Who Makes a Better Judge?

If I had to choose between two judicial candidates for a criminal court knowing nothing else about them than that one is a career prosecutor and one is an experienced criminal defense attorney, I would choose the latter. That may seem obvious since I’m a criminal defense attorney myself but it actually isn’t out of any sense of loyalty to my colleagues or because it’s good for business.

First, as a former prosecutor, I have a tremendous amount of respect for the work that prosecutors do. Second, unfair treatment of defendants by the criminal justice system is actually better for business than fair treatment. Think about it…if defendants were treated fairly all of the time, there would be little need for criminal defense attorneys.

Rather, I would choose the defense attorney because, in my experience, judges who have nothing to offset the biases they developed as prosecutors are often incapable of being neutral. They are strongly biased toward the state (the opposite of the default that constitutional principles would have one choose) and, worse, they don’t even realize it. Thus, “innocent until proven guilty” has no practical meaning in their courts.

Of course, this is a largely academic inquiry for me because I always have more information and therefore other factors to consider with a judicial candidate for one of the courts in which I practice. For example, how ethically does he behave? How knowledgeable about the law does he tend to be? How does he treat people? If he’s a criminal defense attorney, does he seem to care about his clients? Does he represent them effectively? If he’s a prosecutor, how reasonable is he? How seriously does he seem to take his oath to seek justice and not just convictions?

But because I do have a natural bias toward defense attorneys, when I choose to support a career prosecutor as a judicial candidate (I’m supporting two in the upcoming elections), it’s a pretty good sign that the person is exceptionally fair-minded.

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