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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, October 30, 2012

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.

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