10/29/2010 05:32 pm ET Updated May 25, 2011

Between a Rock and a Hard Place

Representing a capital defendant can be a thankless job. There are times where I (and others who do this work) feel we get treated as though we, not our accused client, were guilty of the crime charged. I recently tried a case in which the judge denied all of our motions and objections, and granted all but one of the prosecution's. It was clear to me that the judge was biased against us, but the record is not clear. Most judges can "cover" their biases well enough, and many are blithely unaware that their views of the world -- for example that the police and prosecution are the good guys and the defense are not -- color how they see the law, the facts or both.

Yesterday, though, in an unusual decision, the Ohio Supreme Court has vacated the conviction and death sentence of Jason Dean because of the trial judge's bias against defense counsel. In fact, the trial judge, Douglas Rastatter, admitted that there was "a long-standing personal revulsion of the court, dating back to when this judge was an assistant prosecuting attorney." Plus, his bias against the defense attorneys was also repeatedly demonstrated in his comments and rulings during the trial. He also threatened to hold them in contempt concerning the manner in which they had handled the case, but then refused repeated requests to address the contempt issue immediately and resolve it before the murder trial moved forward. Both defense attorneys expressed their concern that their personal fears would get in the way of their duty to their client -- a fear the client clearly shared when he asked to represent himself during the trial. The judge would not replace the despised defense attorneys and would not recuse himself, nor would he allow the defendant to represent himself, which Dean explained that he was "under duress" because he didn't feel his lawyers could or would defend him aggressively under the circumstances.

This violated the defendant's Sixth Amendment right to counsel by creating an "impossible conflict" in which "Dean invoked his right to self-representation because he was caught in the middle of a dispute between the judge and his counsel in a case in which his very life was literally at stake," the court held and sent the case back for a new trial.

The defendant Dean was between a rock and a hard place and the Ohio Supreme Court did what should have been done. But they had the benefit of a record made by a judge who was, to put it mildly, unsubtle about his prejudices, and unmoved by his duty to be fair.
What about where the record isn't so clear? How does a reviewing court or a judicial commission deal with the issue of judicial bias? Well, one way is to de-politicize the judiciary. Running for election is a poor idea as I have written before. But another way is to point out to judges when they have behaved in a way that indicates bias -- generally an unconscious one. For example, I recently argued a post-conviction case for a client who, it is our position, falsely confessed to a crime he did not commit to some of the Area Two Chicago police officers who have tortured people into false confessions. Our investigation uncovered an exculpatory witness interviewed and then hidden by the police, and we also had the sworn statements of two of the three actual killers, who also cleared out client. We were, therefore, arguing our client's actual innocence to the court. In denying us even a hearing where we could present the evidence live, the trial judge said, seven times, that I was "usually a good lawyer" but had made an "emotional" decision that our client was innocent. First, this is insulting on its face -- the sole evidence against our client was the confession, and it is discredited and we have actual innocence evidence -- the legal position that he is innocent is the correct one to take based on the facts. But second, would this male judge have accused a male lawyer of being "too emotional"? Would he have been "insulted" that we suggested the wrong man was behind bars? Does he even know how biased he is? Frankly I doubt it, but I hope that we, as a nation, will do something about the deplorable way in which we select judges. It's too important not to.