Tuesday, November 18, 2008

S.F. Judge Reprimanded

Interesting article on an S.F. judge:


I've never met the judge, but he sounds like a former District Attorney.

I just checked--Judge McBride was a former assistant D.A. and a police officer. According to the S.F. Sentinel, "[Judge] McBride has previously been named Judge of the Year by both the San Francisco Trial Lawyers Association and the San Francisco Bar Association’s Barrister Club." Judge McBride was also elected the S.F. Court's presiding judge this year.

Nothing against Judge McBride, but in states where voters can elect judges, I recommend voting against former district attorneys if they lack private sector experience handling non-criminal cases. Some great judges were former D.A.s, but generally speaking, D.A.s tend to see the world in black and white. Also, while former district attorneys seem to have a better work ethic than non-criminal lawyers, this extra energy is usually caused by a Superman complex. What do I mean by a Superman complex?

Most D.A.s become D.A.s to protect society from criminals and bad elements. To place yourself in a role where you can single-handedly protect your fellow man by locking up citizens (some of whom may be innocent), you have to be comfortable playing God or Superman. But people who view power cautiously or who are mindful of their lack of omnipotence will be fearful of wielding any kind of substantial power. This means that the most confident lawyers, the ones who are comfortable playing Superman, will gravitate towards the D.A. role.

In fact, good D.A.s must have supreme confidence to function, especially after seeing horrors like rape, homicides, and infanticides up close. The average person who sees an 18 year old mother microwave her baby probably won't want anything to do with that situation; a D.A., however, must not only get involved, s/he must convince a jury to throw the young mother in jail. If the D.A. thinks about the mother's personal background, her poverty, or some other random factor, it makes his job more difficult. In short, the ability to see gray areas complicates throwing a fellow human being in jail, because a person may realize that in some alternate universe, given the same set of circumstances, it could be him or her across the aisle in the courthouse. Of course, someone has to prosecute unfortunate souls along with the hardened criminals, so you want D.A.s to be tough, supremely confident, and comfortable playing God with people's lives. At the same time, it's important to recognize that kind of attitude works best in criminal law, not civil law.

Many meritorious civil cases involve gray areas without hard evidence (i.e., a smoking gun, fingerprints, DNA). For example, employment cases sometimes involve nothing more than he-said/she-said scenarios, such as where a female employee alleges sexual harassment. Thus, much of the time, a civil judge has to decide whether a case has merit based solely on sworn statements from different people. Although the law requires judges to send cases to a jury if a reasonable person could see genuinely disputed material facts, after seeing so much hard evidence in criminal cases and so many criminal cases involving severe harm, former D.A.s tend to be less sympathetic to cases that lack obvious physical harm.

You will notice that Judge McBride was named Judge of the Year by the San Francisco Trial Lawyers Association. Those associations are usually run by personal injury lawyers, who bring cases involving physical injuries. Thus, it is not unusual for former D.A.s to be well-liked by trial lawyer associations, because personal injury cases usually involve obvious physical harm and more black-and-white facts than other cases--such as securities litigation or labor law--which don't appeal to a D.A.'s experience of associating meritorious cases with blood on the ground.

Again, I don't know Judge McBride, so I cannot comment on him specifically. The only reason I write this post is to encourage voters to consider voting for a non-D.A., a public defender, a solo practitioner, or a lawyer with private practice experience when it comes time to choose a judge.

Bonus: an Illinois judge jails a man for making a yawning noise in his courtroom. See here.


Slovebunny said...

Wow you have really thought about this one...
How come you didn't write this post before elections?

K_Yew said...

Slovebunny, to answer your question, I was so busy around election time, I didn't have time to fully formulate my thoughts on this subject.