By Steve Russell [1]

David Asma has discovered what Kafka’s (1937) bewildered modern man, Joseph K, would have found if he had ever been able to locate his trial. The dramaturgical nature of the trial process is no great insight. When we teach trial tactics, we teach storytelling, with one excellent trial lawyer even suggesting that we take inspiration directly from films (Perdue 1997). As long as the fact finder, judge or jury, is required to be ignorant of the facts of the case before the trial begins, the adversary system will reward superior narrative (O’Barr 1982). It is, however, fair to ask whether it is necessary to subject citizens accused to ". . . feelings of powerlessness within the boundaries of a coercive milieu." (Asma 1998, p. 1)

Ritual, costume, specialized jargon--it would mystify educated people, very few of whom are herded through our overloaded urban courts as defendants. This mystification seems outrageous on its face. Many of Asma’s observations could have been reported by me a couple of weeks before I was sworn in.

I went to visit with a municipal court judge who held my admiration for being open to persuasion that, in any particular case, a police officer might have been mistaken. The municipal court is the domain of petty misdemeanors, and most trials involve two witnesses: the accused and a police officer.

What if, he wanted to know, I was hearing a "swearing match" case and I found both the officer and the citizen accused to be credible?

After a long pause, I ventured "I would have a problem with that. . ." "Problem!" he roared, "problem? It’s the clearest case you’ll ever see! A swearing match between two credible witnesses is not proof beyond a reasonable doubt!"

Having lost points on that exchange, I offered up some of the observations Asma reports and announced my intention not to wear a robe, a decision further complicated by never having learned to tie a necktie, a deficiency in my education that continues to this day. I inquired whether it would be a great deal of trouble to preside from a desk instead of a bench.

The outgoing judge sighed and stared at the floor for a moment. I am American Indian, and my people do not mind dead air, so we sat in silence for a while.

"What," he asked without looking up, "was the municipal court called before it was the municipal court?"

"That was before my time, but I know the history: corporation court."

"Before that?"

"Ah, police court?"

"Exactly. And we are still in the police station. Do you think the public fails to notice that we are connected to the police station? You are exactly right that the bench and the robe and the gavel are symbols of authority, meant to set you apart from and above other people. Now think about where we are and understand that if you discard those symbols the most potent symbol of power in this building will be a pistol."

I was sworn in soon after. In a robe. I wore one to work every day for seventeen years. When one of my trials was televised on Court TV, my wife observed that the lack of a necktie knotted at the collar made me "look like I was naked underneath." Isn’t everybody? The robe, in addition to rendering me less naked, sometimes confers a bit of privilege. When I enter a courthouse as a visiting judge, the robe is over my arm, which means that sometimes my pocketknife is not confiscated at the metal detector.

In the five years I sat on the "police court," I learned about the fragility of my authority. In addition to trying petty misdemeanors, municipal court judges are the magistrates to whom arrest and search warrants are presented, and who are charged with setting bail and determining who is released on recognizance. It is in these functions that the police expect support from the "neutral, detached magistrate." [2]

I "testified against the police" (as they would put it) twice. In one case, I signed a search warrant based upon incorrect information given by a man I was not told was a habitual felon, in custody when he gave the statement, who had been told that the police would drop the habitual count (25 years to life) if he met a quota of cases. In another, I was given a warrant to sign after a search had taken place in violation of my verbal order. In both cases, the district court suppressed the evidence because the police mislead the magistrate. Some took my testimony as a betrayal, the object of my betrayal being police culture. And, yes, I did care when I was treated as some kind of turncoat.

One of the reasons that police court judges should be picked from the ranks of criminal defense lawyers is that seeing what the police have to tolerate in their daily work would make anyone empathize with them. The more you watch the untreated sludge [3] go by, the cases that trial judges only see months later, cleaned up and manicured, the harder it is to remain neutral and detached. The physical danger of policing is overstated by media focus on the use of firearms, but the daily parade of drunkenness, wife beating, overdose, and suicidal behavior of every description would take its toll on a rock. With apologies to Clint Eastwood, most cops are just human beings. The popular reverence for the police may be based upon the wrong reasons, but there are still reasons for it.

I tangled with the puissance of the police image during my term as chief judge, when the building that housed the police and the municipal court was being remodeled. I wanted to enforce a statutory requirement that juveniles be treated separately from adults by bringing the juvenile detail from the police side to the court side. Ignored by the Police Chief, I sent a memo to the councilman who had been instrumental in my judicial appointment. The councilman replied that the juveniles would be brought in through a different door and it appeared perfectly legal. This could have been cut and pasted from the Police Chief’s brush-off; I was roadkill.

While it may be true that ". . . courtroom contexts regulate, limit, and mystify the criminal court procedure for the defendant" (Asma 1998, p. 6), the question for those who want to change courtroom contexts is how to regulate and limit the police without mystifying the defendants? In spite of the apparently threatening remarks noted by Asma, I have seldom felt physical danger from criminal defendants, and never from a criminal defendant who was not obviously insane. [4]

The majesty of court ritual, particularly as practiced in federal court (where the opening ceremony is calculated to cause God to leap to His feet) is probably overkill to the disruptive impulses of the ordinary criminal defendant. But the struggle to maintain some authority over those who literally wield the power of life and death on the streets never ends.

Court paraphernalia serves another useful function when it appears to legitimate power. Unlike the European legal system, which educates some people to be judges starting in the universities, the United States fills its benches from the ranks of practicing lawyers. Most judicial education in this country is unavailable to any except judges and judges-elect. Especially if a lawyer is selected to fill an unexpired term, she is literally batting one day (with her share of public strike-outs) and behind the plate in a black uniform calling the balls and strikes the next day.

In this milieu, it is useful to distinguish the bench from the individual human being who might be occupying it. The lawyer arguing in front of you might be someone who--last week when you were in private practice--you would have called for advice about the point being argued and, worse, that lawyer may know it. You still have to call the question, and your colleague has to sit down and shut up and live with how you called it unless it is something egregious enough and cost-effective to bring to an appellate court.

The economics of law practice make the probability of reversal small even for a flagrantly incorrect ruling. The appellate and evidentiary rules are slanted at every point to favor the trial court’s judgment. Fact findings cannot be overturned without showing an abuse of discretion. Incorrect evidence rulings will not call for reversal unless they are shown to have affected the outcome--a heavy burden. One of these slanted rules covers a spot where I have always ignored my judicial education. [5]

If a judge decides a case and does not say why, the judge will be upheld if any viable legal theory would uphold it on the facts in evidence. Therefore, the conventional wisdom is that a judge should never give reasons unless forced to do so. What I do not understand about this conventional wisdom is why a judge would care to be affirmed for the wrong reasons? It is a pain in the butt to get a case back, but if the result was incorrect most of the people who pay the bills would agree that the judge ought to get it back. [6]

An understanding of the trial judge’s essentially unfettered power [7] to do major harm to criminal defendants comes through clearly and repeatedly in the statements Asma collected (Asma, pp.25-48). I would ask Asma whether this understanding is beneficial to the defendants and, if so, did it come from a perusal of the rules of appellate procedure or from the trappings of authority in the courtroom, the "minute disciplines" (Foucault 1979, p. 223) that reinforce power without speaking it?

Maneuvering within the statutory range of punishment is, of course, only a sanction available to the judge if the defendant is found guilty, which most defendants are. [8] Another source of danger from the bench (taking the view of the citizen accused) is the contempt power. In theory, all that is necessary to avoid a contempt citation is to avoid disruption of the proceedings. It is often difficult to see the theory vindicated in practice unless the judge, like Julius Hoffman in the Chicago 8 trial, is intemperate enough to render the unlawful motivation (personal pique) [9] transparent.

The Texas Court of Criminal Appeals, in what one hopes is a high water mark for upholding the contempt power, affirmed a thirty day sentence for failure to rise for the entrance of the judge.[10] It is difficult to see how sitting in silence, however sullen and disrespectful, impedes the court’s function or, if it does, how it impedes the court’s function thirty days worth. My distaste for this sort of thing is such that I actually said in campaign literature during my first judicial race that I could not conceive of a situation where I would use the contempt power. I can now.

I was finishing up the evidence in an eminent domain trial, where the time required is measured in weeks rather than hours or days. Each side had over 100 exhibits. I sent the jury home just after five and invited the lawyers to stay and go over the exhibits with the court reporter to make sure everything was properly offered and admitted. I would stay so we could re-open the evidence outside the presence of the jury and clean up the record. The landowner’s lawyer stayed past seven. The government’s lawyer expressed confidence that there was no problem with her evidence and went home, leaving her second chair to make the record.

The next day, we had final arguments. The jury went out to deliberate and I called the next case while the bailiff was gathering up exhibits. The next case turned out to be an application for a family violence protective order. As often happens in such cases, the man saw that I am male and built like a football player and assumed that I would "understand" why he needed to slap his girlfriend around and/or that it was really all her fault.

I was, in Asma’s term, "demonizing" the man in the process of explaining to him that his girlfriend was not the guardian of his temper when I heard from the back of the courtroom: "Damn!" And a huge styrofoam exhibit that cost a pretty penny to build to scale came flying across the courtroom and hit the jury box. The government’s first chair lawyer had just learned that the exhibit most clearly illustrating the government’s theory of the case [11] was not going into the jury room because it was not properly admitted. She further realized that it was her fault.

As a former trial lawyer, I sympathize. As a judge, I cannot allow a lawyer to curse and throw things in the courtroom while I am lecturing a man about being responsible for his own temper rather than holding his girlfriend responsible. If she had done the same thing during a recess, I would have ignored it. As it was, I fined her $100 on the spot, which I later remitted in return for pro bono work on behalf of a battered women’s shelter. I am sure the public embarrassment was worse than the penalty, and it will not happen again. There was no need to take her into custody, which I certainly had the authority to order, subject to a hearing before another judge, who would probably uphold my actions on those facts if I chose to put her in jail.

Another time, I held a lawyer who is currently the president of a major civil rights organization in contempt for being late back from a lunch recess with no reasonable excuse and fined him fifty dollars, which was roughly a dollar a minute and was a lot more money in those days. He paid it without complaint and we remain friends when I am not wearing the robe.

The point of these stories in the current discussion is that keeping criminal defendants intimidated is not the only or even the primary reason for the contempt power. Indeed, in twenty years on the bench I have never held a criminal defendant in direct contempt.[12] It once more falls to those critical of the intimidation of citizens accused inherent in the contempt power to propose how to accomplish the legitimate ends of the contempt power without the intimidation. Repeatedly, Asma assumes that ". . .the ‘audience’. . .is comprised of accused men and women. . ." (Asma 1998, p. 13) which is true enough but also incomplete. "Accused men and women" are not the only or even the primary actors likely to cause disruption.

Asma correctly observes that the magnetometers and x-ray conveyor arrayed around most courthouses create the appearance of privilege, particularly if officers of the court are exempted. I argued against the substantial expense of this cordon sanitaire without success on those very grounds. In addition, I suggested that the security measures would not prevent violence but merely displace it to a location with a longer response time. The makers of the security gear sold it with anecdotal evidence, most of which did not support their position--e.g., a lawyer in Austin was shot dead during a deposition [13] in her office, a federal judge was assassinated by a sniper in the driveway of his San Antonio home. No County Commissioner would risk the public relations roasting that would certainly follow a "courthouse massacre."

Courtroom architecture is less controversial. A well-designed courtroom is a theater space (supporting Asma’s central point) with the jury having the best seats in terms of lighting and acoustics. It is interesting to watch skilled trial lawyers use the space right in front of the jury rail. A man my size dares not touch the rail; he would be towering over the jurors. I have seen diminutive, soft-spoken women lawyers actually lean forward over the rail--practically crawling in the box with them--successfully.

The witness box is typically located on the side of the judge’s bench closer to the jury. Counsel tables are labeled in some courtrooms but not in others. When I was a criminal defense lawyer, I wanted the table closer to the jury box if my client did not look scary. Once, in a rural county, I showed up early and ensconced myself at the table closer to the jury, only to be informed by the prosecutor that my stuff was parked on "his" table. I told him I wanted to hear it from the judge and, luckily, he was bluffing--but he understood the value to the defense of continuous physical proximity to the jury, at least when the defendant does not appear to be the offspring of Jack the Ripper and Lizzie Borden. [14]

Asma notes that officers of the court are allowed to move about the stage freely while the defendant must stay put. Perhaps so, but in all of the state and federal courtrooms I have seen nobody moves while the court is in session without asking the judge’s permission except to enter and leave during long docket calls. Permission is required to approach the witness, to approach the court reporter, to approach the bench, to handle admitted evidence, to conduct any demonstration beyond question and answer. It is true that this elaborate stage etiquette is probably as mysterious to the uninitiated as a table setting containing more than one fork is to me, but having to sit still while surrounded by suits who are forced to play "Mother, may I?" is fairly insignificant as a demonstration of privilege.

Asma notes the mysterious appearance of the judge when court is called to order. I have many times had to sit in courtrooms without a private entrance for the judge, and I hate that. Too often, there is no way to avoid entering the room through the same door the prosecutor has used. This presents the appearance that the judge and the prosecutor have been back there somewhere deciding fates ex parte. I try to mitigate the effect by making sure that at least there is no proximity in time.

Most judges are quite aware that dramaturgy is the essence of what happens in the courtroom, particularly during jury trials. This is why I remain unconvinced of scholarly assertions that cameras in the courtroom work a fundamental change (Thaler 1994). Experienced players understand that we are there to weigh competing narratives.

This is an adversary system, and no more authorization is needed for either side to attack or discredit the other. But Asma is correct about the apparent stacking of the deck.

Anyone could probably say where they were on November 22, 1963 or, with a little thought, last New Year’s Eve. But a citizen wrongfully accused is given a date sometime months or years in the past for which to account.

The first problem is that nothing sets aside that day from any other, and on that ground anything the defendant purports to remember is suspect. The victim, on the other hand, was (one hopes) only robbed or raped once in the last two years and has reason to remember the day.

The second problem is that if the defendant remembers the people who were with him on the day of the crime, chances are they are going to be friends and relatives. As such, they have reason to fabricate an alibi but, like the defendant, no particular reason to remember what happened on the day in question.

"The jury’s and/or judge’s perception about the accused is constructed and dependent upon the context of the situation" (Asma 1998, p. 21). Of course it is, but the structural disadvantages noted above are known to judges and will be known to juries if defense counsel is competent. The presumption of innocence is meant to compensate for the obvious disadvantages. It does so imperfectly.

The defendant’s enforced silence is theoretically a choice. Every party to a civil or criminal lawsuit enjoys the right to represent himself in any court from the justice of the peace to the court of last resort. In practice, that right is about as useful as the right to remove one’s own appendix rather than employing a surgeon.

Most courts will not approve "hybrid representation," where the defendant conducts part of the trial while the lawyer handles the more demanding parts. Hybrid representation causes sticky questions when the defendant does not testify. It is not fair to let the defendant tell her story without being subject to cross examination. Nor is it fair to let a defendant inadvertently waive her Fifth Amendment rights.

I have been impressed by very few of the people who represented themselves before me in the municipal court; the apocryphal story of the defendant who asked "How could you tell it was me through my ski mask?" may not be an apocryphal story. Lots of people choose to ask questions of witnesses that assume guilt. Is that their intent? Probably not. Is the truth slipping out? Beats me. This kind of thing is amusing to tell, but in the courtroom it is a nightmare.

A defendant who does not represent himself has an absolute right to control many decisions that are crucial to the proceedings. It is up to the defendant what plea shall be entered without regard to factual guilt. It is up to the defendant whether to testify without regard to advice of counsel (unless counsel knows he intends to lie). It is up to the defendant whether to accept a plea bargain, which is why defense counsel is required to notify her client of any offer from the government, regardless of how absurd she might believe it to be. In Texas, where we follow the quaint custom of jury sentencing, it is up to the defendant whether to be sentenced by judge or jury. It is up to the defendant whether to exercise his right to one appeal without regard to whether defense counsel believes that the case contains error. A defendant who is denied any of these rights is in a position to claim ineffective assistance of counsel.

Judges understand the difference between a right in the law books and a right in the courtroom, let alone a right on the street. It was at a judicial conference among hundreds of other judges when I first heard "the stop was for black in a no-black zone." There were a few groans from the audience but clearly no failure to communicate. Respect for rights in the courtroom becomes a matter of political courage, particularly in states like Texas where judges run in partisan elections.

Here are some real campaign slogans from the last three years: "Do the crime; do the time." "Tough as nails; tough on crime." The former slogan comes perilously close to a refusal to consider probation in an appropriate case, which is enough to get a juror excused in a jury sentencing case. The later is irrelevant. It does not take courage to be tough on criminals; it takes courage to breathe life into the Bill of Rights and, now and then, to give someone who deserves it a break.

Even without the political exigencies, busy urban courts offer "sheep dip" [15] justice. During my busier years, I disposed of over 4,000 cases. Even given that hundreds were dismissals requiring only the stroke of my pen and only a few of the trials took more than a week, that is still very little time per case. Do the arithmetic.

It is meaningless to ask a candidate for such a court to promise not to run a sheep dip. Slow it down and watch the backlog explode. I quickly discovered that the primary cause of delay was defense attorneys using docket calls to get payments on their fees. "Judge, we need to reset this case to locate a missing witness, Mr. Green."

The defense lawyers are correct that, win or lose, whatever fee they have been paid on the day the case is done is all the fee they are going to collect. The first rule of a criminal law practice is "Get the fee out front!" but it is easier to state the rule than to follow it. What happens if the lawyers cannot use docket calls to collect fees? The private lawyers withdraw and the tab for appointed counsel, payable by the taxpayers, skyrockets.

The question becomes not whether the urban court will be a sheep dip, a plea bargain machine, but whether the judge will retain enough memory of why this mattered to pull a few criminal defendants out of the sheep dip and treat them as individual human beings. I tended to take time with high school dropouts between the ages of 17 and 20, since I dropped out at 15 and I know the pressures they face, and with substance abusers who need treatment more than they need punishment. I also paid attention to woman batterers because it seems to me very important that men take the lead in signaling that beating women is not acceptable. Those are the priorities dictated by my values. Those are the cases that got individual attention. These choices are completely idiosyncratic and I am sure good judges made other choices.

To a scholar, it is sad to watch an urban court zipping along with little regard for the lives touched by it. To a judge, who can control output but not input, it must be enough to put what remains of your values into the few cases you have time to influence. To Joseph K., the process remained a mystery right up until his sudden execution.

This is one of the many insights Kafka gives us: Joseph K. is an ordinary middle class person who never gives a thought about the operation of the courts until one morning he rings for his breakfast and finds himself under arrest (Kafka 1937, pp. 1-3). K. is not unlike the Texas political consultant who wanted to change the name of the Governor’s Office of Criminal Justice because he thought it might give the voters the impression that the governor was in favor of giving criminals justice. That is the kind of logic that results from thinking of crime as only a political issue.

"Logic is doubtless unshakable, but it cannot withstand a man who wants to go on living" (Kafka 1937, p. 228). So logic is destroyed with the man. The facade of fairness, the rhetoric of rights and duties, the myth of equality--all a shambles. So emerges the postmodern man, understanding what eluded Joseph K.

The rules are circular rather than linear. All of the mystifications lead back around to the salient truths: Do not confuse legality with justice. In fact, you don’t want justice; you want mercy. Talk about justice and the victim is empowered to enter the conversation. The conversation becomes too complicated to carry on in the numbers required, one conversation per case. Asma reports the truth of postmodern justice while criticizing the method that has lead his subjects to the one rational piece of advice they could share with Joseph K.: Be afraid. Be very afraid, for

". . . when law can do not right,

Let it be lawful that law bar no wrong.

Law cannot give my child his kingdom here,

For he that holds his kingdom holds the law;

Therefore, since law itself is perfect wrong,

How can the law forbid my tongue to curse?" [16]

Festinger, Leon. 1957. A Theory of Cognititve Dissonance. Palo Alto: Stanford University Press.

Foucault, Michel. (1979). Discipline And Punish: The Birth Of The Prison (A. Sheridan, Trans.). New York: Random House. (Original work published 1975).

Kafka, Franz. 1937. The Trial (W. Muir & E. Muir, Trans.). New York: Schocken Books (Original work published 1925).

O’Barr, William M. 1982. Linguistic Evidence: Language, Power, and Strategy in the Courtroom. San Diego: Academic Press.

Perdue, Jim M. 1997. "Bringing Drama to the Courtroom." Trial, September, pp. 48-53.

Thaler, Paul. 1994. The Watchful Eye: American Justice in the Age of the Television Trial. Westport, CT: Praeger Publications.

Tonry, Michael. 1997. Sentencing Reform in Overcrowded Times: A Comparative Perspective. New York: Oxford University Press.