April 27, 2014

The Inevitability of Judicial Bias

In a typically interesting, introspective blog entry, United States District Judge Richard Kopf answers the question, "Why does Kopf believe cops most of the time?" In his entertaining and insightful blog, Hercules and the Umpire, the Judge (a Nebraskan Republican) delineates 9 reasons, beginning with the admission, "I am a shitty judge of credibility," mentioning that "the vast majority of defendants are guilty," and ending with "While I do not think of myself as 'pro prosecution,' I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order."

While Judge Kopf's willingness to acknowledge and probe his own bias is commendable (and far preferable to the norm of assuming a Solomonic-like capacity for objectivity), his post illustrates the hurdles civil rights plaintiffs and criminal defendants face trying to persuade judges and juries that the police can and do lie.

The comments offer some useful insights into the entry. For instance, Mark W. Bennett, a United States District Judge in Northern Iowa (and a Clinton appointee, for whatever limited value you believe that holds), has written on the issue of detecting sympathy/empathy in defendants' statements at sentencing, and whether judges are more capable than others at such evaluations. In a comment on Kopf's post, Judge Bennett points out "an interesting study [where] 90% of judges at a meeting believed they were in the top 25% of the judges in the room in terms of ability."

Even Lorin Duckman, a former New York City Criminal Court Judge who was removed from office in the late 1990s for being too skeptical of prosecutors engaging in judicial misconduct, says, in partial agreement, "almost all of them did it, but they are not all guilty of what they were charged with and some, even if they did it, should not have been charged at all."

This raises an interesting question: in general, can any finder of fact be free from bias when evaluating witnesses, and, more specifically, can judges maintain impartiality when the witness is a cop. In my experience, the answer to both questions is clearly, no.

Kopf talks about the competing testimony exclusively in terms of criminal cases, where the defendants have an obvious incentive to lie. That the officer has his own motives to falsify testimony seems to have never occurred to Judge Kopf (signifying the great difficulty an attorney would have persuading Kopf that the officer may be lying). Essentially, all the officer has to do is present a seemingly coherent story free from internal inconsistencies and the defendant's goose is cooked. This is entirely consistent with the assumption made by every criminal defense attorney in NYC I know, that one cannot win a misdemeanor bench trial without substantial proof of innocence. If the trial boils down to a one on one swearing contest, the police win every time.

My own experience confirms generally the difficulties civil rights plaintiffs face in persuading judges and juries that police officers are not inherently trustworthy witnesses, or, more to the point, that their truthfulness should be evaluated the same as every other witness.

For instance, assume that you have been reading about a spate of robberies in a particular neighborhood, and the attempts by police to catch the perpetrator. One morning, you pick up the paper and see an article announcing that the police have caught the suspect, replete with a photographs of the perp walk out of the precinct. Speaking for myself, I always find myself assuming as a I read the article that the guy in cuffs is guilty and that the case is solved. Sure, I know with complete certainty that innocent people are arrested all the time, that the police make mistakes, and sometimes do so deliberately. I am perfectly aware that the suspect is innocent until proven guilty and all that. Yet, I automatically conclude that the threat is gone, the evildoer captured, and justice will be done.

Judge Kopf is admirably (and not surprisingly) open about his perspective, which is the first step in seeking to avoid undue bias, and I would hope that other members of the judiciary would, at least privately, admit to their own assumptions. Our system requires finders of fact to choose between competing stories on a regular basis, and there is no meaningful way to ask people to do so without being influenced (albeit unconsciously) by their life experiences, etc. However, as Kopf would seemingly agree, it would be useful if we could all maintain a self-critical approach to how we view evidence, witnesses, and the law, when we seek to objectively separate truth from fiction and reach a reliable conclusion as to what has actually happened.

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