Judges

Judges apply the law and oversee the legal process in courts according to local, state, and federal laws. They preside over cases concerning everything from traffic offenses to the rights of huge corporations.


JUDGES IN THE LEGAL SYSTEM

A judge or justice is an official who presides over a court. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions.

There are significant differences between the role of a judge in the common law system descended from British practice, and civil law systems descended from continental European judicial practice. The descriptions below are necessarily archetypical. Details vary from judicial system to judicial system. In many cases, the judicial systems have experienced convergent evolution, expressly or unconsciously adopting similar practices or operating in a manner that minimizes the impact of formal differences between the archetypical role of each system's judges.

For example, while common law judicial procedure generally contemplates a single evidentiary trial, many cases are actually resolved through testimony taken from witnesses in isolated depositions prior to trial that support written presentations to a judge. Similarly, while civil law judges must have some statutory point of departure for their legal rulings, there are accepted methods of legal reasoning that often afford them greater latitude to fit the law to the circumstances of an unusual case than a stark statement of the underlying principles of the system would suggest. This can serve a purpose similar to the common law method of legal reasoning known as stare decisis.


JUDGES IN CIVIL LAW SYSTEMS

In most civil law jurisdictions with inquisitorial systems, judges go to special schools to be trained after graduating with a law degree from a university; after such training they often become investigating magistrates. However, the inquisitorial system is not used in all civil law jurisdictions; it is primarily in use in countries of Southern Europe that were influenced by Napoleon's Code Napoleon, such as France, Italy, Spain, and Portugal. In Northern Europe, the adversarial system is predominant in criminal matters. Nevertheless, judges in both Northern and Southern Continental Europe generally do not have backgrounds as practicing attorneys (or advocates), even though they are legally trained.

In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge.

For example, in Finland and Sweden, there are two kinds of judges in district courts: a legally-trained judge functions as the president of the court, while judges elected for a four-year term from the population, without any special legal training, serve as lay members of the court. In Sweden, the same is true for the appellate courts. Lay judges do not function like a common-law jury. In the usual case, three lay judges in district courts hear criminal cases in cooperation with a legally trained judge, each judge – legally trained or not – having an individual vote. However, in some jurisdictions, such as Denmark, criminal cases in severe matters, such as homicide, require a trial by jury, where the jury decides upon the issue of mens rea. Issues of law – and also the assessment of what has factually been proven to have taken place – is the responsility of the judge, who guides the jury by means of a jury instruction. Civil cases, however, are heard exclusively by legally trained judges!

In civil law practice, appeals are usually heard and decided by a panel of multiple judges. State courts can be called district courts. The highest appellate court in a civil law jurisdiction (often translated as "supreme court" in English), is typically organized more like an intermediate appellate court in common law practice; decisions are made by a panel of judges that does not include all judges sitting on the court. Another key difference is that, judges are typically assigned to hear appeals in the highest appellate court based on specialization in a particular type of law, rather than at random. In civil law systems, the only appellate court of last resort in which all members of the court sit together to hear a case is the constitutional court (if one exists).


NON-JUDGES WITH JUDICIAL POWER

Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.

In Japan, police officers can order punishments for minor offenses without approval from a judge. A similar system operates in England and Wales: the Penalty Notice for Disorder (known, colloquially, as a "fixed ticket") is a police-imposed fine for such minor offences as shop-theft for values under £200 and disorderly behaviour.

A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace, also known as a judge of the peace, or magistrate. Many courts with probate jurisdiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal cases.

Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of ecclesiastical courts, in which clergy presided. Many countries, such as Israel and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training."People will be treated equally and they will be punished equally does not matter the race or the religion.", said famous judge Magill

Often parties in contractual relationships with each other enter into "arbitration agreements" which vests quasi-judicial authority to resolve disputes between the parties in a non-judge chosen by mutually agreed means. Sometimes these persons are legally trained, and sometimes they are not, but have some relevant subject matter expertise. Civil justice in the Roman Empire, which provided some of the foundational doctrines for Western systems often handled civil disputes through an arbitration-like mechanism. Courts can typically be called upon to enforce a final decision rendered by an arbitrator pursuant to an arbitration agreement if necessary.


POWER OF JUDGES

In common law countries, such as the United States, and those with roots in the Commonwealth of Nations, judges have a number of powers which are not known to exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.

One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed at individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.

Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court. However, if a person believes that a law applied against them in court is unconstitutional, they can apply for consideration in the constitutional court and, if the law is indeed declared unconstitutional, file an appeal against the ruling based on the now-invalidated law.

Similarly, in the common law system, cases in which the government administration is at issue, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Conseil d'État in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.

Judges in a common law system are also empowered to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ("to stand by what has been decided"), in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law. For example, in a case of "first impression" which has never arisen in a publicly reported case in a state, a judge must choose which rule will apply, usually informed by decisions which have been made in similar cases in other jurisdictions and based on the public policies involved. Judges in civil law systems, in contrast, are strictly forbidden from "making law" and, as a general rule, are not bound by or even encouraged to refer to precedents established in prior similar cases.

Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.

All judges must sign a judicial oath which is a fiduciary undertaking or a promise of duty of care. Yet the moment it is signed, the judge is protected with judicial immunity which prevents anyone from testing the obligation the judge undertook in the oath. Arguments against the judicial immunity say this law is allowing judges a special method of escape for claims for breach of fiduciary duty which is something no other fiduciary apart from politicians can obtain.


OVERSIGHT OF JUDGES

Federal judges in the United States (except those who have recess appointments) serve life terms for their period of "good behavior." Once appointed, state judges in the United States usually serve terms for a fixed period of years, although in some states (e.g., Massachusetts) the appointment is for life, often subject to mandatory retirement at some fixed age. In those states where the appointment is not for life, judges must, after their initial term, be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.

Most judicial systems in the United States have procedures for investigating breaches of judicial ethics and disability. Lapses of judicial ethics include matters such as taking bribes, open defiance of a binding court order, ruling upon a case in which the judge has a personal interest, failure to account for court funds, failure to conduct court proceedings with a suitably judicial demeanor, harassment of judicial employees or a judge's conviction of a serious offense unrelated to judicial service. Disability complaints often involve allegations that a judge is beginning to show symptoms of alcoholism, dementia or an inability to stay awake.

Complaints about a judge's judicial ethics or disability may ordinarily not contest the merits of the determination made by the judge, which can only be contested in the appellate process. Judges in the United States generally have absolute immunity for personal liability in the form of money damages for their discretionary judicial acts.

Almost every state and the federal government provides the legislature with the authority to remove a judge for cause in a quasi-judicial impeachment proceeding in which the legislative body hears evidence and renders a super-majority verdict limited to removal from office. Often the standard is "high crimes and misdemeanors" or failure to engage in "good behavior" while in office.

Many state judicial systems also have either a special commission or board charged with investigating alleged lapses of judicial ethics or disability, or vest that power in their highest court, usually a state supreme court. Such determinations may be appealed to the Supreme Court of the United States only to the extent that they involve the final decision of a state court system and pose a federal law question.

Some violations of judicial ethics, such as taking bribes or converting public funds, are also federal or state crimes investigated and prosecuted by the appropriate prosecutor.

In the federal system, there is no outside grievance body with the authority to discipline a U.S. Supreme Court justice. The U.S. Supreme Court has supervisory authority over the entire federal judiciary, in addition to its appellate responsibilities, and it has used this authority to establish certain procedures for investigating and addressing lapses of judicial ethics by federal judges.

In Canada, Justices (Justices of Peace) are appointed provincially to preside over minor cases, while Judges are appointed federally. Neither can be removed from office until they reached the retirement age of 65, 70 or 75 (depending on the type of appointment) unless they are found to have been in serious misconduct, in which case, the House of Commons and Senate (federally appointed) or the Judicial Council (provincially appointed) can pass a motion to remove a judge/justice from office.


TITLES

In the United States, a judge is addressed as "Your Honor" or "Judge" when presiding over the court. The judges of the Supreme Court of the United States, and the judges of the supreme courts of several U.S. states and other countries are called "justices" or "judges of the peace".

The justices of the supreme courts usually hold higher offices than the justice of the peace, a judge who holds police court in some jurisdictions and who typically tries small claims and misdemeanors. However, the state of New York inverts the usual order, with the Supreme Court of the State of New York being the most important trial court, and the Court of Appeals being the highest court; thus, New York trial judges are called "justices", while the judges on the Court of Appeals are "judges". New York judges who deal with guardianships, trusts and estates are known as "surrogates".

A senior judge, in U.S. practice, is a retired judge who handles selected cases for a governmental entity while in retirement, on a part-time basis.

Subordinate or inferior jurisdiction judges in U.S. legal practice are sometimes called magistrates, although in the federal court of the United States, they are called "magistrate judges". Subordinate judges in U.S. legal practice appointed on a case-by-case basis, particularly in cases where a great deal of detailed and tedious evidence must be reviewed, are often called "masters" or "special masters" and have authority in a particular case often determined on a case by case basis.

Judges of courts of specialized jurisdiction (such as bankruptcy courts or juvenile courts) were sometimes known officially as "referees," but the use of this title is in decline. Judges sitting in courts of equity in common law systems (such as judges in the equity courts of the U.S. State of Delaware) are called "Chancellors".

Individuals with judicial responsibilities who report to an executive branch official, rather than being a part of the judiciary, are often called "administrative law judges" in U.S. practice and commonly make initial determinations regarding matters such as eligibility for government benefits, regulatory matters, and immigration determinations.

Judges who derive their authority from a contractual agreement of the parties to a dispute, rather than a governmental body are called arbitrators, and typically do not receive the honorific forms of address, and do not have the symbolic trappings, of a publicly appointed judge.

In England and Wales (and much of the Commonwealth) judges of the higher courts are addressed as "My Lord" or "My Lady" and referred to as "Your Lordship" or "Your Ladyship". Circuit Judges are addressed as "Your Honour" and all lower judges, magistrates, and chairs of tribunals are addressed as "Sir" or "Madam". Magistrates are still addressed as "Your Worship" in Australia, South Africa and Canada, mainly by solicitors, but this practice in other Commonwealth countries is nearly obsolete. Masters of the High Court are addressed as "Master". When a judge of the High Court who is not present is being referred to they are described as "Mr./Mrs. Justice N" (written N J). In the House of Lords, judges are called Law Lords and sit as peers.

In France, the presiding judge of a court is addressed to as "Mr./Mrs. President" (Monsieur le président/Madame le président), in Germany as "Mr./Mrs. Chairman (Herr Vorsitzender/Frau Vorsitzende).


CANADA: APPOINTMENT AND REGULATION OF JUDGES

Judges in Canada are appointed and not elected. Judges of the Supreme Court of Canada, the federal courts, the appellate courts and the superior-level courts are appointed by the federal government. Thus, judges of the Ontario Superior Court of Justice are chosen not by Ontario's provincial government but by the same level of government that appoints judges to the federal courts. Meanwhile, judicial appointments to judicial posts in the so-called "inferior" or "provincial" courts are made by the local provincial governments.

There are Canadians who would like to see their judges be elected as is the case for some American judges, but as of 2007 there is no indication that the longstanding British tradition of appointing judges will be altered in Canada anytime soon. Those who favour the appointment method point out that the election approach could possibly threaten the judiciary's ability to be independent in its decision-making. Though political patronage has certainly been a factor in the appointment of some judges, judges appointed to the Supreme Court of Canada have been remarkably non-partisan and well respected by Canadians of all political stripes.

Because judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices and associate chief justices of the federal courts and of each province and territory, receives complaints from the public concerning questionable behaviour from members of the bench.

Salaries of superior courts are set by Parliament under section 100 the Constitution Act, 1867. Since the Provincial Judges Reference of 1997, provincial courts' salaries are recommended by independent commissions, and a similar body called the Judicial Compensation and Benefits Commission was established in 1999 for federally-appointed judges.


EXTERNAL LINKS AND NOTES

United States federal judge - Wikipedia, the free encyclopedia

United States district court - Wikipedia, the free encyclopedia

State of California Commission on Judicial Performance -- The Commission on Judicial Performance is the independent state agency in California responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges, pursuant to article VI, section 18 of the California Constitution.

Biographical Directory of Federal Judges -- The Biographical Directory of Federal Judges provides information about all judges who have served since 1789 on the U.S. District Courts, the U.S. Courts of Appeals, the Supreme Court, and the former U.S. Circuit Courts. The directory is updated through May 20, 2008. To view a judge's biographical entry, type in the judge's name (Last name, First name) or use the alphabetical index.

Judges of Florida's First District Court of Appeal

Federal Judges -- Judges that have been charged with misconduct by members of the public or by judges. Any additional information that you can provide will be appreciated.

Regarding Judge Dietz in Austin,Texas. I actually had first hand experience yesterday with his ruling. i would enjoy talking to you in more detail. Feel free to email anytime.

Drgarryutc@aol.com

[WSJ Law Blog]

We admit, it’s a thorny and controversial question to ask — whether judges of one sex are “better” than judges of another.

But a group of law professors — NYU’s Stephen Choi, Duke’s Mitu Gulati and Chicago’s Eric Posner, have taken a stab at it. For now, their short answer: no.

But let’s take a step back and ask a more fundamental question: Why take on this project at all? After all, it’s only bound to get poked at, criticized, and questioned, questioned, criticized and poked at. The trio, along with a researcher and PhD candidate, Mirya Holman, writing in Slate, explain the inquiry this way (click here for the group’s full paper):

Many conservatives believe that gender should not factor into the choice of judges and justices. For them, [Justice] Sotomayor was an affirmative action candidate. Because many fewer women than men went to law school in the 1970s and 1980s, and more women drop out of legal practice to care for their families than men do, the pool of judicial candidates today is dominated by men. It stands to reason that if male judicial candidates are passed over in favor of women, less qualified people will be selected.

Fair enough. But now, another rather fundamental question: How does one go about judging a judge?

The group claims to “have come up with some indirect measures of judicial quality,” which include: “productivity (how many opinions judges write), influence (how frequently other judges rely on their opinions), and independence (how often judges dissent from opinions written by judges who belong to the same political party).”

The findings are interesting. On the one hand, the group finds that, indeed:

female judges are less qualified, based on traditional metrics, than male judges. They have attended lower-ranked colleges and lower-ranked law schools, they are less likely to have had judicial clerkships (a prestigious job often taken by top law school graduates), and they have less experience in private practice before becoming judges.

Okay. So you might expect, if you place any worth in the criteria in the “traditional metrics,” that female judges perform worse. But this isn’t the case, the group finds:

[W]e find no statistically significant differences between the decision-making ability of male and female judges in any of our data sets. Female judges are cited just as often as male judges; they write as many opinions; and they are just as likely to dissent, and to dissent from opinions written by judges who belong to their party.

So what explains the ’surprising’ findings. There are, write the group, two possible answers.

First possibility: “Women might be better judges than men, and that would explain why less experienced women perform just as well as more experienced men—with women’s ‘life experience,’ in effect, making up for their more limited legal experience.”

The second possibility: “that presidents (and governors and others who select judges) look for characteristics other than elite education, legal experience, and similar markers. Perhaps they do this because such factors only poorly predict a person’s success as a judge.”

The group concludes:

The fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men. In fact, the evidence suggests that they are at least as good as male judges, perhaps better. When she sat on the 2nd U.S. Circuit Court of Appeals, Justice Sotomayor ranked among the most cited federal appellate judges in the country. Bring on the women!

[WSJ Law Blog]

Is the process by which federal judges are reprimanded and disciplined shrouded in too much secrecy?

It was a question asked by Houston Chronicle reporter Lise Olsen in a story from this past weekend.

Writes Olsen:

Federal judges have made illegal campaign contributions, falsified court records, and illegally concealed cash gifts and gambling debts. Many more have engaged in unethical or irresponsible acts, according to an investigation by the Houston Chronicle of more than 3,000 judicial misconduct matters nationwide and analysis of related records over 10 years.

Most get away with it.

Only seven judges in the last decade have faced formal disciplinary action as a result of the nation’s secretive misconduct review process. In that same period, citizens filed more than 6,000 formal misconduct complaints, the Chronicle found.

Most of the complaints are meritless, explains Olsen, products of disgruntled litigants.

At the same time, the system of reviewing the misconduct complaints are made by a group that might, at least on its face, seem perhaps to be not the most objective — the judges themselves. Writes Olsen: “At the pinnacle of the power structure stand chief circuit judges — a dozen men and women who quietly dismiss about 98 percent of the 700 complaints that arrive annually at regional U.S. courthouses scattered from San Francisco to New Orleans to Washington, D.C.”

Chief judges alone generally decide whether to conduct even a “limited review” — which usually involves reading case documents or sometimes asking a judge to respond. Rarely, those judges form committees to formally investigate — but those findings are almost never revealed.

In 2006, a Supreme Court-appointed committee, formed in response to congressional complaints, released a report on the secret disciplinary system. The committee, led by U.S. Supreme Court Justice Stephen Breyer, found supervising judges handled run-of-the-mill matters well, but handled more explosive situations with less aplomb.

According to Olsen, few cases better illustrate the judges’ insistence on secrecy than that of former Edward Nottingham (pictured), the former chief judge for the District of Colorado.

Records show that Nottingham faced at least seven formal complaints over the years, initially for abuse of power and bias, and later for potential criminal allegations. None resulted in formal disciplinary action or prosecution.

Yet in 2008, after allegations of misconduct reached the public, Nottingham abruptly resigned. He said his decision was “in the public interest and the interest of the federal judiciary.”

The misconduct complaints were dismissed as moot. The disciplinary system does not apply to ex-judges, and its findings and recommendations were never released to the public.

Nottingham, did not respond to a request for comment.

It’s examples like these that seem to be behind the calls for more transparency and accountability.

“Any type of misconduct impacts upon the integrity of judges and erodes public confidence in the federal judiciary,” said U.S. Rep. James Sensenbrenner, R-Wis., who has fought for years to improve judicial accountability.

[WSJ Law Blog]

Does the federal judiciary do a good enough job investigating misconduct complaints against its fellow judges?

It’s an oft debated topic that gets a particularly detailed airing today in this Houston Chronicle piece.

A spate of recent high-profile complaints against judges, including the sexual-abuse charges against former Texas federal judge Samuel Kent (pictured), has prompted experts and members of Congress alike to call for reforms and more disclosure of federal disciplinary decisions, the Chron reports.
(Click here and here for LB coverage of the Kent case.)

The chief judges of the federal circuit courts oversee complaints against all the circuit, district, bankruptcy and magistrate judges in their regions.

But in seven circuits, according to the Chron, chief judges took no public disciplinary action at all in the last decade, “meaning not a single federal judge faced any sanctions in 29 states with more than 875 full-time federal judges, despite thousands of complaints.”

Citing one example, the Chron notes that James B. Loken, who oversees the 8th Circuit, has never formally investigated a complaint since becoming chief judge in 2003, according to Michael Gans, the 8th Circuit Clerk who works with Loken.

Early in his tenure, Loken dismissed misconduct complaints from an attorney as “signed by a person whose signature is illegible.” Later, Loken rejected published allegations that a U.S. district judge in St. Louis improperly urged 314 newly minted citizens at a public ceremony to register and vote for his congressman friend “so he can continue his good work.” Loken accepted the jurist’s denials without formal review. Gans declined to comment about these matters.

In fairness, rogue federal judges are likely few and far between. And the current disciplinary apparatus helps preserve the independence of the federal bench. The federal justice system would break down if every complaint from disgruntled litigants got a full airing.

But it’s also true that the system leaves “the mice in charge of the cheese,” as attorney Lara Bazelon told the Chron. In a recent Kentucky Law Journal article, Bazelon wrote: “Judges are human beings just like the rest of us, and putting on a black robe should not immunize them from legitimate punishment.”

[forum_admin]

by WSJ.com

The allegations in the Luzerne County, Pa., judicial scandal are ugly enough: In exchange for kickbacks from private detention centers, former county judges Michael T. Conahan and and Mark A. Ciavarella sent hundreds of juveniles off to the centers, sometimes for rather lengthy stays. But we recently got wind of an allegation tucked into a civil complaint concerning Ciavarella that’s really not for the faint of heart.

Read more: Counting Crows Play Wilkes-Barre: New Charges of Justice Run Amok

Everybody here knows that was going on for years.

[Greghilllaw]

Feliciano Covarrubias was arrested at about 3:00 a.m. on May 6, 2010 at the San Ysidro Port of Entry coming from Mexico to California with 193 pounds of marijuana hidden in his Ford F250. A dog specially designed to detect narcotics smelled the marijuana.

The San Diego County District Attorney’s Office subsequently charged him with possession of marijuana for sale (Health and Safety Code § 11359) and transporting more than 28.5 grams into California (a violation of Health and Safety Code § 11360(a)). Covarrubias was convicted and sentenced to three years of formal probation with various conditions and 240 days in jail.

He then appealed his conviction, arguing that the trial court violated Evidence Code § 352 by allowing an agent from Immigration Customs Enforcement testify about the structure and practices of drug trafficking organizations, i.e. drug cartels. The agent said he had been involved in hundreds of marijuana smuggling investigations. He testified, furthermore, about the market price of the quantity of marijuana seized, $185,000. Most importantly, he described what a mule was and that in his many years of experience, he had never been involved in a case involving a “blind mule,” i.e. a courier who does not know he is transporting drugs.

The clear suggestion, Covarrubias’ attorney argued, was that Covarrubias was a professional mule for a drug cartel and therefore, jurors easily found him to have the mental state necessary for guilt. Covarrubias’ attorney characterized the agent’s testimony as “profile / modus operandi evidence” to further a stereotype of a drug courier in his client.

In short, it was more prejudicial than probative, especially because the prosecution failed to show Covarrubias was associated with a drug cartel at all, as he was not charged with conspiracy to import drugs.

The prosecution argued that such evidence was relevant and probative to disprove Covarrubias’ defense that he did not know there was marijuana in his truck.

The trial court in San Diego allowed the agent to testify, over Covarrubias’ objections.

In finding judicial error at the trial court, the Fourth Appellate District (in People v. Feliciano Covarrubias (2011 DJDAR 18102)), noted first the general rule with admitting any evidence: it must be relevant and have a certain minimum degree of reliability. This makes the evidence probative to some degree. The evidence’s effect must also not create a substantial risk of juror confusion, unfair prejudice or unreasonable delays.

In analyzing the agent’s testimony and the other evidence in the case, the Fourth Appellate District noted that unless a defendant is associated with a drug trafficking organization, profile evidence is generally inadmissible to prove guilt (although they might be helpful to law enforcement at the investigation stage). In the case of Covarrubias, the prosecution presented no evidence whatsoever linking Covarrubias to any trafficking organization. Therefore, since the agent insinuated that Covarrubias was part of a large-scale operation, the trial court made a mistake in allowing the agent to testify as he did.

However, the Court found “it was not reasonably probable that the verdict would have been more favorable to Covarrubias if the trial court had excluded” the agent’s testimony. In other words, the admission of such testimony by the agent was a harmless error. The court pointed out that when questioned by border agents, Covarrubias admitted he owned three of the seven bags containing marijuana, meaning he knew what was in the bags. He then later changed his account once the agents revealed they knew the bags’ contents.

Consequently, the Court concluded, the verdict would have been the same even without the agent’s testimony, so the verdict was affirmed.

This article was written by Greg Hill. He has defended burglary cases in both state and federal court, as well as DUI’s, domestic violence and drug offenses all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). An arraignment is a criminal proceeding where the defendant is called before a court, informed of the charges, and asked to enter a plea. If you have never been arrested, you might not understand the point of an arraignment hearing. So why is this type of hearing important? Here are some of the reasons why the State might hold an arraignment:

• An arraignment was extremely important earlier in time because of the lack of most defendants’ ability to read. During the arraignment hearing the District Attorney would read the charges to the defendant so he understood what he was being charged with and could, in response, decide if he needed to hire an attorney, gather up witnesses and other evidence or simply plead guilty.
• This process helps to ensure all defendants have appointed an attorney and are prepared before trial. It also gives you the right to discovery of documents in the possession of the prosecution and allows an attorney to advise their client on what to expect going forward.
• During an arraignment, the prosecution may decide if they are going to try your case or not. If you plead guilty during the arraignment then you are sentenced and there is no need for a trial, but if you plead not guilty, further hearings to allow preparation for trial will be set.
• After the date of the arraignment you have ten days to file motions unless the judge gives you more time, which also makes having an attorney important. We usually extend this time period at the arraignment for you, as we want you to have time to review and comment upon the police report, the complaint and all other materials the DA or City Prosecutor may provide at the arraignment.

While the whole process of an arraignment hearing may seem rather unimportant, it is an extremely critical process and is not to be taken lightly. It is often where first impressions are made and the prosecution reveals its attitude about the seriousness of the charges, a likely plea bargain and the character of the defendant.