By Collin County Criminal Defense Lawyer Jeremy Rosenthal
We hear and read a lot about “activist judges” or a Judge who re-writes the law from the bench.
Judges make popular targets for groups such as politicians or insurance companies who have a vested interest in stoking the public anger.
A surprising attitude I’ll read about or see either in the news media or on social network cites is some think Judges make things easier for people charged with crime. They think Judges somehow “re-write the law” to help guilty people go free or to make things easier for people charged with a crime.
Sadly, if anything is true, it is the opposite. Judges don’t like crime, they don’t like criminals, and most in Texas campaign on being tough on crime. And if they’re being creative with the law — they are doing so IN FAVOR of law enforcement, not in favor those accused.
Consider statistics of our State courts of appeal. They are abysmal when it comes to ruling in favor of those accused.
Here’s a prime example: A judge who has to legally toss out a case against a sex offender lest they be reversed might look for any excuse they can to save their own skin and keep the offender on the hook. If they do so, they’ll look to an area on which they think the court of appeals will uphold them. If the courts of appeals back up the original judge — presto chango- Judges have found a new area to skirt an uncomfortable rule.
We have many wonderful Judges in Texas. I’m not suggesting otherwise. And to be fair — the laws often do put judges in extremely uncomfortable spots.
The US Constitution is a contract between the government and the people designed to protect the people from the government. It was written keeping in mind the masses will always put individuals in jeopardy to preserve their own safety — and that they’ll use the tools of government to do so.
The framers knew there would be constant pressure from the people on their own government to keep the people safe even at the risk of individual’s liberty. But the constitution is often a minimal or bare-bones protection for someone accused of something heinous. Lawmakers, Judges, and law enforcement all too often rationalize these individuals are lucky to get even minimal protection. But those are exactly the people who need it the most.
Next time you hear someone say a Judge re-write’s the law from the bench, think twice. If they say it is re-written to help a criminal defendant — quit listening.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any topic you should contact an attorney directly.