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Posts Tagged ‘judicial discipline’

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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What happens in Vegas never did stay in Vegas contrary to that now 15-year old marketing slogan I got sick of 15 years ago. The succeeding, “What happens here, stays here” was scarcely an improvement.

Take, for example, what happens in a Vegas courtroom. To the uninitiated, you might think from news reports the past couple of years that there’s a perverse penchant for handcuffing lawyers in Clark County, Nevada. That kind of news doesn’t stay in Vegas.

In 2016, Las Vegas Justice of the Peace Conrad Hafen ordered his bailiff to handcuff Clark County Deputy Public Defender Zohra Bakhtary while she was arguing for leniency for her client. Showing Bakhtary no leniency, Judge Hafen ordered his bailiff to place the handcuffed defense lawyer in a chair next to the jury box.

The justice of the peace was subsequently disciplined by the Nevada Commission on Judicial Discipline for his conduct. He consented to a public censure and agreement not to seek, accept or serve in any judicial or adjudicative position or capacity in the future in any jurisdiction in the State of Nevada.

Then last month Clark County Family Court Judge William Potter was suspended for two months without pay for several violations of the Nevada Code of Judicial Conduct arising out of ordering the handcuffing of lawyer Michancy Moonblossom Cramer and threatening to handcuff another lawyer, Ernest Buche, in his courtroom.

The 15-page decision of the Judicial Discipline Commission is worth reading. Besides the two month unpaid suspension, Judge Potter is required to apologize in writing to both lawyers; perform 10 hours of community service; pay a $5,000 fine to an antibullying group; and because the commission panel questioned Judge Potter’s “mental stability and capacity to control his anger,” he is required to submit to a psychiatric exam. As noted in the decision, “The most troubling aspect of the hearing occurred when (Potter’s) temper exploded during the commission hearing itself, thus allowing the commission to witness first-hand the very same behavior that the judge exhibited during the Cramer incident.” 

And finally, there’s this, which thankfully doesn’t involve more lawyer handcuffing by judges. Instead, it’s Clark County District Court Judge Susan Johnson who told several felons to follow through on their probation so they’d be able to vote for Donald Trump in the next presidential election. The judge’s political recommendation made national news — yet again undermining “What happens here, stays here.”

And no matter that she subsequently claimed her comments were meant as jokes. See Las Vegas judge who told felons if they meet probation requirements they can vote for Trump in 2020 says she wanted to ‘invoke some humor'”

I’ll be surprised if a complaint isn’t filed with Nevada’s Judicial Discipline Commission against Judge Johnson for possibly violating the code of conduct’s prohibitions against politicking from the bench. Most likely, though, if a complaint is lodged, it won’t be from a lawyer.

With apologies to Oliver Wendell Holmes, Jr., among other viable reasons, including potential prejudice to clients, detached reflection isn’t in great demand while handcuffed.

Lawyers are among the least likely to file complaints against judges. See Commission’s 2016-2017 Biennial Report.

As for the humor of it, The Nevada Independent reported December 1st that Judge Johnson has made her vote for Donald Trump ‘joke’ three times. The schtick apparently did not get stale after the first or second time.

As a matter of fact, the last documented instance came in August when the jurist told defendant Monique Fresquez, “So if you do everything I tell you to do, you will have your civil rights restored in about three years. You’ll be able to vote for Mr. Trump, I’m sure he could use your vote.”

So far there are no reports of any defendants ‘humorously’ receiving MAGA caps.

See Judge again tells felon to behave because Trump “could use your vote”

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Photo Credits: Welcome to fabulous Las Vegas, by Håkan Dahlström at Flickr Creative Commons Attribution; No Justice for Toons, by JD Hancock at Flickr Creative Commons Attribution; female in handcuffs, by Jobs For Felons Hub, at Flickr Creative Commons Attribution; keep_in, by Robin Davies at Flickr Creative Commons Attribution; Donald Trump, by Donkey Hotey, at Flickr Creative Commons Attribution.

 

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photoAs anti-mandatory judicial retirement trends across 14 states, an Indiana state senator proposes a bill to eliminate his state’s current mandatory retirement age of 75 for state appellate judges. “We’ve got lawyers in their 80’s whose minds are steel traps,” he says in this morning’s Wall Street Journal, “A New Lease for Old Judges.”

But steel traps? In today’s polarized political climate, partisans put more weight on what side of the political aisle a jurist sits — well before they consider whether to keep them around into their dotage. For the fervent liberal or conservative, a judicial “mind like a steel trap” is attractive only when it’s closed to the opposing side.

For a number of reasons, however, not the least being my belief in the axiom that power corrupts, I advocate consistently for term limits to rein in the powerful. Indeed, this is why I wholeheartedly agree with Indiana University law professor Charles Geyh’s assessment that for judges, “Age restrictions really are a proxy for term limits.”

So age restrictions are a good thing. Besides, even with politicians and judges acting more like aging rock stars who never say die, whatever happened to for every time there is a season?

Running on empty.

photoBeyond arguing that there’s plenty of ‘gas left in the old tank,’ proponents of an ageless judiciary, also offer up the somewhat specious reasoning that because states have judicial disciplinary mechanisms in place to punish or remove judges, there’s no longer any reason to impose mandatory retirement ages on judges.

As WSJ reporter Ashby Jones explains, the mandatory retirement ages for judges were established “long before states had developed formal processes to get rid of judges who had become ill or suffered mental decline.”  

But according to data gleaned by Citizens for Judicial Accountability, a self-described “nonpartisan citizens’ grassroots organization,” out of an estimated 10,000 judicial complaints it claims were analyzed by the American Judicature Society, “Statistically, only one out of a hundred complaints or 1% and probably less results in a determination.”

Rather than relying exclusively on the purported watchdog vigilance of judicial accountability commissions, if state lawmakers want to keep aging judges on the bench —  to safeguard the public’s faith in the courts against the potential of a mentally and physically enfeebled judiciary — lawmakers should follow 7th Circuit Federal Appellate Court Judge Richard Posner’s advice for “the nation’s premier geriatric occupation.”

So that things don’t just wander in and get mangled by a mind that’s become a rusty steel trap — after 70, Judge Posner recommends judges be required to take “a test of mental acuity every five years.”

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Photo Credits: “Bear trap,” by Minnesota Historical Society at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution; “Detail from Corrupt Legislation. Mural by Elihu Vedder. Lobby to Main Reading Room, Library of Congress Thomas Jefferson Building, Washington, D.C. Main figure is seated atop a pedestal saying “CORRUPT LEGISLATION” at Wikipedia Commons, Photographed 2007 by Carol Highsmith who explicitly placed the photograph in the public domain; “Out of gas,” by 2nd2Nunn Photography at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution.

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Smiley Face Feet via Flickr

When the Hon. Elizabeth Halverson sat in Nevada’s Eighth Judicial District, she took comfort in the ministrations of her ill-used bailiff, Johnnie Jordan. As part of her routine of treating Jordan like her personal manservant, Judge Halverson ordered Jordan “to massage her feet, neck and shoulders, or some combination of those body parts.” See “Bailiff Testifies About Judge Halverson and also the “Findings of Fact” at page 11, lines 24-26 of “In the Matter of the Honorable Elizabeth Halverson, District Court Judge, Eighth Judicial District Court, County of Clark, State of Nevada, Findings of Fact, Conclusions of Law and Imposition of Discipline (Filed November 17, 2008).”

No tender mercies.

But there were no tender ministrations today when the Nevada Supreme Court found that “sufficient clear and convincing evidence was introduced to conclude that Judge Halverson committed willful misconduct in violation of multiple provisions of the Nevada Code of Judicial Conduct.” A tip of the hat to an esteemed Nevada colleague who this afternoon informed me of the Nevada Supreme Court’s Order of Affirmance,” “In the Matter of the Honorable Elizabeth Halverson, District Court Judge, Eighth Judicial District v. Nevada Commission on Judicial Discipline.”

No “Tracy Turnblad” in this tale. File:John Waters Carlton Cannes.JPG

Judge Halverson’s misadventures in Nevada’s largest judicial district are reminiscent of an especially bizarre John Waters movie. But unlike the amiable lead in “Hairspray,” the protagonist in this reality story wasn’t as sympathetic.

I say this even though I know that on September 4, 2008, the besieged jurist became a victim of domestic violence. As though being accused of mishandling trials, sleeping in court, improperly contacting jurors during deliberations, and abusing staff wasn’t enough, her husband beat her with a frying pan that September 4th.

Edward Halverson was sentenced to 3 to 10 years in prison after pleading guilty to one count of battery with a deadly weapon with intent to cause substantial bodily harm.

Halverson’s troubles, though continued. She was also found liable in a defamation suit brought by her former legal assistant Ileen Spoor and was ordered to pay a $50,000 judgment. See “Woman wins case against ex-judge.”

The end of the line.

Judge Halverson’s odd reality tale, which had its denouement today, has been grist for the media mill over the past 3 years. It started when she was suspended in July 2007. And when the bases for the suspension became known, it got weirder still.

Then she had to campaign for reelection while at the same time fighting the Judicial Disciplinary Commission to keep her job. And fight she did as the matter dragged on and on.

But it has now finally come to a close. But stay tuned. Somehow, there’s always more. See, for instance,“Bailiff in Halverson case arrested, charged with sexual assault.

But for more about Elizabeth Halverson, see The ABA Journal’s report, “You’re NOT the Boss of Me,Judge Halverson banned from courthouse,”Las Vegas Weekly : – The trials of Elizabeth Halverson, andLess than honorable behavior.”

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Credits: :)Smiley Face Feet 11-22-09 I drew faces on Qiqui’s Toes, by Steven Depolo via Flickr Creative Commons Attribution License;  John Waters by Azed and John Waters, via Wikimedia Commons;

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