A former federal judge explains what it’s like to be on the bench in a high-profile trial like those involving Donald Trump’s criminal charges

Former President Donald Trump is expected to make many court appearances in the coming months, most in connection with the 91 criminal charges against him in four cases in both federal and state courts. The judges in these cases are under intense public and legal scrutiny, and several have been subjected to violent threats even before the trials begin.

To learn about what judges think and experience in these situations, The Conversation U.S. spoke with John E. Jones III, the president of Dickinson College, who is a retired federal judge appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002.

During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that teaching intelligent design in science classes is unconstitutional and a 2014 ruling legalizing same-sex marriage in Pennsylvania, which anticipated by a year the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole.

What are judges thinking about while they’re listening to the testimony and the lawyers’ arguments in court?

Judges are human. Judges read the news, watch the news. They’re aware of what’s happening around them. They’re engaged citizens.

But when you pass from being an advocate, a trial lawyer, to being a judge, you have this transformation. You’re in charge of keeping order in a courtroom.

You have to be on your game all the time, vigilant for anything that would make the proceedings less than fair for any of the litigants. That’s an intensive assignment. When you have a jury in the box, you have to be super careful.

For example, if you see an attorney running afoul of procedural rules or admonitions that you’ve given them, you need to resist calling out that attorney in front of the client or the jury. You want to make sure that you check the attorney either quietly at a sidebar conversation where the jury can’t hear, or in chambers. But there comes a point where, if that’s not efficacious, you’re going to have to do something more publicly in the courtroom.

What are the rules that constrain judges, both on the bench and away from the courtroom?

There are rules of court and evidentiary rules, and all judges underneath the Supreme Court have the code of conduct for federal judges.

For example, if a member of the media contacts a judge’s chambers and wants to talk to him about the merits of a case, that’s absolutely forbidden. That’s something no judge would do under any circumstances.

Outside the courtroom, you must be very careful in what you do and what you say – and that’s even about matters that may not be pending in front of you but could show a bias with respect to a future case.

You stay out of politics, despite whatever your past may have been. Many federal judges have political paths to their position – I did. You have to be completely clear of all political activity when you’re on the bench. That also includes potentially recusing yourself from cases in certain circumstances.

There are rules of court that govern the proceedings, and some judges have their own unwritten rules about courtroom decorum. I didn’t have those, but it depends on the judge. For example, some judges have a protocol that you must stand when you address the court. Other judges are not so clinical or doctrinaire about it.

How do you handle lawyers or defendants who don’t know or don’t follow the rules?

Generally, the most difficult defendants that I had over my 20 or so years on the bench were criminal defendants. A lot of times they had public defenders, and they would clash with their attorneys.

Generally in a civil case, the client adheres to the instructions that the court gives and that the attorney gives. One of the worst things that any litigant can do when there’s a jury in the box is speaking out loudly – not just even a stage whisper but actually speaking out and talking directly to the judge. Most judges find that pretty intolerable. When somebody’s represented by counsel, they’re not supposed to be addressing the judge directly – and certainly not making statements that are not under oath that the jury can hear.

I had been a defense attorney. I’d been a trial lawyer. So I could see when there was what we used to call a “client management problem.” What you do in that situation as a judge is you give them a timeout and say something like, “I’m going to take a recess and, Ms. Smith, it might be a good idea for you to talk to your client.”

The other problem is the lawyer who just isn’t listening and is not responding to the signals that the judge is sending. Generally in federal court, but not always, the lawyers are practitioners who’ve been around. It’s a tougher place to practice than in state court. It’s a special kind of litigator and they’re very professional and they understand the rules of court.

But if you’re on the bench long enough, you get cases where you either have lawyers who are intentionally not listening or they just are not experienced enough, or a combination of both. Then you try to inform the lawyer, give them some rules of the road, explain to them why what they’re doing is not productive or may violate the rules, and hope that the lawyer picks up on those cues in court.

I also used to leaven the proceedings with humor. I think humor can break a lot of stress in a courtroom. These are very serious proceedings, but when a case was really dragging, I’d bring lawyers to sidebar and say something to the effect of, “Counsel, there are glaciers moving more quickly than this case.”

How do you decide a case?

You follow the law. Typically at the trial judge level, there’s precedent. There are very few cases you get as a trial judge that are without precedent. The same-sex marriage case was one where I didn’t have precedent, and I had to make a judgment call out of whole cloth.

The logic and legal reasoning I used was really a precursor to what was in the Supreme Court’s decision legalizing same-sex marriage nationwide in Obergefell the following year: due process and equal protection.

When there’s no jury, you’re finding the facts. You listen to testimony, you judge the credibility of the witnesses.

There are some people – both judges and nonjudges – who are fond of saying about the judicial system, “We do justice.” This is really a misnomer, it’s sad to say. Many times I had cases that had extremely sympathetic plaintiffs, like with disastrous injuries, terrible things happened to them. But the law didn’t favor them. It may be that there was just simply no cause of action, or they were outside the statute of limitations. There was just no relief that could be afforded. Is that justice? Probably not. But did I follow the law? Yes.

There are times that your heart breaks as a judge, and you think, “I would really like to help this person. But I’m guided by the law and the facts in this case, and I can’t afford relief.” So it’s a little bit of a misnomer to say that you’re there to do justice. Justice is indeed blind. And you’re not always pleased with where you end up in cases, but you do what you have to do.

John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Source: The Conversation