JUDGING CRIMES

Although I try to avoid focusing on parochial interests -- and, to be frank, there's something liberating about writing about people who don't have the power to revoke my license to practice my profession -- nonetheless Albuquerque's ex-Presiding Judge John Brennan has already rated a mention, thanks to his  arrest for cocaine possession.  (See post 38.) 

That would be enough for some people.  But certain personalities, once they taste the intoxicating liquor of mention in this blog, find themselves unable to resist the temptation to sip it again:

According to police reports:
    Officers heard screams shortly after arriving in Brennan's neighborhood. After determining they were coming from what turned out to be Brennan's house, they approached the front door and heard a woman scream, "Please let me go" and "Ouch, you are hurting me." They also heard a male curse at the woman and say, "Because of you and your big mouth, the cops are going to come."
    The woman responded, "Why are you doing this? Please let me go. You're hurting me" as country music blared in the background.
    The officers then heard what sounded like the woman escaping and heard her scream, "Help! Help!"
    Two officers then peeked through a set of French doors and saw Brennan with his hand over the woman's mouth and his arm wrapped around her throat.
    The officers drew their guns, kicked open the door, ordered Brennan to let go of the woman and placed the former judge in handcuffs. At the same time, a third officer was forcing his way through a back door.
    "I immediately recognized the male subject as former 2nd Judicial District Judge John Brennan," one of the officers wrote in a report.
    The woman told police that Brennan was upset because he wanted her to have sex with a prostitute and she refused.
    He then chased her through the house and grabbed her by the hair and neck several times, she told police. At one point, the woman locked herself in a bedroom and removed a window screen in an attempt to escape, but the window was too high.
    The woman told police that Brennan grabbed her hair and was going to "snap" her neck. She told police that she thought Brennan was going to kill her.
    When questioned by police, Brennan said, "I didn't touch her" several times. He also told officers, "I would never hurt a woman."
    "Mr. Brennan did emit an extremely strong odor of alcoholic beverage and his eyes were blood shot and watery and his speech was slurred," one officer wrote in his report.
    Brennan was chief judge in the 2nd Judicial District in Albuquerque for nearly 20 years. On Memorial Day weekend 2004, he was arrested on suspicion of driving while intoxicated and cocaine possession. He resigned from the bench shortly afterward.

That's all from the Albuquerque Journal.  Needless to say, Brennan responded to the earlier arrest by going to a rehab center, but as the news story tragically reveals, he has since backslid into listening to country music again.

The next time you find yourself dressed down by a judge, it's worth imagining him or her dressed up like Judge Brennan when the police kicked in his door, "wearing only a mock turtleneck and gray underwear".  No word on whether the underwear was gray when it came from the store.

Brennan, as the story says, was an extremely powerful judge for a very long time, with the power of assigning cases to fellow judges who played along with him. 

It's hard to read the recent news stories without (a) feeling a tinge of pity for him; (b) feeling a great deal more pity for his wife (who was out of town -- you don't suppose Brennan was basing more than his wardrobe choices on Risky Business, do you?); and (c) suspecting that his cocaine problem is/was a very severe one.  Long-term cocaine use destroys the brain, and Brennan's brain seems pretty much destroyed by this point.

Our Supreme Court responded to the scandal of his 2004 arrest by adopting the approach used by Catholic Church bureaucrats to deal with pedophile priests, treating it as a personal failing to be addressed with sorrowful discretion.  (See the appendix to this opinion.)

The real scandal wasn't Brennan's use of cocaine.  It was his use of power.  No matter how one tries, it's not easy to avoid the suspicion that for some part of 20 years the court system in New Mexico's only large city was presided over by a cocaine addict.  If so, then obviously his suppliers knew it.   Of course, most cocaine dealers would be too scrupulous to take advantage of such information.  Still ...

There's nothing remotely unique about the New Mexico legal establishment's reluctance to engage in such irresponsible speculation.  Prayer and penitence -- that's the ticket.  Oh, and harumph, too.

It's rare that a story about a judge manages to be both too bizarre and too vague for inclusion in this Judges' Hall of Fame, but the celebrated story of Cleveland, Tennessee's Judge John B. Hagler is very nearly disqualified on both counts.  The newly-exed ex-judge did something very, very, you know .... bizarre.  But so far his former colleagues on the bench are preventing us from finding out exactly what. 

What we know is this: The judge gave a tape to his former secretary, Nona Rogers, who worked with him for 18 years, accompanying him from private practice when he was first ennobled.  Ms. Rogers said that when she first listened to the tape, thinking it was routine dictation, "I shook all over. I was just numb."  Not, one gathers, the usual findings and conclusions.

Here's a clue as to its contents:

"It sounded like someone being tortured," Chattanooga police Sgt. Alan Franks testified Wednesday, offering the first details of what is on the tape.

Franks said the recording was investigated in relation to a still-unsolved 1997 murder. He gave no other details on the murder case.

"The content was so shocking. I have been a police officer for 24 years," Franks said before his testimony was cut off by an objection.

Ex-Judge Hagler himself "has refused to say what is on the tape other than to acknowledge it contains 'graphic fantasies.'"

Apparently, the tape has some connection with the still-unsolved murder of a 35-year-old Episcopal priest, Charles Martin Davis, usually called Marty Davis in the Tennessee media.  Father Davis was beaten and shot either 6 or 7  times, "depending on whether the gunshot wound to the anterior neck is considered a re-entry wound from the graze gunshot wound to the chin".   That last is a link to the autopsy report, which reveals no alcohol, no drugs, no sexual assault.   Not even robbery was a motive, apparently, as money was left in the house.

Does that strike you as promising material for graphic fantasies?  Well, remember that Judge Hagler went to  Father Davis's church, and the two visited and talked on the phone.   So Hagler wasn't just recording his graphic fantasies about violent death - he was fantasizing about a friend's violent death.  Then there's this:

Authorities have said Judge Hagler is not a suspect in the murder of Marty Davis, but Chattanooga Police said they want to hold the Hagler tape because if anyone is ever charged in the Davis case the defense may want it for "exculpatory evidence".

It's hard to keep at bay the thought that the opposite of "exculpate" is "inculpate," and that if a judge's private tape could exculpate another person then it must logically inculpate the judge.  How else could be possibly be Brady material for anyone else?  And, oh, yeah.  One other thing.  Father Davis was "chairman of the gay ministry Integrity" while ex-Judge Hagler teachers a Bible class at the Episcopal church Father Davis attended.  

But wait!  We haven't gotten to the bizarre part yet. 

Hagler, before his resignation became effective, issued a statement which read, in part:

Any decent person, myself, would be disgusted to hear my words as spoken on the recording.  Although I have never been afforded an opportunity to listen to this tape, I believe that the description of it as containing "graphic fantasies" in the Times Free Press is an accurate and sufficient description and all any decent person would want to hear of it.  But any decent person would also conclude that public dissemination, beyond the description previously given, can serve no legitimate public purpose and can only hurt, and continue to hurt, my family and me.

If you were a decent person, yourself, you would have no curiosity about the tape.  This strikes me as rather like Jeffrey Dahmer deploring the poor taste exhibited by a media that insisted on running sensational accounts of cannibalism:  "Any decent person would be satisfied with the information that the persons named in the news reports are no longer living."

Except, of course, that Jeffrey Dahmer didn't exercise immense power over the lives of Milwaukee's citizens for 17 years.  

But, see, that makes it worse that people began know about the pleasure Hagler takes in recording for posterity his fantasies of extreme violence.  Because, he said, an attack on him was an attack on the judiciary:  "This, not a judge's sinful but legal conduct, is the story".   Shades of the "great man" theory of criminal libel.

Remember that allowing the public to hear the tape would serve no purpose other than to "hurt, and continue to hurt, my family and me".  Given that, one might wonder how he could, in the same statement, claim that the tape was an attack on "one of our essential public institutions, the Judiciary".  

The answer, of course, is that Hagler was a judge for a long time.  And for a certain type of judge words are just the wrapping paper concealing the exercise of power.  Complaining about such a judge's self-contradictions is like complaining that the pattern doesn't line up where the paper overlaps itself. 

But now we come to really bizarre bit:

Members of the bar associations in the 10th Judicial District voted today to ask the U.S. attorney to look into how information became public about an audiotape that prompted the district Circuit Court judge to resign Tuesday.

In a joint meeting, bar association members from Bradley, McMinn, Monroe and Polk counties asked the U.S. attorney to become involved and investigate whether the surfacing of information "was an attempt to improperly influence the administration of justice." ...

The members also passed resolutions supporting Judge Hagler and saying that the tape and any copies or transcriptions should be returned to him.

So while we don't know exactly what Judge Hagler said on the tape, we do know the lawyers of southeastern Tennessee considered it well within the acceptable range, at least for judges. 

I've long thought that one of the reasons judges are so concerned about traffic stops is the potential of a traffic stop to wreck a judge's career.  Just look at Ohio's Justice Resnick (see post 33), Arkansas's Judge Davis (see post 36) and New Mexico's own Judge Brennan.  (See post 38.)

But pretending that the Constitution prohibits police officers from pulling over distinguished-looking middle-aged men who like to dress up in black dresses is one thing (me, I prefer these Carnaby Street designs).  Pretending your car was driven by a dead person is something else.   From the Australian Associated Press:

Former Federal Court judge Marcus Einfeld will face a jury and a possible jail term after being committed to stand trial on perjury and traffic offences.

The 69-year-old faces a maximum 14 years in prison for allegedly swearing false statements that other people were driving his car when it was caught committing traffic offences between 1999 and 2006. ...

He is accused of swearing, both via statement and on oath in court, that other people, including a friend he knew to be dead, and a seemingly fictitious person, were driving his car when it was caught speeding and running a red light. ...

His barrister, Ian Barker QC, said it was "preposterous" to suggest that signing false statements to avoid traffic fines amounted to an attempt to pervert the course of justice.

He also stressed the issue of timing, saying there was simply not enough proof that Einfeld could have left Sydney's Freshwater beach, where he lunched on January 8, 2006, and made it to the Mosman speed camera where his car was photographed at 4.01pm.

The January speeding fine, which Einfeld claimed was incurred by a friend, Professor Teresa Brennan, sparked a high-profile investigation into Einfeld's driving history after it was revealed Brennan had died in 2003.

It was the second time Einfeld had claimed Brennan was driving his car, having previously blamed her for a speeding offence committed the day after her death.

Australia's Federal Court is the federal government's intermediate appellate court - would it have killed them to put the word "appeals" in the name? - so Judge Enfield was pretty high up the hierarchy when he started letting the ghosts get behind the wheel.  He was, indeed, the distinguished-looking gentleman whose stern-yet-wise-yet-compassionate-yet-arrogant-yet-learned-yet-ever-so-slightly-crackers visage you saw if you followed the link in the second paragraph.

I bet if he had to do it all over again, the judge would just declare red-light cameras unconstitutional ahead of time.

One of the truly gratifying things about maintaining a blog is the way judges clamor to see their names up in pixels.  They compete with each other to find themselves immortalized in the Squarespace servers.  You can sense the spirit of determination underlying such spectacular and ultimately successful efforts as this, brought to my attention by two different readers:

2.    Respondent presided in the Domestic Violence Part on a weekly basis from 1999 through March 11, 2005.  The Domestic Violence Part handles cases of defendants who, after arraignment on charges involving violence against family members, have been screened to determine whether they are eligible for a court-supervised, 26-week program of counseling and education.  If accepted into the program, defendants are required to refrain from using drugs or alcohol, to undergo counseling and testing, and to report to court on a weekly basis so their progress can be monitored.  As a matter of practice, defendants in the Domestic Violence Part are released each week on their own recognizance unless they violate a condition of participation, in which case they face the possibility of sanctions, including the revocation of their release and the imposition of bail.  When defendants appear in the Part, they are generally required to remain in the courtroom until the completion of all the proceedings that day, even after their own cases have been concluded.

3.    Shortly after 9:00 AM on March 11, 2005, respondent took the bench in the Domestic Violence Part.  About 70 cases were scheduled, and approximately 70 people were in the courtroom.  In addition to defendants, also present were defense attorneys and prosecutors, court administrative personnel, court security officers, and representatives from counseling programs.  The courtroom was open to defendants and others entering and leaving.

4.    For about 45 minutes, respondent handled in a routine manner eleven cases involving defendants who were participants in the Domestic Violence Program.  In accordance with the customary procedures, respondent questioned the defendants, released them on their own recognizance and directed them to remain in court until the proceedings were concluded.  At approximately 10:00 AM, a device that appeared to be a cell phone rang in the back of the courtroom.  Addressing the defendants in the courtroom, respondent stated:

Now, whoever owns the instrument that is ringing, bring it to me now or everybody could take a week in jail and please don’t tell me I’m the only one that heard that.  Mr. Martinez, did you hear that ringing?...

Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now.  If anybody believes I’m kidding, ask some of the folks that have been here for a while.  You are all going.

 5.    When no one took responsibility for the ringing phone, respondent directed that everyone remain in the courtroom and then took a five-minute recess while court security attempted to locate the phone.  An officer stood at the doorway to prevent anyone from leaving the courtroom.  Prior to that time, there had been traffic in and out of the courtroom.

6.    Notwithstanding the recess, respondent did not withdraw his threat to send all of the defendants to jail if the owner of the phone was not discovered.

7.    When respondent returned to the bench, he was told that the phone had not been located.  Respondent then asked Reginald Jones, the defendant who had been standing before him when the phone had sounded, if he knew whose phone it was.  Mr. Jones replied, “No.  I was up here.”  Although respondent knew that Mr. Jones did not have the phone that had been ringing, he revoked Mr. Jones’ recognizance release, set bail at $1,500 and committed him into custody.

8.    Respondent proceeded to call the remaining cases on the calendar and then to recall the cases of the eleven defendants who had been released on their own recognizance earlier that morning.  Respondent questioned each defendant as to his or her knowledge of the phone.  After each defendant denied having the phone or knowing whose it was, respondent revoked the defendant’s recognizance release and reinstated bail; he set additional bail for two defendants who were previously released on bail.  In total, he committed 46 defendants into custody.  In five of the cases, he revoked the defendant’s release and committed the defendant with little or no discussion.

9.    Three of the defendants committed into custody were making their first appearance in the Domestic Violence Part that day.  The remaining defendants had regularly appeared in the Part as required; 15 defendants had previously appeared on at least a dozen occasions as required in connection with the program; one defendant had appeared 25 times and was one or two weeks away from completing the program.  Only one of the defendants committed into custody had an attorney who was present.

The Respondent in all this was Judge Robert M. Restaino of the Niagara Falls City Court, who had apparently been driven insane by the discordance of the constant clashing rumbles of the falls and the tour busses and was consequently hypersensitive to noises.  Here's the New York Times on the episode, and here's the AP.

Once again we're reminded just how far a judge has to go before he or she faces a serious risk of being removed from the bench.  You have to go to the extreme of experiencing "two hours of inexplicable madness" in a packed courtroom with a court reporter present before the Commission on Judicial Conduct will take the least notice of you.  Sort of like a teenager trying to shock her old hippie Mom, or Damien Hurst - really, you have to try so hard.

And even then there will always be defenders of a judge's right to abuse people "without any semblance of a lawful basis": the Commission's ruling drew a dissent as to the sanction of removal.  Its chair, a well-known divorce lawyer, declared that Judge Restaino had "has an impeccable reputation as a dedicated, fair, hard-working jurist with great integrity" - an opinion as weirdly inexplicable as the neighbors who insist the serial killer was "pretty nice."  I'm sure Judge Restaino has many fine qualities, but an impeccable reputation is no longer one of them.

Here's one of the accusations against Texas federal judge Samuel Kent with regard to his former case manager, Cathy McBroom:

McBroom was summoned to the judge's chambers on Friday, March 23, at about 3 p.m.

Her hands were full of legal papers when the judge — a former high school athlete who is more than 6 inches taller and at least 100 pounds heavier — asked for a hug.

She told him she didn't think that was appropriate, but reluctantly approached.

The judge grabbed Mc-Broom, pulled up her blouse and her bra and put his mouth on her breast. Then, Kent forced her head down toward his crotch.

As McBroom struggled, Kent kept telling the married mother of three what he wanted to do to her in words too graphic to publish. The papers fell to the floor. The pet bulldog Kent kept in his chambers began to bark.

The incident was interrupted by the sound of footsteps from another staff member in the corridor, and the judge loosened his grip. As she left, the judge said McBroom was a good case manager and then made suggestions about engaging in a sexual act.

McBroom ran out crying.

McBroom filed a complaint with the Fifth Circuit's Judicial Council, which conducted an investigation, held some kind of hearing, and apparently found the accusation substantiated.  "Apparently" because the Fifth Circuit order in the matter is so extremely - and, of course, deliberately - vague. 

After McBroom came forward, other women did likewise: "[Felicia] Williams and at least three other women later gave statements to 5th Circuit investigators regarding Kent's alleged abuse of employees."  Ms. Williams, Kent's former case manager,

told the [Houston] Chronicle that over the years she frequently had seen Kent appear inebriated at work after long lunches with lawyer friends, was regularly asked for "hugs" and subjected to lewd remarks.

The judge said he could "service me when my husband was being treated for prostate cancer," Williams said. "He told me sexual dirty jokes, and (I) was expected to listen to his rude comments regarding other people."

I can't tell if the Fifth Circuit considered these additional allegations.  At any rate, the court's Judicial Council came down on the judge like a ton of bricks.  It placed him on a four month paid leave of absence. 

That's right, the judge's punishment is to accept $55,000 - one third of his annual salary - while relaxing on the beach.  (How many of you just asked: Where do I sign up?)

The Houston Chronicle, and especially its columnist Rick Casey, has been all over the story and doing a superb job, but the story has received virtually no attention in the national media.  I couldn't find any stories in the Washington Post, New York Times,  LA Times or USA Today, although it's made the Wall Street Journal's law blog, if not the paper itself.  You have to read the hometown paper or the Volokh Conspiracy to find out what's going on.

But this isn't a case about a local crime, or the misbehavior of a single local official.  The key thing isn't what Judge Kent did - and the Fifth Circuit's Judicial Council's order certainly tells us that he did something, even if we don't know what, exactly - but that he was allowed to do so much.  For instance, he was allowed to do everything he did to all those other women before McBroom.

Judge Kent had to go to the extreme of - apparently - committing an out-and-out felony against a person willing to risk her good federal job (all jobs in the federal judiciary are good jobs) by talking to the newspaper before the barest possibility arose of his facing negative consequences.

The institution of the federal Judicial Councils, it's hardly necessary to point out, exists to prevent discipline of federal judges by creating an illusion to the contrary.  It exists as a trash receptacle.  It has no power to do anything except attempt to shame a person who wouldn't have gotten to that position if he retained any ability to feel shame - rather like trying to appeal to the conscience of a sociopath.  Punishment by the Judicial Council is exactly the same as non-punishment by the Judicial Council, except the former involves less work.

Even more than that, though, Judge Kent thought he could get away with sexual violence because he's gotten away with abusing his power so often in the past, and not just against female staffers, as my old ethics teacher Steven Lubet documented six years ago.  

Mary Flood, the Chronicle's legal blogger, refers to Judge Kent's "national reputation for training his biting wit on lawyers".  For a judge to train "biting wit" on lawyers who appear in front of him is very similar to a prison guard exercising his knack for hilarious practical jokes on the job, with this difference: the guard has power only over the prisoner, while the judge holds both the lawyer's career and his or her clients hostage. 

A judge can be "bitingly witty" to lawyers for one reason and one reason only: because he possesses the power to hurt the lawyers personally, and hurt their clients for years or decades to come, even put them out of business, if the lawyer should respond with anything but "heh heh." 

Imagine what a riot Judge Kent would be as a night orderly in a nursing home.

In short, Judge Kent's national reputation isn't for "biting wit" - it's for sadistically abusing his power.  Even if the lawyers themselves are too self-protective, and protective of their clients, to say so in public, there's no reason for a non-practicing lawyer such as Ms. Flood to use such euphemisms.  Judge Kent is a person who cannot be trusted with power.  He evidently suffers from a serious mental illness - the delusion that his power is unlimited.  He has no business being on the bench.

One of the truly shocking elements of the story, though, is the joint statement from three Congressmen on the Judiciary Committee.  They responded to a query about possible impeachment by referring to the possibility of criminal charges and then adding:

"While the alleged conduct is disgraceful, it is, nonetheless, the practice of the House Committee on the Judiciary to defer formal action until available intermediate remedies have been pursued," the congressmen said.

A felony prosecution is an intermediate remedy?!?

The Constitution says that federal judges "shall hold their offices during good behaviour".  That's not lifetime tenure.  Nor does that require a showing of high crimes or misdemeanors for impeachment, despite two centuries of lamentable precedent to the contrary.  It would be crazy to hold a minor appointed official to the same high standard required for nullifying a presidential election, and the Constitution didn't do so, although craziness has been a distinguishing hallmark of our attitude toward federal judges at least since Samuel Chase.

If Kent were impeached, all that would happen would be that he would return to the practice of law.  That's the horrible, dreadful punishment that the three members of Congress consider more serious than a felony prosecution. 

Now why, do you suppose, would members of Congress would be so reluctant to establish a precedent for removing a public officeholder from his (and I do mean "his") position merely for committing sexual assault?

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

Latvian journalist Lato Lapsa, who (if you follow the link) once resembled a red-headed Jack Nance from Eraserhead,  now wears more-becoming non-nonsense steely gray hair.  His name is more literary than most.  A Dogpile search for stories about him brings us Virgil:

bina manu lato crispans hastilia ferro. Cui mater media sese ... aetheria quos lapsa plaga Iovis ales aperto. turbabat caelo; nunc terras ordine longo...

and Ovid:

neve sit errandum lato spatiantibus arvo, conveniant ad busta Nini lateantque sub umbra ... dumque fugit, tergo velamina lapsa reliquit. ut lea saeva sitim ...

Lapsa recently ignited a pretty spectacular judicial scandal in Latvia:

Journalist Lato Lapsa has unveiled a series of transcripts that are allegedly wiretapped phone conversations among prominent figures in Latvia’s judiciary system from 1998 to 2000. ... The tapes primarily concern conversations between high profile lawyer Andris Grutups and high ranking members of the judiciary. If they are found to be authentic, then the tapes could imply corruption in the political elite, business elite and the judiciary system as a whole.

That cautious report, carefully refraining from saying what is actually contained in the transcripts, is from the Baltic Times, which a day earlier had described the transcripts this way:

The transcripts date back several years and appear to originate in the office of leading lawyer Andris Grutups. They record conversations between Grutups and various members of the judiciary suggestive of a relationship that is more collusory than would generally be considered acceptable.

The Finnish Helsingin Sanomat is also circumspect in describing the recordings:

In the recordings, the lawyer and the judges engage in confidential discussions of the kind that violate rules of professional conduct. If the tapes prove genuine, they would call the impartiality of the system of justice into question.

 One judge whose voice was said to have been heard on a tape, has reportedly submitted his resignation.

Anyway, you get the general idea.  The Baltic Times reports that the country's prime minister responded in a classically Stalinist way, interpreting the revelations as a kind of treason:  "'This is an opportunity to destabilize the political situation in the country, to ruin trust in the prosecutor’s office and justice system. Obviously somebody is interested in such destabilization,' he said."  It just goes to show that you can take the Baltic nation out of the USSR but you can't take the USSR out of its politicians. 

But if the prime minister could have plausibly contended the tapes were fake, wouldn't he have chosen to spin the story that way instead?  The lawyer supposedly implicated also indirectly confirmed the authenticity of the transcripts, asking "if 'placing a phone call' was a crime."

Lapsa received the transcripts anonymously at the end of last year but held on to them until he could publish a book about their revelations.  Without knowing anything at all about either him or Latvian politics, his explanation for the delay is so true to small-state politics in the US that I believe him:

Lapsa told journalists that he published the transcripts in order to ensure public opinion would weigh in on the matter and that the case was thoroughly investigated. The aim of the book was “to raise enough public interest and awareness about the case, so as not to allow our dear investigation and law enforcement institutions to drown this case as has happened with other cases,” Lapsa said. The journalist said that he remembers a number of cases in which information had been sent to the prosecutor’s office, but the case was not launched and “died naturally.” He explained that these cases indicate that it is not enough – “not in this country, not at this time” – to simply send the information to the prosecutor’s office, and that public awareness about the case must be raised as well.

As an indication that his strategy might just possibly produce some results, we have this story from today's LETA:

Prosecutor General's Office has requested from Riga Regional Court information on civil suits reviewed between November 1, 1998 and April 1, 2000 by seven judges whose names possibly correspond to those mentioned in the new book "Tiesasanas ka kekis" ("The Court Case Kitchen"), released in Latvia last week.

(The Court Case Kitchen has a distinctly Babelfishy smell to it.  The Baltic Times goes with Cookhouse Legislation, which isn't any better.  The Court's Kitchen, maybe?  Or Cooking Up Cases?)

Last Wednesday the feds indicted Pennsylvania Superior Court (i.e., appellate court) Judge Michael T. Joyce

on three counts of mail fraud and six counts of money laundering related to insurance claims he made after an August 2001 auto accident. Judge Joyce said he was so seriously injured after an SUV rear-ended his Mercedes Benz that he was unable to golf, swim, jog, scuba dive or otherwise exercise regularly. He received $440,000 from Erie Insurance Exchange and State Farm insurance companies.

After an 18-month investigation, the FBI and IRS said that while making those claims, Judge Joyce was golfing, scuba diving and otherwise doing what he said he couldn't do. He even applied for, and received, a pilot's license. On that application, he ''indicated he had no injuries, physical problems or physical limitations,'' according to the indictment.

Judge Joyce routinely presides over Superior Court cases involving insurance, yet, he had the audacity to use his judicial letterhead to press for compensation. ''He clearly presented himself as a judge,'' noted U.S. Attorney Mary Beth Buchanan, ''and it is possible the insurance company considered that in weighing his claim.''

That's from the Allentown Morning Call.  In the press release from the office of Pittsburgh's U.S. Attorney Mary Beth Buchanan, additional details are given:

According to the indictment, during the same time period that Joyce made these claims[ of being unable to play golf or exercise], he played multiple rounds of golf in Runaway Bay, Jamaica, Tampa, Florida, Findley Lake, New York, and Fairview, Pennsylvania; went scuba diving in Runaway Bay, Jamaica and renewed his diving instructor certificate with the Professional Association of Diving Instructors; went roller blading on multiple occasions; and exercised at the Nautilus Fitness and Racquet Club, in Millcreek Township. 

The press release also alleges that the car accident was a low-speed affair - 5 mph, says the AP - and that "neither medical nor law enforcement personnel were called to the accident scene".  Sound like a $440,000 claim to you?  My guess is that the insurers decided to pay up without fuss because he was a judge - and launched their investigation at once.   (Wonder if their investigator got an expense-account trip to Jamaica, or if they hired a local tec?)

It's worth remembering that U.S. Attorney Buchanan narrowly escaped the honor of being axed last winter, which to a cynical person might suggest she's someone who, under pressure, agreed to play ball.  (See post 275.)  And Republican politics do seem to be involved in the Judge Joyce case, though perhaps not in the way you'd expect:

In addition, the indictment alleges that Joyce, in support of his claims, asserted that he had received the Republican endorsement and nomination in the 2001 election for a seat on the Pennsylvania Supreme Court in 2002.  In fact, he had neither the endorsement nor the nomination.

His claim, apparently, was that he would be sitting on the Supreme Court, pulling down the bigger salary, but for the debilitating pain of the car accident, which curtailed his campaigning.

All very entertaining, provided you don't have any appeals pending in Pennsylvania's appellate courts.  But now listen to "Joseph A. Massa Jr., chief counsel for the state Judicial Conduct Board, which investigates and prosecutes charges of misconduct by judges."  He told reporters that "Joyce is not legally required to step down because of the indictment since the charges do not directly involve his court-related duties". 

I don't doubt that Massa is correct on the law (and, even if he's wrong, it's unfair to accuse him of "foggy thinking"), but it's an interesting law.  The AP quotes Judge Joyce himself saying "he is innocent until proven guilty" - which of course is bogus.  He's presumed innocent, a different thing altogether, and then only for purposes of a criminal trial.   

There's an excellent reason for the presumption: "[i]f convicted, Judge Joyce could be sentenced to 120 years in prison and fined up to $2.25 million."  (Oh, those federal sentencing laws!)   On the other hand, if he's removed from the bench, his maximum sentence is: practicing his profession, the same as he did before he ascended the bench.  And many of us consider practicing law to be qualitatively different from a stretch in stir, for all that it can be a trifle unpleasant to appear in front of certain judges.

Should we really apply the same burden of proof to 120-year sentences and removing a lawyer from the public payroll?

The Philippine Supreme Court thinks so.  As explained by the Bohol Chronicle under the charming headline: "'Kissing' Judge Acquitted",

The Supreme Court yesterday dismissed the sexual harassment charges filed against a judge of Davao City Regional Trial Court Branch 16 by a court stenographer for her failure to prove her allegations beyond reasonable doubt.

The kissing judge himself,  Emmanuel Carpio, was anything but charming.  According to the Supreme Court order, the court reporter alleged that the judge cornered her when she was alone and forcibly kissed her.  When she didn't respond as he wished he made his chambers into what might be considered a hostile work environment: "There were times when respondent judge would place his gun on top of her table which would give her a scare."

An investigating judge found the charges substantiated and recommended Judge Carpio be suspended for three months.  But the Supreme Court disagreed:

In administrative or disciplinary proceedings, the burden of proving the allegations in the complaint rests on the complainant.  While substantial evidence would ordinarily suffice to support a finding of guilt, the rule is a bit different where the proceedings involve judges charged with grave offense. Administrative proceedings against judges are, by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges or to establish the ground/s for the removal of a judicial officer should thus be more than substantial; they must be proven beyond reasonable doubt.  To borrow from Reyes v. Mangino:

           Inasmuch as what is imputed against respondent Judge connotes a misconduct so grave that, if proven, would entail dismissal from the bench, the quantum of proof required should be more than substantial.      

Of course, three months' suspension isn't exactly "dismissal from the bench", but that's only one example of slippery language: a moment before hearing about dismissal from the bench, we're told that proceedings against judges are "highly penal in character."  There you have it: dismissing a judge is "highly penal", the equivalent of a penitentiary term.  And since removal (or, apparently, even a temporary suspension) is the equivalent of being thrown in a Philippine prison, naturally the two must be treated the same.

Returning to Erie, Judge Joyce is an appellate judge, which means that his word is - quite literally, as lawyers know - law, in most of the cases that come before him.  A grand jury made of Pennsylvania citizens found probable cause to believe he's a crook and a liar.  Why should the people of Pennsylvania be forced to submit to the law as announced by someone they have good reason to believe is a crook and a liar? 

If Judge Joyce's guilt can't be proved beyond all reasonable doubt, then fine, let him practice law and defend against the insurance companies' civil suits.  But probable cause to believe a judge is a crook is too much - way too much - evidence to allow him to remain on the bench. 

The Pennsylvania Supreme Court agreed, sort of.  The justices suspended Judge Joyce with pay.  As the Philadelphia Daily News observed, "With suspension, judge has more time for golf".  This morning Judge Joyce announced his retirement, last week's bravado having largely seeped away over the weekend.

With what exclusive demeanor may one be remiss?  Sadly.  And that's what this blog has recently been with respect to half the task assigned by its title, that of chronicling the crimes of judging.  (Please note: We use the term 'crimes' in its colloquial, rather than any technical legal, sense:  "An unjust, senseless, or disgraceful act or condition: It's a crime to make fatuous decisions that damage other people's lives.")

First prize goes to whoever correctly guesses, without reading the story or possessing previous knowledge of its subject, the meaning of this BBC headline: "Brazil judge in gay football row".   Last prize goes to whoever can read the following sentence once and explain the technical basis of the judge's ruling.  Hint: The article involves a libel suit brought by the Brazilian football star Richarlyson against someone who called him gay.  Here's the sentence: "In reaching a decision to effectively set the case aside, Judge Manoel Maximiniano Junqueira Filho said football was a virile masculine sport and not a homosexual one."

In Britain, judges obsess less about gay football stars and more about money.  Judge Peter Smith, who embarrassed himself by concealing a lame Da Vinci Code-like cipher in the opinion belatedly clearing Dan Brown of plagiarism charges brought by people who had written a book they previously had hawked as non-fiction, make the mistake recently of not resorting to cipher when he would have been well-advised to do so.  As explained by the Telegraph:

Last November, [the big-deal City law firm] Addleshaw Goddard approached the judge with an offer of a job. Under this plan, Sir Peter would retire early from the Bench and join the firm. This sort of thing was, after all, encouraged by Lord Falconer when he was Lord Chancellor. Talks continued until May, when the firm decided that Sir Peter would be too expensive. His current salary is £164,430. Reports, not denied by either side, say that Sir Peter and his judicial assistant would have cost the firm £750,000 a year - though that was not a figure that the judge himself demanded. In any event, Simon Twigden, head of the firm's Contentious Group emailed the judge to say that "the level of investment required cannot be supported".

Sir Peter's reply, quoted by the court last week, showed "considerable disappointment". The judge "stressed the considerable advantages of being associated with him as a judge who had recently given judgment in 'a landmark decision on corruption' which 'also has an impact on Banking and Corporate' ".

When he was again turned down, the judge told Mr Twigden: "I found your first email insulting and your second one condescending." He added: "I feel you have wasted my time for several months. I am extremely disappointed because, contrary to your fine words, you have allowed the bean-counters to prevail."

Shortly after being told that his services weren't worth the cost, the judge found himself assigned to a case involving allegations of wrongdoing by the very same Mr. Twigden.  When asked to recuse himself, he refused, telling the firm's barrister, "It is about time you grew up." 

In response to the Murdoch Times' account of the affair, a defender of the judge wrote in: "If however every Judge is hounded from office for losing their temper we would have a backlog of cases and the system would break down."  Now, that's  rhetorical inflation (see post 297): if you remove a single judge for using his official power to settle a private score, the legal machinery of the state will ground to a halt - I guess because once you start, there's no logical stopping place, and soon there won't be any judges left to wear the cute red dresses of the High Court.

Meanwhile, "Italy's top criminal court on Friday upheld a corruption conviction in February against Cesare Previti, a former defense minister and close associate of ex-premier Silvio Berlusconi, Italian news reports said.  [¶]  The Court of Cassation upheld the appeals' court sentence of 18 months in jail for Previti, as well as prison sentences for two lawyers and a judge, news agencies ANSA and Apcom reported."

That's the problem when judges start running with the big dogs: they don't even get their names in the papers.  Two other, equally-anonymous judges had their convictions overturned, according to Forbes, which describes the new American phase the litigation is taking, in the form of a forfeiture action.  (Here's a little more about the underlying tangle.)

Back home, former Washington County Circuit Judge Annette Ziegler was sworn in as a justice of the Wisconsin Supreme Court.  The noteworthy part about that?

The state Judicial Commission is investigating Ziegler for her handling of 16 cases in which she had a potential conflict of interest. Ziegler acknowledged wrongdoing in some of those cases in May as part of a separate investigation.

Of course, "potential conflict of interest" is a notoriously vague category, which is why a separate category needs to be invented for Justice Ziegler, because what she did wasn't vague at all:

Seven of the cases the Judicial Commission is investigating involve West Bend Savings Bank, where her husband sits on the board of directors. Nine of them involve companies in which Ziegler owned more than $50,000 in stock.

The state judicial code bars a judge from handling a case if his or her spouse is a director for a party involved in the case. The code also bans judges from hearing cases involving parties in which they have more than a minimal financial interest.

The state Ethics Board also looked into the bank cases this spring. Ziegler settled that matter in May for about $17,000, which consisted of a $5,000 forfeiture and state legal fees of about $12,000.

The $5,000 forfeiture was the largest penalty in an Ethics Board case in 14 years.

An editorial in the Madison Capital Times - the headline gets right to the point - explains how a crook like that got elected to the Supreme Court of a state that has generally has a reputation for scrubbed-cheek clean government:

But the most serious problem with Ziegler taking a place on the court is not her scandalous behavior as a jurist. It is the fact that she lied to the people of Wisconsin in order to secure a place on the bench.

When the issue of her unethical behavior arose, it was a classic case of judicial wrongdoing. Any first-year law student could have looked at the record and known that Ziegler was going to face sanctions for deciding cases involving the family business. Indeed, as Professor Geyh says, "Everybody knows you don't do that."

Yet, Ziegler and her supporters claimed in the weeks before the April election that she had done no wrong.

The Ziegler campaign asserted that the charges against her were nothing more than political rhetoric at election time.

Ziegler and her supporters actually went so far as to impugn the motivations of civic organizations that expressed concern about the prospect that a judge with such severe ethical problems would be seeking a place on the state's highest court.

The lies worked. Ziegler was elected. Then, within weeks after securing a 10-year term on the court, she admitted she had done what she solemnly told the voters of Wisconsin she had not done.

At that point, there was no longer any question that Ziegler obtained her position under false pretenses. And when she solemnly swears an oath today to uphold the laws of the state, Wisconsinites will be justified in asking whether anything this woman says -- or any ruling by the court in which she participates -- can be trusted.

But you have to admit, Justice Ziegler cleverly figured out how to beat the rap.  First, the "avowed conservative" raised a ton of cash, and from what we know about her it seems a good bet that those who gave her the money look forward with justified confidence to a handsome return on their investment.  Second, now that she's been sworn in, we have to assume the disciplinary case has been wrapped up.  (See post 198.)  My prediction: a year or two goes by, to create the illusion of continued investigation, and then an "admonishment" settles like dust on her robe. 

A few years ago a friend of mine was asked to serve on a State Bar task force tasked (as they say) with countering the negative image of lawyers.  The idea was that a better-informed public would have a much rosier impression of the profession.  It struck me as not only a hopeless but a misguided mission, because the dismal public perception of lawyers isn't based on ignorance.

Most lawyers don't put up lighted billboards along the freeway saying things like, "If you've had an accident, somebody somewhere owes you money!!!   Dial 555-TORT," like the millionaire lawyer who had never tried a case in one of Carl Hiaasen's best.  Nor is it true that most lawyers "spend too much time finding technicalities to
get criminals released", as an ABA survey found 73% of Americans believe (page 7).  (I love that Papa Bear-like "too much.") 

But the public perception that lawyers do these kinds of things is nonetheless perfectly accurate.   The problem isn't that the public doesn't know what lawyers do, but that it knows all-too-well what some lawyers do.  (Besides, what the rest of us do is too boring to bother learning about.)

The same curse of partial knowledge explains much in the newspaper biz.  In their rhapsodic moments, journalists come closer to the sanctimoniousness of lawyers than any other profession ("sacred duty" – no, really – or even a Frodo-like "sacred mission" – no kidding, they say that to one another) and yet they score hardly higher than lawyers in the Gallup Honesty and Ethics poll. 

This is how respondents responded to the loaded questions of pollsters:

Six-in-ten see news organizations as politically biased, up from 53% two years ago. More than seven-in-ten (72%) say news organizations tend to favor one side, rather than treat all sides fairly; that is the largest number ever expressing that view. And by more than three-to-one (73%-21%), the public feels that news organizations are "often influenced by powerful people and organizations," rather than "pretty independent."

It doesn't matter that most journalists aren't like that, because some news organizations are.  Rupert Murdoch's newspapers are politically biased, unfair, and influenced by powerful people – in particular, by Murdoch himself, as the Wall Street Journal recenntly reported from its deathbed.  (On the positive side, the family conglomerate almost certainly won't survive the lying bastard's death, which can't be far off.  People with Murdoch's particular combination of qualities don't produce intact children, much less dynasties.) 

Some time ago I read a book-length compilation of clippings from the Police Gazette of the late 19th century.  This was the pink-sheeted, "second" Police Gazette, no longer a log of police activity but a startlingly modern tabloid.  It featured lots of stories about athletes (e.g., bare-knuckle fighters - some of the stories were distinctly Michael Vickish, except they involved humans), and lots of engravings of sexy girls in revealing (by the standards of the day) costumes, such as trapeze artists in tights and short skirts. 

There was also a violently racist campaign against recent immigrants – the Chinese, depicted as fiends who addicted white girls to opium for purposes of satisfying unspeakable lusts – and offbeat news stories that read as though they had been thought up at the compositor's stand.  It was remarkably close to the formula followed today by Murdoch's flagship The Sun.  (Can't wait for the WSJ's page three, can you?)

The story of the judges and the sex tapes (see post 295) might have been made for Murdoch.  Readers could read about the details ("J found out about the affair when she discovered them in bed together at Mr Khan's home around Christmas 2004") while deploring the foreigners who supplied them (an English judge named Khan in bed with a Brazilian) and waxing indignant (see post 286) that immigration judges should hire an illegal immigrant to clean their houses.

But the effort required to tsk and chortle at the same time might obscure for many readers the exploitation.  An immigration judge first hired, then sexually used, an illegal immigrant.  It took an unusual convergence of events, up to and including a blackmail prosecution, for any of the story to become public (or rather semi-public, as UK press law still censors some details).   And even then the woman went to jail while the man continued to draw his £101,948 per year salary for staying home from work.

Similarly, here in New Mexico, a longtime advisor to President Richardson hurriedly quit his new job as a workers compensation judge (hey, gotta find 'em jobs somewhere) under circumstances that must be gathered from the inconclusive hints found in this Albuquerque Journal report:

After the conference adjourned, [Judge Chris] Berkheimer and the worker were left alone in the room, [the woman's attorney, Justin] Pennington said.

    "That's when he made his comment," Pennington said. "I can tell you that Mr. Berkheimer wasn't aware his actions were being observed."

    He had failed to turn off the visual and audio equipment used to set up the videoconference, Pennington said.

    "I can tell you that the inappropriate sexual proposal was made according to two witness statements," Pennington said— the female worker and a conference participant still connected by videoconference in Albuquerque.

    "Objectively, 99 out of 100 people would have understood that a sexual proposal was being made," Pennington said. "What Mr. Berkheimer's side of the story (is), I don't know. I'm sure he has a side," he said.

The real significance of both stories isn't that male judges seemingly abused their judicial power to solicit sex from women brought before them, but that judges possess power that can be abused so blithely.  If not for the judges' own stupid / hubristic miscalculations, neither incident would have come to light.  How many judges avoid making such miscalculations?