November 2016

We just ended a bad week for experts. I was in Athens, Georgia, Saturday for a football game. Auburn was a 10.5 point favorite to win. It turns out that they did not even score 10 points, losing 13-7. Earlier last week, the presidential candidate whom most experts predicted to have somewhere between a 66% to 75% chance to win the election, lost the election. Experts are having a rough go.

Yet, we lawyers work with experts all of the time. In fact, we are experts. The State calls experts for everything from child interviewing to cause of death. And we call our own experts who testify to different conclusions. Maybe those types of experts are different. After all, while pollsters and oddsmakers claim to be experts on what while happen in the future, the sorts of experts we call a trial tells us their opinion of why or how something happened in the past.

Lawyers, however, are often called upon to do what the pollsters and the bookies do. We are called upon to advise a client about the odds that something will happen in the future based upon a decision. We sit with clients and advise them of the potential outcome of a trial that would take place if they turn down a plea bargain. Or we tell clients that we believe that they should turn down a plea bargain because their chances at trial seem better than the offer that has been extended. We advise on the efficacy of a potential motion versus the problems that might arise by pressing it. We are the sort of expert who predicts the future, interestingly enough, based upon how powerfully we believe we can use our expertise to explained what happened with a set of facts based in the past. That is almost a definition of what plea bargaining is.

Plea bargaining is essentially what criminal defense lawyer do. The United States Supreme Court recognizes it. In Missouri v. Frye, Justice Kennedy, writing for the majority said, “In to-day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” And trials are quite rare compared to the total of criminal cases formally accused or indicted.

How, then, do lawyers properly act as experts in this arena? We have to recognize that we are not fortune tellers. But our role is to make sure that we understand the law and facts in each case. We must engage in plea bargaining. And when we sit with a client, we have an obligation to make sure that they have what they need to make an informed decision. And when the client is fully informed, we cannot claim to predict the future. And it is not our job to make the ultimate decision of whether to take a plea or go for trial or whether to testify or not testify. And just as we cannot abdicate our role to work for the best possible offer, to communicate it, and to inform the client’s decision, we should not allow the client to abdicate the choosing to us. This process is not always clean, and the lines often blur.

But this week has taught me, if nothing else, that there is no science to predict the future. No expertise tells us how it will unfold. But the real work is in assessing the reality of the present choice based upon what we think can be proved about past events. We can only research, describe, and be present with clients. The big decisions are theirs.

 

I am not surprised that Amendment 3 passed. It was a bad idea with an unsavory political history. I did not personally know any lawyers who were in love with it. And my non-lawyer friends who asked me about it seemed persuaded that it was a bad idea. But, alas, I don’t know millions of people. I put it out there on Facebook. But Facebook is a solipsistic medium. I think my musings on Amendment 3 got a lot of amens but changed few minds.

The agency that governs judicial behavior ought to be independent from the legislature. It should be concerned with the neutral and dispassionate application of the judicial canons to judicial action. The JQC had its problems. It operated in extreme secrecy and its tactics were occasionally bullying. It was not a perfect agency. But there were less  intrusive fixes out there than then one chosen.

So, what is the future of judicial ethics? There is work to be done in the legislature to make sure that the mechanism is as effective as possible. I’ve said before that the State Bar can regulate the behavior of its members, whether they be engaged in the practice of law or the practice of judging. But the Bar appears to be politically compromised on all of this.

Ultimately judges are elected officials. And if they act in a way that is unbecoming of the bench, it is up to the people to regulate their behavior. And if the legislature, with its new powers, does a bad job with the JQC, the people choose them, also. What I say here feels like a cop out and perhaps a bit Pollyanna. From my experience, many educated non-lawyers have little idea what judges do or how it all works. I cannot count the people I have known socially who have asked the classic cocktail party questions about my job — “how do you do this for a living?” “What would you do if someone you were representing were actually guilty?” You know the other questions. But I have also had the experience of those same people coming to be clients or parents of clients of mine. And when they are in the system, going to calendar calls, preliminary hearings, motions, and trials, they are appalled at the experience. I do not know how to package up that life experience and communicate it to folks who may never know a courtroom firsthand. So, incumbent judges, even bad ones, are re-elected. And a Constitutional Amendment like 3 passes because it is written in a way that a voter in the ballot box thinks that it is a good idea.

Alexis de Tocqueville’s most famous line is that “in a democracy the people get the government they deserve.” Voters often get things right, as do juries and judges. But we are only as good as the information that we have. And when it comes to courts, the most informed appear to be the ones who are initiated either by being lawyers, serving on juries, or being actually indicted. How to inform others? I really don’t know.

Over at Fault Lines, Andrew Fleischman has an article on Paulding DA Dick Donovan’s Facebook post. Jim Galloway at the Atlanta Journal noticed it, too. The post was a “eulogy for white Judeo-Christian men.” It was really quite jarring to read, particularly by a person who has extraordinary power to prosecute people and even seek the death penalty in certain cases. A day ago, I would have just thought it the demise of his career at best or mere anachronistic rant speak at worst. Then the election results came in, and I see that he’s very much mainstream. Particularly here in Georgia. And his eulogy may have been a bit premature. Turns out that the “white guys” and all he envision in conjuring such an identity, are alive and well.

I, it turns out, am the outlier.

Carry on, Mr. Donovan. Carry on.