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“Saddam Hussein was a dictator.” We can say that with impunity (not to mention fearlessness)-for a number of reasons. One, the whole world knows, and knew before his guilty verdict and death sentence on Nov. 5, that he is guilty of being a dictator. Two, Hussein’s chances of evading his death sentence are as good as Hitler’s would have been had he bothered to hang around for Nuremberg. Three-and more pertinent here-we weren’t the chief judge presiding over any of his trials. In September, the chief judge presiding at a different Hussein trial from the one that reached the verdict was unceremoniously thrown off the case by the prime minister of Iraq-not even a courtroom participant-for having stated to Hussein in the middle of the trial on the record: “You were not a dictator.” The judge’s “curious” comment, to be generous, was in response to Hussein’s blurting out to a prosecution witness that if he was indeed a dictator, he would not have granted an audience to a poor Kurdish man who had begged him for his life and those of his family. How logical! Anyway, days earlier, the prosecutor had unsuccessfully moved to disqualify the judge because he had made that notorious comment. And needless to say, this recusal motion was clearly a reasonable remedy that we, here in the United States, could relate to and might actually seek to invoke in the face of such a foolish comment by a trial judge in the middle of a trial so critical to a nation suffering in such civil strife. What’s this all about? Does it mean that the only judge qualified to preside over a trial of a significant public figure is a person who’s been living under a rock for the last 30 years and has no opinion on the subject? Or does it mean something else altogether? While we cannot be very proud of a so-called democracy-of-our-creation dismissing a judge in this high-handed manner, and while it is extremely difficult for a U.S. judge to be thrown off a case in the midst of a trial for much more blatantly improper remarks, the kinds of threats and inappropriate communications that have recently been visited upon U.S. judges suggests that Iraq is a lot closer to us than we might wish to think. One has only to recall ex-House Majority Leader Tom DeLay’s astonishing threats against the federal judges who upheld state court rulings that allowed comatose Terri Schiavo to die, after Congress enacted a law conferring them with jurisdiction over her case; or the outlandish remarks by an Alabama Supreme Court judge urging his colleagues not to follow U.S. Supreme Court precedents, and ridiculing the “liberals” on the Supreme Court who “look down on pro-family policies”; or legislation passed by the House of Representatives barring the Supreme Court from considering First Amendment challenges to the Pledge of Allegiance. And consider as well, although it just failed, the South Dakota state constitutional amendment advocated by a national group called “JAIL 4 Judges,” which sought to eliminate judicial immunity-but with the far more sinister purpose of destroying judicial independence. Nor can we forget the antics of former Attorney General John Ashcroft, who interpreted the so-called Feeney Amendment as requiring the U.S. Department of Justice to keep a running log of those federal judges who applied the sentencing guidelines to grant downward departures to criminal defendants. Judicial process can cure errors This is not to say that judges should be exempt from criticism for their conduct, or that judges should not be sanctioned when they stray from acceptable norms of judicial conduct. A judge’s abusive, disparaging, hostile or partisan conduct during a trial will be stringently reviewed by an appellate tribunal, particularly if committed in the jury’s presence, and if sufficiently prejudicial, will result in the vacating of the judgment. Indeed, it is fairly obvious that if Judge Lance Ito in the O.J. Simpson trial had stated to the defendant, “You are not a murderer,” a mistrial would surely have resulted, and if not, the ensuing public clamor would have been deafening. We choose judges, by appointment or election, because we believe they possess the necessary qualifications for the job. Sometimes, to be sure, the choices made are miserably wrong. Still, for the justice system to function properly, and to retain the confidence of the people, we must rely on the judicial process to correct mistakes and misconduct. Legislation or executive action that dictates to judges how to adjudicate, and dispenses with proper protocols of justice, is wrong-headed and hardly the way to go. Joel Cohen is a partner at Stroock & Stroock & Lavan in New York who practices white-collar criminal law. Bennett L. Gershman is a professor at Pace University School of Law and the author of Trial Error and Misconduct (Lexis Law Publishing 1997).

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