Friday, May 08, 2009

Will Duke Lax Defendants Seek An “Empathic” Judge?

Let’s think about that question starting with this excerpt from Thomas Sowell’s latest column:

There is a reason why the statue of Justice wears a blindfold. There are things that courts are not supposed to see or recognize when making their decisions-- the race you belong to, whether you are rich or poor, and other personal things that could bias decisions by judges and juries.

It is an ideal that a society strives for, even if particular judges or juries fall short of that ideal.

Now, however, President Barack Obama has repudiated that ideal itself by saying that he wants to appoint judges with "empathy" for particular groups.

This was not an isolated slip of the tongue. Barack Obama said the same thing during last year's election campaign.

Moreover, it is completely consistent with his behavior and associations over a period of years-- and inconsistent with fundamental principles of American government and society. …
It certainly is “inconsistent with fundamental principles of American government and society.”

But as America saw during the Duke lacrosse frame-up attempt and as we still see during the ongoing attempt to cover-up the framing activities, there are many attorneys, activists and Democratic-party-supporting interests groups who favor judges with what President Obama calls “empathy.”

In fact, such people and groups believe the entire American justice system should embrace “empathy” by taking into account not simply evidence in a case, but factors such the race, class and gender of accusers, defendants, witnesses and others.

Those loudest in their support of the Duke-Durham frame-up attempt repeatedly expressed their belief the race, class and gender of the accuser and the lacrosse players should be taken into account by the investigators, the DA’s office and at the trial they hoped for.

Why now wouldn’t those investigators, the disgraced former DA Mike Nifong and some others named as defendants in civil suits brought by the frame-up attempt victims ask that the suits and a possible trial be argued before a judge known to have the “empathy” Obama wants in his Supreme Court nominee?

I don't doubt Nifong and other defendants will consider making such a request.

Attorneys familiar with his work tell me federal judge James Beaty, in whose court the suits are currently being argued, is as a careful, able judge who rules based on case evidence, case and statutory law, and existing judicial precedents.

In short, Beaty strives to meet the traditional American ideal of blind justice enshrined in our Constitution.

That kind of judge won't be good for Nifong, Brodhead, Gottlieb, Steel, Levicy et al.

Given that Nifong and so many other defendants and their supporters invoked race, class and gender to subvert the ideal of blind justice, it's reasonable to suggest that at some point the Duke-Durham defendants will ask judge Beaty to recuse himself from the suits, possibly after they think they’ve goaded him into making what they’ll argue was an intemperate remark or ruling showing favoritism to the plaintiffs.

The defendants will then engage in “judge shopping” to find one with “empathy” to preside over the suits.

Do you agree that's something to think about?

Sowell’s entire column’s here.


Anonymous said...

Nothing would surprise me. Didn't Nifong "shop around" to find a judge who demonstrated a blatant disregard for the rule of law when he granted Nifong everything he wanted and turned a blind eye to Nifong's flagrant flouting of the law?

Ex-prosecutor said...

Forum shopping in federal court is not easy. Judicial ethics prohibit a judge from making out of court comments regarding existing cases. So I would not expect the judge to whom this case is assigned would fall into this trap or any other which might result in disqualification.

However, what may happen is that the defense lawyers will complain that the findings in the judge's order overruling the defendants' motions for summary judgment (which I expect is being drafted now) demonstrate that he is biased against the defendants. I've never seen such a motion be successful, for the prejudice must be blatant and far beyond merely denying the motion.

When the defendants' motions to disqualify are denied by the trial judge, defendants can appeal. Such an appeal would not have a chance,
unless the judge goes completely out of bounds, which I do not expect will happen.

The out of town lawyers are the likely candidates to file motions to disqualify, for often they have big names but little trial experience or common sense. Unsuccessful motions have no function other then to irritate the judge.