Fleisher’s behavior, for example, is not only offensive, but threatens adjudicative fairness. A buzz was set off within the Public Defender’s office not long ago when, mid-trial, she demanded that police officers in her court and in the hallway — some 15 cops in all — follow her back into chambers. Fleisher wouldn’t allow either the public defender or the district attorney to accompany them.
Three minutes went by. Four, five. Seven. The cops filed out.
What was that conversation about? No one, except the participants, knows. The trial continued. A defense lawyer told me that if he’d been working that trial, he would have gone ballistic, demanded to get what was discussed on the record, sought a change of venue, pushed to be held in contempt of court — it was, in other words, a troubling disregard of legal procedure that could corrupt a trial’s outcome.
All this begins to make the strange way we elect judges infuriating. Take Fleisher. She wanted to be a judge. She had a close friend, Frank Gillen, who was a Teamster. Governor Ridge threw a bone to the union by appointing her to a vacant Common Pleas judgeship in 2001. She still had to run in the next election, though. So in 2003, the Teamsters blanketed the city, drumming up ward support. Edgar Howard, head of the 10th, one of the big African-American wards, got behind her.
“As a favor to the union,” Howard explains. Whether it’s a union pulling the levers, or consultants, it’s all about deals. And what’s infuriating is the way operatives like Howard dismiss it with a shrug: “That’s how you work.”
SURPRISINGLY, IT’S WHEN I watch Benjamin Lerner — small, white-haired, 67 years old, by all accounts one of our best Common Pleas judges — preside over a murder trial one morning in early September in Courtroom 1105 of the Criminal Justice Center that the current problem is fully brought home. It’s a waiver trial — meaning no jury, just Lerner hearing the case of a man who shot and killed another man in a bar because he feared that the victim, who was acting aggressively and strangely toward him, was leaving to get a gun and do him in. What happened isn’t in dispute — but Lerner must determine whether the killer’s fear was justified, which could make it voluntary manslaughter, or whether it’s first-degree, premeditated murder.
That afternoon, Lerner carefully tells his courtroom how he made his decision. He says that as judge, it’s his job not only “to look at the facts, but [to] look into the mind of the defendant at the time he pulled that trigger.”
With that, I remember something Ellen Green-Ceisler, one of the four Common Pleas judges elected in ’07, told me: After her first few months on the bench, she realized that the most important quality a judge must have is the ability to read people, to understand who is telling the truth and who is not, in a sense to look into the mind of the person before her.