Wednesday, July 13, 2011

What Happened to Judicial Neutrality?

One of the fundamental propositions of constitutional propriety in this Republic is that the judiciary is supposed to be neutral, which is a different notion from "independence of the judiciary." The doctrine of independence surrounded the founding query of whether the judiciary was to be a part of the legislative branch or of the executive branch, and, as we know, the question was resolved that it would be its own "independent" branch. But that does not, in and of itself, speak to neutrality.
Neutrality implicates the expectation that the judges will start their analysis of matters coming before them without a leaning in any direction - that what comes from the judicial effort is based on the evidence introduced in the respective proceeding. The one caveat of that is the framing notion, most clearly laid out in Federalist 78, that one of the prime functions of the judiciary is to protect individuals from overweening government. So, to the extent there is non-neutrality, it is in favor of the individual and disfavor of the government.

But that founding notion has been shifting over the past decades, maybe since the mid-70's and the appointment of the Nixon supreme court justices [Burger was already there, then Rehnquist, Blackmun, and Powell], in criminal law matters, such that now most judges at all levels are police groupies.  Most judges have never seen a cop they don't like or trust, while simultaneously they aggressively distrust witnesses brought in by the defense.  

Many years ago, one of our courts appeal had the guts to write that there cannot be a presumption of credibility on the part of police witnesses, because policeman have a clear stake in the outcome of the cases they put together and investigate and present.   And that is, of course, self-evident.   And the case that pointed out that credibility undermined stake in the outcome of cases was cited by two supreme court justices, in dissent but without contradiction by even the most pro-cop justice, as evidence of the "prevalence of police perjury" in criminal investigations.   PREVALENCE!

And yet, you will look hard and long before you find a judge these days who will voice skepticism of a police witness.   However, you do not need to look far to find judges who mistrust defense witnesses and exhibit disdain for them.

Just today, the government put on their version of a serious criminal matter at a preliminary hearing, and then one of the defendants' sweet Dad got up and gently and honestly made two critical statements that potentially undermined the government's case, and in argument afterwards the judge opined that he was not sure he believed the sweet old man!   Having faithfully and deeply and earnestly studied the Constitution for decades [some believe for centuries!], I lost it with that aggressive dismantlement of my fundamental charter!!  And that is flatly rude to boot: to tell a man you don't trust him because he is subpoenaed by the defendant's side is disrespectfuly of the dignity of the man.  Ironically, the judge was taken aback because I would suggest he was being prejudiced; he cared not about the human dignity of the man whom he tarred as a liar because he was called by the defense!  The judge's own words defined his leaning; I needed not manufacture it.

I am sick and tired of the judiciary here acting like the investigating magistrates of, say, Italy, where they lead the prosecution in its task.   Judges who do not want to subscribe to and embrace and serve their intended, indeed mandated, role of neutrality need to get the hell off of the bench and go into [or for so many of them BACK into] prosecution or police work. The pro-prosecution bent of the judiciary is patently palpable and it has to stop here and now.

Many of us have sworn to uphold the Constitution against all enemies foreign and domestic, but I can assure you there are far, far more domestic enemies of my Constitution than foreign ones.   I have little to fear from distant mullahs; we all have a great deal to fear from pro-prosecution judges who voice distrust against witnesses who undermine government cases, all the while piously pretending neutrality, balance, and presumption of innocence for the defendants.

It is known by professional tiger trainers that no matter how well they have bonded with their charges, when a tiger's eyes turn green, everybody needs to haul out of the cage, because the tiger is set to commence a period of blind rage that cannot be quenched by even all the king's horses and all the king's men. He needs to be let alone, lest limbs be let loose from the most convenient bodies. When it comes to me Constitution, my eyes are always green.

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