The criminal justice system is broken.
That’s a fact, folks, particularly in the politically-sensitive area of DUI (as I’ve repeated in lectures in over 38 states). And if you doubt the seriousness of the situation, consider a series of articles in a 3-year investigation of judges and prosecutors in Santa Clara County (aka the Silicon Valley) conducted by reporters from the San Jose Mercury News. The following article in that series addresses the growing problem of defendants having to face two prosecutors in the courtroom — one wearing black robes:
FOURTH OF FIVE PARTS
How Judges Favor the Prosecution
IN A FOURTH OF ALL JURY CASES, A REVIEW FINDS, MEMBERS OF THE BENCH APPLY THEIR TREMENDOUS POWERS IN WAYS THAT HURT DEFENDANTS
The first sign that the proceedings seemed biased against her client came when Judge Edward Lee began questioning a witness, attorney Elissa Eckman would later recall. But that hardly prepared her for what happened near the end of the Santa Clara County robbery trial.
Lee left his seat on the bench, took a water bottle to the podium and gave the jury his own closing analysis of the evidence. In his remarks, Lee offered reasons to doubt the witness testimony supporting Eckman’s client, expanding on issues raised during his questioning.
A Mercury News review of five years of criminal jury trial appeals establishes a pattern of judicial conduct that favored prosecutors, with incidents occurring at nearly every step of the proceedings. Santa Clara County judges made missteps or questionable rulings in nearly one of every four of the cases.
The impact of their behavior can be crucial: Judges exert tremendous powers as the arbiters of the courtroom — determining what evidence to admit at trial, guiding the jury with their instructions, and setting boundaries for the prosecution and defense as thorny issues unexpectedly arise. Often judges use those powers firmly and fairly. But when they fail to do so, their actions may skew the course of the trial.
Rulings on evidence. In more than 50 of the 727 cases reviewed by the Mercury News, judges allowed prosecutors to introduce questionable — and often improper — evidence. In nearly 50 other cases, defense attorneys were restricted from introducing their own evidence, rulings that often raised concerns from appellate justices or independent experts. For example, in one manslaughter trial, the judge permitted the jury to hear the portion of a defendant’s statement to police in which he confessed to striking the victim with a board, but not the portion in which he explained that it happened in a frenzy, after he was stabbed, and that he had not intended to kill the man.
Jury instructions. In 48 cases, judges failed to give the jury appropriate guidance on the law — in ways that either bolstered the prosecution’s view of the case or undermined the defense’s contentions. As he directed jurors in a gang slaying case, a judge refused to tell them they should convict the defendant of manslaughter, not murder, if they found he acted “in the heat of passion'’ when he opened fire on rival gang members an hour after someone shot his brother.
Judicial partisanship. In 10 cases, including Guerrero’s, judges made explicit remarks or took actions in the presence of the jury that suggested their bias against the defendant.
All told, the Mercury News identified more than 100 instances when the appellate courts found that trial judges erred in ways that helped prosecutors, and more than 40 additional instances of troubling conduct that the appellate courts declined to assess.
These patterns make a particular impact in Santa Clara County, where the Mercury News investigation has revealed a justice system populated by many aggressive prosecutors and lackluster defense attorneys. As the most significant check on the conduct of both prosecution and defense, the judge is often called upon to protect the defendant’s rights….
“It seems clear that errors have become pernicious,'’ said Bennett Gershman, a former prosecutor and now a professor of criminal justice at Pace University in New York who has written texts on both prosecutorial and judicial ethics. In the worst instances, he said, it appears that “prosecutors know they can overtry cases and push as hard as they want because the judges will not stop them…'’
Note the comment about “lackluster defense attorneys”. Generally viewed by today’s American public as obstructionists, the simple fact is that there is only one thing standing between the combined power of police, prosecutors and judges and a corrupt criminal justice system. Neutralize that individual, as has been done by here by constantly beating them down, and truth, justice and the Constitution become little more than fine-sounding memories.
(Thanks to Public Defender Dude.)