Now in print: my new article, Combating Judicial Misconduct: A Stoic Approach, published in the Buffalo Law Review. Here's a link to the article. (You can find all of my articles here.) Here's the abstract, after the jump:
Judicial ethics rules require criminal court judges to be competent,
even-tempered, and impartial. In reality, however, many judges are
grossly ignorant of the law, incredibly hostile toward the defense, and
outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate
many of the defendant’s statutory and constitutional rights.
This Article presents a framework for the defense lawyer to use in
combating judicial misconduct. The approach is rooted in a principle
of Stoic philosophy called “negative visualization.” That is, the lawyer
should anticipate and visualize judicial incompetence, hostility, and
bias within the context of the client’s case. This Stoic practice has two
primary benefits.
First, by envisioning such problems before they occur, the defense
lawyer may be able to prevent some of them from happening in the
first place. Toward that end, this Article identifies several preemptive
legal strategies to prevent the unethical judge from infecting the
client’s case.
Second, envisioning acts of judicial ignorance, hostility, and bias
before they occur will render them less of a shock when they do occur
in the middle of trial, in front of the jury, and in a full courtroom. This,
in turn, allows the defense lawyer to remain calm in the face of
adversity and formulate an effective response to protect the client.
Toward that end, this Article identifies several responsive legal
strategies for the lawyer to use when confronted with judicial
misconduct in the courtroom.
The criminal defense lawyer who steps into the courtroom naively
assuming the trial judge will perform and behave ethically does his or
her client a tremendous disservice. On the other hand, the defense
lawyer who anticipates and prepares for judicial incompetence,
aggression, and bias will be in a better position to protect the
defendant’s important statutory and constitutional rights.
No comments:
Post a Comment