JONESBOROUGH, TN – JULY 23, 2018
Observing different courtrooms around the nation is almost like observing a bunch of one-man (and dispiritingly less frequently, one-woman) shows; each judge’s language, temperament, and attitude shape the courtroom and set the tone for the other ‘characters’ – lawyers, defendants, and court staff. Many judges, it appeared, strive to be seen as down-to-earth and understandable, their language plain enough to be grasped by defendants and their demeanor seen as non-intimidating. Others seek to be seen as the authority – it is their courtroom, after all, and they will run it as they see fit. Yet others want to be a fount of wisdom, handing down pithy aphorisms, motivational speeches, and stern parental admonitions along with fines, probation, and jail time. All these judges seem caught in a judicial double-bind, striving on the one hand to be understood by defendants and not seen as overly intimidating, and on the other hand, not wanting to give the false perception that they are on a defendant’s side or undermining the seriousness of the proceedings.
Some examples of this perplexing tension were on display in the Washington County General Sessions in Jonesborough, Tennessee. One afternoon, I observed arraignments and initial appearances before Judge James Nidiffer of this court. The judge began by explaining the nature of the proceeding – that this was an initial appearance, not a trial or hearing about the defendants’ guilt or innocence. He warned the defendants, who sat shackled in the jury box, that, “It’s not going to help you today to tell me you’re sorry, or that’s not how it went down, or anything like that.”
Then, the judge explained that they each had the right to have the affidavit or charging document submitted by the police read out in open court; however, they could waive this right and go over the document separately with their attorneys. He noted that if the affidavit would be embarrassing or if they just didn’t want it read, they could waive that right. He said, “I wouldn’t personally want it read, but some people do.”
At the arraignments, defendants had the option of trying to resolve their case with the assistant district attorney right then and there to work out a plea deal. However, the judge advised them, this wasn’t a magic solution that would work out perfectly for them, and they might want to consider getting a lawyer first. In particular, he noted that those of them who hoped to avoid jail time would probably not be satisfied with the prosecution’s offer, saying on one occasion, “She’ll probably want some jail time. You still want to talk to her or you want a lawyer?” and on another, “There’s no use trying to work out your case if you’re not willing to go to jail.”
Finally, when speaking with a defendant about bail and pre-trial release, the judge said, “Financially speaking, it’s probably better to get a lawyer first and have him talk to the state.”
On all of these issues, the reading of the affidavit, working out the case with the ADA, and bail, the judge’s language can be viewed in two ways – an earnest attempt to help defendants understand the unfamiliar situation they were in or perhaps inappropriately advising defendants in a way that isn’t a judge’s place. I highlight these scenarios not to criticize or praise the judge’s handling of them, but rather to note the challenges judges face in shaping the ways citizens experience the courts. Most judges I’ve observed appear to want to make the experience – one where defendants might not yet be represented by counsel – less mystifying for them. Some judges try to resolve this by using plain language to explain legal terms, or by asking questions of attorneys to ensure that their clients understand what’s going on. Other judges seem to take a tack of strict neutrality, leaving any explaining or advising of the law or legal process to the defense attorneys.
What’s the line, though, between helping defendants understand their case and giving the improper impression that the judge is there to advise defendants or is on the defendant’s side? How does one negotiate the challenging and unfortunate situation of making court proceedings seem more understandable for defendants who don’t (yet) have a dedicated advocate, an attorney, on their side to do so? How judges answer that question is a major force in shaping the way citizens experience the courts and legal system.