The Continued Need For An Independent Judiciary

The Continued Need For An Independent Judiciary


Justin J. McShane, JD, F-AIC[i] and Katherine Kennedy, JD[ii]


At the 2012 NCDD summer session, our great friend and liberty’s champion Gary Trichter of Texas asked a simple, but profound question: “Would they ask you to be number 57?” There were 56 delegates to the Continental Congress that actually signed the great Declaration of Independence. What he means by “Would they ask you to be number 57?” is really asking are you the type of lawyer and the type of person that the Founders would ask to be number 57 and sign that document with them? In that document they “mutually pledge[d] to each other our Lives, our Fortunes and our sacred Honor.” They were the true 1%ers of their time and they were willing to give it all up, lose everything, and even possibly die for these sacred principles that we all now enjoy and some take for granted. This article seeks to ask the question of can we be #57.

Independent Judiciary
See the Signers left a space for you… will you be #57?


There is a trend across the United States that has developed whereby judges have increasingly taken a more active role in “early diversion” programs, and or in functions that have been traditionally reserved for the executive. What we note is that judges have become increasingly involved in the negotiation process. Some even put on the record the imposition of a “trial tax” or some draconian consequence if the accused does not select early diversion or some sort of “problem solving court” program such as DUI court notwithstanding the merits of the prosecution’s case. In the rush to increase judicial efficiency, justice gets swept under the rug.

Judicial Independence

In this article, we seek to examine this trend and to identify, from a strictly historical perspective, whether or not these judicial forays in such courts are in keeping with the thoughts of the Founders. The authors acknowledge that there is limited research that seemingly validates the reduction of recidivism rates for those who participate in these programs[iii], but that confuses the issue. The thrust of this article seeks to examine the question of: At what cost are we, as criminal defense attorneys allowing this sometimes not-so-subtle judicial arm-twisting to occur? Should we, for the sake of society, turn a blind eye towards this trend of an overly involved judiciary? Stated simply and purely, is it the proper role of our judiciary to be so actively involved in these DUI courts?

The scope of the issue

According to the NACDL 2009 comprehensive study “America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform” there are over 2,000 problem solving courts across the United States.[iv] According to the National Center for DWI Courts, there were 192 designated DWI Courts as of December 2011.[v] In addition, there were another 406 Hybrid DWI/Drug Courts in operation.[vi] A Hybrid DUI/Drug Court is one that started out as a Drug Court but now also takes DWI Offenders.

Anecdotally, we know through the NCDD listserv that many judges impose a “trial tax” on those who elect to go to trial. This is so even though there is strong SCOTUS precedence that exacting such a “trial tax” is impressible under the Due Process clause.[vii] As far as the authors know, there are no jurisdictions that allow those who exercise their constitutional right to a trial and lose to participate in these courts.

According to The Drug Court Judicial Benchbook, the following is advocated as an appropriate rule for Drug Court Judges:

Core Competency 2 [for a Drug Court Judge]. As part of the drug court team, in appropriate non-court settings (i.e., staffing), the judge advocates for effective incentives and sanctions for program compliance or lack thereof…. Core Competency 2 requires that the judge be at the forefront in identifying appropriate sanctions during the planning stage and in selecting and delivering motivational consequences during the operational stage.[viii]

Is there a problem of judicial independence?


Independent Judiciary
Taught all across the US to children, the basic separation of powers doctrine reserves the enforcement of laws exclusively to the executive branch and not the judiciary

It is right and just to give the benefit of the doubt to all of the jurists who are involved in DUI courts. They are likely the most conscious judges in a given courthouse and really aim to make a difference in their community. They most likely take their charge very seriously, and are very honorable in carrying out their duties. We ought to think the best of them. However, the authors would like to think that perhaps they did not think this all the way through in terms of what exactly they are doing. We would like to think if presented correctly, the judges will realize that the DA driven policy of these DUI courts and their aggressive hyper-involvement in them is not in keeping with historical American principles of an independent judiciary.


While we all should and must give deference to the Court, let’s not mince words. Let us not stand behind platitudes and soft thoughts.


As practiced today in most, if not all, of the jurisdictions that have these courts, the referral to participate in these courts must come from the District Attorney. Certainly referrals can come from jailers, the accused, or the attorney for the accused; but typically, the only avenue for these courts is through the executive—the DA. In some circumstances, there may be an opportunity to petition a given court to evaluate the singular discretion of the DA, but in the end it is entirely DA driven. Most, if not all models, of DUI courts require, encourage, and demand hyper intensive involvement of the Court (read the DUI Court Judge) in carrying out these programs. In essence, the judge becomes the equivalent of a super-dooper probation officer. What is most alarming is that there is a de facto and de jure trial tax to those who seek to legitimately exercise their rights to trial. By choosing trial, they are totally excluded from the potential benefits of such programs.

What would the Founders think?

In our understanding of the history of the United States, if this judicially backed, sanctioned, and enforced District Attorney’s program would be presented to the Founders along with the hyper intensive involvement by the Court, and/or if the current set up of the “trial tax” as mentioned above was also presented to them, they would likely find it to be offensive to the very notion of an independent judiciary.

This strikes as the exact scenario that number seventy-eight of the Federalist Papers was discussing, isn’t it? Alexander Hamilton recognized the importance of an independent judiciary: “The complete independence of the courts of justice is peculiarly essential in a limited constitution.”[ix] In fact, in the Declaration, the lack of judicial independence is decried “He [The King-the Executive] has made Judges dependent on his Will alone…”[x] The Founders understood the need for a system of checks and balances. The Constitution artfully constructed a balance among the three branches of government: executive, legislative, and judicial. An independent judiciary was designed to be an “intermediate body” between the people, and the executive and legislature of the government. Hamilton stated, “The general liberty of the people can never be endangered … so long as the judiciary remains truly distinct from both the legislature and the executive.”[xi] Thomas Paine once wrote, “In monarchies, the King is law. In our democracy, the law is king.”[xii] The branches of government are independent of one another and they always must be. For the courts, becoming subservient to the DA’s Office and their policies, for instance, or abdicating their traditional role of neutral arbiter of the law would be an express route to the rule of men, not laws…

It was once aptly observed, “Simply stated, judicial independence is the ability of a judge to decide a matter free from pressures or inducements.  Additionally, the institution of the judiciary as a whole must also be independent by being separate from government and other concentrations of power. The principal role of an independent judiciary is to uphold the rule of law and to ensure the supremacy of the law.”[xiii]


Can we be number 57? Can we mutually pledge “our Lives, our Fortune, and our Sacred Honor” to uphold the ideals of the Founders? The independent and unbiased judiciary is an essential element of the democracy envisioned by the founders in our Declaration of Independence. It is our job to have the courage to remind jurists that an essential safeguard for individual liberty is a judiciary that stands between the people and the executive, to protect the rights of the accused and even the convicted. In these DUI courts, with the judge actively engaging with the policies of the DA, encouraging court ordered programs at the expense of one’s right to trial, and imposing a trial tax for those who choose to exercise that right, the judge is no longer the neutral party envisioned by the Founders.  It is up to us, as defense attorneys, to stand up for the rights of the accused, and to stand together for the ideals of The Founders.

[i] Attorney McShane is a trial attorney who specializes in using forensic science in defending citizens amongst us who have been accused by the Government. He is nationally known and well-regarded for being a skilled and fierce litigator, but is also well known for his strong understanding and in-depth knowledge in all forms of forensic science. He is a litigating attorney for the Pennsylvania Innocence Project. He has earned Board Certification both in DUI Defense Law by the National College for DUI Defense (the first and only Pennsylvania Lawyer to do so and also was the youngest person in the United States ever to be so certified) and as a Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. He has also earned certification in Forensic Sobriety Assessment, the first attorney to do so in the nation. He is a Sustaining Member, a State Delegate, and Regional Coordinator with the NCDD. He is the 2012 NCDD Dean’s Award recipient. He received the 2012 PADDDA Outstanding Achievement Award. He is a frequent invited guest lecturer at national, state and local seminars that are attended by prosecutors, police, investigators, lawyers, judges, academics, scientists and policy-makers. He has been invited six times to lecture at the ACS National meeting and has presented three times at the 2011, 2012 and 2013 AAFS national meetings. He was named a Fellow with the American Institute of Chemists. The American Chemical Society has named him a Senior Assistant Chromatography Instructor. He serves as the co-chairman of the Forensic Science section of the American Chemical Society-Chemistry and the Law Division. He is the Chairman/CEO of The McShane Firm, LLC, a six attorney criminal defense and DUI law firm. He maintains two blogs: and

[ii] Attorney Kennedy is an associate at The McShane Firm, LLC. She specializes in complex DUI and forensic science cases.

[iii] Fell, James C., Tippetts, A. Scott, and Langston Elizabeth A. “DOT HS 811 450: An Evaluation of the Three Georgia DUI Courts” (The Department of Commerce: The National Highway Safety Traffic Administration) (March 2011); Hiller, M., Saum, C., et al. “Waukesha Alcohol Treatment Court: Process and Outcomes” (last accessed February 18, 2013) and Taylor E., et al. “Michigan DUI Courts Outcome Evaluation Final Report Re-Release: March 2008” (last accessed February 18, 2013)

[iv] Orr, Cythia et al. “America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform” (last accessed February 18, 2013)

[v] “What is DUI Court?” (last accessed February 18, 2013)

[vi] Id.

[vii] See e.g., Bordenkircher v. Hayes 434 U.S. 357 (1978) and its progeny.

[viii] Marlowe, Douglas B. and Meyer, William G. The Drug Court Judicial Benchbook (National Drug Court Institute: Alexandra, VA) (Feb. 2011 edition)

[ix] Plebius (Hamilton, Alexander) “The Judiciary Department” Federalist No 78 (May 28, 1788).

[x] U.S. Declaration of Independence, Paragraph 2, Grievance 9 (1776)

[xi] Plebius (Hamilton, Alexander) “The Judiciary Department” Federalist No 78 (May 28, 1788).

[xii] Paine, T. Common Sense. (Philadelphia: printed) (1776)

[xiii] Kelly, F.B., “An Independent Judiciary: The Core of the Rule of Law” (last accessed February 18, 2013)

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