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JUDGES STRIVE TO TEMPER JUSTICE WITH COMPASSION

Anxiety is reflected in the defendant's eyes as he looks up at the black-robed judge sitting on the imposing bench.

With a snide grin, the judge glances down at the trembling defendant and states, "Now comes the fun part - the sentencing!"---

This judge's attitude toward sentencing, depicted in a recent magazine cartoon, may make some judges laugh - but it couldn't be further from the truth, says 3rd District Judge J. Dennis Frederick.

Although Frederick's been on the bench for more than eight years, sentencing never becomes easy or routine. Defendants never become faceless statistics. "Each case weighs on you. Every defendant's crime, circumstance and personal history is unique," he said.

Frederick, a former prosecutor, has a reputation for imposing severe sentences. He is surprised that only 60 percent of those interviewed in a Dan Jones poll believe judges are too lenient.

"There is a strong sense among the public for retribution. The public becomes outraged - and rightly so - over the commission of particularly heinous crimes and wants to exact punishment," he said.

When a defendant in a high profile case is granted probation instead of sentenced to prison, it generates a lot of media attention and fuels the public perception that all judges are soft on crime, said Frederick.

But if statistics comparing those who are placed on probation and those committed to prison were studied, "it would dispel the myth that everyone gets off with a hand slap," he said.

Unless judges are replaced in the 21st century by computers, there will always be disparity among judges in their individual sentencing philosophy. Guidelines lend uniformity to sentences imposed for similar crimes, but "there's room for discretion."

Frederick considers probation to be a privilege - not a right. "Without good and compelling reasons, the set statute penalty should be carried out."

The most difficult cases to sentence are those where a father has abused his child. "It is such a repulsive type of crime that you feel a punishment must be exacted. But by punishing the perpetrator with prison time, you are also further punishing the family by taking away the breadwinner from them. Typically, the families go on welfare."

Determining who is telling the truth is particularly challenging in child-abuse cases, he said.

He recalls an 11-year-old who testified against her stepfather. After a four-day trial, the girl's stepfather was found guilty of sexually abusing her. Based on the jury's verdict, Frederick sentenced the man to prison.

Later, the girl returned to Frederick's court accompanied by her stepfather's defense lawyer and the prosecutor who had handled the case. The attorneys advised Frederick that the 11-year-old wished to recant her testimony. After Frederick assigned an independent attorney to the case, all three attorneys concluded that the girl had lied on the witness stand.

"I had no alternative but to release the man from prison. But there's always the nagging thought in my mind that pressure had been brought against this victim to get her to recant."

The skills required to be a good judge have nothing to do with one's gender, said Frederick.

He is pleased that 71 percent of those polled expressed concern that there are no women among Utah's 28 trial court judges.

"Judges should be appointed based on qualifications. Gender should be of no consequence either way," the judge said.

Alan Sullivan, a partner with a major Salt Lake law firm, says that considering the high number of outstanding women law school graduates, capable litigators and leaders in the legal community, it is "astonishing there aren't more women on the trial bench."

The absence of a representative number of women suggests that the "selection process is not totally unbiased."

Sullivan urges members of the Commission of Justice in the 21st Century - who are charged with responding to the results of the poll - to challenge those involved in judicial selection to recruit women and achieve a more balanced bench.

"If there is an element of discrimination - intentional or not - it devalues the bench and discourages qualified people from applying - both men and women," said Sullivan.

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(DAN JONES & ASSOCIATES POLL)

How serious do you think the following problem in Utah's state courts is?

Lenient judges

Not serious at all...9 percent

Not too serious...22 percent

Somewhat serious...36 percent

Very serious 24...percent

Don't know 9...percent

Do you agree or disagree with the following statements? The fact that there are no women among the 28 judges on the general trial courts is a problem that should be addressed.

Strongly agree 38...percent

Somewhat agree 33...percent

Somewhat disagree 17...percent

Strongly disagree 7...percent

Don't know 4...percent

Sample size: 612; margin of error plus or minus 4 percent