Craig Atack, Flagler County Judge Candidate: The Live Interview

Craig Atack is one of seven candidates for Flagler County Judge in the Aug. 14 primary election.

The county judge election is a non-partisan race: all registered voters in Flagler County are eligible to cast a ballot in this case–whether Democratic, Republican, Independent or from a minor party. You may cast a vote regardless of the district, the town or the subdivision you live in. If one of the seven candidates wins more than 50 percent of the vote, that candidate will be the winner, and will replace County Judge Sharon Atack, who is resigning at year’s end.

If none of the candidates wins with 50 percent or more of the vote, then the top two vote-getters will head to a run-off in the Nov. 6 general election.

FlaglerLive submitted 14 identical questions to the seven candidates, who replied in writing, with the understanding that some follow-up questions may be asked, and that all exchanges would be on the record. Follow-up questions, when necessary, appear in italics, and may be awaiting answers.

A style note: some lawyers are in the habit of capitalizing quite a few words that would not normally be capitalized in journalistic style. The capitalizations and similarly, specifically legal stylistic quirks have been preserved as a reflection of each attorney’s style.

The Questions in Summary: Quick Links

• Basics
• Law school
• Disciplinary issues
• Fair treatment: pro se defendants
• Determining witness credibility
• Is a cop’s word more trustworthy than a defendant’s?
• Knowledge of civil law
• Technology and docket efficiency
• Religion and interpretation of law
• Legal role model
• For love of law or money?
• Your prejudices
• Your temperament
• Judging your opponents
• Judging yourself

Craig Atack: The Basics:

Place and Date of Birth: Orlando, 1976, 10lbs, 7 ounces.
Current job: Felony Attorney, Public Defender’s Office (St. Johns County), Seventh Judicial Circuit. (Because Atack’s mother is a sitting judge in Flagler, he could not be assigned to Flagler.)
Years practicing law: 6.
Website: atackforjudge.com
Self-Disclosure Statement with the Florida Bar: Available here.

1.      Where did you go to law school, what was your GPA, and how did you rank in your class?

Inaugural Class, Florida International University College of Law, 2005

Could you be a little more specific about GPA and rank?

Has not answered.

 

2.      Have you ever faced a disciplinary issue at any level before the bar (even if it was dismissed), and if so, what were the outcomes?

No.

3.      Many of your defendants in county court will be representing themselves (pro se). What is your strategy for dealing with pro se defendants who will be facing polished attorneys? How will you ensure that they will be treated as fairly, and what allowances will you make for their self-representation, if any?

This is one of the most difficult issues facing our court system in civil litigation and sometimes even in criminal cases where a defendant, even though constitutionally entitled to representation, may choose to be unrepresented. It is incumbent on the court to be patient and fair with all unrepresented litigants, while at the same time avoiding the tendency to “represent” or advise such litigants to the unfair disadvantage of those litigants who do have legal representation. Ultimately the court must treat all litigants fairly and equally. I am aware that this is easier said than done. A judge must be vigilant to avoid favoring one litigant or another, while at the same time making sure that all litigants have a full and fair opportunity to present their side of the case to the court. While this means that all litigants must follow the rules of court and evidence, it does not mean that the judge lacks the discretion to be patient, courteous and fair. The judge does not have to be overbearing and intimidating. Nor does the court have to use technical legal jargon in explaining rules and procedures. The court can and should explain rulings and procedures in a manner understandable to the layperson. The court can, and in my opinion should in these situations, avoid inflexible application of technical rules and procedures where the result is the prevention of a person being able to fully and fairly present their side of the issue to the court. Society benefits by people feeling their disputes can be justly and peaceably resolved though the legal system and, within the rules and procedures of court, the judge does have discretion to accommodate the unrepresented without sacrificing the neutrality essential to a fair determination of the issues before the court.

As a practical matter there are some tools to assist the court and litigants in these type cases. As judge I will work with the clerk’s office to make sure unrepresented litigants are directed to some of the excellent websites available to assist novice and unrepresented litigants. Also, the court, bar, legal services and clerks have developed forms and information which the clerk’s office should provide to litigants to assist them in properly presenting their respective legal positions to the court. As judge I will encourage litigants to avail themselves of the excellent mediation services provided by talented and knowledgeable volunteers to the County Court system here in Flagler. In those cases (often small claims matters or landlord/tenant actions) where, despite mediation efforts, the matter goes to trial the court has information forms, that can and should be provided to all litigants, explaining the basic rules of evidence, necessity to bring witnesses, and outlining the general court rules and procedures. Once the trial begins, if the unrepresented litigant attempts to offer improper or irrelevant matters into the trial, the court must grant proper objections to such evidence or testimony. However, while not advocating on behalf of the unrepresented litigant the court does have the power and option of clearly explaining the bases for the court’s rulings so that all litigants can learn and understand what is and what is not proper and legal evidence and testimony in the given case. I will strive to make sure that all who come before the court have the opportunity to be heard fully, within the rules of evidence, so that I will have the clearest factual basis upon which to apply the law and reach a proper decision. I will try to explain my rulings so that even if a litigant is not happy with the outcome, all parties will understand the legal basis for the court’s decisions. Many of the basic traits that anyone aspiring to the bench should possess – patience, judicial temperament, knowledge of the law, a sense of fairness and ultimately a recognition of the duty to follow the law – are probably most brought to bear in those situations where there is an unrepresented litigant in a trial scenario. The court must be fair not only to the unrepresented litigant, but also to those who are represented by counsel. In the end, while the judge must remain a neutral, impartial decision maker, this does not prevent the court from doing all it can legally to make sure all parties have their day in court.

4.      As a judge, one of your most important tasks will be to determine the credibility of witnesses. What factors will you rely on to determine credibility? How do you see the difference between a witness in dreadlocks and tattoos as opposed to one in an Armani suit?

Interestingly enough, the standard instructions given to jurors on the issue of credibility have application, or at least should have application, to judges too.

We tell jurors that if they find a witness has testified falsely, they may either disregard all of that witnesses testimony or disregard to much of the testimony as was untruthful and accept so much of it as they may find to have been truthful and accurate. Jurors are told: there is no particular formula for evaluating the truthfulness and accuracy of another person’s statements or testimony; you bring to this process all of your varied experiences; in life, you frequently decide the truthfulness and accuracy of statements made to you by other people; the same factors used to make those decisions, should be used in this case when evaluating the testimony.

Jurors are told: in general some of the factors that you may wish to consider in evaluating the testimony of a witness are as follows: Did the witness have an opportunity to see or hear the events about which he or she testified? Did the witness have the ability to recall those events accurately? Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true? Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? Did the manner in which the witness testified reflect upon the truthfulness of that witness’s testimony? To what extent, if any, did the witness’s background, training, education, or experience affect the believability of that witness’s testimony? Did the witness have a bias, hostility or some other attitude that affected the truthfulness of the witness’s testimony? You may consider whether a witness had, or did not have, a motive to lie. If a witness had a motive to lie, you may consider whether and to what extent, if any, that motive affected the truthfulness of that witness’s testimony. If a witness did not have a motive to lie, you may consider that as well in evaluating the witness’s truthfulness. You may consider whether a witness hopes for or expects to receive a benefit for testifying. If so, you may consider whether and to what extent it affected the truthfulness of the witness’s testimony; You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. You are not required to reject the testimony of an interested witness, or to accept the testimony of a witness who has no interest in the outcome of the case. You may, however, consider whether an interest in the outcome, or the lack of such interest, affected the truthfulness of the witness’s testimony; You may consider whether a witness has been convicted of a crime or has engaged in criminal conduct, and if so, whether and to what extent it affects the truthfulness of that witness’s testimony; You are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not. You may, however, consider whether a witness’s criminal conviction or conduct has affected the truthfulness of the witness’s testimony.

You may consider whether a witness made statements at this trial that are inconsistent with each other. You may also consider whether a witness made previous statements that are inconsistent with his or her testimony at trial; You may consider whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, you may consider whether the witness’ attention was called to the matter and whether the witness was specifically asked about it. If a witness has made such inconsistent statements [or omissions], you may consider whether and to what extent they affect the truthfulness or accuracy of that witness’s testimony here at this trial. The contents of a prior inconsistent statement are not proof of what happened. You may use evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness’s testimony here at trial; You may consider whether a witness’s testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?

In this case you have heard the testimony of (a) police officer(s). The testimony of a witness should not be believed solely and simply because the witness is a police officer. At the same time, a witness’s testimony should not be disbelieved solely and simply because the witness is a police officer. You must evaluate a police officer’s testimony in the same way you would evaluate the testimony of any other witness.

It does not appear that the manner of dress (Armani suit or dreadlocks) enters much into the factors that the trier of fact should consider in evaluating that the testimony of that witness.

Except for the brief first and last sentences of your answer, you have cut and pasted for us, virtually word for word, the instructions given to a jury on witness credibility, a document available on the web through the New York court system (and that shows up at the top of a Google search under “credibility of witnesses”), though without quotes or attribution–an unusual omission in a profession obsessive about citations. Standards of procedures aside, it is still not clear how you will evaluate such factors, what, from your own experiences, you will rely on to make such evaluations.

In answering this question I was tempted to simply state that a judge should follow the same rules that are set forth in the “standard” jury instructions,which apply to the other “triers of fact”, our juries, without setting out all those matters in detail. Thinking some readers may not be familiar with those instructions I decided to set them out in full, tedious as jury instructions might sometimes be. Since I started out by noting that the instructions are in fact standard, used throughout our nation’s jury system, I did not feel the necessity to cite a particular source. I would hope that anyone reading the answer would realize that the list of factors to be considered in fact came verbatim from a set of standard instructions and were not my creation. The fact that the instructions are addressed to “you” (…”you may consider”…) throughout may have given one a hint.

5.      Along the same lines, it is often the experience of defendants in court that between the word of a cop and the word of a suspect, in he-said-she-said cases, the cops’ word will generally prevail. Explain first why you think that is, and explain to what extent, if any, a cops’ word would carry more weight in your court room than a suspect’s.

Firstly, I prefer to use the term “law enforcement officer” rather than “cops.”

To answer your question in the order requested – as to why it seems to an accused person that triers of fact seem to favor law enforcement testimony, one can only speculate. Often the law enforcement officer has no interest in the outcome of the case, does not know the parties, and truth be told, would probably prefer never to have gotten involved in a given case, but did so because the officer was required by duty to investigate, gather evidence and document the matter and ultimately to come to court and testify. In those cases the trier of fact might consider the officer’s testimony to be truthful because no reason has been given as to why the officer might not be truthful. For the judge, in each and every case, the officer’s testimony must be looked at in the same way the court would look at any other witness’s testimony. It must be weighed in light of all the facts and circumstances and factors present in that particular case. If the case before the court is a criminal case, then all the evidence, including the officer’s testimony, must be viewed under the presumption of innocence and burden of proof standards required by our laws and Constitutions. If there is uncertainty as to which testimony to believe then that uncertainty is resolved in favor of the accused under our system of law.
In reality however, facts, evidence and testimony are rarely presented in a vacuum and cases do not generally come down to “he said – she said”. There are most often surrounding circumstances and in those instances, all those factors going into determining the credibility of any witness (as set forth at length above) have to go into the equation in weighing the credibility of an accused and of a law enforcement officer. The officer’s testimony must be evaluated under the same scrutiny as any other witness’s testimony.

6.      Understanding that judges do not—cannot—possibly read all their cases but rely substantially on lawyers’ arguments, and that you’ll face a considerable number of civil cases, how much civil law do you know? What areas of civil law have you practiced?

First, I do not necessarily agree with the proposition that judges do not or cannot read all their cases. I believe the court has the ability to be familiar with all that is in the court file in any given case. The court should listen attentively to the arguments of the attorneys, but ultimately the court must base any decisions on a thorough understanding and knowledge of the facts of the case and the applicable law. If in some rare instance in County Court there is a complex case with voluminous evidence, and if the court is to make determinations based on all the evidence, then it is the duty of the court to take the time to hear, see and read and understand all the evidence before applying the applicable law and coming to a proper decision. Although I have practiced primarily in criminal law during my career as an attorney, the rules of evidence set forth in Chapter 90, Florida Statutes, apply to both civil and criminal cases. I am familiar with contract law, landlord tenant issues, consumer law and most of the issues that will come before the court in small claims and other County Court matters. As an adjunct instructor at Daytona State College I taught these subjects in the College of Business. I am confident that I have the ability to know and understand complex factual and legal matters that may come before the court from time to time, whether in civil or criminal proceedings.

7.      How will you use technology to speed things along, and will you provide online scheduling of hearings that will be easily available to lawyers and public?

I want to continue to work with the Clerk’s office to make our online system more accessible to pro se litigants. As our County Judge I will encourage online scheduling as I have seen its effectiveness in other courts in our Circuit. Online scheduling eliminates the burdensome task of scheduling hearings telephonically through a judicial assistant and makes our court system more accessible for lawyers. This process puts the responsibility on the lawyers to agree on a time for a hearing, and to let the court know if that hearing should be cancelled because the parties have worked out a resolution in the meantime.

8.      What role does religion play in your personal life and your interpretation of law, and how do you intend to keep the two separate?

I am unaware of any conflicts between my private and personal religious beliefs and the laws that I will be working under and subject to as County Judge. Although I am unaware of any existing law which fundamentally conflicts with my religious and ethical views, if in the future our lawmakers were to propose such laws and if the higher courts upheld such laws, then I would announce my inability to follow those laws in a given case and recuse myself from that case. If the laws so passed and upheld by the higher courts permeated our judicial system then I would have to step down from the bench permanently, as I would then not be able to uphold a judge’s first duty, which is to follow the law. Then, as a private citizen I would do all I could to have those unjust laws repealed.

Could you give us even a general example of the sort of law you are referring to, that would compel you to recuse yourself, or copmpel you to resign and do what you could to reverse?

An obvious general example of a set of laws that a judge should be compelled to disregard, and therefor not validate by upholding with rulings from the bench, would be those passed in Germany in the 1930’s. For some reason Hitler always seemed to want judicial validation for even the most patently evil laws passed by his legislature. These laws resulted in the murder of people based solely on their religious beliefs or ethnicity, these duly passed laws resulted in the imprisonment of people based on solely on their political beliefs or mental illness or sexual orientation. These popular laws which took away every basic human rights for the same onerous reasons were routinely upheld and enforced by judges throughout Germany. Many of these judges had been elevated to the bench years prior to the rise of the Nazi regime and were esteemed legal scholars who had presided for years with great integrity and in a honorable manner. Yet, almost without fail, once the Nazis rose to power, those same esteemed men consistently upheld and validated patently evil laws. At a minimum those judges should have stepped down rather than participate in that system. Easier said than done, I realize. Should the unthinkable happen here and our law makers, elected by a majority of those voting, pass laws that would take away the inalienable rights of individuals, and should the higher courts uphold those laws, I hope (and believe) that I would have the courage to step down rather than participate in the validation of those laws. I hope I would then speak out against those laws and do what I could to see that those laws were repealed. In the post-9-11 world we are walking a fine balance between trying to maintain a secure society while striving to be a society of free and independent individuals. Those in the legal system (judges, lawyers, law enforcement) have the highest duty to make sure that rights of every person are recognized, preserved and protected and not lost in misguided attempts to maintain “order”. As I said, easier said than done, but obviously worth the effort.

9.      Name one currently sitting U.S. Supreme Court judge you have the most affinity for legally and philosophically.

Unfortunately, in this era of 5-4 decisions, oftentimes seeming to fall along set philosophical or partisan lines, it is hard to name one sitting Justice with whom I feel a particular affinity to and share a particular philosophy with. Instead I most admire those opinions of the Justices who, in an attempt to follow the law, have the courage to go against what might seem to be the popular will or the will of the particular group that the Justice may have been aligned with prior to being elevated to the bench. Whether one agrees with the “philosophy” of a particular Justice or decision, one should respect the integrity and judicial courage shown when a Justice sets out a well-reasoned, precedent-based opinion which might appear to against the will of a particular portion of the populace. Several years ago, Justice Scalia in Crawford v. Washington, joining what would appear to be the “liberal” wing of the court and wrote an impeccably reasoned opinion upholding and explaining the 6th amendment right we all have to confront our accusers in a criminal action. I suspect it was difficult for him to overturn the conviction of a person accused of a serious violent offense, but it is clear from the opinion that he based it on precedence and respect for the Constitution.

10.  Attorneys, as in so many professions in today’s dismal economy, are hurting for work. Not many can pull in the guaranteed $134,280 a year you’ll be making as a county judge. Understanding that you’re obviously doing this for the good of your community and for the most noble motives possible, you’re also human, you likely have or will have a family, and it’s no secret or sin that some of you are running to land a steady salary. To what extent is that guaranteed income driving your desire to be a county judge?

I, along with most of the other candidates have been blessed to have had the benefits of growing up in the American middle class and have had the advantages of having been provided an excellent education and ability to earn a living. The aspiration of being Flagler County’s judge has existed from the time of my youth and was independent of the monetary concerns. The legislature has provided for a generous salary and benefits for the position and hopefully talented and gifted individuals who might make more money elsewhere will continue to aspire to the bench.

11.  We all have prejudices at some level. What are yours?

(I’m prejudiced against loaded questions.) Actually, depending on where, when and how we were raised, prejudices do exist in each one of us – and these include almost anything that makes us different from one another. To the extent I was raised in a particular stratum of society, from a particular area of the State and Country, of a particular gender and ethnicity and to the extent I am not familiar with persons or groups “different” from me in any of those (and other) aspects then there is a danger that prejudice might be present. “Prejudice” by definition implies “pre-judging” and making assumptions about a person or group without having facts or knowledge. In other words, prejudice is a form of ignorance. Being aware of the danger of pre-judging persons or groups who might seem “different” from me, I hope helps me overcome those possible prejudices. I have had a range of life experiences, among which include working on a labor crew helping rebuild the Pentagon after the 9/11 attacks; working as a bag-boy at Food Lion; washing dishes at Denny’s; teaching “high-risk” kids in an inner city school; going to law school at Florida International University in Miami and being immersed in the wonderful multi-cultural blend that is uniquely that city’s; and working with persons of all walks of life during my career defending indigents, all of which have taught me to respect not only all persons, but to respect the differences in each one of us.

12.  Describe, in as much detail as possible and with examples, your temperament, your emotional hot buttons, and the scale of your ego.

I encourage the reader to ask court personnel, including prosecutors, judges, law enforcement and clerks, that have worked with me in our neighboring counties. I pride myself in treating everyone equally, regardless of that person’s situation. A particular hot button for me is bullying. It goes without saying that in the courtroom I would not allow a lawyer to intimidate a lay person or unrepresented litigant. Even more importantly, I don’t like to see attorneys treat perceived “underlings” with disrespect outside the courtroom.

13.  You’re part of a small community of lawyers who know each other, have likely faced each other in court or seen each other in action while waiting your turn, have been hearing and speaking about each other through the professional grapevine, and, being lawyers, likely have strong opinions about each other. In other words you know more about each other, especially regarding relevant matters in play here, than any member of the press or public could know. Enlighten us: give us, in your words and assessments, a brief synopsis of each of your opponents’ capabilities, strengths and foibles as you understand them, and whether, in your view, each is qualified to be a county judge.

I have enjoyed being around each one of the other candidates in this race. One enjoyable aspect of what can be at times a grueling campaign process is getting to know the other candidates in this and the other campaigns. It takes some courage and a sense of public service for anyone to go through this process at this level of the system and I tip my hat to all those who are willing to get up off the couch and get out into the community to participate in our democracy.

That’s nice, but there’s no attempt to answer the question.

Has not answered. 

 

14.  Do the same for yourself: Dispensing with such matters as heredity and lengths of stay in Flagler County—which, we hope you agree, are as irrelevant to the law as skin color and culinary tastes—what makes you the best qualified for this position? 

Heredity and lengths of stay in Flagler County are not the ultimate qualifiers for a person aspiring to the position of Flagler County Judge. I do count as a blessing and a benefit that I have grown up surrounded by so many of the excellent judges and attorneys who have contributed to making the judicial system in Flagler County the excellent institution it is to this day. For over thirty years I have been around and been mentored by attorneys who have been recognized on a state-wide level for service to the community in general and for service to persons who but for those attorneys, might otherwise not have had access to the judicial system. From those life-long associations I have come to respect the rule of law and to recognize that making the justice system available to every person in our society is paramount and to do so takes special effort and sacrifice from all of us in the system. I have come to appreciate the need for all of us to work especially hard in these economic times to make the judicial system as efficient and accessible as possible, while still expending the necessary time and energy to make sure that each and every case is afforded the attention needed to come to a proper resolution. I understand the need for a judge to be knowledgeable in the law now and the need for a judge to stay current on changes in the laws and opinions from higher courts. I understand that a judge must follow (and not make) the law. A judge needs to treat all persons including litigants, court personnel, law enforcement, witnesses and the public with courtesy and respect. A judge must be patient and open-minded. I am honored that so many persons whom I have admired all my life and who have been in the judicial system for many years feel that I possess these qualities and have encouraged me to run for this position. I pledge to maintain the values that they have taught me and that I will maintain the quality, integrity, professionalism and fairness that has been a part of our judicial system here in Flagler County for my whole life.