Speaking Freely
By Mark David Blum, Esq.

The National Associaiton for Criminal Defense posed this question: If given a chance, what would you (me, as a lawyer) say to a conference of gathered judges. http://publicdefenders.us/?q=node%2F417

If I were given the chance to be heard at a judge’s conference, these three items would be probably among the top ten things I would want to say:

1. You are not the boss of me. Your bullying and threats and harassment and berating me, my clients, the case, or the suit I am wearing is uncalled for. As judge, you are there to referee a dispute between two citizens. A family court judge up in Watertown once described his role in court as being that of an orchestra conductor. I was so offended. A judge is there to keep order, to make sure the law is respected and followed, but otherwise they are not orchestra conductors and I am not a trained monkey or musician hitting a script written by another on command. Chief Justice Roberts said judges are there to call balls and strikes. It is nice to walk into a court room where the judge does just that and creates a level playing field for the players to play.

But I am there to do a job, as is my opponent. Let us be the warriors for which we trained and do our jobs. You have the right to demand respect for you, the robe, and the court with its employees. But unlike court employees, you are not my supervisor, you don’t pay my bills, you don’t sit and work tactics with the client, and it demeans me and the whole process when you move yourself into the role of “parent.”

2. You took an oath to uphold the constitution and the law, so do it. The presumption of innocence, search upon real probable cause and not some form printed out of a computer, the right to counsel, the right to make a defense, the right to reasonable or no bail; for Family Court, the right to Family Privacy; and for civil courts, the rights to have cases timely heard, and the right have fact questions decided by juries instead of finding niggling loopholes in the law because you don't like the case or are two busy or its too complicated. (We know when you do). These are real parts of our constitution and not just some esoteric concepts for pot smoking law professors.

You don’t think we know that bail is being set unreasonably high or shouldn’t be set at all? I wonder how judges can sit there day after day, hearing the same police officers giving the exact same story of every stop. We know you give police the benefit of the doubt when it comes down to them versus the accused. You say you presume a defendant innocent but the way you treat him and set schedules for him and your attitude and tone toward him and his attorney all show your mind is already made up. Punishing an accused for exercising a right to trial instead of taking plea with a higher sentence is constitutionally offensive. Not one of you sitting here can deny honestly that the war on drugs is having a disparate impact on young Black mostly men yet you turn a blind eye to any 14th Amendment challenge. Family Court judges have gravitated into the self-anointed role of super parent thinking they and not the real parents know what is best for the child or even have the right to intervene. Presumptions at law, made for politics and safety, such as default Orders of Protection based only on accusation cause a ripple effect that convicts an accused and takes away fundamental freedoms before he ever gets a swing of the bat. Civil judges; I know your calendars are jammed and any time you can toss a case for any reason, you don’t realize how much harm you cause. If for no other reason, consider this: if we don’t have court rooms where people can come fight out their disputes with high powered lawyers, then what we are left with is for the battles to be raged on the streets with high powered weapons. The law and the judges who enforce it are the wall between anarchy and order but not from being heavy handed but from providing the environment for the litigants to do battle.

This one time, at band camp, Judge Munson of the US Dist Court NDNY, in the midst of a First Amendment jury trial, halted proceedings and dragged counsel to the bench. His booming words were simple: I thought this was a constitutional law case? If so, then act like it. Those words lit a fire in me that burns to this day. Every case is a constitutional law case because every case comes from that document as its genesis. So when I stand before a judge and hear the most incredible story told by a police officer as the basis for a stop and the “consent” to search, and you sit there blindly rubber stamping the law because you are convinced of the defendant’s guilt and so you decide to skew things, you not only cause harm to the person and encourage further bad police action, but you offend me because I know you just gave the finger to the very document around which we are all organized.

3. It is nice to see your name on the bench, but please remember that your name is in front of you and not above you. You are not god. You are human beings. So am I. So too is the person standing next to me. It probably gets very easy very fast in your job to stop seeing the human being American citizen standing before you, but in fact that is who they are. I see how cold and distant you have become and only see the case number and the allegations. The hours you kept us waiting on a ridiculous long calendar was money my client lost from work that he needs to feed his family and hold onto his life. The more obstacles you put in front of someone disabling their movement from commencement to resolution, harms not only the wallet but takes away all the value of the law and courts.

The number of times I have walked out of court rooms, win or lose, and hear how the client feels the game is rigged. This comes not from bitter grapes or even if the law is against them. Anger, disrespect, and frustration come from the person standing before the judge feeling as if they are looking at their parents and being scolded or ignored or disrespected. It is not always rational but more often than not I can sympathize. When people lose respect for the system, we again have no option but to turn to alternatives to peaceful resolution of disputes.

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It is always a far better thing
to have peace than to be right.
But, when it is not,
or when all else fails

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