Re: “Judge who wept after victim statement might recuse self,” Aug. 1.
The Times Colonist has reported that Jeremy Melvin Carlson pleaded guilty to sexual interference with a minor. The sentencing judge was brought to tears by a victim impact statement.
The defence has objected to the judge continuing based on “an overall tone of bias” and has asked her to recuse herself from the case. This case raises an important issue for courtroom lawyers and our justice system, so it is important to understand the serious argument the defence is making, but also to understand the damage that unduly restricting judges could cause to the process of decision-making.
The concern and argument of the defence is that the reaction of the judge shows or might tend to show that the judge has made up her mind about the evidence of victim impact before that evidence has been tested or challenged, rendering the rest of the hearing a farce.
The theory of a fair hearing is that a judge should suspend any decision on the facts until all evidence and arguments are in. The human process of deciding is more nuanced. Evidence is evaluated as it arrives and then re-evaluated as it is tested or challenged, or its flaws are pointed out. The judge does not have to have a blank mind until the end, just an open mind.
While I cannot speak to the facts of this case, proving the judge closed her mind or proving a reasonable perception by a litigant that the judge closed her mind will always be a high hurdle. Where the offence is admitted, and the impact evidence seems compelling, an emotional reaction might not be proof of anything other than the compassion and humanity of the judge. We want that in our judges.
As counsel, I value highly the judges who have the confidence and initiative to disclose to counsel during the hearing their preliminary reactions to the evidence and arguments presented. I think such disclosure results in better outcomes and fairer hearings.
Counsel know what points to focus on or what to abandon. A sharing of information, whether through an emotional reaction or an oral expression of the judge’s preliminary thoughts, should not be discouraged.
Such sharing is not an indicator that the judge has closed her mind, even if it might be a strong indicator, after dramatic evidence, that counsel faces an uphill battle.
David S. Mulroney is a lawyer with Mulroney & Company in Victoria.