Buffalo Law Review

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Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.

This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and bias within the context of the client’s case. This Stoic practice has two primary benefits.

First, by envisioning such problems before they occur, the defense lawyer may be able to prevent some of them from happening in the first place. Toward that end, this Article identifies several preemptive legal strategies to prevent the unethical judge from infecting the client’s case.

Second, envisioning acts of judicial ignorance, hostility, and bias before they occur will render them less of a shock when they do occur in the middle of trial, in front of the jury, and in a full courtroom. This, in turn, allows the defense lawyer to remain calm in the face of adversity and formulate an effective response to protect the client. Toward that end, this Article identifies several responsive legal strategies for the lawyer to use when confronted with judicial misconduct in the courtroom.

The criminal defense lawyer who steps into the courtroom naively assuming the trial judge will perform and behave ethically does his or her client a tremendous disservice. On the other hand, the defense lawyer who anticipates and prepares for judicial incompetence, aggression, and bias will be in a better position to protect the defendant’s important statutory and constitutional rights.