Thursday, January 27, 2011

Guilty unless proven otherwise

Who among us hasn't commented about the "black-robed prosecutor" sitting on the bench or about having to try a case against two prosecutors - the one at the table and the one at the bench?

On numerous occasions I've sat in the courtroom while the jury was out of the room and listened as the judge advised a young prosecutor how to get a specific piece of evidence admitted or how to lay the proper predicate.  One judge even told a prosecutor while the jury was out to offer our client five days on a second DWI because, as the judge said, the conviction mattered, not the time.
Critics say the judicial system in the Khodorkovsky case worked just the way Prime Minister Vladimir Putin wanted it to. Days before Khodorkovsky's new conviction, Putin said on television that "a thief belongs in jail." It was almost as if he gave the judge a signal, instructing him on what to do.
According to a piece on NPR's Morning Edition, we're not the only ones playing against a loaded deck.

It seems that one is not presumed innocent unless proven guilty in the Russian Federation -- one is merely waiting to see how bad the sentence will be.
[J]udges seem to behave like they are an extension of law enforcement. Prosecutors file charges, and it's a judge's job to convict rather than interfere.
Wander in and out of enough courtrooms at the Harris County Criminal (In)justice Center and you may very well walk away with the same impression. During the recent election it was hard to tell whether some of the judicial candidates were running for the bench or for county sheriff.
One former judge, Alexander Melikov, told NPR that the judges are not bad people. It's just that many have a "mindset that a court is a law enforcement body; it is not an institution there to protect citizens." When he tried to work outside the system around 2003 and '04, his superiors complained that his decisions were too lenient — and he was fired.
It may attract votes to run on a platform of being tough on crime, but it's highly improper and might even be (gasp) unethical. A judge's sole role on the bench is to act as am impartial arbiter. His job is to listen to the arguments of counsel when deciding upon the merits of a motion or determining whether objections should be overruled or sustained.

And, should a defendant come before the bench for sentencing - either on a plea without a recommendation or as the result of a conviction, the judge is obligated to consider the entire range of punishment for that offense -- including probation.

I've asked the question before, and I'll ask it again, when a judge's campaign material says he's "tough," what does that mean? Is he going to hold the state to its burden of proof? Is he going to lend a critical eye to allegations that the police violated a defendant's constitutional rights? Or is he going to act as the second prosecutor in the courtroom?

That's what they do in Russia.

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