by: Eric C. Crawford (note that this opinion is mine and does not necessarily reflect the position of Crawford and Boyle, LLC or its other employees)
In Georgia counties below a certain population threshold, there are three types of courts that can hear criminal matters where the judge is not required to be a lawyer: magistrate, municipal, and probate courts. The theory behind this practice is that Georgia has 159 counties (second only behind Texas), and persons elected or appointed to these judgeships must live in the county in which they are appointed. Accordingly, in some of the smaller, more rural counties, there are not enough lawyers around to fill all of the vacant positions. And really, who is going to complain about not having enough lawyers in their county?
However, where there are a sufficient amount of lawyers in a county such that a lawyer is in a contested race against a non-lawyer unless the lawyer is absolutely unqualified for the position I’m going to support and vote for him or her. And, believe it or not, it’s not just because I went to law school: there is an actual story behind my opposition to non-lawyers on the bench.
In July, 2003, the Georgia “Move Over” law went into effect. On July 31, I happened to be traveling down GA-316 through Barrow County to visit my then girlfriend, now wife, Cindy, in Atlanta. I wasn’t speeding, wasn’t breaking any traffic laws, but was pulled over for a move over violation for the law that had just gone into effect. Being in law school at the time, I took my citation and researched the law and came up with a rather clever statutory construction argument regarding the definition of an “authorized emergency vehicle,” an argument that is still being used by attorneys today. Barrow County stalwart attorney Billy Healan was kind enough to give me some pointers and the lay of the land prior to my court date.
I came to court; the officer presented his case, then after I cross-examined him I launched into my statutory construction argument complete with references to other statutes and supporting caselaw. Following my argument, the judge recessed to chambers and called another probate judge and an official with the DMV. She returned to the bench and indicated that while I had “created lots of questions,” that I “had not proved” my “case beyond a reasonable doubt.”
For those of you who have lived in the United States for any period of time and have even a vague understanding of the American Justice System, you know that there is no burden on the defense to prove anything. The burden is on the prosecution to prove their case beyond a reasonable doubt. After doing some research, I found out that the judge was not an attorney, which explained some of the confusion. However, if someone does not understand that basic principle of our system, there is no way they should be deciding guilt or innocence, sentencing in criminal cases, whether a search warrant is sufficient, or whether a complex will is correctly drafted.
Yes, I know that I cannot ascribe this level of incompetence to anyone without a law degree seeking office. I know some very fine judges who do not have a law degree. And yes, I know that there are incompetent attorneys and crazy attorneys out there that should not ever be placed in a position of power. However, when my client’s freedom and/or finances are at stake, I want someone who has studied the law and practiced law making the decisions in the case. I do not want to have to spend my time trying to teach the judge about such basic concepts as “burden of proof” and “presumption of innocence” when I need to be arguing the finer points of more complicated issues of law.
As a private citizen, as a representative of an accused, as an attorney, as a former prosecutor, or as the accused myself, I want, no, I deserve nothing less than having a judge with a law degree hearing and deciding my case.
And, for those of you concerned about my case, it was overturned on appeal to Superior Court. Had a lawyer been on the bench at the time of my trial, neither I nor the State would have had to waste time and resources on an appeal, and I would have won a whole lot sooner.