Archive for October 2012

Why Judicial Apologies Matter for Procedural Fairness   2 comments

Guest Blogger: Maxine Goodman

My recent article, Removing the Umpire’s Mask: The Propriety and Impact of Judicial Apologies, 4 Utah L. Rev. 1529 (2011), describes instances when judges have apologized in their courtrooms to parties or lawyers.   Examples include Dallas State District Judge Faith Johnson apologizing to a defendant’s family for throwing a “recapture party” after the defendant, who was briefly a fugitive, was captured.  At the party, the judge had balloons and served ice cream.  Judge Johnson later said she was sorry if her celebration offended anyone.  Judge Thomas M. Lynch IV apologized to Anthony Caravella who spent 26 years in jail and was later exonerated based on DNA evidence.  The judge apologized to Caravella on behalf of the criminal justice system of Florida.  And, Judge Vanessa Gilmore, a federal district court judge in Houston, Texas, apologized to the victims of a mortgage scam after sentencing the defendant to what the judge considered too light a sentence.

These examples are but a few of the instances when judges apologize in court, either on their own behalf or on behalf of the State.  The article posits that judicial apologies are warranted and necessary when a judge is responsible for causing harm to a party or lawyer and when the apology is sincere.    To be sincere, the apology must acknowledge the harm and not provide any conditions, like “if this behavior offended anyone.”  As an example of a proper apology, Justice Scalia apologized for unnecessarily chastising a lawyer for failing to include a reference to a statute in the lawyer’s brief, when he had, in fact, done so.  Justice Scalia apologized, saying “Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief.  You indeed did.”

Judges should not apologize when they are not responsible for the wrongdoing and their apology is not authentic.  These apologies come across as disingenuous and are unlikely to elicit forgiveness.  When the apology is politically motivated or compelled by accusations of judicial wrongdoing, the judge’s apology is likely to serve as a confusing gesture, unlikely to help the offended party regain trust in the judge and, by extension, the judiciary (and potentially the legal system).

The primary reason for concern over judicial apologies is the need for procedural fairness.  Research shows that parties are typically more likely to consider a court proceeding fair when the judge has treated them courteously, with dignity and respect.  According to this approach, a judge treating a party with courtesy is more important for the party’s perception of the fairness of a proceeding than the outcome of the hearing or trial.   Accordingly, a judicial apology can play a significant role in a party’s perception of the court’s fairness when a judge who has, for example, lost his temper and chastised a party or lawyer, offers an authentic apology to the party or lawyer.

Maxine Goodman is a Professor at the South Texas College of Law

Where Courts Stand Today with the Public   Leave a comment

One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.

This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.

Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.

On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.

What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.

Steve Leben

Posted October 10, 2012 by Steve Leben in Courts, U.S. Supreme Court

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