How biased are judges?
There's been a good discussion over the last several days about what it takes to be a good criminal defense lawyer, and how well prosecutors can transition into being defense lawyers. Mark Bennett astutely pointed out the concept of confirmation bias; the tendency to see things we expect to see. Using the case of a recently exonerated defendant, he pointed out how defense lawyers are not immune from confirmation bias. I certainly can't disagree with that, but I think there's a distinction between confirmation bias and laziness. Unfortunately, there are lawyers who really don't care about their clients. The client represents a fee, and the lawyer is only interested in collecting the fee, and going on to the next case. When profit is the primary motivation, the goal is to resolve the case with the least amount of work possible. That usually involves a plea, because trying a case takes time and work.
A good defense lawyer is one who cares about their client. We have to make a living, but that's not what motivates good lawyers. They want to make sure they achieve the best result possible. That requires work; investigation, research, and time. You have to know everything about the case as well as the client. I don't think bias is a problem with those lawyers, because they looking at a case from every angle possible. Even if there is no doubt, they still work to achieve the best possible result.
What no one has discussed is bias among the group that exercises the power - judges. It's not surprising that it exists; they see thousands of cases. All but an extremely small minority are guilty, or at least admitting their guilt. It doesn't take to long to start assuming that everyone is guilty. Obviously, that impacts all types of decisions. Good judges recognize it, and try to account for it. They recognize that not everyone is guilty, and they have to make those who aren't do not get convicted. Few are successful all the time.
There's also a built in bias in the law once a conviction is returned. On appeal, courts assume the defendant has already a trial, and been found guilty. In post-conviction litigation (i.e. habeas corpus), there is a presumption the defendant is guilty, and the conviction is valid. It takes a lot of evidence to overcome that presumption. As a result, people with strong innocence claims are not able to obtain relief, and remain in jail.
Judges are supposed to be impartial referees, but too often they move to one side or the other. As defense lawyers, we often face what appears to be two prosecutors. When things go wrong, everyone is quick to blame the lawyer or the prosecutor. The judge may have played just as big a role. Few judges are willing to intervene when they see something they know is wrong. We need more judges willing to do that.; unfortunately, doing the right thing is often not the politically popular thing.
We need to recognize the good judges, and make sure they get the credit they deserve. Maybe if we do, we will get more of them.
l
