At least in the United States, judges are mostly selected from among prosecutors. Defense attorneys, including public defenders, aren’t very well represented on the bench. General judgment aside, this a serious systemic bias of the system.
What mechanism makes it a problem? I can see why it would perhaps be most fair for an individual to have one of a former prosecutor and former public defender presiding over the individual’s original trial and appeal. The more judges make binding rules for the system, rather than in their courtroom, the more of a problem this would be (though I am under the impression this is not the case).
I see it as a problem in the sense that prosecutors and defenders are conditioned to view the judicial process in somewhat different ways, and I don’t think that judges can simply wave away years of conditioning to see things from a prosecutorial point of view.
Individual bias isn’t great either, but at least there the bias isn’t necessarily going to be in the same direction at each step of the process. The fact that the trial judge and all the appeals court judges are all likely to be former prosecutors, on the other hand, cuts the same direction at every step.
Individual bias isn’t great either, but at least...
I think this is a legitimate but small concern.
If half of all judges at each level were former prosecutors and half former defense attorneys, half of those who had a trial and one level of appeal would face the same bias at each step (assuming even promotion, and unless this was specifically corrected for).
A more fair system than evening out representation would be embracing a type of bias and having formal rules counteracting that, e.g. have all judges be former prosecutors and have a set of judicial ruels favoring defendants.
I think it likely you are being blinded to the gross unfairness of having an individual tried under a former defense attorney when the rules are written with no regard for bias or assuming the average judicial bias is in favor of the prosecutor, or under a former prosecutor even if half of all judges are former defense attorneys, by the legitimate point that fairness would be increased if each defendant had at most one of each type between trial and appeal.
This is especially true considering how much less important appeal is than an original trial.
At least in the United States, judges are mostly selected from among prosecutors. Defense attorneys, including public defenders, aren’t very well represented on the bench. General judgment aside, this a serious systemic bias of the system.
What mechanism makes it a problem? I can see why it would perhaps be most fair for an individual to have one of a former prosecutor and former public defender presiding over the individual’s original trial and appeal. The more judges make binding rules for the system, rather than in their courtroom, the more of a problem this would be (though I am under the impression this is not the case).
But why are individual differences in judicial bias OK?
I see it as a problem in the sense that prosecutors and defenders are conditioned to view the judicial process in somewhat different ways, and I don’t think that judges can simply wave away years of conditioning to see things from a prosecutorial point of view.
Individual bias isn’t great either, but at least there the bias isn’t necessarily going to be in the same direction at each step of the process. The fact that the trial judge and all the appeals court judges are all likely to be former prosecutors, on the other hand, cuts the same direction at every step.
I think this is a legitimate but small concern.
If half of all judges at each level were former prosecutors and half former defense attorneys, half of those who had a trial and one level of appeal would face the same bias at each step (assuming even promotion, and unless this was specifically corrected for).
A more fair system than evening out representation would be embracing a type of bias and having formal rules counteracting that, e.g. have all judges be former prosecutors and have a set of judicial ruels favoring defendants.
I think it likely you are being blinded to the gross unfairness of having an individual tried under a former defense attorney when the rules are written with no regard for bias or assuming the average judicial bias is in favor of the prosecutor, or under a former prosecutor even if half of all judges are former defense attorneys, by the legitimate point that fairness would be increased if each defendant had at most one of each type between trial and appeal.
This is especially true considering how much less important appeal is than an original trial.