New Judges and Reversal Rates

 Posted on November 10,2008 in Uncategorized

It will be interesting to see the changes in the next few years. With eight courts being led by judges on a "learning curve," watch their dockets increase. Watch the appellate courts reverse decisions, the tax dollars wasted and the criminals who are set free.

Last week I discussed the first part of this chicken-littling - that dockets will increase. Today, on to the bogeyman of increased reversals by appellate courts (of which apparently the writer thinks the next two problems are sequelae).

A reversal on appeal means that the court of appeals thinks that the trial court judge erred badly enough that the accused should get a do-over. A judge who knows and applies the law will be reversed, but only very rarely. All but one of the new judges have more experience as lawyers than the outgoing judges had when they became judges. Shawna Reagin, Kevin Fine, Hazel Jones, and Herb Ritchie all have extensive trial experience. Shawna and Kevin have appellate experience (I know this to be true for them; it may be true for others among the new judges as well). David Mendoza and Ruben Guerrero even have judicial experience.

Maria T. Jackson, the new judge of the 339th District Court, is the unknown in this particular equation. (The letter writer quoted in my last post on this topic was the campaign treasurer for the best judge in the courthouse, whom Jackson will replace in January; this might color her view of the things to come in the other seven courts.) Jackson is a municipal court judge who graduated from law school in 1998 and was licensed to practice law in 2002. In 2003 she was appointed to be a traffic court judge. (She graduated from college in 1987, so I have high hopes that she has some of the real-world experience that helps a human being develop a mature sense of justice.)

Supposing that a judge is entirely ignorant about the law, the number of reversals might increase, but only a little.

First, in order for a judge to err, either one party has to lead the judge to do so or the judge has to do so on her own hook. If one party leads the judge to err, that party can't generally complain about the error. So in order for a judge to commit reversible error, first of all, she has to do something wrong either at the State's request or do so on her own with the State's acquiescence.

Next, in order for error in a criminal case to be reversible, it almost always has to be preserved. That means it has to have been timely and specifically called to the attention of the trial court by defense counsel, and the trial judge has to have ruled on it (or the lawyer has to have objected to the judge's failure to rule - one of the things that judges learn at judge school is to avoid ruling on objections if possible: "Move along, counsel").

The preservation of error in the face of the court's best efforts to conceal it is a crucial part of the trial lawyer's science; too many trial lawyers neglect it. Having handled many appeals, I can testify to the frustration of the appellate lawyer at how much error is waived by trial lawyers who either aren't thinking ahead to the possible appeal, or don't know how to preserve error.

Even properly preserved error, however, rarely results in a reversal.

There are constitutional errors, and non-constitutional errors. Most constitutional errors are subject to harmless-error review, which means that the court of appeals must reverse the judgment unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Constitutional "trial errors" - all constitutional errors in the trial process - are subject to harmless error review. "Structural" errors that infect the entire trial process and defy harmless-error review, are few and far between; denial of counsel of choice (as in Gonzalez-Lopez) is one example.

So not only does reversal depend on preservation of error, but it also depends, in most cases of constitutional violations, on our Courts of Appeals, elected in the same partisan elections as the trial courts but in larger (redder) districts, not finding the error harmless. Suffice it to say that they are not predisposed to see how an accused could possibly be harmed by any but the most egregious of errors.

Non-constitutional errors (for example, bad evidentiary rulings where the trial lawyer cited the rule but not the constitutional provision) are subjected to an even stricter rule: unless the error affected the appellant's substantial rights - that is, unless the appellate court concludes that the error may have had substantial influence on the outcome of the proceeding the court of appeals will disregard it.

Finally, even a reversal doesn't result in a "criminal being set free". Unless the reversal is for legally-insufficient evidence (that is, the State failed at trial to prove its case, in which case the appellant is, by definition, not guilty), it results in a new trial.

The takeaway from all of this is that the sky is not falling. Some of the new judges will be reversed less than the old judges; some will be reversed more. The difference isn't going to be noticeable, in the grand scheme of things, either in tax dollars wasted or "criminals" set free.