It is odd that the final column in this series, due to procrastination, gets written after I am no longer president of TCDLA. In it I would like to address what I see as a change in the character of the system since I first began practicing law. I started in 1976 as a prosecutor in Tim Curry’s office in Fort Worth. For five years I prosecuted traffic appeals, then misdemeanors, and finally felonies. Then I left the District Attorney’s office and became a defense attorney. I have worked as a criminal defense attorney now for thirty years, defending everything from misdemeanors to capital murder.
When I began practice there were five felony courts in Tarrant County. At least two of the judges on the felony bench had been in the district attorney’s office, and all had spent time in private practice before assuming the bench. One of them, Judge Byron Matthews, is a member of the TCDLA Hall of Fame for his work as a defense attorney before he took the bench.
One of the changes that has occurred during the thirty-five years of my practice is that it is much more common for lawyers to assume the bench directly from the prosecutor’s office without ever defending a person accused of crime. I know a number of judges with such a history who are fair and impartial, everything a judge is supposed to be. I know others who are not.
A judge’s role is different from that of the advocates who appear before them. It is a judge’s duty to be fair and even-handed. To treat all the litigants with respect. To scrupulously keep his or her thumb off the scale. It is not their job to be an extra prosecutor anymore than it is their job to be an additional defense attorney. The latter rarely occurs in Texas because our judiciary is elected. Think of watching your favorite baseball team play an opponent when the opposing team supplies all of the umpires.
One thing that all sides can agree on is that the electorate is generally not well informed about the criminal justice system, its philosophy and how it works. Thus, it is often common for candidates for the bench to tout their life-long role as a prosecutor as a superior qualification to sit as a judge. This is good politics, but it is bad for the judiciary and bad for the criminal justice system as a whole. It encourages the electorate to view the judge as a super prosecutor.
Having been both a prosecutor and a defense attorney, it is my experience that I did not completely understand the role of the defense attorney until I became one. I didn’t really appreciate the power a prosecutor has until I became a defense attorney. None of this is to say that there are not excellent and honorable prosecutors, defense attorneys, and judges who understand their place in the system and perform their role with sensitivity and understanding. But it is also true that there are many in all three roles who do not.
If you want to be a judge, whether you are a defense attorney or a prosecutor, fine. But recognize that when you become a judge your role in the system changes profoundly. You owe it to the system, the country, the state, and the people to think about that role and strive to make the change. I do not claim to understand all of the pressures and nuances that go into serving on the bench; I have never done so. But I can tell when a judge is not treating the defense in the same manner they treat the prosecution. I am sure there are instances in which the opposite is true, although I think it is less common because it is less politically efficacious.
I do not think that we should think that having close friends in a role you have never filled is the same as filling that role. I do think you should consider the perspective of the judges before you criticize them and understand that their purpose and perspective is not the same as yours. I also think that judges should remember the roles of the advocates and respect both sides. While, at the same time recalling that their role now is different. They are not to be advocates. Their job is to be . . . judges.