Week 2, Entry 3: Elected judges, judicial bias and perception.

If you were standing trial, do you think that you would receive fair treatment from a judge who had recently campaigned as “tough on crime”? While it might be true that the judge does not decide the fate of the accused (unless the right to a jury trial is waived), the judge does still have considerable influence over a case. They can rule on the admissibility of evidence and testimony, approve or reduce a sentence,and much more. Juries decide guilt or innocence, but they do so with the guidance and oversight of the judge.

Federal judges are appointed and as a general rule, are not subject to removal unless proven misconduct is involved. While appointed judges may be biased towards those who appointed them, they do not have to solicit contributions or campaign to keep their jobs as elected judges do. In many states throughout this nation, elected judges preside over criminal cases and appeals. While most are ethical and professional in their conduct, some are not, which creates the perception that the decisions of elected judges are less than impartial.

An example of perception would be the case of Charles Hood in Texas. Convicted of murder and sentenced to death, it was later discovered that the elected judge who presided over the trial was having an affair with the prosecutor. While this may have had no impact on the judge’s handling of the case (to include approving the jury’s sentence of death), the judge’s integrity is definitely in question. Could she have approved the jury’s sentence because of her relationship with the prosecutor? Could she have approved the sentence because she was an elected judge and wanted to demonstrate her “tough on crime” approach for her next campaign? Given that she was willing to hear a case where her lover was the prosecutor, a reasonable person could conclude that she might be less than impartial and less than ethical. Though higher courts have ruled that the affair was irrelevant to her decision, the taint of her unethical behavior lingers and leaves doubts in the minds of many.

The issue of loyalty, impartiality and campaign contributions is nothing new in the world of politics, to include elected judges. It’s little wonder that there is the public perception that judges are biased towards campaign contributors in Alabama and many other parts of the country. The Supreme Court has ruled that judges should recuse themselves from cases where there is a conflict of interest regarding the interests of campaign contributors. Though the ruling dealt with a civil trial involving a large company and not a criminal trial, it highlights the conflicts that are inherent when a judge must launch political campaigns to obtain and keep their position on the bench.

Former Supreme Court Justice Sandra Day O’Connor is one of many advocating for the end of judicial elections. She supports a merit based selection system rather than elections. This would go far in reducing the perception of judicial bias and is absolutely essential for judges involved in criminal cases. Given that liberty and in some cases life itself is at stake in a criminal trial, every measure should be taken to ensure impartial decisions are made and justice is served.

While there are many that want politicians to be “tough on crime," they fail to see past the rhetoric and consider the implications of a judge who is more concerned with setting an example than being impartial. A judge must be an expert in the law who can leave their personal biases and interests aside, hear the facts, and make fair decisions consistent with the law and our constitution. It is clear that even if an elected judge is capable of this, the perception of bias will still remain. We cannot afford such a perception in a free society where all men are created equal.