The ‘Referees’ Are Not to Blame for Rampart

As the scope of the Rampart investigation widens and the debate over who is culpable deepens, some have claimed that trial court judges must share the blame. And the most vocal critics are those who seem to be trying to deflect the spotlight from their own shortcomings.

While it is true that the arena for the most visibly contested aspects of the legal system is the courtroom, it is madness to contend that a judge has some magical way of discerning that certain witnesses or categories of witnesses are lying. It is also madness to believe that a judge can, for any length of time, influence the outcome of trials in favor of one side and remain on the bench.

To understand this, one might compare a trial court judge to the referee in a sports contest. Both events involve adversarial situations. In both situations, each team uses strategies and resources to win. The judge or referee is neutral and has a set of rules he or she must follow to make calls. If the referee or the judge did not apply the rules fairly and impartially, neither would last very long in their jobs.

It’s pretty obvious how a referee would not last, but here is how a judge’s job can be jeopardized:

* Judges can be disqualified by either side in a case. If a judge is perceived by one side, say the defense, to routinely favor the other side, every defense attorney whose case is assigned to that judge could disqualify him or her, leaving that judge with no business to conduct. The judge would have to be reassigned to handle noncriminal matters. Prosecutors can use the same strategy. While this has occurred infrequently, both the public defender’s and the district attorney’s offices have used this tool. Judges have been applying the law impartially or we would have seen this strategy employed much more frequently.

* If judges do not apply the law correctly, their decisions are overturned on appeal. This is something no judge likes. Were it to happen on a consistent basis, the overturned judge would lose the confidence of the legal community and the respect of his or her colleagues.

* State court judges must stand for reelection every six years. If they are perceived to be derelict in their duties, such as consistently being biased, they know they would stand a good chance of being successfully challenged at the ballot box.

* Judges can be officially recalled by the people. That is, voters do not have to wait for election time to remove a judge from office if they believe he or she isn’t carrying out the responsibilities of his or her office appropriately.

It is madness to think that judges should take over the responsibilities of the attorneys in criminal cases. It is true that one side may sometimes have an advantage over the other. In an athletic contest, that advantage could be faster, stronger players or better coaching or just a more rested team. In the courtroom, it could be more compelling evidence, more experienced or competent counsel or more credible witnesses. But just like the referee, the judge cannot bend the rules to compensate for the weaker side’s shortcomings. Neither does the court or a judge have investigative ability or authority to ferret out who might be lying and who isn’t. A system of justice that would have a judge be both investigator and prosecutor as well is contrary to the principles of our democracy.

The legal system is an adversarial process. But the adversaries are the opposing sides--the prosecutor and the defense--not the judge. The judge is not an advocate, supporter or cheerleader for either side. It is the opposing sides who must take responsibility for their performances. One tragedy of the Rampart scandal is that some people cheated. Another and far greater tragedy is that the consequences are so much more profound and far-reaching than just the loss of an athletic contest.