Toot, Toot, Toot: Blowing My Own Horn
Abuse of Discretion?

Judge Cassell: Activist On A Roll

Someone please tell me that U.S. District Judge Paul Cassell of Utah is not the menace he appears to be from afar? This jurist doesn't like Miranda, thinks capital punishment is just peachy and wants to amend the constitution to make victims all but parties in criminal proceedings.

Judge Cassell is now urging the Advisory Committee on the Federal Rules of Criminal Procedure to give crime victims an even greater role in federal criminal proceedings. They should be consulted, he says, about pleas, sentencing and whether a case is tried to a jury. Is This Guy For Real? Never mind that the right to a jury trial is the defendant's. Judge Cassell thinks we're missing an opportunity to treat victim's fairly.

The judge's suggestions, if implemented, would effectively transform a criminal case into a three party proceeding, pitting the defendant against the government, and the victim against whomsover he or she chose to oppose. We abandoned private prosecutions for crimes long ago out of the recognition that the anger, rage, and passions of victims are not the font of good public policy. Why the temptation to embrace these emotions anew?

In the state courts, victims already hold enormous sway. Elected prosecutors and judges are running scared of victims. Even in districts where these officials are not elected, timorous judges and prosecutors cower. In Connecticut, the right of crime victims to be heard often translates into a veto power.  Forget justice, give me rage, seems to be the new mantra.

A prosecution pits the government against an individual accused of breaking the law. The government's interests are not those of a victim. Intelligent decisions about the need to deter others and the ends of justice animate a decision to prosecute. What often animates a victim is a desire for vengeance. Consider Ron Goldman. Do the likes of Judge Cassell really want to create courtrooms that have the look and feel of Oprah Winfrey's television studio?

Cassell is a judicial activist. Earlier this month, he rejected a plea between the government and a defendant in a tax case. The judge decided the defendant should do time behind bars, although the prosecution did not insist on that. It was as though this referee could not bear merely to enforce the rules; he needed to grab the ball and try to score a touchdown all his own. The Zebra Scores!

The Utah judge is no stranger to controversy. I'm Now Free To Be Me He's so full of himself that he has his own website and he encourages counsel to visit it before appearing before him so that they can be better prepared for whatever it is he is dishing out on any given day. Court rules aren't enough for this judge. Lawyers now need what amounts to Cassell's Rules of Etiquette.

This judge scares me. He's at the vanguard of the new managerial revolution. I'm guessing he also thinks he is also entitled to a raise for his efforts.