Much is determined by the groceries. If all you bring us is kumquats, banana pudding, and spam, you can hardly be shocked when the judge doesn't conjure a gourmet meal as a result. People like to complain about judicial decisions, but before you blame the cook, look at what groceries were brought.
That said, there are some reasonably terrible cooks out there, whose best efforts with a filet mignon may not be fit to feed a raccoon.
In the naïveté of our youth, we were all led to believe that judicial positions naturally attract the best and the brightest. In truth, that is not fair. Sometimes people rise to "the level of incompetence," see the "Peter principle." Sometimes people become head chefs because of factors other than talent.
Maybe you can accept that, maybe you cannot.
But, perhaps you plea, "That cannot be true for appellate judges?" Well, in fairness, appellate judges are no more likely to be exceptionally smart than college professors. physicians, or any other profession. Whether you are willing to buy it or not, there is no inherently greater propensity for mental ability or agility in any group of people. It turns out there is a spectrum of talent in every profession, strata, and category.
That said, perhaps the greatest strength of appellate judges is their tendency to make decisions through a collective and sometimes collegial process. That collaboration perhaps rounds off some of the rough edges? The same might be said of the physician who sends you for a second opinion or evaluation by some specialist. The collaboration and contributions of multiple minds may lead to a better effect.
In the end though, there is nothing magical about being a judge, an attorney, or an electrical engineer. Each worked to achieve some recognition. Each is likely worthy of some dignity. And, each profession has a few involved who perhaps should seek a career instead in some alternative vocational opportunity.
Recently, I have written about a judge who thought risque hot tub pictures on social media were a good idea. See Hubris and Petulance (May 2024). There have been many posts here that discussed judicial behavior, some examples are Arrested and Charged (January 2024); Revisiting Judicial Discipline (May 2022); The Sleuthing Judge (October 2017), Judicial Discipline and Being Aware (February 2019), and The Practice of Law (July 2021). Judges have to be exemplary, and appearances matter.
More recently, the news has raised some concerns about sleuthing again, according to WAFB9 Baton Rouge. A Louisiana District Judge was told a jury had reached a verdict convicting a defendant but discovered the verdict was not unanimous. Judge Eboni Johnson Rose sent the jury back to deliberate further. That was seemingly appropriate.
The jury then returned and "cleared (the defendant) of all charges." The "verdict (was) read into the record," and the trial was concluded. Judge Johnson Rose then "met with the jurors privately" to inquire further. Her investigation led her to conclude that the jurors did not intend to acquit the defendant. So, she summoned all parties back to court and reversed the acquittal. That is troubling.
Judge Johnson Rose appropriately recused herself and another District Judge was assigned. The new judge declared a mistrial but refused to reinstate the acquittal. Louisiana's "First Circuit Court of Appeal affirmed that ruling" (acting collaboratively). The matter was then appealed to the Louisiana Supreme Court.
A unanimous Supreme Court reversed the refusal to reinstate the acquittal, reversing the second District judge and the appellate court. The Supreme Court concluded that the verdict of acquittal was final when announced in court. A concurring justice noted that judges cannot meet with jurors during deliberations. That justice noted that Judge Rose's actions "shock the conscience."
Despite that criticism, one must admire Judge Johnson Rose for entering the recusal and removing herself from the case. Whether the jury was missteered, poorly instructed, or merely misunderstood, she was wrong to interfere with the verdict after it was announced. But, she preserved the dignity of the court by removing herself from the case.
Nonetheless, two trial judges failed to recognize or appreciate the sanctity of the jury's work. Certainly, the jury did not accomplish what it wished. The sleuthing judge's inquiry revealed it only sought to convict of a lesser offense, not to acquit. Judge Johnson Rose, perhaps naively, sought to interject into an imperfect system and to correct the jury. Notably, however, in the first instance, the jury perhaps steered poorly based on the very instructions that Judge Johnson Rose gave it.
This example does not likely inspire confidence in the courts or the jury system in a broad sense. That is an undoubtedly imperfect system. And, the outcome is positive. The process ultimately reached an outcome, a finality.
Another Louisiana Judge made national news more recently for an allegedly "unheard of ruling that overturned a rape conviction." Newsweek reports that Judge Gail Horne Ray threw out a rape conviction of Donald Link from 1973. The news has been critical of Judge Horne Ray because she might be perceived to have sympathies for defendants. Her son "was convicted after admitting to a series of (6) rapes." The judge's son is reportedly serving a sentence of "50 years in prison" and will "serve at least 25 years." It is possible that Judge Horne Ray has feelings about the crime of rape.
Judge Horne Ray, in the unrelated 1973 Link rape conviction, essentially reversed a life sentence, as an appellate court might do. She concluded that in 1973, "the jury was given improper instructions." Though the conviction was already affirmed by the Louisiana Supreme Court in 1974, Judge Horne Ray has concluded that she knows better and has decided to clear the convicted rapist.
The matter is significant, and will likely be in the news further. The press is interested today because Judge Horne Ray is currently presiding over a "high profile rape case" of a Louisiana State University student in 2023. This young lady was allegedly raped in a vehicle and then "left...on the side of a highway." Later, "she was hit by a car and died."
There are questions being raised about Judge Horne Ray being impartial. The release of convicted rapist Link is cited, as is her own son's conviction and incarceration in 6 rapes. While there is no discussion in Newsweek of disqualification, there is perhaps a suggestion of the appearance of impropriety and thus of partiality.
There are so many constraints on judicial activity. They are all listed in some detail in the Code of Judicial Conduct (I cite Florida's but every state has one and they are quite similar). Perhaps the most difficult to interpret or enforce provision of the Code is the "appearance of impropriety."
There is a clear command in Canon 2:
"A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
The implication (at least) is that the judge will follow the rulings of appellate courts. The commentary to Canon 2A states that
"Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny."
That broad "appearance" may be the critical issue. Does the public perceive that in Judge Johnson Rose? Or does she simply see the potential for that public perception? Is that why she recused herself following her sleuthing? One hopes so. One hopes that no one expects perfection from imperfect human beings who strive to do the job well and to reach the right result. When mistakes are made, recusal is a valid method to clear the field, avoid criticism, and maintain public trust.
Does the public perceive an unbiased and impartial Judge Horne Ray? In the event that Judge Horne Ray remains assigned to the prosecution against the four young gentlemen accused of the 2023 LSU rape, there may be Canon 2 grounds raised about "public confidence." It is also possible that Canon 2 allegations of a more general nature may be raised.
These are issues with which judges struggle daily. In proceedings across the country, there are a variety of human challenges. Humans are imperfect. Public perception of their imperfections are important to particular cases and the broader public confidence in courts, decisions, and judges generally.
In all instances, reaching the right decision is initially up to the trial judge. In the event that a party perceives failure in such a decision, the redress is in appellate review. In it all, the fact is that every element at every level is just as human and imperfect as the rest. But, the appellate courts tend to have advantages in time, retrospection, and collaboration.
Whether Kumquats or Filet, despite the groceries provided, the judge's job is to make an informed and impartial decision. The judge has to do the best possible with what the parties bring. And the real value judges bring is impartial, unbiased, and fair proceedings. When they err, the redress is in the appellate courts, and ultimately disagreement may persist even there.
An appellate court may disagree with a trial judge. Another appellate court may disagree with the first. There is no cut and dried. There is no "this court is brighter than that court." There is, simply stated, human frailty and propensity. There is perspective and effort. Ultimately, there are appellate decisions that provide guidance or constraint. That is not because any element is more perfect than another, but ultimately those decisions provide predictability and consistency.
