Joel Jacobsen

In every town of any size, there's at least one judge of whom it's conventionally said: "Just make sure you put your important witnesses on before lunch."  Because after lunch the judge's alcohol-fuzzed evidentiary rulings become erratic.  The lawyers will crack jokes under their breath about it, but then they deal with it, more or less the same way they deal with stupid judges, or a malfunctioning PA system.  They work around it.

(One of the disillusioning moments of every lawyer's first year of practice is the realization that some judge cannot follow your perfectly clear and well-supported argument.  As a law student you're taught that judges are fonts of wisdom.  As, indeed, some are.)

Drinking has been an accepted part of legal culture at least since the day of the tavern-haunting lawyers parodied in Joseph Andrews (book II, chapter 3).  The ABA says the alcoholism rate among lawyers is twice the rate in the general population.  I'm surprised it's only double.  The law is a liquid profession.

Shortly before the holidays the Washington Post ran this chat about drunk driving with a researcher at the National Highway Traffic Safety Commission.  As the researcher explains, the number of DUI-related deaths remains very high, over 16,000 a year in the United States.  The issue gets a lot of ink and a lot of air time.  Yet the single biggest roadblock to DUI enforcement is never mentioned in public.  It's this: judges go easy on the crimes they themselves commit.

It's a safe bet that most American judges have driven drunk one time or another.   The experiences of Judge Davis and Justice Resnick, detailed in post 36 and post 33, are unusual only in that the cops who stopped them had the resolve to report them.  Those judges who have never committed the crime almost certainly know family members or friends who have. 

It's natural that judges identify with drunk drivers.  And we all know that when you identify with a person, you want to help that person out.  That dynamic plays itself out in America's courtrooms every day.  That's why DUI dismissal rates are reduced when observers are in the courtroom -- the sense of identification is interrupted when the judge gets self-conscious.  But it's also why dismissal is rare in cases involving repeat offenders or grossly high BACs.  What judge wants to identify with an out-and-out, abject loser? 

The more the defendant resembles the judge (or the way the judge remembers himself back in his college days), the greater the likelihood of dismissal or acquittal.