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Can Non-Lawyer Judge Throw You in Jail? Supreme Court May Decide


This month, all eyes have been on President Elect Trump’s cabinet picks. Many of us continue to look on with horror, our worst fears are realized, as cabinet pick after cabinet pick is filled with nominees lacking experience, knowledge, or respect for the corresponding position.   Generally, we want our government to be staffed by people who have significant first-hand knowledge about the matters likely to come before them. So it’s a little weird that we would allow a judge presiding over a criminal case to have no personal experience studying or practicing criminal law, isn’t it?

That’s essentially the question of a case for which a cert petition is currently pending before the Supreme Court. Davis v. Montana is a petition filed on behalf of criminal defendants Kelly Davis and Shane Sherman; these defendants were tried, convicted, and incarcerated in Montana before a judge who, prior to taking the bench, had been a prevention specialist in a dependency program, and a cashier and meat wrapper at a grocery store. Wait, what?

Yep. You might have assumed that all criminal judges are lawyers, but you’d be wrong — especially in Montana. Back when America was a young country and lawyers were scarce, plenty of judges were non-lawyers. But as time marched on, and LSAT-prep became big business, non-lawyer judges were primarily relegated to traffic court, small-claims court, and some minor (non-jail-worthy) misdemeanors. In 2016, no state allows a non-lawyer judge to preside over a felony case; obviously, there’s some unity in the belief that the legal system should be operated by legal professionals. But while the rest of the country has consistently reduced the authority of judges who are not lawyers, Montana has gone in an absurdly opposite direction.

Montana, in 2003, adopted a new statute, the effect of which was to remove certain criminal defendants’ rights to a new trial before a judge who is a lawyer. According to the cert petition, Montana’s rationale was frugality and efficiency. Sure. That makes sense. It’s definitely more efficient for Montanans to stand trial before a judge who studied law for less time (28 hours of “judge school”) than the state requires barbers to study cosmetology (1,500 hours).

The issue of the authority of non-lawyer judges has been before the Supreme Court before. In 1976, SCOTUS decided in North v. Russell that a criminal defendant’s due process rights are not violated when that defendant is tried by a non-lawyer and has a right to a new trial before a judge who is a lawyer. And that certainly sounds reasonable. If the criminal defendant was entitled to a do-over before a judge who once pored over Pennoyer and Palsgraf, he should be good to go whether he exercised that option or not. But when a criminal defendant is sentenced to jail-time by a judge who wouldn’t know Res Judicata from Hakuna Matata, that doesn’t quite comport with the process I expect to be due.

Montana isn’t alone here, either. Arizona, Colorado, Montana, Nevada, New York, South Carolina, Texas and Wyoming all have similar policies. Montana is just the only one that adopted recent legislation moving due process in the wrong direction. As with all petitions for certiorari, Davis v. Montana predicates the need for Supreme Court review on the split in the lower circuits. While a circuit split almost always indicates compelling arguments on both sides of an issue, I’m finding it hard to believe that a bench full of Harvard law alumni is going to get behind the fairness of jail sentences handed down by a meat-wrapper.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos