When the court is in the middle
When Mr. Dooley observed that ''th' supreme coort follows th' iliction returns,'' he was not suggesting that the Justices owed their jobs to voter satisfaction. In many states, of course, judges do, one way or another, actually stand for election. Mr. Dooley, however, meant only that the Supreme Court, as the umpire of the federal system, frequently renders decisions that are as much politics as law.
On the other hand, trial judges, especially in the state courts, are supposed to ignore political considerations. That is not always easy, particularly if the judge faces an imminent ballot. Even in states with an appointed judiciary, the winds of politics can (unless the judge is careful) flutter the robe.
Suppose, for example, that the prosecutor holds office by election. Whether this is good or bad - the argument is not one-sided - the human fact is that an elected district attorney who wants to win another term, or a higher office, has to think constantly in terms of voter satisfaction and electoral appeal. A judge who forgets this truth can find himself up a long creek in a leaky canoe.
A couple of years ago, one of my colleagues conducted a pretrial conference in a multiple-rape case. Although the offense seemed clear, and the details vivid, a gap had developed, as it often does, between the narrative value of the case and its courtroom worth. Knowing the details of a story is one thing; proving them legally, and beyond a reasonable doubt, is something else.
Here, as the prosecutor admitted, the victim was disinclined to testify. Even if she took the stand, the prosecutor feared, she would not be likely to persuade the jury. One of the participants was prepared, in exchange for immunity from prosecution, to testify against his friends. He, too, the prosecutor admitted, was not a very strong witness; and anyway, one never knows how a jury will regard a turncoat.
The district attorney was prepared to offer a compromise. If the defendants would plead guilty, he would recommend a sentence much lighter than he would seek had a trial produced a guilty verdict. The defendants were more than willing. Weak witnesses or not, if the case went to trial, the jury might well convict. Thus out of mutual doubts and uncertainties, the defendants agreed to admit their guilt and the prosecutor agreed to ask for light punishment.
No one, least of all the judge, perceived the political danger. When the defendants changed their pleas and the judge imposed an ''easy'' sentence, however, first the press, then the public, asked loudly: Why are these rapists getting off so lightly?
The answer, of course, should have been: because the government's case was so weak that if it went to trial these ''rapists'' might very well have gotten off altogether. (Indeed, when, after a series of procedural contortions that need not concern us now, the case later did come to trial, the jury found each man not guilty of rape.)
Obvious though the answer was, nobody was giving it. The defendants understandably said nothing. The district attorney, suddenly aware of the unpopularity of the disposition, chose not to discuss his evidentiary problems. And the judge realized, too late, that the time to explain what you are doing is while you are doing it and that the best way to avoid being ''middled'' is to stay out front.
Another colleague conducted a jury-waived trial of a man who had struck his one-eyed victim with a belt buckle, putting out the eye. The government charged assault with intent to maim and assault with intent to murder, but not assault and battery with a dangerous weapon. Thus mere proof of the gouging would not suffice to convict. The prosecution would need to probe, beyond a reasonable doubt, that the defendant specifically intended to maim his victim or murder him.
Unfortunately, because the evidence did not establish the necessary intent, the judge could not convict the defendant of either offense. Had the government prosecuted for assault and battery by means of a dangerous weapon, the verdict would have been ''guilty,'' because lack of particular intent is irrelevant under that charge.
As it was, the judge could convict the defendant only of simple assault and battery. The maximum penalty for ''A & B'' is, however, just two and a half years, of which, under current parole practice, a prisoner serves 15 months. As this defendant had spent considerable time awaiting trial, he was able to ''walk'' within a few months of the conviction.
Once again, horrendous public outcry arose. The governor sent the victim his personal condolences; a television crew tried to push into the judge's home ''for an expla-nation.''
Meanwhile, even though the whole mess resulted from the government's failure to obtain the proper indictment, the district attorney (not the same one as in the rape case) deplored the outcome, remained discreetly silent as to its real cause - and went on to reelection. Perhaps, even though a trial court does not follow ''th' iliction returns,'' it ought to remember that some lawyers anticipate them.