The members of the Bar
Association of Montgomery County are concerned about the media attention to
Judge Durke Thompson's decision to award a defendant a new trial in rape case.
The conundrum facing
Thompson was not whether the defendant was guilty or innocent, but whether he
had gotten a fair trial on the rape issue.
Thompson did not determine
that the defendant was innocent of second-degree rape or otherwise release him
from the vise of the criminal process for that alleged crime. He granted a new
trial on that charge. The state has the right to try the defendant again.
The process made it appear
to some that the judge was laying in wait for female litigants. That appearance
is wrong. Rather, the judge was exercising the discretion that the law requires
he exercise.
Our concern is the clear
and present danger posed by ad hominem attack on judges in the judicial
decision-making process. Unjustified and unfair criticism erodes public
confidence in the judicial system and weakens the administration of justice.
What is going to happen the
next time a case arises where a judge is asked to set aside a rape conviction?
Will that judge have the strength of conviction to grant the motion if he or
she thinks it appropriate, knowing that he or she will then be subject of
similar press releases or will fear of being personally attacked effect the
judge's decision-making? Or, if the case has some racial or ethnic or other
overtones, will the judge hesitate to act or alter the decision he or she would
otherwise make because of a fear of adverse publicity?
Equally important, Thompson
and his colleagues are good and decent men and women whose lives, too, can be
torn asunder by an inappropriate criticism that results in an avalanche of
adverse publicity they are not allowed to publicly rebut.
A judge's ruling in a "hot" case that will likely result in negative
publicity for the judge is an act of bravery, not indiscretion. Though
brutalized in the press, Thompson's willingness to protect the rights of the
defendant based upon his understanding of the law is exactly the kind of
judicial independence that should be encouraged.
Glenn M. Cooper,