THE BLOG
06/28/2016 03:59 pm ET Updated Jun 29, 2017

Stanford, Orlando -- Will Judges Put Them Aside When Sentencing?

You are a judge - you see yourself as sober, clear-eyed and unbiased - on the verge of imposing sentence in a date rape case somewhere in America. Or a gay murder/hate crime sentence is before you. There is no jury; it is just you, the judge. In the face of recent, traumatic events is there any chance that you will extend leniency to the defendant standing in the dock - even if the case is unrelated, and even if leniency for him in his particular situation is truly warranted? Put otherwise, how willing will you be to expose yourself to the shrapnel from a tabloid-driven public's demand for vengeance - frankly, for blood lust - in the wake of fallout over the aberrant sentence in Stanford? Or the atrocity of mass shootings at a gay night club in Orlando, Florida?

As if we need to be reminded, Judge Aaron Persky sentenced Brock Turner to six months in jail after the Stanford University swim-team member raped an unconscious woman after a party. The backlash was swift, immediate and unrelenting. Judge Persky is facing a recall effort; and he was removed from another sexual assault case assigned to him after complaints by prosecutors.

Was the uproar deserved? Put it into context. Yes, the pre-sentence report prepared by a county probation officer recommended six months, and, had Turner admitted his guilt, even his victim did not initially believe he should "rot in prison," but . . . after trial and in response to Turner's statements, the victim gave a compelling and graphic description of what she went through. And Turner's father - a role model for his son? - asked for leniency because Brock had paid a "steep price" for "20 mins of action." As to Orlando - what can be said. Forty-nine people dead and dozens injured while in a gay nightclub at the hands of an American man wielding an assault style rifle who called 911 during his rampage to proclaim fealty to ISIS.

Yes, the current state of affairs notwithstanding, you - a judge - might in your own mind's eye imagine yourself capable of (courageously) staring down a public outcry. Let's face it: pronouncing a harsh sentence is the easiest way to quell a potential public outcry. The average judge in the crosshairs probably won't show the same integrity - an ability (or is it willingness?) - to brook the public's undoubted opprobrium in according leniency. Nor, probably, would a state court judge, now, attempt leniency in a state with a recall vote (as Judge Persky has). Should we realistically expect judges to wear "blindfolds" with unwavering commitment to judicial purpose when the public backlash will likely be unrelenting?

Judges should (and often will) be scrupulous - they should look at the proof, the statements, the factors solely concerning the defendant before him when imposing a sentence. Yet, it is virtually inconceivable that even the most focused judge imposing a sentence will be totally uninfluenced by a current event such as Orlando or Stanford; which are not only inescapably in the public's perception, but in the judge's as well.

So what can be done to make certain (or as certain as possible) that a judge looks at the person before him, and only that person? Theoretically, "the System" could impose a moratorium on sentences that might be tainted because of the headlines of the day - but we all know that is not even moderately realistic. Defendants waiting to be sentenced; all judges being prohibited from sentencing because the headlines talk about similar, yet completely unrelated events? Ridiculous, really.

Another possibility? Should judges be affirmatively required to address the elephant-in-the-room when imposing sentence? Also silly! Now, sometimes a judge will say before sentence: "I read the paper; I know X happened last week in another state or another case but I will not consider it when imposing a sentence." But, he might be doing that merely to "create a record" - a virtually unimpeachable record for an appellate court even if the comment might not necessarily be candid.

And when a judge does consider external factors, we want him to disclose his influences! A defense attorney would want a prosecutor to tell him exactly what he thinks about the defendant, and all attorneys - not to mention, the public - should want the same from judges. It gives counsel a fair opportunity to formulate and anticipate arguments by knowing what the judge thinks and, importantly, what outside factors he considers. It is also illuminating for the public, and allows all to know how justice is being administered.

There are judges who tell the world exactly what they think. As a case in point, remember televangelist James Bakker? PTL (Praise the Lord; People that Love), Tammy Faye and Heritage USA, the Christian Retreat Center for families. Back in 1990, Reverend Bakker was convicted for fraud and conspiracy. When sentencing him to 45-years, the judge said this: "He [Bakker] had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from moneygrubbing preachers or priests." Bakker's appellate attorney, Alan Dershowitz, argued that this comment revealed that the judge improperly factored his own sense of religion into the sentence. Acknowledging that trial judges occasionally misspeak during sentencing without it being a basis for reversible error, the Court of appeals, with "genuine reluctance" remanded the Bakker case because the comments were "in the end, too intemperate to be ignored." As an aside, Bakker was ultimately resentenced by another judge to serve 8 years. Whatever one might thing of Bakker and the judge's view of him, the process ultimately worked because, although the judge was in error, ironically he was honest in acknowledging his prejudices (although he may not have seen them as such), which ultimately led to justice being meted out.

Earlier this month, Justice A. Kirke Bartley in Manhattan State Supreme Court presumably told the world exactly what he was thinking when he sentenced a man convicted of shooting a gay man to 40 years-to-life in prison: "I can't help but perceive or observe the parallel to the tragedy in Orlando, that parallel is revealed in hatred, self-loathing, fear and death." Was he right to consider Orlando when sentencing this particular defendant? Not for us to decide here; but by putting his considerations on the record, he at least allowed an appellate court to review what factored into his analysis. And everyone should want that.

In another context, Judge Richard Berman of the Southern District of New York spoke his mind when asked to allow wealthy businessman, Reza Zarrab, who had passports from Turkey, Iran and Macedonia to remain out of jail, under house arrest, while awaiting trial. Zarrab was charged with defrauding the United States through a scheme to allow Iran to access U.S. financial networks for the purpose of evading sanctions. While awaiting trial, he offered to: post a $50 million bond secured by $10 million in cash, restrict travel, surrender all passports and submit to home detention with GPS monitoring coupled with the retention of a security company to insure compliance. Judge Berman rejected the proposal, concluding that there was no set of circumstances which could insure Zarrab would appear for trial. And in doing so he noted, in bold letters: "Most importantly, the Defendant's privately funded armed guard proposal is unreasonable because it helps foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy. . ."

Inequity and unequal treatment for a wealthy cohort of criminal defendants? By using these words, Judge Berman may have opened himself to criticism - to the question of whether he was addressing the circumstances of this particular defendant or rather general concepts of justice for rich vs. poor. And since Judge Berman had already concluded that there was no guarantee that Zarrab would return for trial absent incarceration, perhaps he was using those words to make a broader point. In either case, Judge Berman conveyed to the parties, an appellate court and the public exactly what factored into his decision so that, if he impermissibly considered issues to cause "reversible error," his ruling can be addressed.

Now, of course, one can never know for sure what is in a judge's mind when he sentences any more than one can always know what is in the mind of his spouse or close friend. But given our 24-hour (incessant?) news cycle, and the news "alerts" we see every time we look at our phones (which for some of us is, all the time), it is virtually impossible to believe that judges are not influenced by the stories of the day, no matter how unrelated they may be to the defendants before them.

In criminal justice - even more than anywhere else in our justice system -
'truth' should always be the coin of the realm! Most judges will impose a sentence based solely on what is before them. Others may straight-out tell counsel the inherent and external factors bothering them (maybe, viscerally). But the most difficult is when judges say nothing about public events. If the defendant before the judge is a college student with facts similar to Stanford or a Muslim man on a charge of gun possession, everyone deserves to know the judge's mind.

Should (or can) judges be required to recite every factor that goes into their thinking? Of course not. But when there is something in the news, something glaring at us from every headline that remotely touches a defendant, the judge should at least self-examine concerning the elephant in the room and the impact it might be having on her thinking.

A judge willing to look in the mirror to identify (and hopefully purge) her prejudices in a particular case, whether while on the bench or before she even gets there on the day of sentence, better dispenses justice. She will then better replicate the model of justice we have all come to visualize: the blindfolded lady, scales in hand.