Are Judges Fair?


The sad truth is that in criminal cases, most judges are biased in favor of the prosecutors and the police.  In the state system, judges have to run for reelection every four years.  They fear that they may lose their jobs if they earn the reputation of being “soft on crime.” This is not the case with federal judges who are appointed for life.  Perhaps the main reason for judicial bias is that judges share the viewpoint of the average citizen, who believes that the cops and prosecutors are the good guys, all criminals are bad, and criminal defense lawyers are only slightly better than their clients.

Most judges like to think of themselves as being fair, even if they're not.  So your lawyer must be polite and respectful to the court, even if he or she thinks that the judge is a dumb ass.  As lawyers, we are part of the system and have to play the game the way that it is intended to be played.  On occasion, a skilled attorney can seduce a judge into making the right decision even if it is contrary to the judge's basic instinct to do so.  Most judges follow the law.  That's why there is a court of appeals.  Even the most bigoted judge is required to recognize that you have a right to a jury trial and a right to be presumed innocent until proven guilty beyond a reasonable doubt.

Some judges are exceedingly fair.  Some judges are brilliant and a great gift to humanity.  Some judges are clever and capable but extremely pro government.  There are few things scarier to a criminal defense lawyer than a smart, conservative federal judge.  When faced with a mean judge, your lawyer must work hard and be prepared.  Generally speaking, most judges appreciate a good job of lawyering even if they don't like you or your attorney.  At the end of the day, all one can ask for is a judge who treats you and your lawyer with the same dignity and respect that one is expected to extend to the court.   Fight the good fight and make the Government prove its case.  You may encounter better judges on the court of appeals. 

Trial by jury is usually always preferable to trial by judge alone.  More often than not, trial by judge is tantamount to a slow guilty plea.  Jurors go home at the end of the trial and are beholden to neither prosecution nor defense.   Having no stake in the outcome of the case, jurors tend to be fair in spite of their normal bias in favor of the State. 

Judges in the lower courts – district courts and municipal courts – tend to be fairer than judges in superior court, the higher court that deals with more serious cases.  Lower court decisions are rarely if ever published in the newspapers.  Since nobody pays much attention to what happens in the lower courts, lower court judges are freer to do what they think is right.  There are smart and capable judges in the lower courts.  Since they usually handle more mundane cases, they are likely to pay more attention to a good argument.   

The system is less than perfect. However, everyone is constitutionally entitled to a fair trial by a fair jury and even a free lawyer if they need one, at public expense.  There are undoubtedly innocent people in jail but that tends to be the exception rather than the rule. The legal system that we have is as good as any and probably better than most.  

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