The Varieties of Disinterestedness: Who should judge the judges?
Note: I am delighted by the outpouring of comments on my previous blog post about the future of the professions. I will address the comments in a series of forthcoming blog posts. Please check back for updates!
For over a decade, my friend Judge Mark Wolf, of the Federal District Court in Boston, has presided over a dauntingly difficult case. Gary Lee Sampson, a white male with a long history of crime, was accused of murdering three people over the course of a week. Though the death penalty is against Massachusetts law (and indeed is opposed by most citizens of Massachusetts), it is considered to be valid in the Federal Courts. In 2003, Sampson was tried, convicted of murder, and sentenced to death. Appeals of the death penalty take a long time, and even if the sentence is upheld, it typically takes a decade or more until the convicted killer is executed.
The appeal process was unfolding when it emerged, in 2008, that one of the jurors on the original trial panel had lied extensively during the empaneling process. Accordingly, Judge Wolf ordered a new trial. The trial was scheduled to begin in September 2015. However, before that date, the prosecution filed a motion asking Judge Wolf to recuse himself from the proceedings. The reason for the request: in the summer of 2014, Judge Wolf had moderated a discussion of a documentary that was critical of conditions in American prisons. While moderating a panel about a domestic issue is a valid and indeed often recommended process for a judge, it turned out that one of the panelists might have been subsequently called as a witness for the defense in the trial.
In a 114-page decision, Judge Wolf reviewed the situation and, as befits any thoughtful jurist, discussed many requests for recusal in previous cases. In the end, he elected not to recuse himself from the case. I found his decision convincing.
In reflecting on this unusual case, I realized that it embodied several discrete instances of the notion of ‘disinterestedness’—a key concept in the professions. Despite its odd derivation, disinterestedness does not mean ‘lack of interest’; it denotes the capacity to put aside one’s own interests and inclinations and to make a decision based on the merits of a case.
It can be argued that lawyers in criminal cases—prosecutors and defenders—are mandated to defend the interests of their clients (in this case, the state and the accused, respectively). That is why we need to have juries and judges—individuals who are presumed to be able to put prejudices and pre-judgments aside and think as objectively as possible about the facts as they are discovered and presented in the courtroom. The juror in the original trial had described herself inaccurately, and so it was assumed that she was not disinterested—hence, the retrial of the case.
But I want to delineate here three other connotations of disinterestedness relevant to this situation:
1. The judge. Like all human beings, the judge has his or her own interests and causes, but he or she cannot carry out the role of judge properly if those interests are allowed to color judgments. Judge Wolf argued that his involvement in a panel discussion did not constitute grounds for recusal.
2. The hypothetical ‘reasonable citizen.’ According to statutes, a judge should only recuse himself if a ‘reasonable citizen’ would have cause to conclude that the behavior in question had the appearance of a conflict of interest. Most of Judge Wolf’s reasoning as spelled out in his lengthy decision entailed an attempt to put himself in the shoes of a reasonable citizen.
3. A friend of the judge. As I stated at the opening of this blog, I (and my family) have long been friends of the Judge and his family. And so, in writing a blog like this, it is reasonable to ask whether I can be disinterested, or whether, consciously or not, I will bias my account in favor of the Judge and his decision in the capital case.
Which of us can be truly described as disinterested? And under what circumstances? Who decides? And what happens if the ideal of disinterestedness vanishes?
Postscript: In early January 2016, after this blog was drafted, Judge Wolf decided to step down from the case. He cited competing commitments and the heavy workload of a death penalty trial with its potential appeals.
–“In Defense of Disinterestedness in the Digital Era,” The Professional Ethicist blog, The Good Project
–“Reclaiming Disinterestedness in the Digital Era,” in From Voice to Influence: Understanding Citizenship in a Digital Age (2015: University of Chicago Press), eds. Danielle Allen and Jennifer S. Light