliate against the witnesses who assisted in the prosecution. You cannot help but imagine future newspaper headlines about defendant's murder of these witnesses, or some other victim. You can imagine people blaming you, and your fellow jurors, for letting this happen. Meanwhile the prosecutor appeals to you to in the name of the community to put the defendant behind bars for life.

Can you deny that you have a stake in the case? Can anyone really expect you to set that stake aside and render a dispassionate verdict on the evidence?

As a practical matter the stake of jurors may be attenuated by the unlikelihood that anyone will hound them. Certainly there is no lawful recourse against them. But they can be villified and perhaps ostracised. The general reaction of white Americans to the O. J. Simpson verdict springs to mind. Even if jurors remain anonymous, they can hardly be impervious to the censure that might be visited upon them for honestly performing an obligatory public service. Indeed, a juror in that situation may find himself subjected to a sanction from which there can be no ready escape: the pangs of his own conscience.

In any event, I only cited the case of jurors as a way of bringing home the point that in some cases, the judgment can have repercussions on the judge. If the stake of jurors is somewhat attenuated by their anonymity and amateur status, the opposite is true of the professional judge. If he is seen as bringing about the release of a defendant like the one described above, and that person goes on to commit a further crime -- as is entirely likely -- the judge can suffer serious and lasting personal consequences. It would not be extraordinary for him to ultimately find himself out of a job, at least where he can be made to answer to voters.

This stake in the outcome would be expected to produce a certain amount of buck-passing, and indeed our system of criminal justice can be seen as pervaded by this feature. Trial judges are actually well insulated from blame in cases that go to trial because in such cases, the question of the defendant's guilt or innocence is solely entrusted to the jurors, whose decisions on questions of fact -- what really happened, whom to believe -- cannot be second-guessed. If the jury acquits, the case is over for good and for all, and it would be a rare situation in which the public could be persuaded to blame the trial judge -- though as Judge Ito might observe, in a sensational case the judge's actions may come in for some withering criticism.

But in some jurisdictions the judge has the power to overturn a guilty verdict if he disagrees with the jury's assessment of the evidence. This places a burden on him to fairly and independently weigh the evidence and reach his own conclusion about whether it established guilty beyond a reasonable doubt. And in all jurisdictions there are procedural settings in which the court may have to rule on issues one outcome of which may be the defendant's release. These situations may put the judge's own stake in the case in direct conflict with his oath, for they place him squarely in the hot seat in determining whether to release a potentially dangerous person.

The clearest example of such a situation is a motion to suppress evidence as having been unlawfully obtained. Consider a hypothetical situation of a kind that is actually quite common in our courts. A defendant is charged with possession of drugs. The charge rests entirely on the testimony of police officers that they found drugs in the defendant's apartment. The defendant moves to suppress this evidence on the ground that the police searched his apartment without a warrant in violation of his right under the Fourth Amendment to be free from unreasonable searches and seizures. In support of his motion, he testifies that officers knocked on the door, shoved their way into the apartment, walked through the house, and seized a bag of drugs they found on a bedroom dresser. In opposition to the motion, an officer testifies that they knocked on the door, told the defendant they had a report that he was selling drugs, asked for his consent to search, obtained it, and only then entered and searched the apartment. In rebuttal, the defendant testifies that he has been prosecuted before; that he is an accomplished jailhouse lawyer; that he knew officers could not search his apartment without a warrant; that he would never consent to such a search; and that he did not do so on this occasion.

In ruling on the motion, the trial judge is faced with a seemingly stark choice. If he believes the defendant, he must grant the motion, suppress the evidence, and -- upon the prosecutor's affirmation that there is no other basis for the charges -- dismiss the case. If he believes the officer, he must deny the motion and allow the prosecution to go forward.

In the case just described the choice is softened -- the judge's stake is reduced -- by the nonviolent nature of the offense and, apparently, the offender. A dismissal of charges is unlikely to attract much public attention. But we can quickly eliminate this solace by tweaking the hypothesized facts. Now the defendant is charged with child molestation, not possession of drugs, and the seized evidence consists of the defendant's photographs of himself committing the charged offenses. The release of the a defendant in such a case is certain to attract intense public scrutiny and very probably criticism. The motion therefore presents the judge with a pointed dilemma. Shall he fulfill his oath and resolve the question before him by honestly deciding who he thinks is telling the truth? If this leads him to grant the suppression motion and dismiss the charges, and the ruling is affirmed on appeal, his name will forever be linked to that defendant's release. Victims' rights groups may actively campaign for his defeat or recall. He may even be shunned socially. A denial of the motion, on the other hand, will serve his own interest. It will almost certainly insulate him from any personally adverse consequences. How shall he resolve this dilemma?

Nor is the tug of self-interest limited to cases in which the general public may take an interest,. There is a law enforcement subculture in which it is common to believe that for our criminal justice system to work the police have to lie, and sometimes to abridge suspect's rights, and that anyone who fails to recognize and accommodate this fact is an ally, witting or otherwise, of the barbarians supposedly pounding at the city gates. Judges who are seen as unsupportive of prosecutors and police may be subject to boycotts through the use of automatic peremptory challenges, which permit a party (such as the prosecutor) to disqualify a judge from sitting on a case. (To be fair, criminal defense attorneys have employed this same strategy against judges seen as excessively disposed in the prosecution's favor.) In extreme cases they may even be subject to hostile political campaigns by law enforcement groups. The infamous unseating of the "Bird court," which triggered political shock waves still reverberating thorugh the California judiciary, was a joint effort of business and prosecutorial interests. But the political ramifications of this subculture probably pale in comparison to its effect in building and reinforcing the culture of incrimination which many judges internalize, as I will shortly discuss.

So far I have focused on jurors and trial judges, but a more complete picture must include the role of appellate courts. Whether the trial judge grants or denies the motion to suppress, his ruling is subject to appellate review. The same is true of a jury's verdict of guilty. In none of these situations is what happens in the trial court the last word. One might suppose that this frees the jury (or judge) to do what they think is right, since the final responsibility will rest with an appellate court. This is a mistake for several reasons. First, while a juror's vote of guilty is subject to negation by an appellate court, a vote of not guilty is final. The constitutional prohibition on being placed twice in jeopardy precludes any official action to review, overturn, or question a judgment of acquittal. A juror who knows this may naturally favor a guilty vote if only because it passes ultimate responsibility for the case to someone else.

More fundamentally, the buck-passing aspect of appellate review is marred by the effect of appellate "standards of review," which require the court to "defer" on many issues to the trial judge or the jury. Thus, in our drug possession case, if the trial judge finds that the defendant is telling the truth and the police officer is not, that finding will nearly always be binding on the appellate court. The canny reader will see what this means in terms of the realpolitick of jurisprudential buck-passing: if the trial court tries to pass ultimate responsibility to the appellate court, that court can in turn pass it back by citing the rule of deference. Thus, in our child molestation case, the trial court may say, "I think the police officer is lying, but I welcome review by the appellate court." The appellate judges may reply, "Thank you, but your finding is binding on us, and we therefore have no choice but to affirm your dismissal of charges." The net result is that the trial judge may be back facing a recall election, or the local equivalent. A trial judge in such a situation can be sure of escaping adverse personal consequences only by ruling in favor of the prosecution at every such juncture, i.e., every time he is faced with a stark choice between moving towards conviction on the one hand, and releasing the defendant on the other.

Nor are appellate judges free of such concerns. Take our child molestation case, but now suppose that the motion to suppress evidence depends not on who is telling the truth, but on some fine point of law, such as whether the defendant had standing to assert a privacy interest in the apartment. Suppose further that the law on this subject is murky and doubtful, and that the cases are full of conflicting and even self-contradictory statements. (This is not at all uncommon, and indeed is an entirely predictable result of the very forces I am describing here.) The appellate judge has a choice. He can sift through the cases and attempt to make sense of them, extracting a rule that he then applies honestly to the case before him, without regard to the consequences; or he can cherry-pick those precedents that will justify him in taking the safe route, which is, again, to prevent the defendant's release into society.

Do I think that judges sit in their chambers weighing the personal consequences of their rulings and deciding cases accordingly? Absolutely not. With very rare exceptions, the judges I have known -- and I have known many -- were steadfastly committed to doing the right thing, as they saw it, in every case that came before them. My point is simply that judges have a stake in very ruling they make -- indeed they can have multiple stakes -- and that while these interests are not determinative of the outcome in all cases, or even many cases, they cannot help but exert some effect, at least occasionally on the outcome.

But I have a greater concern, which is the real point of this piece, and that is the effect of these interests on the process and culture of judging -- on the mind of the judge. No one in our society is, or should be, bound to a higher standard of integrity than a judge. Yet here he is, cast with some regularity into situations where, if he keeps his oath to those he serves, they may react with not only ingratitude but vindictiveness. Even in situations without such political valence he is under various pressures to rule in a way most consistent with his own interests. All of these things exert force threatening to pull him from the strict path of judicial integrity. Sometimes -- as in the hypothetical cases I have described -- the force may be irresistible.

A judge could freely and consciously succumb to these forces if he were willing to betray his oath. But that would make him a villain, and in the words of David Gans, "Everybody is a hero of his own movie." Human beings deal with internal conflicts of this kind by constructing what psychologists call defenses. The judge presiding over a difficult criminal case will greatly ease his conscience by simply persuading himself as an a priori proposition that police and prosecutors pretty much always do the right thing. Outside the courtroom he may still be able to acknowledge that officers sometimes deliberately abridge civil liberties, and that some of them might even be capable of fabricating evidence or suborning or committing perjury. But inside the courtroom these possibilities are dismissed as beyond the limits of reality.

To be sure, this view may be supplemented by one that is both more intellectually honest and more cynical, to wit, that the Bill of Rights and other procedural guarantees impose unrealistic burdens on law enforcement and that to serve the higher good judges must wink at "technical" abridgements by prosecutors and policemen. One presiding justice of a California appellate court seemed to betray this attitude when he told a newspaper some years ago that he felt his court gave "a good appearance of justice." Another California appellate justice found it unremarkable that he had never voted to reverse a criminal conviction. Some measure of this kind of thinking is, as I have argued, inevitable. The problem is that in a time where politicians seem addicted to the fear card and voters seem defenseless against it, the resulting culture may become much less than an appearance of justice, but a kind of holocaust of injustice.