Judicial officers can at times show mercy.

Is it unethical for a judge, in a summary criminal case or a summary traffic case, to acquit someone, even though the judge knows the person is guilty, for the sole reason of exercising some sort of mercy or to give the person a second chance?

The question is a very interesting one, and perhaps indirectly reflects to some extent on some of the accusations in Philadelphia Traffic Court. Clearly, how a judge decides a case can never be revealed. No judicial officer can ever be forced to reveal his or her decision-making process, as in Leber v. Stretton, 928 A.2d 262 (Pa. Superior, 2007).

In particular, the minor judiciaries are almost like a local ombudsman. The local district justice is oftentimes not a lawyer but someone who grew up in the community most of his or her life. They know the people in the community. They were often very active politically before being elected. In fact, until the last 30 years, when district justices came in, the old justices of peace were very active politically and sometimes held local political or party offices.

This sense of history is important, because the role of a district justice is not only to do justice and be fair, but sometimes to make decisions that perhaps are technically incorrect but go to help someone in need.

For instance, a district judge dismissed a case against a store clerk for selling cigarettes to an undercover minor. The judge, despite the fact it was clear the person sold the cigarettes to the minor, found the clerk not guilty because the defendant was new to the area, had some difficulty with English and had just been hired for the job, which he needed to support his family. The defendant was in his first or second day on the job and he made a mistake in calculating age, perhaps because of language difficulties. If he had been convicted, he would have lost the job. The district judge stated she was finding the person not guilty because of those merciful considerations to keep his job. That decision resulted in a complaint with the Judicial Conduct Board by the local police, which was ultimately resolved and dismissed.

Similarly, another district judge, who was well respected in his county, acquitted a young lady who was caught shoplifting in the local town where she was a camp counselor. The person, who was very repentant, was involved in a spur-of-the-moment act of stupidity. The conviction would have impacted her future in college and her career. The judge recognized the consequences of such a conviction and found her not guilty.

Whether one agrees or disagrees with these decisions, they follow a long tradition found in the minor judiciary, at least in Pennsylvania, where besides a technical finding of guilt, there is a sense of fairness and mercy intermixed in the decision-making processes, including giving deserving people a second chance. A purist would yell and scream it is unfair and another example of why elections should not be allowed for judicial officers. But law is more than a mechanical analysis of evidence by a computer.

Even at the court of common pleas level, at times, judges will find lesser degrees of aggravated assault or, in aggravated assault involving a policeman where it is only a push or shove, find only simple assault, even though technically the elements of the more serious crimes have been made out.

The judicial officer, hearing all of the evidence and getting a sense of the parties, has a right to do justice with mercy. Judicial officers know their community and know their people and there should be nothing wrong with a judicial officer diverting from a strict analysis of the evidence to view other facts that may warrant a not-guilty decision. Sometimes a not-guilty decision where a person is technically guilty provides more justice than otherwise.

Therefore, there is nothing unethical about a judge making a decision based on mercy or other factors if the judge believes it is appropriate and that decision is not the result of improper factors, such as friendship with someone, promises of favors, etc.

Of course, that is not to say that a judge should routinely ignore the evidence and the law. Obviously, if a judge did that, the judge would not be doing his or her job properly. But there is nothing that prohibits judges from showing a little bit of mercy in the ultimate verdict. Mercy should not always be left just to the sentencing process.

That is why the current condemnation of the Philadelphia Traffic Court has to be reconsidered to some extent. Of course, any Traffic Court judge who took money or received favors or benefits from a decision clearly was wrong and should be prosecuted to the full extent of the law. But Philadelphia Traffic Court was well known to be a court where mercy was present. People need driver’s licenses to work and to support their families and to survive in a modern, mobile society. There is nothing wrong with a judge recognizing that concept in appropriate cases and finding the defendant not guilty even though the evidence might warrant a guilty verdict.

There is also nothing wrong if a judge gets a sense of the background of a person, whether it is from a ward leader appearing as a character witness or a community leader appearing to testify to the reputation, as one of the factors in deciding guilt. Traffic Court also was like a great safety valve at times, with a release of the pressure to provide some mercy to people who are in dire straits and really need their driver’s licenses. Further, that is the way traffic court in Philadelphia and in many areas was understood. This was not going to be a strict, by-the-book, guilty-or-not-guilty analysis. The people factor was always going to be built into the decision-making process.

All of the purists who become squeamish at the concept of a political leader appearing in traffic court to help a constituent who desperately needs his or her license ignore the true ombudsman role of a traffic court judge. The changes and reforms suggesting appointed hearing officers would be foolish. Anyone who has gone before hearing officers in Philadelphia to have parking tickets resolved knows that those places are pretty much guilty-plea machines with very little tolerance, even for evidence suggesting a person is not guilty. Clearly, that is not what is wanted.

Also, purists seem to forget that in appointed systems, the political influence and/or money influences are far more insidious and work at different levels. Anyone who believes an appointed system will result in some utopic form of justice hasn’t been in any court system frequently. Studies show only 1 percent of all lawyers try cases regularly. As a result, few people have a true understanding of the court and judicial system.

The bottom line is that a judicial officer has wide discretion and at times can use mercy. That is what the community should expect from a judicial officer, particularly in the minor judiciary. Not only is there a long history and tradition of this mercy giving, but it really comports with true justice. Therefore, to answer the question, it is not unethical. The great tragedy is all of the modern and present condemnations of Philadelphia Traffic Court may well destroy that long-standing tradition of mercy in the verdicts and that would be a great loss.

It is best to avoid representing a party after being a third-party neutral.

I am a lawyer who served as a third-party neutral in a mediation effort that was unsuccessful. One of the participants in the mediation has now hired a partner of mine to begin litigation. Is that permissible?

There are two Rules of Professional Conduct dealing with third-party neutrals and what roles they can play — Rule 1.12 and Rule 2.4. Under Rule 2.4, a third-party neutral has an obligation to inform unrepresented parties if the lawyer is not representing them. The lawyer has an obligation to explain the difference to unrepresented persons between a lawyer who represents a client and the role of a third-party neutral in a mediation or arbitration setting.

Comment 4 to Rule 2.4 notes a lawyer who served as a third-party neutral may be asked to represent a client in the same manner. The comment suggests Rule 1.12 provides the answer.

Under Rule 1.12, judges, arbitrators, mediators or third-party neutrals cannot represent anyone in connection with a matter in which they participated personally and substantially as the third-party neutral, judge, arbitrator or mediator unless all parties give informed consent.

Under Rule 1.12(c), if the lawyer is disqualified because of his or her role as a third-party neutral, then no member of his or her firm can represent one of the participants. Of interest is Rule 1.12(d), which says an arbitrator who is a partisan for a party in a multi-arbitration panel is not prohibited from subsequently representing the parties. If the third-party neutral is prohibited from representing the parties as noted above, no member of his or her firm can continue without a very strict screening process.

Obviously, the better practice is not to represent people after playing the role of a third-party neutral. But if the third-party neutral decides to represent the person who is involved with a partner acting as a third-party neutral, then it can only be done with the strictest of screening processes. •

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.