Looking into Utah’s judicial courtrooms: a former court watcher’s observationFeb 22, 2022 08:00PM ● By Julie Slama
By Julie Slama | [email protected]
In this November’s general election, Utah voters will take to the polls to determine if judges should be retained. Currently, there are 63 judges who are eligible to stand for retention.
Utahns determine whether judges should remain on the bench on even-numbered years through a simple yes or no vote. If the majority say yes, the judge is retained. Utah is one of a handful of states that use elections to determine this process.
However, not all voters are aware that through the Judicial Performance Evaluation Commission, Utah residents, who are unidentified to judges, have evaluated those judges who are currently eligible to stand for retention.
These volunteer observers or court watchers provide voters with information about each judge’s performance, which also is shared with the judges to improve the quality of their judiciary. The commission’s report is designed to provide accountability of the judge while ensuring he or she acts as an independent branch of government.
While House Bill 40 proposes to change the language in the report to indicate whether a judge “passes minimum performance standards” versus be “recommends” retention, the material that has been gathered each year provides information to allow voters to determine judicial retention, said former Judicial Performance Evaluation Commission member Becky Overacker.
Overacker was a courtroom observer for four years, filing her last of about 120 reports on judges six years ago. She is one of the 293 volunteer observers who served or is serving since the commission was established.
She stepped into the position after hearing on the radio about a need for civically minded people who wanted to learn about the courts and attending a meeting. The Judicial Performance Evaluation Commission, established in 2008, after piloting the observation program, asked for volunteers in 2010.
“It piqued my interest; they said this is a new thing and we’re just getting started,” Overacker said, despite having worked in the chemistry field before retirement. “It’s a benefit (that she didn’t work in the civics field); because they want lay persons. If you’re going to be taken to court, it can be a scary thing; it can be the worst day of your life. So having a lay person in their eyes, saying ‘this is a safe place,’ is a valuable thing.”
While serving the commission, Overacker entered courtrooms from Logan to St. George, Vernal to Tooele and she has observed judges rule on traffic offenses to criminal cases to family situations. She witnessed courtrooms where judges ruled on stealing hot dogs to child abuse.
During her first two years as a courtroom watcher, Overacker said she learned two critical things early on.
“I learned two very important things within that first year I was doing this: One, if someone is ever in trouble, I would get a lawyer because they know the system and know what they’re doing. The second thing I learned is the judges in Utah are really good,” she said.
Overacker said that Utah has a system of appointing judges different from most states, which hold elections for judges so it can be partisan. In Utah, the governor appoints a commission to review applications to be judges and they’re chosen by merit, including education and service, she said.
“They’re already at the top of their field by the time they get to be judges,” she said, adding that it’s then up to voters to determine their retention on the bench.
Overacker said the Utah legislature recognized that initially very few voters have the time to observe court proceedings, so they didn’t know how to enter their retention vote. Thus, a commission was established with court observers who usually enter an assigned judge in a courtroom across the state to quietly take notes for a two- to three-page report they would file afterwards.
“I tried to be very discreet. I don’t want anybody to know who I am. I just wrote what’s going on the whole time, who did what and I tried to get direct quotes from the judge, the dissent and everyone to put in the report that I later wrote,” she said, adding that she did carry a letter from the commission explaining who she was if she was every questioned.
As a court observer, Overacker discreetly watched for basically three points: “Voice—does the judge allow everybody to speak equally?; neutrality in not taking sides; and respect—just being respectful to every party that’s there and having eye contact.”
She said that most of the judges met those criteria.
“Every judge I saw, would usually always say, ‘Do you have anything else to add? Is there anything I need to know? Most judges are really good. There are judges that will look at their monitor the whole time people are talking and sometimes I know they’re busy and could be looking for history on the case or at precedents, but it’s really important to look up and face people when they’re talking to and not interrupt,” Overacker said.
She once did observe a judge that was “concerning to me. I wrote in my report that he was so favorable to the prosecution, everything they asked for, they got, and I thought if I was a defendant in that court, I would be really nervous. I was asked to observe that same judge a couple years later, and I was hesitant, but he had changed. He was much more open.”
However, most of the times, the judges were fair. Overacker remembers observing an Ogden judge who realized a defendant on his third public defender wasn’t getting a fair shake when that lawyer asked for a continuance. The judge listened to the defendant as he grumbled saying he already had served the maximum time in jail for that offense and the judge shortened the amount of time before the trial.
After sitting in courtrooms and having time to reflect, she wants people to know about the commission and information it provides so they can make informed decisions when it’s time to vote on judicial retention.
“Our system really does work and there are really good, honest people who are trying their best to make things fair to people,” Overacker said. “Our judges are good. Attorneys are invaluable. I learned this by watching how people listened, how people reacted and how people were taken care of. Utah has a good system.”