Thursday, August 4, 2011

The Role of the Judge

This is directed mostly to those who will never read it: inmates awaiting trial.

But it's a situation that we see every week, so I thought I'd share. Here's what happens:

A sexual assault case. The prosecution is seeking prison time because of the nature of the crime and the defendant's history of violence. The defendant, having been to prison and not liking it, wants a probated sentence. There is, then, an impasse in negotiations.

The defense lawyer explains that probation will never happen and that if his client doesn't take the deal, they are headed to trial. The client doesn't want a trial, he thinks he'll lose.

What he does want is to talk to the judge.

So the defense lawyer tells the judge negotiations are failing and his client wants to talk to him directly and won't accept any other course of action. Why? Because he doesn't understand the judge's role. He thinks that a judge, because of the many powers he does have, can also forge a deal.

But he can't. A plea deal can only be reached by a prosecutor and defendant('s lawyer). The judge merely signs off on it.

So what usually happens is that my judge, Mike Lynch, tries to explain that. He'll tell the defendant he's not a party to the negotiations and that if he doesn't like the deal his only other option is to go to trial.

The way inmates talk to each other, spread rumors and give "advice," you might think the role of the judge would be better understood by now. But apparently not.

A long docket this morning, and I bet at least one inmate will ask to speak to the judge, hoping he'll sweeten the deal and take the defendant's side in plea negotiations. The judge won't, of course, he'll give his usual speech.

But think about it the other way around. Imagine if the judge weighed in on our side, pressured the defendant to take our deal. That possibility, I trust, makes it clear why a judge must remain neutral.


  1. Judges weigh in on your side frequently. Watch the news and you'll routinely see judges reject plea deals they think are too lenient. Happens all the time- e.g., judges who require jail time on first DWIs. It just never, or almost never, works in the other direction.

    The role of the judge isn't just to sign off on your agreement but to exercise independent judgment to approve or disapprove the deal. Lynch may let y'all handle all the details among the lawyers, but plenty of other judges act to ensure that pleas in their court reflect their own preferences, particularly in high-profile cases or on their particular hobbyhorse like DWI.

  2. Grits: I'd strongly recommend against learning about the criminal justice process by watching the news. I can't recall the last time a judge here rejected a plea deal, so I would definitely disagree with your "frequently" assessment. Now, maybe other judges or other counties, but I only speak according to my own experience, which tells me the lawyers and the client are really the only ones driving the plea train. In my experience. :)

  3. Many clients sincerely believe that if they can get just a few minutes to talk with the judge, the judge will recognize the unreasonable nature of the charges and dismiss the case. They get annoyed with us defense lawyers for continually shushing them.

    Believe me, the tremendous amount of misinformation that is passed around in the jails is a tremendous burden to defense counsel. As one wag put it, if your cellie is such a legal genius, what is he still doing in jail?

  4. I have nothing intelligent to add, just wanted to say I enjoyed this post. Very interesting.

  5. DAC, I'm not saying the client talking to the judge would do any good, just disputing your statement of the judge's role. Your experience tells us how Mike Lynch runs his court, but you're describing the decisions of a particular judge, not "the role of the judge" generally. Too many contrary examples out there say otherwise, even if you prefer your own opinion to what's reported in the news.

  6. Grits: I don't necessarily think this topic is worth a big argument but my experience extends to all of the seven district courts over a three year period. Judges simply don't bust pleas very often. I know you don't work in the system, and get much of your information from the news. That puts you at a disadvantage but please realize that my comments are not "opinion" but actual experience. Again, extrapolating a few examples from the news, when a hundred pleas are taken in Texas every day, is not a good method of arriving at an accurate number. It also doesn't support your contention that judges "routinely" bust pleas. I have genuinely high regard for your blog and opinions, but on this one I must quibble with you. But I also thank you for participating in the conversation.


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