10 Top Things I always wanted to say at a judge’s conference

I was Public Advocate in Kentucky for 12 years, and a public defender for over 31 years (actually, still am, at least in my mind). For the past 29 years, I have been a member of the Kentucky Association of Criminal Defense Lawyers. On many occasions during these years, I have sat and listened to judges, either at a DPA or a KACDL Conference, opine on a variety of topics. We always invited them, and they always came and talked. At the same time, to my knowledge, public defenders and criminal defense lawyers are not regularly invited to judges’ training conferences. On more than one occasion, in fact, our request to appear at one of their conferences was politely rejected. Or not so politely

So, in lieu of my appearing in front of judges, I write below the ten things I’d love to say at a Kentucky Judges’ Conference. It’s fun. You should try it at home. Make up your own. Say it in the shower, or on a run. You’ll feel better, anyway.

10. You do too see race when you make decisions. You see race when you decide on bond, when you decide whether to transfer a child or not, and when you sentence. You can believe you don’t, but you do.

9. You don’t really believe the police in your findings on motions to suppress. You can’t possibly believe them when they say over and over that something was in plain view, or that the person actually gave consent to search the trunk of the car where there was a gazillion pounds of marijuana.

8. Handling 3 criminal cases does not make you a criminal defense attorney. Judges have often regaled me with their tales of being a criminal defense attorney when they were young. That usually meant when they first arrived in town, they took 2-3 court appointed cases, before they were hired on as an assistant DA. That doesn’t make you a criminal defense attorney.

7. 2 weeks is not enough of a continuance in a capital case when my wife is having a baby. Yeah, that really happened.

6. Don’t tell me you’re not thinking about your next election when you set a high bond. You may pretend that you are making your bond decision solely on the risk assessment instrument, or on the bail schedule. But we know better.

5. You have never not found probable cause at a preliminary hearing. You might as well just record it one time, to save us all the embarrassment of hearing your supposed findings of probable cause. You would in fact send a ham sandwich up to the grand jury.

4. You are not even handed in ruling on objections. The default is “overruled” when we object, and “sustained” when they object.

3. You are complicit in pretextual searches. If you would really weigh the evidence at evidentiary hearings, you would find that the police are engaged in racial profiling, and that their explanation of why they pulled him over was just a pretext to get him to consent, or to run, or to throw something out of the car.

2. A preliminary hearing is exceptionally important, and I’m tired of your minimizing it. People can lose their livelihoods, their families, their jobs, their reputations, if you find probable cause at a preliminary hearing. Yet, you won’t allow victims of crime to be subpoenaed to hear what they have to say. You allow the state to prove probable cause with a police officer reading from another police officer’s report. You won’t allow searching cross examination. And you respond to the State’s objection that indeed, that question doesn’t go to probable cause, and a preliminary hearing is not for discovery.

1. You know that we cannot incarcerate everyone who is committing crimes. We have over 200,000 drug users in Kentucky. We have 20,000 people in prison right now. What we are doing is not working. But every day, all over our state, judges are continuing to sentence people for drug crimes. Kentucky is continuing to spend $20,000 plus per inmate per year. Judges could change this, but mostly they don’t.

So there, that’s my top ten. Try your own. What would you say to them?