SPIRITUALITY AND THE LAW PART II: JUDGE v. JUDGE NOT, by Lisa MJ Spillman

The first part of this series appeared in the January, 2013 edition of CITATIONS.

I was driving through an unfrequented intersection a few years ago when my five year- old daughter blurted, “Hey Mom, this is where that idiot was.” Gulp. Yes, this is where he was. While grateful that I had not chosen a more profane set of words the prior year for that unsafe driver, I was not proud that I had taught my daughter to judge the guy an idiot. So, as judging is in my blood, I am writing another article on Spirituality and the Law, this time, on some legal and spiritual aspects of judgment.

Spiritual leaders and religious doctrine have had a lot to say about judgment. “Give your Muslim brother the benefit of the doubt 70 times before judging him.”

The Holy Prophet (S.A.W.S.).

“If you judge people, you have no time to love them.”

-Mother Theresa

“A man should not act as a judge either for someone he loves or for someone he hates. For no man can see the guilt of someone he loves or the good qualities in someone he hates.”

-Babylonian Talmud, tractate Ketubbot.

“Do not judge, or you too will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.”

-Jesus, as quoted in Matthew 7:1-2, New International Version.

 Even Shakespeare had a dog in the fight:

“Give every man thy ear, but few thy voice; Take each man’s censure, but reserve thy judgment.”

-Hamlet

So, one simple question that arises is, “Why is it that judges who have spiritual beliefs that it is important not to judge others, judge others?” Well, first of all, they must judge. Judges judge. But, more significantly, it would appear that a judge cannot be influenced or controlled by his or her religious or spiritual beliefs. Judges have to be “independent.” The preamble to the California Code of Judicial Ethics reads: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us.” Canon 1 of that code says, “An independent, impartial, and honorable judiciary is indispensable to justice in our society.” Independence is defined in that code as “a judge’s freedom from influence or controls other than those established by law.” Moreover, a judge cannot be biased based on religion (Canon 3 subdivision (B) (5)) and must ensure lawyers in proceedings before the judge refrain from bias or prejudice based on religion. (Canon 3 subdivision (B)(6)).

In my interview with Justice Paul Coffee about spirituality and the law, I asked him how he reconciles judging with “do not judge.” He said that the state of California was paying him to judge and theology says not to judge. This posed a conflict, the resolution of which is unique to each matter. Once he is involved with the specifics of the controversy, he is looking for what is right. Justice Coffee said that much of appellate work is tilled ground. I took that to mean that the law is clear, so he applies the law to the facts and comes back with a just result. But, as a judge,  particularly at the Court of Appeal, Justice Coffee sometimes had to “sleep on it,” and really think about what is right to do. If he could not sleep with a particular resolution, that would not be the right decision to make.

So it is clear from talking to Justice Coffee  and from the Code of Judicial Ethics that the spiritual principles against judging do not, and indeed, must not prevent judges from doing their jobs.

But, is that the end of the story? Isn’t judging really more than that? There is ‘judging’ from a legal sense, such as determining whether a person has committed an act the law has defined to be erroneous or criminal, and then determining the appropriate remedy or  punishment. But there is also ‘judging,’ as in assessing the value or worth of another. Isn’t it this latter concept that the spiritual leaders rally against?

I talked with Lutheran Pastor Brian Elster of  Oxnard about judgment. He said that the judgments by the courts were appropriate and need to happen to preserve the public good and safety. The problem occurs when people judge the worth of a person, post-judgment or post-conviction. Such judgments as to another’s worth are not in the common good but are arrogant presumptions based on imperfect information which puts us in a God-like position. Moreover, the “throw away the key” mentality, that convicts are of no worth, so we are better than they are, is a fallacy because we are all broken.

I agree with Pastor Elster. First, getting in  trouble with the law does not mean we are a person of little or no worth. How many of us have broken a law and not gotten caught or not gotten punished for it? I certainly have. I recall a Wyoming police officer writing me but a warning ticket, leaning to the open window, and telling my daughter to scold me if I go too fast again. But does the fact that I did not get punished make me better than those who have broken a law and been sentenced? No. Would I have less worth had I been punished? No.

Second, most of my practice involves representing indigent criminal appellantsconvicted felons. I would make an educated guess that most people behind bars were not born with a silver spoon in his or her mouth. Indeed, their hunger was great. And a great many witnessed unspeakable violence in their own homes as children.

I bring this up not to excuse any later criminal behavior, or to advocate for lifetime welfare programs, for I firmly believe in the ability of a mentally fit adult to choose legal and productive behaviors so as to lift oneself out of poverty and a life of crime, with support from the community, as needed, at times. My  point is that most of these guys, from day one, had a lot more hell and chaos to overcome in their lives than most of us will ever have or know.

So “judge not” and coexist peacefully. Let us not judge the value of the person, but her or his behavior. Let us not judge those behind bars as worthless. And once a person  has paid the legal-price for the erroneous  or wrong behavior – be it a fine, damages or imprisonment – let Ventura County be a place for those who want to change their behavior and live law-abiding, productive lives free from the judgment of their worth by others.

Lisa Spillman is an attorney in Ventura. She handles criminal appeals and habeas corpus petitions.

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