Slamming judges for political gain

Here we go again. A presidential candidate has attacked a judge after a controversy erupted about a single decision. Republican presidential candidate Mitt Romney has called for one of his own appointees, Massachusetts Superior Court Judge Kathe M. Tuttman, to resign after a person she released pending trial failed to report to his supervisor, left town, and allegedly murdered two people in Washington state.

The case is tragic: Two people were killed. But the framework of the discussion is all wrong, and it demonstrates how politicians too often take advantage of controversial decisions for political gain.

Romney's spokesman, Eric Ferhrnstrom, issued a statement challenging Judge Tuttman to explain her decision. "Only she can explain why she released Daniel Tavares without bail," he said.

But the truth is that Tuttman is the one person who cannot explain her decision while the case against Tavares remains pending in court. Judicial-conduct rules prohibit judges from commenting outside the courtroom about pending cases.

We have seen this sort of attack before, and we no doubt will see it again. In 1996, when federal Judge Harold Baer Jr. granted a motion to suppress evidence in a drug case, President Bill Clinton, who had appointed him, suggested that resignation might be appropriate if the judge didn't reverse the ruling. Republican candidate Bob Dole called for impeachment of the judge. Of course, impeachment is reserved for those who have committed "high crimes and misdemeanors," not those who have made incorrect legal judgments that are still subject to appeal.

The comments of Clinton and Dole led four judges on the federal appellate court in New York to issue a rare public call for the politicians to refrain from criticism of an individual judge in a pending case, saying that the attacks and their vehemence "threaten to weaken the constitutional structure of this nation."

The rule prohibiting judges from commenting about pending cases protects the fairness of the judicial system. Judges don't decide cases in a vacuum — they do it based on the evidence presented to them and in response to the arguments made to them by the parties. If judges were to comment publicly about a case, before hearing from the parties or outside the presence of the parties, those whose cases were actually being heard would rightly wonder whether the judge was truly being fair and impartial to them.

The framework for discussion suggested by Romney and his spokesman is wrong not only because it takes advantage of the fact that the judge cannot respond, but also because it pretends that a trial judge should primarily be held accountable for the specific order that concludes each individual hearing. That isn't the case, either.

What the public has a right to expect from its trial judges is that they provide a fair hearing, listen to the parties before them, and explain their decisions clearly. And a great deal of research shows that this is in fact what the public does want from its judges.

The perception of unfair or unequal treatment in court is the most important complaint about our legal system, and it is tied to perceptions of the fairness of hearings and court procedures. Even a first-grader reacts negatively to a situation in which a mother punishes her child for a broken vase without consulting a witness first. That negative reaction signals the early awareness we have that procedural fairness is important.

Courts can and must do a better job, and judges throughout the country are committed to doing so. This is proper judicial accountability. Judges certainly must follow the law.

But we do not create the vast majority of the rules we enforce, and like all humans we will sometimes make mistakes in interpreting laws and in making judgments about people.

The murders of Brian and Beverly Mauck in Washington state were tragic. If those murders were committed by Tavares, his release in Massachusetts and his travel to Washington were key ingredients in the tragedy.

Judges take very seriously the risks inherent in the decisions that they make each day setting bond in criminal cases, entering appropriate orders of protection in domestic-violence cases, and in deciding other cases with obvious risks to the public.

But no judge should be judged on the basis of a single opinion or judgment unless that ruling shows an utter disregard for the rights of the parties or the judge's obligation under the law.

So far, there is no reason to believe that Judge Tuttman's decision fits either category. News reports have indicated that she heard a presentation by the parties, and that the state's attorney opted not to have a hearing at which evidence of the dangerousness of Tavares could have been presented. Massachusetts law gave her a set of factors to consider, and she appears to have considered them. That is the job of a judge.