Two days ago in a post about judicial pay I said that most judges are good at what they do. Sometimes, though, their judgment is suspect. As reported in the New York Law Journal on January 8 (subscription required), in October 2004 New York trial court Judge Joel M. Goldberg was presiding over a defendant Damian Nicholson’s jury trial on robbery charges. At 3:30 PM on Friday on the first day of jury deliberations the judge faced one juror’s need to leave for a 4:00 PM appointment and another juror’s conflict that would require postponing deliberations until the following Tuesday. Judge Goldberg gave Nicholson a choice: “waive his right to a jury trial[, . . . ] accept the judge’s verdict of guilty on” the lesser included offense of third-degree robbery, and spend a year in prison. If the jury found him guilty Nicholson would face a minimum of five years in prison. The jury told the judge it had reached a verdict. The judge allowed Nicholson to confer with his lawyer and mother for “a few moments” and said “I hate to say this is a game show . . . So five minutes to four I don’t know what to say but the options are yours.” While Nicholson waived his options the judge told him he could not keep the jury waiting much longer, that if Nicholson wanted to waive the jury trial and accept the judge’s verdict “you will have to do it now.” Nicholson waived the jury trial and took the year sentence, serving eleven months. His lawyer learned later that the jury would have acquitted Nicholson. On appeal the court reversed the judgment because the deal Goldberg offered Nicholson was “‘improper” and “coercive.'” The appellate court’s opinion said “[w]hile the trial court was authorized to promise to impose a minimum sentence if the defendant opted for a nonjury trial, no authority existed for the trial court to prematurely determine guilt and the sentence as a condition of the waiver.”
I don’t conclude that Justice Goldberg is a bad judge. I don’t see any meanness in his motivation. He was too focused on the clock and the imposition on the jurors if he extended deliberations to the following week. His seat-of-the-pants solution did, in essence, convert Nicholson’s dilemma into a game-show choice. Fine for The Price is Right, but a denial of due process in a criminal trial. He made a very human error of judgment the type that we all make without consequence because our actions are not subject to appellate review.