Dick Posner Breaks the Judicial Code of Silence

In three of my books and in many of my law review articles (most recently, this one), I explain in plain language how judges routinely disregard the law to reach their predetermined outcomes.  I have also repeatedly demonstrated how these predetermined outcomes nearly always benefit the state, thus making the judge the chief prosecutor (a/k/a the “prosecutor in a robe” or the “prosecutor on the bench”).  But now, dear reader, you don’t have to take my word about the level of disdain many of our almighty judges hold for the law.  Retired judge Dick Posner has broken the judicial code of silence and fessed-up.

In a recent interview, Posner stated: “I [paid] very little attention to legal rules, statutes, constitutional provisions.”  Unless, of course, he had to, in which case those pesky laws — the things that make up the pseudo-profession we ironically call “the law” — were relatively easy for him to bypass.  Posner further explained: “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Many trial court judges, of course, aren’t as smart as Dick Posner, so they don’t even bother trying “to get around” the particular law that stands in their way.  (Or, if they do try, their limited grasp of the law and/or their lack of effort really shines through.)  Rather, they just ignore the law they don’t like and simply do whatever they want, without explanation.  And then, the appellate court judges (like Dick) will often cover for the trial court judge by finding a way to blame defense counsel for the judge’s blatant disregard of the law.

Here’s an example that encapsulates both of these problems, culminating in a published opinion by Dick’s former colleagues on the Seventh Circuit Court of Appeals in Harris v. Thompson.  This excerpt is taken from my the original draft of my article, Constraining Strickland:

[T]he defense lawyer attempted to call as a witness a six-year-old child, Diante, who was an eyewitness to the alleged crime. Diante was also on the prosecutor’s witness list; however, upon realizing that Diante may actually hurt the government’s case, the prosecutor craftily “moved to disqualify him as incompetent to testify.”

Upon learning of this abrupt change in position, the trial judge should have instantly put the prosecutor on the spot by asking: “What did you learn between the date you filed your witness list and today that now leads you to assert that Diante is incompetent to testify?” Instead, the judge held a hearing for the defense to demonstrate Diante’s competence.

At the hearing, by any objective measure, the defense met the burden the trial judge placed on it. Nonetheless . . . the trial judge condescendingly stated that “[d]efense counsel misperceives what the issue is with regard to witness competency.” The judge then determined that Diante was not competent to testify, thus leaving the defense unable to call the only eyewitness to the alleged crime.

In reality, it turned out to be the trial judge who “misperceive[d] what the issue [was] with regard to witness competency.” Contrary to the judge’s over-confident declaration, the applicable trial rule actually presumes competency and places the burden “on the party challenging competency” to demonstrate incompetence. Ironically, it was the judge who was incompetent in the law, thus violating the ethics rule that “[a] judge shall perform judicial and administrative duties, competently and diligently.” And . . . the judge also violated the defendant’s constitutional rights, including the right to call witnesses and to present a defense.

Even though the defense lawyer performed his duties effectively by identifying and attempting to call the relevant witness, and despite the trial judge’s “glaring failure at the competency hearing,” the appellate court . . . blamed counsel “for the failure to correct the judge’s mistake[.]” . . .

More specifically, the court held that, if counsel had properly monitored the trial judge and done his job for him, “it is reasonably likely that Diante would have been allowed to testify.” Amazingly, the court reached this conclusion even though the trial judge had already conceded, with surprising candor: “I found Diante not competent to testify, and that would have been . . . my finding regardless of whether I had articulated the correct burden of proof.”

Not only was the trial judge wrong about the law—and wrong again when he finally applied the correct law to the facts of the case—but he also made it perfectly clear that his errors were immune to correction. Nonetheless, the appellate court declared that this was all defense counsel’s fault. The defense lawyer was therefore held accountable and the trial judge suffered no consequence for his failure to understand, and to apply in good faith, incredibly basic procedural law that constitutes an essential part of the judge’s job.

See what I mean?  The trial judge didn’t want the defense witness to testify, and therefore claimed the defense didn’t establish the witness’s competence — the legal standard (which placed the burden on the prosecutor to establish incompetence) be damned!  And then on review, the appellate judges protected their trial-court brethren and blamed the defense lawyer for failing to play the role of law professor (among the defense lawyer’s numerous other duties) at the trial court level.

This brings two thoughts to mind.  First, it takes unbridled arrogance to disregard the law and do whatever you want when there are real consequences for real people hanging in the balance.  In the above case, for example, a defendant went to prison without even the pretense of a fair trial.  How does that trial judge sleep at night?  It also takes real nerve to call the trial judge’s disregard of basic courtroom procedure a mere “mistake,” and even more nerve to blame defense counsel for the “mistake” even after the trial judge said his decision would not have changed even if he had applied the correct law!

And second, I don’t know where or how, exactly, law schools went wrong, but just imagine if doctors, accountants, and engineers came out of medical, business, and engineering school thinking they could disregard the rules they just learned and instead do whatever they wished to reach whatever outcome they wanted.  Actually, that does happen occasionally, and when it does, these professionals face intense media scrutiny, public condemnation, and even civil and criminal penalties. 

Why, then, do judges get to thumb their noses at the law, sometimes even brag about it, and then skate free without any consequence of any kind only to repeat their misconduct like a bad song on an endless loop?

That, I’m afraid, is a post for another day. 

(Hat Tip to Mo Hernandez for alerting me to the Posner article.)