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Posts Tagged ‘judicial criticism’

https://cdn.morguefile.com/imageData/public/files/d/DodgertonSkillhause/03/l/1456878178af2si.jpgSanta Clara County Superior Court Judge Aaron Persky was recalled Tuesday. He’s the jurist who faced huge blow-back for sentencing Stanford University student Brock Turner to what many believed a too lenient 6 months rather than as much as 14 years for sexual assault and attempted rape of an unconscious 22-year old woman. In a May interview the judge said he had no regrets over the sentence he gave Turner.

Persky, a judge since 2003, was turned out by the county’s electorate by a vote just under 60%. See “California Voters Remove Judge Aaron Persky.”

It’s been 86 years since a California judge was last recalled. It’s rare. Incumbent judges rarely lose. And so-called merit-selected judges up for retention also almost never lose. Yet given the overreaction of Judge Persky’s defenders, you’d have thought the legal system cratered. That’s because his defenders don’t put much stock on judicial accountability like they do on the sancrosanctity of judicial independence.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/11/Angry_mob_of_four.jpg/320px-Angry_mob_of_four.jpg

At Flickr by Robert Couse-Baker, Creative Commons Attribution License

Per one account, “LaDoris Cordell, a retired judge and a spokeswoman for Judge Persky, called the recall an attack on judicial independence and said it had “encouraged people to think of judges as no more than politicians.” Conveniently omitted by the judge is that Persky was — after all — an elected public servant ultimately answerable to voters. Meantime, Palo Alto’s newspaper was also over-the-top editorializing that the Persky recall campaign had spawned “a lynch-mob movement that threatens the independence of the judiciary.”

And as for the ‘politicians in robes’ argument, it’s not like legal scholars haven’t argued that judges’ decisions are best explained by their political preferences.

Accountability

So what about the electorate? Are voters’ opinions irrelevant? And when did holding judges accountable become a kind of societal evil? Besides, if a judicial recall is wrong-headed, what other recourse is left to a community in cases like Judge Persky’s? Not even those opining against“recalling judges just because we don’t like their decisions” have good answers. Writing at The Hill lawyer Joel Cohen for one, swats at holding judges accountable, “But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.”

Is there “a better way“? As it is, when judges engage in misconduct or violate professional ethics rules, judicial disciplinary commissions who operate mostly in secret mainly treat such ethics violations with wrist slips administered with kid gloves. An instance of one such wrist slap was the complaint of several years ago by the president of Houston’s defense bar association over the punishment meted out by the state commission on judicial conduct to former Judge Woody Denson. “Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” he protested also adding “And it’s very secretive if anything ever does happen.”

It’s not just a Texas problem either. In 2015, St. Louis Public Radio ran a story about the alleged ineffectiveness of Missouri’s judicial watchdogs, “Missouri’s code of conduct for judges rarely leads to disciplinary action.” According to the report, “About 240 complaints are made against judges in the state of Missouri each year. When complaints are filed—and they can be, by citizens, city officials and other judges–they rarely result in disciplinary action.” Quoting St. Louis University Law professor Brendan Roediger, “The process is very secretive. Sometimes there were rumors around courthouses but that was about it.”

And according to a USA Today report, “Troubling trend: When judges need disciplining.“The Center for Judicial Ethics at the National Center for State Courts serves as a clearinghouse for judicial discipline and tracks misdeeds nationwide. Their records show that removing a judge from the bench is rare. In 2013, only five judges were removed from the bench nationwide, and 17 resigned or retired in lieu of removal. Also see Wisconsin’s Post-Current investigation, “Judges never evaluated, rarely challenged” and “Disciplinary Panel Rarely Takes Action Against Idaho Judges.”

Wikimedia Commons, public domain

To be clear, Judge Persky did not violate any canons of judicial ethics in People v Turner.  Moreover, the state commission on judicial performance concluded in its 12-page report “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

Just the same, those campaigning against Judge Persky took exception calling the report:

a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Recall proponents justified their campaign because, “It’s clear we need judges who understand sexual assault and violence against women and take it seriously. It’s up to us, the voters, to make a difference.”

In other words, when elected officials are found wanting and oversight watchdogs are napping under a tree, it’s left to the people to act as a final check. Long ago in his 1801 letter to Benjamin Waring Thomas Jefferson wrote, “The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”

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Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

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Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

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Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

LAW AND JUSTICE uidThis past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

Caucasian businessman pointing finger beside window uidThe Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

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Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Laughing Jackass 10952161246Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

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