The Extraordinary Power of the Judicial System
Judges in criminal cases wield extraordinary power and in many cases, hold a great deal of influence over the process from start to finish. From the first appearance judge to the sentencing judge, each step in the process is an opportunity to determine the outcome of next steps. No matter whether it is federal, state, county or municipal, the judge is always the determining factor in what happens to a defendant who has been arrested.
Many judges are elected officials or appointed to their positions and it’s important to recognize that these are very much political decisions that’s the public doesn’t have a lot of control over. But, like academics, physicians and almost every other profession, judges have different levels of competencies and different degrees of compassion. As regular attendees to the judicial process, we have been witness to judges who are empathetic to the plate of those in front of them and we have been a witness to judges who pay no mind to individual circumstance or outside influences that caused the defendant to stand before them at their mercy. We have also found that the large majority of judges are willing to be educated and informed but rarely have the opportunity to interact with outside information that doesn’t come directly from a clerk, seminar, conference or the lived experience of advocates in support of reducing the number of people who end up in the endless cycle of arrest, incarceration, probation or parole.
Here are 10 things that can influence criminal cases by interacting appropriately with the judge assigned to a criminal case.
1. Roles and responsibilities of criminal court judges
In the U.S. judicial system, judges are tasked with presiding over trials and maintaining order. They also review whether or not there are any illegality issues per the evidence submitted. Judges provide instructions to juries prior to their deliberations and in the case of bench trials, judges must decide the facts of the case and make a ruling in each step of the process. This includes everything been setting a bond amount, setting court dates, hearing or reading about the facts of the case from both the prosecution and defense, making decisions about motions but before the court, and most importantly, the sentencing that takes place after conviction. There are small windows of opportunity for interjecting additional information at each step of the process but it’s important to know what those windows are and when do use them.
2. Steps of the Judicial Process in Criminal Cases
The first step is an initial appearance or an arraignment before a judge of a lower court or magistrate, at which:
The charge is read to the defendant, and penalties explained.
The defendant is advised of his/her right to a preliminary hearing and the purpose of that procedure, as well as his/her right to trial and right to trial by jury in trial court.
The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).
The defendant does NOT enter a plea. The matter is set for preliminary hearing (hearing to establish if a crime has been committed and if there is probable cause to believe that the defendant committed the offense(s) alleged in complaint).The judge or magistrate sets the amount of bail.
The second step is the preliminary hearing.
The government must demonstrate to a judge or magistrate that there is sufficient evidence, or probable cause, to believe the suspect committed the crime with which he or she is charged.
Defendants usually must be present at this hearing, although they do not commonly offer evidence in their defense. This procedure has a similar function to grand jury proceedings, in that it is a safeguard against unfettered government action.
If the court finds there is no probable cause, the matter is dismissed (this would be the equivalent of a grand jury declining to press charges). If this happens, defendants are released.
If the court finds there is probable cause, the matter is transferred to trial court. Many courts use the term bound over, as "the defendant is bound over to the district or circuit court for trial."
The third step is the longest and has many different paths. The defense and the prosecution will discuss possible plea agreements, dismissal or reduction of some or all charges and possible sentences if a plea agreement is reached.
Keep in mind that 97% of cases in the United States are decided by a plea agreement in order to speed up the process and help the prosecution maintain their conviction rate.
3. Earlier intervention is better.
Judges are not always aware of the latest legislative decisions regarding criminal punishments and processes. The impact of the lack of education and information surrounding legislative impacts can be demonstrated in the way that many syringe exchange programs worked to change the laws regarding possession of small amounts of paraphernalia or illicit drugs, and yet could officials were unaware of how these new legislative interventions impacted the policing of these communities. An excellent example is the passage of a 2021 law in Oregon that made the possession of paraphernalia and small amounts of drugs being decriminalized but there was a complete breakdown in communication of the new legislation to law-enforcement and court officials. This breakdown in communication resulted in individuals continuing to be arrested, charged and convicted of things that were no longer a crime because no one had bothered to educate law-enforcement. Even the impacted populations were unaware of the change in legislation and we’re unable to advocate for themselves. The best time to intervene in a criminal case where someone has been arrested on a charge that is no longer illegal is at the first appearance. Although this is usually a very quick process, with little time to intervene, defendants and advocates do have an opportunity to speak briefly with a public defender at the first appearance hearing and the public defender can then relay the new information to the judge who can then dismiss the charges before the process goes any further. Advocates should Be prepared to present statutes and legislative data to the court at the first appearance hearing.
4. Getting your criminal defense attorney on the same page
Communicating with your attorney or Public Defender can often feel like an exercise in futility. But it’s important that they have all of the facts before presenting their case to the prosecution. The prosecution in turn, will determine if a reduction in charges is the appropriate action. If an agreement is reached, it will be presented to the judge and the judge will make the final decision if they feel the plea agreement is fair or if the evidence supports the reduction in charges. This is often considered a “rubber stamp” process but it’s important to remember that it is most definitely not. Judges can accept or deny a plea agreement in the same manner in which they can accept or deny a sentencing recommendation. Be sure that your attorney or Public Defender has access to the evidence that supports your position, additional witnesses, statements from family members and friends, and in some cases, even the “victim” in a criminal complaint. It is unfortunate but sometimes attorneys and public defenders fail their clients because they simply don’t have all of the information they need. Attorneys want to “see things in writing” so presenting evidence in written form, video evidence, text messages, social media posts and “professional” information, like statements from physicians, pharmacies or other services providers, including advocates, Hearsay is not evidence. So simply telling your story from your perspective is not enough. You need documentation to back up all of your statements and evidence.
5. How to contact your judge directly
An underused tactic for influencing judicial decisions is writing a letter to the judge. Your letter should be short, factual and respectful. Make sure that the letter contains your legal name, case number, attorneys name and phone number and your willingness to provide documentation to back up your story. You can explain your situation but don’t make the letter longer than 2 pages or it won’t make it past the clerk. Make sure that you send a copy of the letter to your attorney or Public Defender.
6. How to speak directly to the judge in court
Judges are influential people and their position commands respect - even if they are sometimes clueless about the complicated circumstances of the people who stand before them. It’s important to address them as “Your Honor” and ask for permission to speak before actually speaking. Say “please” and “thank you” and write down what you want to communicate to them so you don’t ramble and get cut off. If you have an attorney or public defender it’s a good idea to let them know you would like to speak to the judge directly and let them know what you plan to say. Take their direction if they have advice.
7. The links between the prosecution, the defense and the judge
Judges are attorneys and they often socialize with other attorneys. It’s impossible to gauge how many judges are influenced by attorneys with a car before them on the golf course or at a social function. Attorneys are well aware of a judges “position” on issues and political affiliation and most of them are skilled at “the elevator pitch” in social situations. It is not at all unusual for attorneys, other judges and other court personnel to have an influence that might assist in your particular case. Allow your attorney or Public Defender to use their social connections to advocate on your behalf. Judges are also socially connected to the prosecution and they are just as likely to advocate for their own position in regards to your case, so it’s really important to use all of the advantages of your attorneys social connections. If the judge has a great deal of respect for your attorney and has had good interaction with him in the past, It could very well have a positive impact on your case. A judge will only see you at your court appearances so it’s important to always put your best foot forward when in front of a judge.
8. When and how to request advocate involvement
Advocates should always request permission from a defendants attorney before taking any action. There are many times when an advocate can be helpful but they can also be harmful to a complicated case. Particularly when we’re talking about drugs and prostitution. There are very strong feelings and emotions connected with the subjects And it’s important for advocates to recognize that they can help but they can also harm someone’s case. Advocates can collect letters of support and appear as a spectator at court appearances to demonstrate that the defendant has the support of the community. The judge will see the advocates in the courtroom - particularly if they make regular appearances on behalf of their community. Court support is difficult because all of the intersecting issues, radical differences of opinion and the polarizing issues. The presence of advocates need to reflect respect for the court so as not to damage the chances of the defendant. Effective advocacy requires that we are always working at the behest of the client and are prioritizing their needs.
9. How judges are influenced to make decisions
Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. It is a common caricature of realism that justice is “what the judge ate for breakfast” can be a factor and some research suggests that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions. Judges are people first and foremost - just like everyone else and they have more than one dimension that is represented in court. A judge may have had a fight with his wife or got bit by a dog before he arrived at court. A judge can have a headache or be coming down with the flu. They could have just gotten bad news that is in no way associated with the case in front of them. And they can even be irritated by another case that they had to rule on that day. This may not be fair but it is a fact. We’ve all seen the YouTube videos about bad behavior by judges in court but at the end of the day, be sure that you are advocating for yourself and others by using your best behavior in spite of a surly attitude generated by the judicial presence.
10. Your role and responsibilities to the judge
The most important thing to remember about court appearances is to be there on time, pay attention, speak clearly and concisely and be respectful. Being late for court infuriates judges and there are serious consequences that can happen if you are late including having your bond revoked and ending up back in jail.