Open Letter to the Judiciary

 Posted on January 13, 2009 in Uncategorized

My Harris County colleagues may have seen this already - it was my President's Letter in the Winter 2008-09 HCCLA Defender - but I think it might be worth publishing a little more broadly.

To the Harris County Judiciary: Wow. That was a surprise, wasn't it? Who'd've thought that remaining judge in Harris County might require more than the imprimatur of the local Republican Party? Granted, the process was unpredictable, but so are the lives of the vast majority of the people who appear before you every day. Your future employment isn't looking quite so certain, but how many people do you know who know that they'll have the same job four years from now? How many of the people appearing before you know that they'll have the same job in twelve months, much less four years? We may all reasonably wish that the system were a little more rational. If you have any political stick, I'd love to see you using it to reform the Election Code so that judges - those elected officials who should be farthest removed from partisan politics - were chosen by some method other than partisan elections. You've got nothing to lose if you think you'd keep your jobs on your merits, without depending on ignorant straight-party voting. Until that far-off day when our judges are chosen for their capacity for justice rather than their party affiliation, the best that we can hope for is races that are close enough that they are decided by those who are in fact familiar with the candidates and the offices for which they are running. Let's be honest. Some of you don't treat the human beings in your courts very well. Some of you are discourteous; some are downright nasty: to the parties, to the witnesses, and to the lawyers. You're mostly polite to the jurors, of course, because in your mind they're voters. But all of those people appearing in your courts (except those already serving life sentences) are potential voters, and none of them are fooled. I read a CLE paper some years back by a civil judge who claimed, "jurors love me and they hate you." You might share that high opinion of the bench; I suspect that's what jurors politely tell you when you go back to talk to them after a trial. But that's not what they are saying to us lawyers. Jurors aren't stupid, and no matter how nicely you treat them they know who the jerk in the room is. The lawyers know it too; so do your fellow judges. Has a judge's personality ever affected the outcome of a Harris County judicial election? Not yet. But if elections get closer, it might. The recent election results prove that "make people afraid" is not always a winning strategy. The Republican judges' costly collective advertising campaign of fear didn't carry the day. Nor is "tough on crime" the magic phrase it once was, swinging wide the doors to the bench. As we've created more "criminals", we've also created more families of voters who recognize that "tough on crime" means "tough on our fathers, brothers, sisters and cousins." The voters don't care about the size of your docket; nor should they - the number of cases on the docket in a court has nothing to do with the fairness and justice handed out in that court. More than that, though, there is an opportunity cost to docket control: time spent fixated on the length of your bar on the docket size graph is time not spent doing justice. The legislature creates crimes and courts; the DA's Office prosecutes people and can make plea offers and dismiss cases. Either the legislature or the DA's Office could reduce your docket size; leave the "docket control" to them. So what's a judge to do to win over the educated voters? Do Justice. Love Mercy. Walk Humbly. You were all trial lawyers before you were judges; we trial lawyers are not renowned for our humility. But arrogance is unbecoming in trial lawyers, and even more so in those whose job is to judge others. Let the humble black robe remind you daily to walk humbly: if judges were meant to feel superior, they'd be issued bespoke suits instead of black housecoats. In the DA's Office, you were probably taught to respond to defense lawyers' pleas for mercy with incredulity. "This defendant doesn't deserve mercy," you'd sneer to the jury. But mercy is not something that anyone deserves - if it were deserved, it would not be mercy. So love mercy not because anyone deserves it but because nobody deserves it but you show it anyway. When you show someone mercy, it says nothing about him and everything about you. Humility and mercy are easy. Justice is trickier. Part of walking humbly is recognizing that you are not omniscient, and that your best effort at justice is a mere approximation. Clarence Darrow suggested that we cling to charity and understanding and mercy for this reason. But your job requires you on occasion to punish people. Mistakes are inevitable. You can't know how those mistakes will come back and bite you in the future. Frankly, I don't envy you the job. In two and four years all of you - Democrats and Republicans - will be opposed in elections. Even those of you who try their best to do justice, who love mercy, and who walk humbly will draw opponents, not because of the job you've done but because the vagaries of the system might defeat you. Those of you who do not do justice, love mercy, and walk humbly will draw determined opponents, because your shortcomings might defeat you. In a hundred years all of us - lawyers, judges, and defendants - will all be equally dead. Remember this the next time you are feeling superior to those who come before you for judgment. Even if you don't agree with me that treating people better makes you a better judge, consider that people are fondly remembered after their deaths not for their toughness but for their kindness; not for the people they punished but for the people they helped. Start working on that legacy now.