a public defender

Judicial reconfirmations in Connecticut have usually been a low-key affair, so it was newsworthy last week when an all out battle erupted on the floor of the Senate during the reconfirmation of Judge Patricia Swords.

Judge Swords, just finishing up her first 8 year term a judge of the Superior Court, made it through the Judiciary Committee by a margin of 4 votes, despite the testimony [pdf] of a prominent criminal defense attorney regarding her behavior in a murder case where she declined to grant a continuance when the lead counsel had suffered a soon to be fatal brain injury just two days prior to the start of trial. Her reconfirmation made it through the House of Representatives pretty easily (100-41 or so), but stalled in the Senate, where the votes were pretty evenly decided.

After a vigorous debate on the floor of the Senate, during which Senators questioned the anonymous comments submitted by the defense bar opposing her reconfirmation (one of them likened these comments to blog posts – ha!) and used misinformed logic such as the number of decisions upheld on appeal. If I remember correctly, one of the Senators, in her defense, asked something along the lines of whether we should…well…judge a judge based on demeanor or accuracy in the law.

Anyone who has practiced law should know that not everything a judge does on the bench or behind the scenes that questions their impartiality in a case is appealable.

The judge was eventually confirmed by a vote of 19-18, the tiebreaking vote being cast by the Lt. Governor. But this reconfirmation battle raised some interesting questions, and rightly so.

In a process that is highly politicized – from the initial confirmation to each subsequent reconfirmation – is there any room for a truly objective evaluation and re-evaluation process?

It’s tough to know what the judiciary committee and the legislature rely on in making their assessment of whether to give a judge another 8 year term. One can assume that the anonymous questionnaires they send to counsel after each trial are taken into account, but these questionnaires are generic and rudimentary, at best. Also, given the fact that they are sent to both parties, their utility is questioned by many, including me. Parties unhappy with the outcome may tend to grade the judge lower and vice-versa.

There is obviously a cause for hesitation among lawyers to attaching their names to any criticism of judges. In some ways, it’s the same problem that plagues reporting of questionable or unethical conduct to the grievance committee. There is a fear of retribution – whether legitimate or not. If, after all this brouhaha, Judge Swords was reconfirmed and will serve at least another 8 years on the bench, what is the reward that outweighs the risk to an attorney who sticks his neck out and provides signed criticism of the judge? She may legitimately feel that by doing so, she is risking the well-being of clients, current and future.

So what then is the appropriate mechanism for review? After all, we really shouldn’t rely on a system where the fate of a judge hangs on a chance encounter with an up-to-then opposed Senator in the hallway prior to a vote on the floor. Because that’s what happened here. A chance meeting in the hallways of the legislature between the then-likely-to-be-former-Judge Swords and Sen. Joan Hartley of Waterbury lead to Sen. Hartley changing her no vote to yes. I’d sure like to know what was said in that brief encounter, because it was powerful enough to get the good Senator to change her mind and keep Judge Swords’ career alive. Surely, the fate of our eminent jurists cannot hinge on such fortuitous meetings.

And we certainly cannot have unnamed judicial branch members ushering judges around the legislature into meetings with Senators and Representatives.

But is there an alternative (and please don’t talk about election)? Can there be an effective and unbiased review process and what should or would such a review entail?

Certainly a prime criterion in evaluating the performance of a judge should be her actual work: but how is that appropriately measured? The number of reversals on appeal mean nothing more than that 3-4 judges agreed with a particular interpretation of the law. The only way to effectively measure performance, in my opinion, is an in-depth evaluation by members of the bar appearing before those judges. And those evaluations have to be honest. It has to involve an in-depth evaluation of the judges behavior on the stand while dealing with lawyers and pro-ses and that can be achieved through a parsing of transcripts.The judiciary committee, in making its recommendations, must take a closer look at any complaints put forth by lawyers. Perhaps the legislature needs yet another committee or sub-committee, charged with the task of ferreting out those that do not deserve to don the black robe. If the parole board can sit in judgment of other human beings based on acts in their past, surely we can come up with some system whereby the gatekeepers of justice are judged.

The key, though, in my opinion, is to be heard by standing up and being counted. There is certainly a strength in numbers, as evidenced by the near ouster of Judge Swords. What are judges going to do? Exact revenge on all 75 members of the bar that signed their names to their evaluations and said negative things about the judges? Doesn’t it stand to reason that in the future, judges will be less likely to be unfair and impartial toward those members, for the appearance of retribution would surely be a death knell for their careers?

Now, you may rightly say, “Gideon, you should be the last person to talk about shedding the cloak of anonymity”. True, I sit behind this cloak and offer my thoughts on general principles of criminal law. But I will tell you this: I hope that if I am ever faced with a situation where I feel the judge has committed an act so egregious as to call into question their impartiality on the bench, I will have the conviction to say something and repeat my objection if the need arises.

I’m not talking about decisions a judge makes that you may disagree with. I don’t believe that is worthy of sending to a review committee. Those observations are best saved for the anonymous questionnaires of questionable utility. But every now and then, a judge does something that leaves you speechless, that leaves you with the absolutely firm impression that what she just did was a blatant show of bias or partiality and a violation of the rule of law. That is when it is your obligation to stand up and say that this cannot be permitted. And the judge should have to answer for that.

A judge may learn, as Judge Swords said she did, that such behavior cannot be tolerated from a member of the bench. Or a judge may not. Ultimately, with the system we have, it is up to the legislature to decide. But the legislature cannot make an informed decision without these reports, these pieces of information that shed true light on the merit or demerit of a particular individual to serve a judge of the Superior or appellate courts of the State of Connecticut.

Is there a system where we can get a truly honest evaluation of our judges? I’m not sure there is. All I have presented here are some poorly formed ideas and some half-baked thoughts. You will probably disagree with all that I have said and all that I have asked. But these are questions we must ask and then work toward answering, if we are ever to achieve a fair system of justice.