Essay: Kate Rossmanithon judgement

From Here to There

For a decade I have researched the work of courtroom judges, asking them to speak about how they interpret criminal evidence and the circumstances under which they might commute a person’s sentence. The talk mostly concerns legal procedures and conventions, hypotheticals and propositions – all squarely in the domain of orthodox academic research. At the edge of our conversations linger the more shadowy workings of blame, forgiveness, truth, hunch, intuition. And of wisdom: what wisdom is, does, and should do. What I want to know, but have never found a way to ask, is how judges live with the decisions they make, with the condemnations they deliver, the mercies they may bestow.

To make a decision entails a kind of travel – thought travel – with stopping points and progression. To live with a decision is to feel the sensation of firm ground, of arrival. It is to look back and construct a reassuring story of your mind’s route, a story possessing the stability of structure, of foundation, coupled with the exhilaration of onward movement.

A judge’s job is to make decisions. Judges make big ones every day. A person accused of a crime pleads guilty or is found guilty, and the judge arrives at a sentence, a penalty, on behalf of the state. And yet, despite our knowledge of the ways people deliberate on things, and despite all the debates about sentencing laws and processes, researchers still don’t understand a judge’s journey from no decision to decision. We don’t truly know how judges get from here to there.

Years ago, I used to chat with judges in their chambers. Nowadays we speak on the phone. Recently I have been speaking with a particular judge every three weeks. He tells me that judges seldom speak publicly about the practice of forming judgment, and that this reserve has not served them well. ‘Judges should not remain silent and withdrawn from the world,’ he says. ‘We are not Trappist monks.’

I use a studio on my university campus to record the phone conversations between the judge and me. I am making an audio documentary as part of my research. I have not made one before but have some conviction that human breath, the judge’s breath – not actual breath, not the faint disturbance of air from another person, but its audio traces, the pauses, speech ellipses, vocal amplitude – might carry us towards an as-yet-unreached awareness of what it might be like to think as he does.

The judge and I speak on the phone because he is in Melbourne and I am in Sydney and travel is not permitted. With things the way they are, no-one knows when trips will be allowed. Audio software in the studio enables my voice and the judge’s voice to be recorded on two tracks. It separates us. I don’t need to worry about us talking over one another, nor the judge’s full-bodied laughter, nor the ‘mms’ I emit to encourage his reflections. At the start of our chats, he said ‘These are my own thoughts and words.’ After each interview I sift through his thoughts and words in the transcript, searching for anchor points to which looser musings might be tethered.

Sentencing is a mysterious beast.

It is the hardest part of my job.

Often, I am dealing with our most precious thing: people’s liberty.

The radio executive to whom I have promised the documentary is troubled by my reliance on phone calls with the judge. He is an old acquaintance of mine and is blunt in his warning: this is not how interviews should be conducted. He is concerned about the quality of the audio, and about monotony. A voice on the phone for long stretches can tire a listener. But he has not yet heard the judge speak. The vocal timbre is sonorous despite the phone. Besides, even if the judge and I were in the same city, health orders mean we could not meet.

Sharing close space with other people is not being done right now. This is impacting the judge’s working life more than mine. Courtroom hearings are currently being held via video calls. The judge doesn’t like it.

Remote court hearings are bad for advocacy and bad for judgment.

He likes to look people in the eye. Judgment is intimate. (Should audio-makers look interviewees in the eye? Is that what the radio executive was trying to tell me?) A judge should be able to read facial expressions and body language, and to take other people’s perspectives. (‘It is much harder to lock someone up when they are sitting right in front of you,’ a lawyer I once interviewed told me.) People expect judges to be detached, neutral. The judge doesn’t like the word ‘neutral’. There is no such thing. He is not sure if he agrees with Charlemagne who, twelve hundred years ago, declared that judges should judge justly according to the written law, not according to their own inclinations. Yes, the legal system is based on reliability; and yes, once someone enters a guilty plea or a jury finds them guilty, people should be able to come to the courts and know, more or less, what the sentencing outcome is going to be. (The goal, after all, is to treat like cases alike.) But judges are human.

It is ridiculous to treat judges as having no inclinations or no preconceptions or no ideas.

I wonder about the judge’s inclinations, preconceptions, and ideas, and what happens deep inside him when charged with the task of constructing a person’s punishment.

I write down ideas for my documentary expecting the written word and the audio sphere to have an easy commutative relationship. But I am told by radio makers that I should stop trying to build a podcast on the page. The world of sound, not script, should be my sole playground.

I purchase audio software called Hindenburg. It is for beginners. I open a new file. Visually it is a graph: categories – Speak, Interview, Ambience, Music – appear vertically, while the timecode at the top is set out horizontally. I am amused by the way Speak implies a demand. I drag and drop one of the interviews into a box on the screen. It pops up as a string of glaciers, blue peaks and troughs. I press play and watch a black line press itself, left to right, through the ice, the judge’s voice coming at me. I listen for phrases that draw me close to his lungs and heart.

I keep telling people that my project is about how judges do what they do. But really it is about the schism between the professional guidelines of a judge’s role and the lived task of judging. In formulating sentencing decisions, judges use a process that has been called ‘instinctive synthesis.’ Coined by the Supreme Court of Victoria in the 1970s, the term describes a judge’s process of reasoning: how judges consider the penalty range of an offence together with a mass of other information to settle on a sentence. The practice of sentencing is shaped by rules and principles, but it is so much more than that. (‘Plausible reasoning’ is how a prominent NSW Supreme Court judge wrote about the decision-making practices of the judiciary; such reasoning based on ‘the mind’s ability to grasp feature-rich wholes.’)

Sentencing involves wrapping up deeply human questions in a legal vocabulary. A judge’s reasoning is not like mathematical reasoning. The formulation of a person’s sentence is not a mechanical application. Law is not science. This is because life is more art than science.

That doesn’t mean that a sentence is a piece of whimsy, he says. There is, and should be, a degree of predictability. The discretion of judges is not unfettered. Most judges – in Australia at least – settle on sentences within a similar range for similar cases. Judges whose sentences are unduly lenient or punitive leave themselves open to appeal. ‘Instinctive synthesis’ does not mean judges use blind intuition. The judge tells me he is suspicious of the words ‘instinct’ and ‘intuition’. They misrepresent judicial work. He says the practice of judgment is not an intuitive process: it is a reflective process.

Whenever he sits down to write a sentence, he considers the crime in relation to the relevant legislation. There are different sentence ranges for different types of crimes. He lists for me some questions he asks himself:

What facts am I judging?

Which facts are established?

Which law applies to those facts?

What principles of law am I using to look at those facts and what are the consequences of this application?

And he reflects on his preconceptions of the people involved. He asks himself if he has made a quick instinctive judgment about them – and if so, is it the right judgment.

He tells me that not long ago he sentenced a man for Intentionally Causing Serious Injury, a crime that carries a maximum prison sentence of twenty years. The judge sentenced him to two years’ jail. There was no trial. The man had pleaded guilty. The victim was the man’s own son. This case is an example of the dilemmas that judges face daily, he says. Judges must remind themselves that there isn’t one simple, straightforward, correct answer. That is, after all, why it is called a ‘judgment’.

He finds a copy of the judgment he wrote and relays the details.

The 44-year-old father and the 19-year-old son lived together. The son was taking a gap-year before commencing tertiary study. The father was displeased; his son was not, in his mind, engaged in any useful activity and was lounging around at home. One day the son was in his bedroom. The father entered and they had an argument. The son was playing with the pet cat. The father threatened to kill it. A struggle ensued. The son physically restrained the father from grabbing the animal, and in doing so put him in a headlock that partly blocked the father’s airway. This infuriated the father. As soon as the son released him, the father walked to a toolbox and grabbed an implement – either a knife or a screwdriver (the actual weapon was never established) – and told his son ‘I’m going to get you.’

The son ran to a neighbour’s place and banged on the door for help. No-one answered. The father caught up with him. The son dropped to the ground and curled up in a foetal position to protect himself, but the father hit and stabbed him: once in his upper back which punctured his lung, twice to his head, and once to his thigh. The son bled profusely but remained breathing. The father didn’t call an ambulance. He walked back home, washed and replaced whichever weapon he had used, and waited. When police arrived, he calmly answered their questions. He admitted to losing his temper and attacking his son. He told them he could not control himself, and that the reason he didn’t help his son was because he didn’t know what was happening. He offered to donate his blood to his son if it was needed.

In delivering the sentence, the judge announced that the offence was serious. Children are entitled to protection, care and nurture from their parents, which made a father’s infliction of life-threatening injuries on a son particularly grave. The judge acknowledged that the son’s injuries – physical, mental, emotional – had not properly healed. He accepted that the father pleaded guilty immediately, cooperated with police, and showed regret and remorse. He recognised that the father had no prior criminal history. And he noted that the father had a past.

The father grew up in Saudi Arabia. As a young child he was subjected to abuse from his stepmother. His brother was choked to death by her. His sister died from neglect and violence. He was beaten regularly, often to unconsciousness. When he was eight, he lived in a mountain cave in Afghanistan with his remaining sister, where he helped their father tend sheep. When he was a teenager, he witnessed the execution of his father by the Taliban. Then the Taliban imprisoned him. He was interrogated for 18 months.

The judge accepted the report from the father’s psychologist which stated that he experienced daily recurrent and intrusive distressing recollection of events, dreams, emotional numbness, loss of sleep, persistent irritability, lack of concentration, and hypervigilance in response to events that triggered a memory of past events.

The judge tells me that the individual circumstances with which people come to court are so varied and so complex, and sometimes so bewilderingly difficult, that to apply some sort of strict mathematical exercise to a person’s life, and to the application of the law to that life, is impossible.

I practise using Hindenberg, replaying bits of audio, allowing myself – my mind – to be coupled with the sound. This is done by shutting my eyes and meeting the judge’s voicings in the darkness. My thinking becomes entangled with, and responsive to, the propositions that the material is making. Having my voice and the judge’s voice on two tracks makes editing easier, but it feels dishonest, as if a conversation is the sum of its parts and not an irrevocably combined new thing: a gathering into which mystery is invited.

I fiddle around. I must have pressed the wrong command. The time code on the files no longer matches up. The judge and I are out of synch. There are eight-second silences, no responses. Occasionally he answers a question I have not yet asked.

The judge speaks about growing up in Rome. His father worked for the Italian police and was the head of a forensic lab in charge of crime scene examinations, fingerprint and photographic evidence; he was a gifted photographer who designed cameras and lenses which were used in investigations in Europe, and he told stories at the dinner table of crime and punishment. As a boy the judge was enthralled by details of all those cases, but he didn’t think of studying law.

When he was twelve the family moved to Australia. He wanted to become an architect because he loved design. But maths and science killed him at school, so he asked himself: What else do I really like? The answer was language. Not just reading and writing but speaking and hearing. He imagined combining rhetoric, persuasion, and advocacy with the great theatre of the court and thought to himself, I have to do this for the rest of my life.

He became a barrister and loved how the work involved language and facts and theatre all meshed. It was also challenging personally and physically. In order to perform the job well, you have to take care. You have to work very hard. You have to prepare. No-one is born a great advocate. After twenty-five years, the lifestyle becomes a grind. When you are in the middle of a criminal trial, you think about it constantly. You wake up in the middle of the night and scribble something on a pad next to your bedside. You’re rehearsing your final address in the car as you drive into court. You spend weekends on it, you work late at night. There is a cost. You reach a point where you think, Can I do something more with all this accumulated knowledge?

If you are fortunate enough to be tapped on the shoulder and asked, ‘How about you become a judge?’, very few of us say no.

I log clips of the judge’s audio, bits I notice affect me, trusting that the fact of this affect means something. I label them. Then I begin constructing a sequence, placing clips next to one another. I discover that the juxtapositions create a new idea – voilà! – and I search for more bits that might enhance it.

When I listen to the file days later, I realise I have built, or am trying to build, a shape of consciousness, an arc of articulatable experience. But I play it to a sound-editor friend and he says I have done too fine an edit. Something is off kilter. I have removed the judge’s sighs and false starts and now the mind we are hearing sounds performed, its thoughts racing in a too-glossy cognitive sequence. A listener feels out of breath.

I go back and slowly begin reinstating the judge’s exhales and stammers. I do this by consulting a radio maker’s online lesson on ‘breath’. The teacher says to think about the space around the words. He also says that narration should start with no breath: All the other breaths should be there after the talking starts, but at the beginning the breath is cut out. The same rule applies for the end of narration: no breath. If you leave a breath at the end, if the speaker breathes but says nothing more, it is a ‘breath to nowhere.’

The judge says that if the public wants to understand his reasoning – why he produced that sentence – they need only read his written judgment. Judgments give the community access to judges’ thinking, he says. This notion reassures me: that a person’s written words and phrases express the epistemological business of decision-making.

I read the judge’s judgments. I like how he writes. Cleanly, stylishly he sets out the reasons for his rulings. I am not sure, though, that ‘thought’ is what I am seeing. Do judges document thought? Or do they perform on the page the disciplined action of thinking through something in an apparently logical way? Are judges really awake to the ways in which they encounter the world, and, if so, would they dare record them? Judges are pushed and pulled by all sorts of forces beyond the law: psychological, emotional, physical, institutional, political, environmental. No-one wants to appear before a judge who is hungry or tired. Psychology researchers Daniel Kahneman, Olivia Sibony, and Cass Sunstein call variability in judgments ‘noise’. They say that, taken as a whole, judgments in the criminal courts are ‘noisy’. And judges are buffeted by their own implicit biases and explicit prejudices. ‘Cognitive short-cuts’, the researchers call them.

I ask the judge about this. He says that judges have emotional reactions to cases. I ask if emotion is the enemy of reason. This question is not meant to catch him out. We have discussed our shared interest in the work of Damasio and other neurobiologists and sociologists who argue that emotion is vital to decision-making. But I am wanting him to tell me what it feels like. I remind him how Barack Obama, then a presidential candidate, announced his desire to appoint empathetic judges; how it prompted people to wonder whether empathy should have any role in judging, and how other people pointed out that we cannot escape empathy. Most human beings have empathy. Legal researcher Susan Bandes argues that the question should instead be empathy for whom?

The judge says that most of his colleagues – judges with whom he is friendly – are aware of their own decision-making: they have thoughts, and they watch themselves having the thoughts. The act of sentencing is about putting one’s biases into little drawers, he tells me. He says that judges have their own ideas and beliefs and values, but they are capable of changing their minds. It is rare that judges pick up a brief and walk into a courtroom and think ‘I know what I’m going to do with this bloke.’ Instead, judges are aware that a story is about to be told, the judge says. There might be an impact on a victim that the judge had not realised; there might be a background to the offender that the judge might not have guessed. He says that most judges come to court perfectly willing to be persuaded.

I complete a three-minute sequence of the judge’s utterances. I send it to the radio executive. He needs to know what I’m working on. I receive no reply. I wait for three weeks. Nothing.

The weeks of waiting feel formless. Everyone in Sydney is at home now. No leaving my area nor visiting my university. The weeks are indistinct because they are devoid of change. The days are empty of bounded ‘events’ – ‘events’ being the ingredient the mind needs for laying down memory.

I scrub through audio material, paying attention to bits for further use.

Forgetting is a big part of a judge’s practice, I hear the judge tell me. It is a tactic he uses. It helps with being open-minded and fair. Once he has dealt with a case, he tries to forget all the details. He tries to remove it from his conscious mind and memory. That way he won’t get muddled. Otherwise, he will confuse himself regarding the factual circumstances of each case, and he’ll muck things up. He’ll lead himself astray. The best thing to do is to put a case aside once it’s done. Then he can approach each new case fresh.

Forgetting also helps him avoid vicarious trauma. The cases that judges confront contain pain. He tells me that there is often so much trauma surrounding a case that he can feel like he is gagging on the words he says in court because he knows they won’t provide the sort of closure people speak about. He wonders what ‘closure’ even means. At the same time, when he starts to hear a story of people who have behaved in a shocking way, hearing of appalling childhoods of such deprivation, he thinks this crime they committed must have been an inevitable outcome of having been battered by that sort of depravity as a child.

And so, as a judge, he is confronted by these two realities. He tries to manage a response that is legally correct and that also accords with community values and principles. He does this by sitting quietly with both of those big weights – almost as though there is one on the left and one on the right – and tries to balance them out. He is acutely aware that he is dealing with the drive for compassion and the drive for retribution, and these competing feelings must be dealt with, understood, and dispensed in the correct measure. That’s the beauty of a judge’s work, he says.

He has presided over cases that have left him breathless. Once, he was in court reading aloud a sentence involving a case where a dozen men had recounted the sexual abuse they’d suffered as children. When he summarised their victim impact statement aloud, he literally choked. The newspapers reported later that he was crying. He wasn’t crying. But knew that if he said another word, he would have lost it completely. So, he stood up and said he was leaving the bench for a moment. He went out the back and he took a deep breath and sat quietly for five minutes, composing himself. Then he went back inside and returned to the task.

The biggest proof that he has removed a case effectively from his consciousness is when he can sleep at night. He doesn’t think about it anymore. It is a function of him being satisfied with the decision he has made, without regret. In other words, he has spent enough time reflecting, looking at a case from different angles, that he is able to sleep, to breathe deeply, and he is not returning to it over and over. The trick, he says, is to walk into court prepared to do a sentence without having second thoughts. As soon as you have second thoughts, the best thing to do is to say to yourself: I’m not going to do it today. The single butterfly that is still flying around in your guts is telling you that you are not fully satisfied. You can’t afford to do a sentence with that feeling. Otherwise, you will double-guess yourself and keep asking, Have I done the right thing? Instead, you should take more time to reflect, to look at other angles. Once you do that and you are satisfied, you can move on. The physical sensation is the absence of being troubled. It’s like a release. You have let go. The case doesn’t trouble you anymore.

I receive a reply from the radio executive. Sorry for the delay, he writes. He and his wife had their first baby, and he was on leave. He has listened to the material I sent. He likes what I’ve done. My podcast has potential. He will assign a producer to it. In the meantime, keep going, he tells me. So, I do.

Kate Rossmanith is the recipient of an Australian Research Council Future Fellowship (project no. FT210100241) funded by the Australian Government. The research for this essay was partially funded by Macquarie University’s Centre for Agency, Values and Ethics.

Works Cited

Anleu, S R., Mack, K., Elek, J., and Rottman, D. 2020. ‘Judicial Ethics, Everyday Work and Emotion Management.’ Journal of Law and Courts 8(1): 127-150.

Bandes, S. 2009. ‘Empathetic Judging and the Rule of Law.’ Cardozo Law Review de novo, 133-148.

Bandes, S., Madeira, J., Temple, K., Kidd White. E. (eds). 2021. Research Handbook on Law and Emotion. London & Massachusetts: Edward Elgar Publishing

Barry, B. 2021. How Judges Judge: Empirical Insights into Judicial Decision-Making. London: Routledge.

Birch, C. 2019. ‘David Hodgson’s Theory of Plausible Legal Reasoning.’ In McCay, A. and Sevel, M. (eds). Free Will and the Law: New Perspectives. London: Routledge, 210-228.

Blix, S. B. and Wettergren, A. 2022. Professional Emotions in Court: A Sociological Perspective. Routledge: Abingdon and New York.

Kahneman, D. 2011. Thinking, Fast and Slow. New York: Farrar, Straus and Giroux

Kahneman, D., Sibony, O., Sunstein, C. 2021. Noise: A Flaw in Human Judgment. London: William Collins.

Karstedt, S., Loader, I., Strang, H. (eds). 2011. Emotions, Crime and Justice. UK: Bloomsbury.

Maroney, T. 2011. ‘Emotional Regulation and Judicial Behaviour.’ California Law Review 99(6): 1485-1555.

Osth, A. 2021. ‘How the Groundhog Day grind of lockdown scrambles your memory and sense of time.’ The Conversation, 27 July.

Pearlman, K. 2018. ‘Documentary Film and Distributed Cognition.’ In Brylla, C. & Kramer, M. (eds). Cognitive Theory and Documentary Film. London: Palgrave, 303-319.

Rossmanith, K. 2015. ‘Affect and the Judicial Assessment of Offenders: Feeling and Judging Remorse.’ Body & Society 21 (2): 167-193.

Schrever, C., Hulbert, C., and Sourdin, T., 2019. ‘The Psychological Impact of Judicial Work: Australia’s First Empirical Research Measuring Judicial Stress and Wellbeing,’ Journal of Judicial Administration 28: 141-168.

Tata, C. 2007. ‘Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process.’ Social & Legal Studies 16(3): 425-447.

Tata, C. 2020. Sentencing: A Social Process: Re-thinking Research and Policy. Switzerland: Palgrave Pivot.

Tudor, S., Weisman R., Proeve, M., Rossmanith, K. (eds), 2022. Remorse and Criminal Justice: Multi-Disciplinary Perspectives, London & New York: Routledge.