Criminal Defense Lawyers Need To Apply

I will miss United States Magistrate Judge Holly Fitzsimmons. She’s retiring effective April 2015, reportedly to spend more time writing the things of her own choosing, rather than crafting opinions about other people's struggles. She served with civility, being gracious even when the lawyers before her lacked grace. I know this because I was once so vexed by a series of evidentiary rulings that she made in a case of mine that I avoided her for years. When I next appeared before her, she was, as she always was, a calm and steadying voice.

            Magistrate judges can do a world of good. We have some great ones in Connecticut. Thomas Smith, William Garfinkle and Joan Margolis have for years been steady workhorses, presiding over hundreds, if not thousands, of settlement conferences, forcing lawyers to confront the weaknesses in their own cases, doing the grunt work of justice, making cases move.

            Rumor has it that members of the United States Attorney are applying to replace Judge Fitzsimmons. They are like bees to honey – the position pays $183,172 per year, and its term runs eight years. I cannot recall the last time a magistrate judge was not reappointed. It is tantamount to a life appointment.

            Why aren’t more defense lawyers applying?

            There is a critical lack of criminal defense lawyers on the federal bench.

            In Connecticut, only two Article Three judgse – the lifetime appointments – have any criminal experience at all.  One is Robert Chatigny, who never tried a criminal case to a verdict while representing a criminal defendant. The other is Dominic Squatrito, who did appear with defendants in Manchester many years ago -- those who have appeared before Squatrito can vouch that his real world experience make him a special and insightful jurist.

            Experience matters in the law. It is more important than what you can learn from a book. The law is not geometry, it is the application of legal doctrine to the chaos of living. The law's theories, presumptions, and vision is the product of centuries of attempts to do what we call “justice,” that right admixture of remedy and response to the things that inevitably go wrong among a group of people thrown together by their various accidents of birth and forced to live together.

            Sonya Sotomayor was ridiculed by the right for talking about the perspective a “wise Latina” might bring to the law. Yet who can doubt that her experience as an underprivileged member of a minority group has not informed her perspective as a jurist? I think of her dissent in the Skilling decision, where she alone found irregularities in jury selection during the trial of an Enron executive in Houston, Texas. The cold record reflected that the panel was not tainted. But Sotomayor, a former prosecutor, had done something her colleagues had never done -- she stood in the well of a trial court in emotional criminal cases. The cold record often doesn’t reflect the palpable hatred, fear and emotion actually present in a courtroom. If only one of the justices had actually stood next to the accused in a criminal trial – imagine what a difference that might make.

            So here’s to hoping members of the Connecticut criminal defense bar will apply for a position as magistrate judge. Let’s not leave the judiciary to former prosecutors looking for a nominal pay raise. I’d prefer to see a judge who actually defended people on the bench.

    Applications must be submitted by September 15, 2014. There's still time to apply.



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