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    May 01, 2017

    Reflections of a Former Trial Judge: Looking Through the Rearview Mirror

    By Judge Neal W. Dickert, Retired

    Several years ago, I retired from the bench after 11 years as a general jurisdiction trial judge and returned to the private practice of law. Most of my judicial colleagues thought I left office for the money. I can assure you I did not. Beginning private practice of law at the age of 61 during the worst recession since the Great Depression was hardly an auspicious time to embark on such an endeavor. I truly enjoyed my judicial experience and am proud to have been a judge. I retired primarily because I found that it became increasingly difficult, day after day, to make hard decisions that had a profound impact upon the lives of the people appearing in front of me. I was afraid that I would lose the strength of character to make the hard decisions or, perhaps even worse, would become callously insensitive to the feelings and interests of the litigants I encountered. Neither of these options was palatable.

    Since I left office, I have thought about my time on the bench. As a general jurisdiction trial judge, I handled every type of case. Most days were spent making decisions in sentencings, summary judgment motions, discovery disputes, child support recovery actions, and other matters that became somewhat routine. I found that I developed a decision-making style that focused on giving the matter before me my undivided attention and reaching the best decision from the material presented. I found most decisions did not haunt me, in part because one day of making decisions was followed by another day of more decisions. As I reflect on some of the more stressful and difficult cases of my career, however, my thoughts always seem to come back to one case, which resurfaced recently.

    It was a habeas corpus death penalty case, and the basic issue was effective assistance of counsel. Needless to say, it was a difficult case, and the decision I made was controversial and unpopular with many people. The case involved testimony that lasted for several weeks in a small and rather intimate courtroom. As a result, I had considerable contact with the parties and their relatives, particularly the family of the victim. In this respect, it was unlike most cases that I had to decide. If one works in a major metropolitan community, or even a middle-sized town, I suspect it is rare to have interaction (outside the courtroom) with the people appearing in court. Let’s be candid. Most of us were probably raised in rather traditional families and went through college and law school without much agony or great sacrifice. Most individuals that judges encounter in court have not been so fortunate. When a judge does have considerable personal contact with the individuals impacted by rulings and can identify with these individuals, tough decisions can become even tougher.

     

    As I analyzed the law and evidence and finalized the order in this case, I kept thinking of the people affected by my decision, not only the parties but also the family of the victim and the family of the defendant. I truly grieved for these people and, at the same time, anticipated the reaction of the public to the decision I felt I had to make. I decided to set aside the death sentence and ordered a new sentencing trial. My decision was reversed by our state supreme court, relying on a failure to establish prejudice for the alleged ineffectiveness of trial counsel. That ruling withstood scrutiny by the federal courts, although not without some strong dissent along the way. I have great respect for our state and federal appellate courts. However, I am comfortable with the decision I made, and, at the risk of sounding arrogant, I still think I was right. Would I have preferred to have avoided the criticism in the blogs and newspapers? Certainly. Do I wish I could have brought finality to this matter? Of course. But do I regret my decision? No.

    As I read and listen to commentators rant about judicial activists subverting the will of the majority or see politics taking a greater role in judicial selection, I think about this case. Our judicial branch is most assuredly the most undemocratic, and hopefully the most unpolitical, branch of government. Judges, however, serve an unbelievably important role in this democracy. The job of a judge is not to be democratic. Judges serve as the conscience of a community, not its consensus. Judges protect the rule of law, not the will of the majority. Judges are not, and should not be, politicians. They should not rule as Republicans, Democrats, or Libertarians; they should be, first and foremost, members of an independent judiciary. While most judges respond to the public in elections every few years, the oath of office requires judges to respond to the Constitution and the rule of law, not the whim of the electorate.

    As I see politics having an increasingly important role in the selection of our judicial branch, it disturbs me greatly. Many states have had contested judicial races where one or both of the candidates promote an allegiance to one political party and want the voters to know his or her opponent was a member of the opposite party. This is unfortunate. When I had to decide tough cases, I would occasionally confer with colleagues about important decisions and can assure you that when I did so, the last thing either of us was thinking about was party affiliation or politics. I also believe that most judges make decisions not thinking about the reaction of the public, but what the law and Constitution, as interpreted by the courts, require them to do. The more a judge promotes himself or herself as a partisan politician, the more money that has to be raised and spent to have a chance at being elected, and the more we allow politics to enter into the judicial selection process, the further we deviate from the principles of an independent judiciary embodied in the Constitution.

    When a judge makes a decision based on public opinion and politics, not only does it undermine the integrity of the judiciary, but it is a violation of the oath of office of that judge. Judges have the responsibility to decide cases that deal with complicated and, in many cases, controversial issues. Many judges may have already addressed or will in the future address controversial and divisive issues. Many people in our communities would argue that the courts have no business even addressing some of these issues. Many people have the attitude that, if the legislature or the people vote in favor of certain laws, the judiciary has no business addressing the constitutionality of these controversial statutes. Nothing could be further from the truth. The courts have an obligation to address these issues and make the right decision, not the popular decision. If you face a political challenge because of a controversial decision, you just may have to accept that as a part of the job you have to do. If this jeopardizes your job politically, you may have to take that risk. The job of a judge is bigger and more important than each individual judge and that judge’s personal career. In the end, you may have to decide between your job and being able to sleep at night with a clear conscience.

    I know I made mistakes on the bench. On occasion, the appellate courts would make that clear to me. I may have made a mistake in the case I described earlier. Our appellate courts thought so, and another decision would have been more popular and would have brought less criticism. But if I had decided the case otherwise, I would not have felt that I carried out my constitutional oath and duty. I am proud of the tough decision I made, despite the criticism. I was asked to testify, and did testify, before the State Pardons and Parole Board at the clemency hearing for this man to explain my ruling. His petition for clemency was denied. He was executed several months ago. I could have easily, and apparently correctly, decided the case I decided differently. Despite how popular such a decision would have been, I could not make that call. Now that this man has been executed, I am glad, more than ever, that I did what I did. I may have been wrong, but I can live with my decision.