How not to act like a judge

Posted on Aug 10, 2013

I've tried a lot of cases over the years. And I know judges have been surprised at some of the verdicts. They never show their feelings though - at least until after the jury is gone. So I have trouble understanding how a judge could not only show her feelings, but also tell the jurors what she thought about the verdict. That is exactly what happened with Judge Amy Salerno. According to  jurors:

"The judge came off the bench, and she indicated she thought they had gotten the verdict wrong," Judge Green said. "They were further told, 99 percent of the time, the jury gets it right. It's now 98 percent. They brought that percentage down by getting it wrong." 

There are obviously a number of things wrong with this. For starters, judges are supposed to be the neutral arbiters. They aren't supposed to take sides. When they do, the system breaks down. Most criminal defense lawyers know this all too well. It's hard enough to win a case with the prosecutor and the State of Texas against you. It's even harder when you have the judge against you too. As some lawyers will say, you don't the judge acting as a second prosecutor.

The other problem with this is that we place cases in the hands of jurors, and expect them to be neutral. Sure they're going to get it wrong it sometimes. But you have to expect that. The worst thing that can happen is for jurors to decide a case the way they think the judge wants them to. Most judges are well aware of that, and go to great lengths to make sure they don't convey what they think about a case.

I don't know what will be the ultimate resolution of this. A complaint has been filed, and it will be up to the authorities to decide what to do. A more troubling question is what about the other cases she has handled. If she is that prosecution oriented does it call into question other cases she has presided over?

Thankfully in Waco and McLennan County we have good judges who try to be fair. That doesn't mean they don't mistakes, but they try, which is all any lawyer can ask.