From the Judge's Desk A View from the Bench

Greetings, Sisters and Brothers of the Bar!

It’s been quite some time since we’ve talked. Your luck just ran out! The topic of this installment? Trial Judges: Friends or Foes?

This past October, along with Cincinnati Law Professor Mark Godsey1, Ms. Rachael Troutman2, Dean Gillispie3, and Hancock County Common Pleas Judge Reginald Routson4, I brought to you a seminar –What It Means to Be a Criminal Defense Lawyer I have been told by any number of attendees that this seminar was the finest they’ve ever attended. That remains for others to say.

Before the seminar commenced, and at the suggestion of Judge John W. Kessler, Ret.,5 I passed out 3x5 cards to the attendees and asked them to answer a single question:

Is the trial judge your friend or foe?

For those answering “Foe”, I asked them to provide the primary reason for their response. Roughly 80% responded:

Trial Judges are Way to Cozy with the State6

Sadly, none of us are shocked by this verdict7 because plainly trial judges are too cozy with the State, which is to say Prosecutors and the Police, i.e., the Executive Branch.

But the admonition of the Seminar was a Call to Arms, really. And hope stirs.

Recently two Defense counsel in separate cases, came to see me to discuss certain matters of importance to them and their clients. In one case, heading for a retrial in a sister county, Defense counsel faced questions on the frailties of Human Memory and Cross-racial misidentification. In the other, Defense counsel was seeking Bond Review. Both lawyers knew that I have spoken and written on these topics, urging my fellows on the trial bench to take more nuanced approaches to our tasks.

In particular, I have spoken and written frequently on meaningfully instructing jurors, both during selection and thereafter, on bias, implicit bias, prejudice, and the frailties of human memory and eyewitness identification. I have also spoken and written at every turn on the misuse of cash or money bail to essentially warehouse the Accused, presumed innocent, thereby unwittingly8 contributing to wrongful conviction and imprisonment.

So it came as vindication of sorts when the aforementioned Defense counsel paid me separate visits to discuss, philosophically, the considerations in each of their cases impacting the delivery of ACTUAL, AUTHENTIC, REAL Due Process and Fundamental Fairness.

In the retried case, the jury hung and the court declared a mistrial. Defense counsel had a life experience he’ll never forget when a tearful juror embraced him in thanks for enabling and empowering her to do her duty because the State had not met its burden of proof on cross-racial eyewitness identification.

In the pending case, Defense counsel advised that the assigned trial judge had meaningfully and thoughtfully considered bond and set its terms including its monetary component, properly and fairly balancing protection of the public and the Accused’s presumption of innocence.

Long story short? Take pride in what you do as lawyers. It matters – not only for your clients and the criminal justice system, but just as importantly for you and the life’s work you’ve chosen.

And let’s face it: trial judges need all the help you can provide us.

Until we meet again on these pages...

By The Honorable Richard Skelton Montgomery County Common Pleas Court richard.skelton@montcourt.oh.gov

ENDNOTES:

1 Director of Ohio’s Innocence Project.

2 Head of the Ohio Public Defender’s Death Penalty Division.

3 Wrongful Conviction Exoneree.

4 The Dean of CLE for Ohio’s Common Pleas Judges Association.

5 Former Presiding and Administrative Judge of the Montgomery County Common Pleas Court.

6 Or similar sentiments to this effect.

7 Indeed, Judge Kessler predicted as much.

8 Or otherwise.