A basic principle of the common law right of due process of law is that a person should not serve as a judge in his own case.
Nor that of his spouse, child, or other close relative, or of a corporation whose shares will be affected by a decision.
Jurors are excused for bias (challenges for cause) in unlimited number, and for no cause (peremptory challenges) up to a limited number, ten for each side in criminal cases, twenty for matters of life and death.
In California, you get one peremptory challenge of a judge provided you do it before s/he has heard a matter of substance. CCP 170.6 It's easy to waive through inadvertence, by not paying attention to the rules. You have to swear the judge is biased or prejudiced against you, the attorney or the client or the cause such that a fair and impartial trial cannot be had, you believe. That's it. No further reasons, no questions, no cross-examination. Gone. But watch out for that killer backup judge, because the Master Calendar judge usually has such a spare. But if the spare is occupied in a trial, why then you may want to take a chance. Caveat those visiting killer judges from the cow counties, however. It's a tricky business, striking a judge. It gets reported, I'm told to the Judicial Council, and judges don't like to be reported to the principal. They tend to have long memories.
Justice Stephen Breyer loves the U.S. Sentencing Guidelines, that Pandora's Box of Evil, designed to provide uniformity of sentencing at the cost of justice in living. By now I'd prefer to see two equally culpable bank robbers or dope dealers in the same cell for the same conduct, one serving ten and the other twenty years, due to the vagaries of sentencing practices among various judges and jurisdictions, as opposed to seeing first time dope offenders sentenced to long stretches because of guideline mandates.
Guideline mandates went the way of all flesh earlier this week when the Booker case, with Breyer dissenting from the merits opinion (the first half of a double-header), found the USSG unconstitutional as a violation of the Sixth Amendment right to a jury trial as to facts critical to imposing punishment.
Breyer then led the charge to rewrite the rules, which looks awfully like judicial legislating in the most "activist" sense of the word. By doing so he saved his beloved guidelines, which he helped to write when he was a legislative aide in Congress and found himself on the first U.S. Sentencing Commission.
It must have been natural for him to wonder whether he could participate in the Booker decision without running afoul of the the duty to avoid conflicts of interest. He was, after all, in the position of saving or condemning his own baby.
He did the right thing, however.
He called an expert who gave him permission to serve as judge on his own case.
It sure looks like Breyer was bending over backwards to save his own baby, some think. He dissented to its death penalty and resurrected it with an unusual bit of judicial legislating, cutting a bit here and adding a bit there. Our own new patchwork quilt to keep us warm at night. Now the guidelines are only advisory, and appellate courts get to review sentences for 'reasonableness,' which sounds like an idea.
You can read the article on Breyer's consulting with the distinguished NYULS Ethics Law Professor, and Vice-Dean, Stephen Gillers, here.
If we recused (disqualified) every judge who had taken a strong interest in a matter of vital importance, we'd have to bump them all. Thurgood Marshall knew something about race. He fought racism all his life. He designed and won, against terrific odds, Brown v. Board of Education of Topeka, Kansas, in 1954, as a lawyer.
Does this mean that he should not judge cases in which race was a material factor?
If you disqualify Thurgood Marshall from judging a case involving race, not a few cases, you disqualify the only justice on the Court with a point of view that came up the pipeline direct from the black community whose various views and interests needed placement where they might do some good.
That's why we appoint Protestants, Catholics, Jews, Southerners, Westerners, Whites, Blacks, Asians, etc. We balance the ticket.
Every body gets to play, they feel, and so they stand still for the inevitable injustices, hoping that next lottery someone from their team will turn up a winner.
A lot of eyes are on the Alberto Gonzales, the White House counsel, nomination for U.S. A-G. If confirmed, he'll be in line for a kick upstairs. The first Hispanic justice on the Supreme Court. Should he sit on torture cases? He seems to think near-torture is okay, but not torture, itself, of course.
Justice Scalia recused himself when he opened his big mouth outside of school about "under God" when the Newdow case was coming up. Sometimes it's important to open your mouth, whether it's big or not. Supreme Court justices have First Amendment rights, too, and someone needs to stand up for them.
Should having opinions on matters of public interest disqualify a judge from serving when such a matter comes up?
Would you prefer a Supreme Court nominee who had no opinions on important matters?
Justice Clarence Thomas maintained, against all likelihood, that he'd never thought at all about the biggest controversy in the land at the time of his confirmation hearing, despite the fact that Roe v. Wade was all over the news. He never even picked up the opinion to check whether he was for or agin it. He didn't want to know. He might be asked. He surely would be asked. So he wilfully blinded himself so he could avoid answering. Cynics think he merely lied, but I'm not a cynic.
In jury selection, trial attorneys "read" jurors, sometimes with the help of expert jury consultants, in order to see who is lying to get off, and who is lying to stay on the jury. A lot of people lie in court, and it's not only the people you might suspect at first glance. How do you tell when someone is lying in court? Their lips are moving.
What do you call an attorney with an I.Q. of 50?
Good morning, "Your honor."
Ba-dum!
I'm leery of jury experts myself.
I represented a man who shot his neighbor five times, paralyzing him, in self-defense. The neighbor was an antagonistic bully, but it was highly questionable what my guy was doing with a gun in his pocket that day. We hired a jury selection expert, one of the names you see a lot when the topic comes up, and he was very good. He advised not, repeat not to allow the client to be present at the two mock jury trials we mooted in order to prepare. That was very good advice, and I was all for following it. But, since the client was paying the freight, we couldn't keep either him or his girlfriend out.
It was my job to present both sides, first to one jury the expert hired, and the next weekend to the second. First I laid out the prosecution law, facts, and argument. I'd been a prosecutor for seven years, so I could do this with a certain amount of familiarity.
Then I laid out the defense, law, facts, and argument. I'd been doing that twice as long, so I had a sense of how to lay out the defense case, too.
The juries each voted, in secret.
Each time they came back with guility verdicts.
I'd convicted my own client. Twice in a row. This did not inspire confidence in the client.
There was a happy ending, you'll be glad to know.
He fired me on the eve of trial.
He didn't want to go to trial with an attorney who was demonstrably a better prosecutor than a defense attorney in his very own case.
I briefed the next attorney on all I'd learned, including the firearms training course from a police lieutenant that I took to understand the psychology of fight or flight based on police experience in self-defense shootings.
The next attorney walked him.
I've never used a jury consultant again.
I've learned all that I need to know about jury consultants, thank you.
I heard David Boies on the radio recently. He represented Al Gore in the Election 2000 case. Boies looked good, but his ship went down, flags flying, which is all you can do, sometimes.
He uses jury consultants and selection experts. Good. All you need is a deep pocket and you can buy all the help you want.
Most lawyers have to do without.