South Carolina Criminal Defense Blog

At a NACDL conference today in Houston, TX, I was privileged to hear a federal judge say: "Judges are not the government . . . I don't know if there is a greater role that an Article III judge can play than to stand between the citizen and the government."

I think that we take it for granted that many judges not only see themselves as agents of the government, but also see their role as "law enforcement." Many federal judges are appointed from the U.S. Attorney's office, many state judges are elected from the solicitor's office, and many non-lawyer magistrates are appointed from either law enforcement or the probation office. It is only natural that they will have a prosecution or law-enforcement bent to their ideology, which may or may not change over time.

But the judge is supposed to be a neutral and unbiased arbiter, and (ideally) is looked up to by the public and the people who appear before them as the one person who has the power to ensure that what happens in the courtroom comes as near as possible to achieving Justice, and that the rights of the litigants, including defendants, are not trampled on.

I always assume that even the most prosecution biased judges do not see themselves as biased, and that they are attempting to do the right thing, based on their own concept of Justice. But, wouldn't the landscape change and the likelihood of Justice being achieved increase exponentially if all judges could say the same as this federal judge today. If all judges could see themselves as truly neutral in the struggle between the government and the rights of citizens rather than as an arm of law enforcement?

It is the job of the defense attorney to argue and persuade the jury to acquit our client, and to argue and persuade the court to preserve and protect the rights that we are given under the Constitution. But our arguments and persuasion are for nothing unless there are judges, in the trial courts or in the appellate courts, who are willing to hear them.