The Power of Eye Contact

For some light, extracurricular reading, I recently read “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” by Preet Bharara. As the title suggests, the book is essentially a look at the criminal justice system from the perspective of a very successful (and very opinionated) prosecutor. One chapter is dedicated to his thoughts on judges: his personal experiences with them, the power they wield, and what he believes they can do to improve at their jobs. He included one particular anecdote in this chapter that spoke to the power of a judge’s empathy, or lack thereof. The broad strokes of the anecdote were these: a judge must establish, for the record, the important people who are in the room at the beginning of proceedings. Many judges acknowledge the attorneys representing either side, and then simply acknowledge the presence of the defendant in the room–with no name and no eye contact (“The defendant is present”). Bharara wrote that this experience in the eyes of the defendant can be incredibly dehumanizing–already, most defendants don’t testify at their own trials, so they must spend the entire proceedings sitting in silence. It doesn’t help that the judge–who seemingly will decide their fate–doesn’t even greet them or refer to them by name. Bharara wrote about the small but significant difference a judge can do by simply greeting the defendant by name as the proceedings begin.

I visited the Arlington Immigration Court last week to observe a few cases. This is only the second time I have gotten the chance to observe immigration proceedings, and only the second judge I’ve seen preside over them. When I observed how he ran his courtroom, I immediately recalled Bharara’s book and his comments about judges. This was because, for the entire several hours that I was observing, the judge never made eye contact with any respondents (immigrants in proceedings). When he spoke to the attorney representing DHS, he made eye contact. When he spoke to the attorney representing a respondent, he made eye contact. But never, not once, did he look up and actually look at the respondent’s face.

While by and large, from the limited number of cases I was able to watch, I thought the judge made pretty fair decisions, I was astounded by the lack of empathy/humanity he showed to the respondents. All of them were detained in an ICE facility, and all of them were facing deportation charges. They might be uniquely in need of some empathy–particularly the ones who are forced to navigate the convoluted immigration court system without the benefit of knowing English and without a lawyer to guide them. And yet the judge didn’t even raise his head to acknowledge their presence.

One study we learned about in Theories and Models was about doctors and the rate at which they are sued for malpractice. (I believe this was in Malcolm Gladwell’s book, but I may be mistaken.) The study said that the doctors who spent more time with the patients, displayed more empathy, and altogether focused just as much as the human being in the room as the disease/problem they were trying to cure, were sued much less often than the doctors who didn’t spend as much time displaying those social skills, even when both groups of doctors performed their jobs at the same level. I’d imagine this phenomenon is similar to judges in courtrooms—the judge I observed may have been more fair than the one in the next room, but I can’t imagine the immigrants in his courtroom felt that he was at all magnanimous. I hope that the judge learns to consider the power of eye contact.

One thought on “The Power of Eye Contact

  • July 11, 2019 at 10:36 am

    I’m not exactly sure what prompt you’re responding to here, but this is a really interesting reflection. First, sounds like a really interesting book that you read; I don’t know that I’ve ever stopped to consider who a judge does and does not make eye contact with (though I will likely pay more attention now when watching legal-based shows on television, though those are often not very accurate I know). Again, as I suggested when reading your reflection about the attorneys more transactional approach with their clients, I wonder if judges do not engage with respondents/defendants (even eye contact) so that they don’t connect, become personally invested/moved (e.g. by someone’s appearance, expression, emotion) in an attempt to safeguard themselves (not be swayed, maintain procedural justice, etc.). If this is intended as a theory reflection, I do think you should think more about the connections between this revelation and LDST (particularly if you are going to expand on this for the fall paper).

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