Lisa Falkenberg's Column Today

I'm a little late on the draw on commenting on Lisa Falkenberg's column this morning about the actions of Judge Kevin Fine in a recent sexual assault trial.

I think it is a very good column and makes a very good point, and I say that despite the fact that I like Judge Fine, and Judge Fine has never been anything but kind to me (both as a lawyer and now as a Judge).

The problem is that sometimes when shifting into a new job position, one needs to learn that the role you used to play isn't the one you will be playing any longer. I can certainly sympathize, having shifted from a prosecutor to a defense attorney right around the same time that Judge Fine switched from defense attorney to Judge. Although I've been criticized for blogging like a prosecutor, I think that all of my clients would gladly tell you that once we're in the courtroom, I am able to put my past career entirely behind me.

I'm there to represent them wholeheartedly.

If I didn't do that, I would have a very short career as a defense attorney ahead of me.

In the trial case mentioned by Lisa in her column, it would appear that Judge Fine was having some difficulty in putting his past career as a member of the Defense Bar behind him.

And as Lisa aptly points out, he just can't do that.

It doesn't mean that Judge Fine is a bad person. I can attest that he is a very good person who is truly trying to make a difference in the Criminal Justice System. Unfortunately, it sometimes results in some unorthodox methods that lead to complications that should not be coming from the Bench.

In this case, a line was crossed, and major credit should go to prosecutor Ed McClees for standing up for the Complainant in his case. Lisa described it:

The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange.

Objecting to a Judge (as opposed to Opposing Counsel) is a gutsy move, and not a lot of Prosecutors (or Defense Attorneys, for that matter) would have been brave enough to do so. A lawyer can quickly find himself in jail for objecting to a judge.

But Ed clearly understood the definition and parameters of his job, and he did the right thing despite potentially being held in contempt. In an Office that seems to rapidly be losing a lot of its Leadership, I think younger prosecutors can look to Ed as somebody who can lead them in the right direction and by example. It is very easy to stand up for something when you are surrounded by people. It's much more difficult to stand up alone at counsel table, which is exactly what Ed did.

Judge Fine was a very talented and brilliant Defense Attorney in the years he spent before becoming a Judge. I have no doubt that he has the potential to be a talented and brilliant Judge, as well. But I think he's going to have to let go of the past life to progress to the new one.

I have no doubt he would have passed along the same advice to me if I was still behaving like a prosecutor in his courtroom.

At least I hope he would.