I have never seen Joel Cohen in court but he must be an excellent cross-examiner, a skill he relies on to create revealing, instructive, and sometimes shocking interviews with thirteen federal judges in his new work, Blindfolds Off: Judges On How They Decide (Chicago, ABA: 2014). His goal, remarkably achieved, is to shed light on the factors that inform judicial decision-making—not so much the “chill and distant” legal maxims chiseled into marble above courthouse steps but the powerful influences that arise from within, the ones Justice Cardozo famously characterized as “the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge… ”
In the foreword, Judge Richard Posner predicts that the reader will emerge with a greater understanding of judges but “the aura of mystery will remain,” which is correct—to a point. From time-to-time the judges disclose things to Cohen as if they were talking to family members or close friends—and the reader gets to eavesdrop on some fairly extraordinary conversations that strip back the mystery. Well prepared and willing to push for answers, Cohen’s interviews lead us from the judges’ dissimilar backgrounds and philosophies to their strikingly similar struggle to do the right thing.
The interviews, which Cohen wisely presents alphabetically, begin with Judge Leonie Brinkema (E.Dist.Va.), who presided over the case of Zacarias Moussaoui—the Muslim extremist who sometimes claimed to be the “twentieth hijacker,” the one who missed out on the 9/11 attacks because he was in jail. The government sought to put Moussaoui to death and one immediately senses the deep, chilling responsibility Brinkema felt as critical issues cascaded on her court, including one in particular: government misconduct so egregious that she could have dismissed the death penalty as a sanction but did not—despite serious “qualms” (perhaps more deeply felt than admitted) about the death penalty. In one of those unforgettable admissions Cohen elicits, Judge Brinkema knocks the reader’s head back, saying that she is not certain that even Osama bin Laden would have deserved the death penalty had he been convicted.
It is in this sort of moment that Blindfold performs its greatest service: the confession of an unpopular belief and a fuller portrait of a judge as human being—in her case, as in others, a deeply thoughtful, decent human being struggling to provide a fair trial to one accused of a hideous crime, and yet at times, suffering from the lack of self-awareness that Judge Posner warns about and that plagues us all. And, speaking of being human, Brinkema can barely conceal her delight that Moussaoui, who pled guilty certain that he’d be sentenced to death and become a martyr, was sentenced to life and became a number instead (in a Supermax prison)—and that in trying to withdraw his plea, argued his surprise that he received justice from an American court.
In contrast to Judge Brinkema’s reluctance to delve too deeply, is the far more poignant transformation of Judge Jed Rakoff (SDNY) from death penalty agnostic to his decision, later reversed on appeal, declaring the death penalty unconstitutional based on what he feels is the “truly mind-boggling nature of DNA exonerations”—and his shaken belief that our system always gets it right. But this is no mere change of heart because of scientific advance: Judge Rakoff reluctantly reveals that his own brother was brutally murdered in the Philippines and that the killer only received a three-year sentence—leading to what must have been more than mere agnosticism about the death penalty but a real battle to decide a simple question: is the death penalty morally right or morally wrong (the same journey of this reviewer following the murder of his own brother). On a less somber note, Cohen asks Judge Rakoff whether he has been the object of a death threat himself and the answer, ironically, is one of the funniest things I have ever read.
One other interview bears mention: Cohen’s interview of Alex Kozinski, Chief Judge of the Ninth Circuit, reads at times like the cross-examination of a hostile witness. A Reagan appointee and libertarian, Kozinski tells Cohen that he wants his [often witty, personal, and acerbic] dissents to influence legislators and fellow judges—and he often succeeds. For example, a 2010 Kozinski dissent (U.S. v. Pineda-Moreno) presaged, or perhaps, predetermined, the U.S. Supreme Court’s 2102 decision in U.S. v. Jones, compelling law enforcement to obtain a search warrant before placing a tracking device on a car parked in a public lot. That was the precise result Kozinski had argued for in the Pineda-Moreno dissent, reasoning that DEA agents should have obtained a search warrant before placing a GPS device on a car in a suspected dealer’s driveway adjoining his trailer home. However, not satisfied with merely making the point, he also made a stink, accusing his fellow judges of “unconscious cultural elitism,” bias that would have influenced them to decide differently if the accused were rich and had parked his car at a home inside a gated community—bias he suggests that many other judges as well as he, too, suffers, just not unconsciously. But that is where the judge’s self-awareness apparently stops: one doubts that his fellow judges accept his personal criticism as blithely as he suggests. And yet, blunted self-awareness aside, one finds himself in awe of this émigré from communist Romania whose hard work, dazzling intellect, and profound understanding of the constitution propelled him from an ordinary life to a preeminent one—asserting influence on judges from district courts to the highest court in the land.
These interviews are not only revealing but instructive, especially for us trial lawyers who cannot read this collection without greater insight into persuading judges of the rightness of our argument and cause, not without first attempting to figure out the manner of man or woman on the bench. Of course there are those—not entirely without reason—who cringe at judges confessing personal predilections, who believe that stripping away even the thinnest veneer of that “aura of mystery” undermines respect for the judiciary. But the subjects of these interviews have accomplished just the opposite, avoiding treacly Dr. Phil confessions while revealing themselves, despite their great power, as very human beings—whose opinions and decisions are, quite often, tempered by that very humanity.
About the author:
David Berg is a trial lawyer and frequent CLE lecturer on trial skills who practices in New York and Texas, and an author of two books, The Trial Lawyer: What It Takes To Win (Chicago, ABA: 2003) and Run, Brother, Run: A Memoir About a Murder In my Family: (New York, Scribner: 2013)