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.

Campaign Contributions or Protection Money?

Some criminal court judges and judicial candidates are more gracious about it than others but they all invariably ask criminal defense attorneys for campaign contributions and other forms of assistance with their campaigns. I’m glad to help some, not so much others, but regardless of my personal feelings, when a sitting criminal court judge personally asks me for money or some other form of assistance, it feels compulsory, regardless of how graciously the request is phrased.

I’ve learned to accept that campaign contributions are a cost of doing business.  They can really add up, though, so I try to determine how many candidates I’ll be supporting, set the amounts, and budget them early in the election season.

A typical judicial campaign donation for a solo criminal defense attorney in Travis County is $100. I’ve given more; I’ve given less. It usually depends on how big a fan I am and, more importantly, how flush or lean my finances are at the time. Whatever amount I decide to give, the candidates are typically appreciative and gracious in their acceptance, with one notable exception…

In a previous election cycle, a judge who I’ll call “Judge X” called me up personally on two separate occasions asking for campaign contributions. On each occasion, I agreed but then Judge X named an amount that was higher than I was comfortable paying. I expressed concerns about the amount but was strong-armed and ultimately agreed to the amount requested. Altogether, Judge X got more than twice the “contribution” I was willing to pay that year. I heard from other colleagues that this experience was far from unusual with Judge X.

While Judge X is definitely the exception to the general rule, his conduct really only aggravated an inherent but ordinarily mild feeling of corruption in a system of an elected judiciary.

We’ll Miss Charlie Baird

In news that’s as sad as it is surprising, Judge Charlie Baird has announced that he won’t run for re-election next year. Judge Baird is an adept politician but has consistently shown the highest degree of respect for the letter and spirit of the law that I have ever seen from an elected judge, even when it’s politically unpopular to do so. He will be missed. For more about his announcement, here’s the Statesman article.

DA’s Office Is Sore Loser

Over the course of his first 3 years as presiding judge of the 299th District Court, Judge Charlie Baird has shown himself to be a true believer in following the law and dispensing even-handed justice. How does the DA’s office like that? Not very well, apparently.

The 2010 Democratic primaries may well be the first time in history that the Travis County DA’s Office has run an opponent against an incumbent criminal court judge. To read more, see this Austin American-Statesman article.

3/18/09 UPDATE. Judge Baird’s opponent has backed out of the race. See this Statesman article for more.