Off the Bench | Tough decisions often left up to the judge

Off the Bench | Tough decisions often left up to the judge

Picture yourself participating in the following drama, which, although fictional, is representative of proceedings taking place daily in courtrooms throughout the U.S. You can choose any role. You can even imagine yourself in more than one. I suggest you choose several and finish with the participant who delivers the final line, the judge.

The setting is a courtroom in the U.S. District Courthouse. An individual has been arrested on a warrant issued following the return of an indictment. As a result, probable cause is not an issue for the court. However, there is an important decision to be made. The assistant U.S. attorney is seeking to have the defendant detained pending trial. The defense attorney is advocating for release on conditions (bail or bond as we know it).

Sometimes the gallery of the courtroom is empty, but on this occasion, family and friends of the accused are present.

We can add to the drama by making this a case in which there is a victim. The victim's family is also present.

The remaining cast members are the agents who arrested the person and brought him to court, the probation officer who prepared the pretrial services report, the deputy clerk of court, a court reporter (unless a recording device is used) and the judge.

As usual, the probation officer has done an excellent job gathering important facts about the accused. In this case, a recommendation for detention is included. Each side has called witnesses and the lawyers have presented their respective arguments.

Up to that point, the judge has been listening, handling objections and trying to make sure the matter proceeds in an orderly fashion.

Now, however, when the judge looks out, all eyes are looking directly at the bench. The accused, his supporters and lawyer look anxious, silently pleading for release.

The prosecutor, probation officer and victim's supporters look expecting to hear the words "defendant is ordered detained and remanded to the custody of the United States marshal."

Having been that judge countless times, I can tell you it can be a very uncomfortable feeling.

The book, "Tough Cases," which I have mentioned before, contains a chapter written by Judge Michelle M. Ahnn of Los Angeles. In describing her feelings in that situation, she wrote, "All of these people are looking at me, waiting for me to speak. My internal reaction, which I try to hide, is to think, 'I don't want to make this decision.' I desperately want to look over my shoulder in hopes that another judge will come in and make this tough call. But it is my decision to make, so I take a deep breath and rule."

Ahnn was early in her career at the time. Regardless, her reaction to the situation is not unique to her or to new judges. Depriving a person of his or her liberty before trial, with the presumption of innocence resting with the accused, can be a gut-wrenching decision. Indeed, it should be.

As noted above, bond hearings are a regular part of life in the courthouse. Not all are as intense as the fictional account presented here. Many involve traffic or misdemeanor matters. The majority of those result in release.

Even in the context of felony charges, some decisions would be more routine. In the case of a nonviolent offense with a defendant who had no notable criminal record, release is common. In such situations, the prosecutor often joins in a recommendation for release. On the flip side, a person with a lengthy criminal record charged with a serious offense presents a strong case for detention.

The overall goal at the time bond is considered is twofold.

The court wants to make sure the accused comes to court when required. Secondly, protection of the public must be considered.

In the assessment, judges are guided by factors set forth in statutes and case law. The judge may worry about a person on release becoming a fugitive or committing a crime. The same judge may also worry about detaining a person who is later found not guilty.

However, neither those worries or the searching eyes of the people in courtroom can dictate the outcome. The judge cannot poll the audience or phone a friend. He or she must swallow hard and announce the decision.

While I hope you do not have to play any of these roles (unless you want to be a lawyer or judge), I do suggest you work through the scenario. We read about the decisions that are made. Hopefully, this will interject the human side of getting to those decisions.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is

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