Judges have a duty to be fair and impartial but it is perfectly reasonable for them to use personal experiences and beliefs when making decisions. The same is true for anyone who might be on a jury. There is a duty to be fair but that does not mean one has to disregard everything that makes them the person that they are. To do so would be contrary to our humanity.
In the context of the jury trial, each side is permitted to remove a certain amount of individuals from the jury panel. When a juror is removed from the panel on this basis it does not mean they could not individually be fair. The purpose is to obtain a more balanced and fair jury panel based on the circumstances of each individual case.
Until recently, the law of Arizona also permitted each side one opportunity to ask for a different judge. Asking for a different judge did not imply the assigned judge could not be fair. It only meant one of the parties felt the circumstances of the individual case justified the assignment of another judge. Reasonable minds can disagree on the facts.
For example, in a DUI investigation, some judges may think passing the sobriety tests justifies dismissing a case before trial. Others may believe the odor of alcohol on one’s breath and the admission of having a few drinks before driving is enough to leave it up to the jury to decide. Both interpretations are justified but if your blood alcohol level is above .08, you do not want the case going to a jury. You can be convicted on your alcohol content alone even if the jury believes you were ok to drive. It is imperative to get that dismissal before it goes to the jury. A knowledgeable attorney aware of a judge’s opinion on an issue could previously ask for a different judge before the case is heard.
Here comes Covid-19. To facilitate the reopening of the justice system, the Arizona Supreme Court suspended the right to change judges until the end of the year. Unlike before, you will not be able to ask for a different judge even if you believe he or she will not be fair to your version of the facts or law. The solution to this dilemma is to understand your assigned judges and find a way to best convince them to see your side of the story.
It has always been my belief that the change of judge should be used sparingly. It was a nice feature to have but I believe I obtained better results for my clients by understanding the various judges and learning what works and what does not rather than asking for a different judge. You only got one change and there was no guarantee your next judge would be more favorable to your issue.
I have litigated numerous contested issues before proceeding to trial. When judges rule on one of my issues I keep track of their reasoning. This allows me to be better prepared each time I appear in front of a particular judge knowing what needs to be said in order to best present the argument. If it is a judge I have not regularly appeared in front of, I research prior decisions the judge has made on similar issues. If I know a judge has previously disagreed with an argument before then it is pointless to make the same argument again. Something different must be tried—something creative—something that I believe the judge can agree with without compromising their personal beliefs or interpretation of the law.
With a respectful and creative argument, I believe I can obtain favorable results regardless of the judge. Judges may lean one way or the other in their personal beliefs but they take their duty to remain impartial seriously. Even the most prosecutor friendly judge will side with the defense on occasion and it is my job to come up with an argument that works for you.