Facts!'' Samuel Goldwyn is supposed to have snorted. ''Don't bother me with facts when my mind is made up.'' Most people think judges are immune to this aversion to data, and judges like to foster the belief.
In truth, judges try very hard to base their decisions on a careful accumulation of fact.
In our adversary system, however, the amount of relevant information at a judge's disposal depends not on his own investigatory and inquisitorial skill, but rather on the abilities, energies, and strategies of the opposing lawyers.
The judge's vulnerability becomes particularly noticeable in that mysterious process universally known as plea bargaining, whose very name conjures visions of unsavory dealing, primed to save a shrewdly lawyered miscreant from the deserving jaws of justice. Indeed, the slang phrase ''cop a plea,'' as commonly understood, means that the crook has succeeded in persuading a judge to award lesser punishment than the heinous acts merit.
Properly understood, however, plea bargaining is neither good nor bad. Like New England winters, it is merely an unavoidable fact of life. If plea bargaining did not exist, someone would have to invent it.
First, the number of criminal cases awaiting trial in any court on any day far exceeds the court system's capacity. In Middlesex County, Massachusetts, in my current assignment with three other ''criminal'' judges, about 350 indictments await trial.
True, not all of the inventory is ready for the courtroom. On the other hand, the judicial quartet must devote a good chunk of its attention to such nontrial matters as motions to suppress evidence, motions to dismiss on purely legal grounds, hearings to lower bail, and the like.
Assume, then, that 150 cases (less than half the stock) are ready for immediate action. That gives each judge 37 cases. Assume also that every lawyer is unencumbered by trial assignments in other courts, that every witness is available as needed, and that no judge ever gets sick.
In this utopian judicial state, assume finally that each case takes no more than two days to try, and that no jury ever reports hopeless inability to reach a verdict. Even so, each judge would require 74 working days to get through her or his share. That is more than 31/2 months' worth. All the while, more cases are ripening, more cases are coming into the system, and civil cases are crying for attention.
Thus, Fact No. 1 about plea bargaining is simply this: If every accused person demanded the jury trial to which he is constitutionally entitled, we would instantly lose the ability to administer criminal justice.
Fact No. 2 finds its root less in court statistics than in human nature. Leaving out the occasional masochist, and allowing for a certain psychological need to assuage a guilty conscience by suffering punishment, most defendants prefer the lighter penalty to the heavier. So Fact No. 2 is: Unless given assurance of a sentence acceptable to him, the defendant generally prefers a trial, which always offers a chance - however slim - of an acquittal.
A joint corollary of Facts No. 1 and 2 is that many defendants are just as happy with the delay the case backlog engenders. After all, the key witness may die (by natural means) or move away; the district attorney may lose vital evidence (it does happen); or something may turn up.
Plea bargaining is thus nothing more than a device to ensure that any given criminal suffers some penalty for his crime and that the cost, in prosecutorial/judicial time and effort, is not inappropriate. In addition, plea bargaining allows the system to guarantee certainty of punishment. With some exceptions not now relevant, a plea of guilty generates no appeal, no possibility of a retrial.
The judge's problem springs from his peculiar role, or nonrole, in the process. Unlike a civil settlement, where the action for compromise lies solely between the parties, a plea bargain entails only a conditional understanding. The defendant agrees to plead guilty (either to the offense charged or to some lesser crime) in exchange for the prosecutor's promise to recommend a particular sentence.
Whatever apparent deal the defendant strikes with the prosecutor, nothing happens - literally nothing - unless and until the judge consents to accept the plea and, most important, to impose the bargained-for punishment.
Judges deal with the problem differently. Some actively participate in the negotiating, and make their sentencing position immediately clear. Others stay out of the bargaining, but tell the defendant, before he pleads, what the sentence will be. Still others (of which I am one) do not promise anything.
Whatever the judge's technique, the difficulty remains constant. Each party wants something from the court, but each has a different purpose. The defendant wants to get off as easy as reasonably possible; the prosecutor wants to avoid an acquittal. Thus the parties are trying, for disparate reasons, to end the case. The judge is trying to administer justice.
I do not criticize the parties nor denigrate their motives. Yet each is aiming only for certainty and for a particular result. Thus both are under pressure to present to the judge not all the facts essential to making the punishment fit the crime, but only the information necessary to bring the judge to ''Yes.''
The parties, in other words, have reached the decision. Their views having been set, that decision now comes to the judge for ratification. Although he understands the strong need to encourage guilty pleas, a judge may well wonder about having his mind made up for him before he can even bother himself with the facts.