'Tough Cases' Ed. by Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg The New Press, New York, N.Y., 2018 280 pages, $26.99

The question of what goes into a judge's thinking when rendering decisions is one of the most important, and rarely illuminated, secrets in our judicial system. We ourselves have interviewed judges, and one teaches about what goes into a judge's thinking when deciding cases—the inside baseball if you will. It is not often easy to get judges to discuss their process, influences and thoughts. By providing this collection of 13 essays from, mostly, state court judges across the country, the editors—all judges themselves—have helped lift that shroud of mystery. The collection is an imperative for any litigating attorney, and helps put the work of judging in perspective for anyone who may find themselves embroiled in our legal system.

The focus of our own writing has often been federal judges, who are appointed to their positions for life. As a result, they are accountable to their appellate courts, but cannot be removed by an unsatisfied public. State court judges are different—they are elected and, depending on the state, can be subject to recall or retention elections. Thus, when a state court judge makes an unpopular opinion, it can, quite literally, cost him his job. Yet, state court judges make unpopular decisions all the time, no matter the stakes, as Judge Robert H. Alsdorf (Washington State Superior Court) describes in the book when he ruled a popular tax initiative unconstitutional.

It is important, too, to remember, that when judges make decisions, they do not (cannot ethically) then go to the masses and defend their decision. By virtue of their positions, judges remain mute while misinterpreted, lambasted or just plain criticized. It is for this reason that books such as this are an important addition to our understanding of the judiciary.

Some of the essays discuss cases that have been in the news—Scooter Libby, Terri Schiavo, Elian Gonzalez. Others are largely unknown (and some are told using pseudonyms), and it is an important reminder of the variety of cases that fill a court's docket. As with any collection, some judges are more guarded, some more forthcoming. What is evident throughout, however, is that judges care. They care about the litigants before them and they care about “getting it right,” which doesn't always lead to the same result.

Judge Lizbeth Gonzalez, now an Associate Justice of the Appellate Term, New York, describes just that tension, reminding us, and herself, that “judges don't have limitless powers.” She began her judicial career in New York City's Housing Court. A tenant and his severely autistic son appeared before her. Sensing something was not right, she twice arranged for an emergency evaluation by the Administration for Children's Services to make sure that the boy was safe. Told there were no red flags after investigations and home visits, there was nothing more she could do. She very frankly describes her horror as she read in the newspaper, years later, that the son had been murdered by his father. And Judge Gonzalez bluntly asks herself whether there was anything she could have done when they appeared in her court years before which would have prevented this tragedy, reminding us that judges “too suffer when things go wrong.” Judge Gregory E. Mize (Superior Court, District of Columbia) (an editor of the book) also discusses the limitations on what judges can and cannot do, and how a child neglect matter can stay in a judge's conscience for years after his decisions.

Judge Reggie B. Walton of the U.S District Court for the District of Columbia and a former federal prosecutor, writes about the Scooter Libby trial and what happens when politics comes into play in a case. He struggled with what sentence to give Libby, and notes, almost parenthetically, the threats made against him and his family after imposing that 30-month sentence which, as we know, was immediately commuted by President George W. Bush and Libby was later pardoned by President Donald J. Trump. Another highly publicized case, one of the Elian Gonzalez cases, is put into perspective by Florida Circuit Civil Division Judge Jennifer D. Bailey. She offers a history of Miami and Cuba, and how that political mire impacted public outrage, and informed some of the arguments made by the litigants.

The authors, especially interestingly, take us to Kosovo, where Judge Edward S. Wilson (Minnesota District Court) volunteered to serve on its international court in the aftermath of that country's war. And also to a tribal court with Judge Allie Greenleaf Maldonado (Little Traverse Bay Bands of Odawa Indians, Michigan). She discussed her controversial decision to sentence a persistent drug user to a demanding, but often successful, healing-to-wellness program and the roles played in that decision by her ancestors, tribal elders, tradition and a white eagle feather. Judge Greenleaf Maldonado explains the unique spiritual connection between Native American people and the eagle, and that the feather is believed to be a special gift directly from the Creator. The transformation of the feather from dirty and mangled to clean and white is symbolic, and it is the basis on which the healing-to-wellness program was developed. Just imagine this case in a New York County courthouse.

One of the editors, Judge Frederick H. Weisberg (Superior Court, District of Columbia), delves into a routine landlord/tenant case—except that when the marshal went to evict the occupant, decomposed bodies of her four children were discovered. The case quickly became a murder trial, one which continues to haunt him in large part because of the utter cruelty that occurred in that house. Judge Weisberg describes the “knot” forming in his stomach as the defendant—against the advice of counsel—waived her right to a jury trial so that he had to serve as the sole finder of fact. He discusses his personal rule—his refusal to discuss a non-jury trial with his colleagues. The reasoning is clear: if a jury is told not to discuss the case with anyone, neither should he. Judge Weisberg describes his reasons for detailing his findings in a packed courtroom (the media attention had been enormous), and also his struggle to ultimately accept the defendant's waiver of an insanity defense.

Another of the editors, Judge Russell F. Canan (Superior Court, District of Columbia), candidly discusses his decision to “skirt” the law when, concluding from questions asked by the jury that it would likely convict in a case he believed was deserving of an acquittal, he encouraged plea negotiations while the jury deliberated. Indeed, he accepted a plea even after the jury announced it had reached a verdict. When it became apparent that the jury in fact would have acquitted (through a verdict form left behind), the judge granted the defendant's motion to withdraw the plea, and the government's subsequent motion to dismiss. Would he do it again, Judge Canan bluntly asks of himself. He doesn't think so. To him, justice was done “but at a cost to [his] fidelity to the law.”

Tough Cases offers insight into judging, by allowing judges from varied courtrooms to tell their stories. The eminent Seventh Circuit Judge Richard Posner (ret.) has argued that judges who examine their own judging don't always succeed—they are either too guarded or too self-unaware to truly explore their own thinking. Maybe so. Still, using an imperfect flashlight is far better than an unwillingness to try to shine a light altogether. The editors of Tough Cases and their contributors make clear that they're quite resistant to leaving us in the dark.

Joel Cohen is a former prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan in New York. He is the 'Ethics and Criminal Practice' columnist for the New York Law Journal and the author of 'Blindfolds Off: Judges on How They Decide' (ABA Publishing 2014). Dale J. Degenshein is special counsel at Stroock and contributed to 'Blindfolds Off'.