JUDGING CRIMES

It's time to pay another visit on Alabama Circuit Judge Stuart Dubose.  (See post 191 and post 306.)  The Alabama Judicial Inquiry Commission filed a pretty spectacular complaint, but it was topped by Judge Dubose's answer -- which was then topped by the Alabama Supreme Court.  

There's such an abundance of riches in the complaint, it's hard to pick a favorite.   If one credits everything in the complaint (and of course these are mere allegations), Dubose was running hard for the title of the Worst Judge in the History of the World.  And he had a real shot at the record, too.

There's the probate matter, featured over at Death and Taxes Blog.  There's his habit of revoking probation without notice to the probationer.  Then there's the divorce case in which he took it upon himself to telephone the attorney for the father - the most elementary no-no for a judge - to inquire what visitation rights his client wanted.

The attorney told the judge, and the judge granted overnight visitation without notifying the attorney for the wife -- who, therefore, did not have the opportunity to inform the judge that the county Department of Human Services was just then investigating an allegation that the father had sexually abused the child in question.  (The attorney for the father didn't know about it, either.)  The father was also facing felony charges, but I can't tell from the complaint if those relate to the same allegation.

After his attention was brought to the salient facts, Judge Dubose convened a hearing to assign blame, stating from the bench:

It is extremely upsetting to this Court that this Court be put in a position where it is not informed of the circumstances ... until after the Court has been allowed a month to ill-advisedly or unadvisedly, in an attempt to try to accommodate lawyers and their clients to settle a dispute and to just let a daddy have some time with his youngun, when the file doesn't reflect anything out of the ordinary ...  [T]he point of this exercise today is to try to do something to ensure that, at least as far as this Judge is involved, that this don't happen again. If I have to be informed of every investigation that the Department does, then I'm going to order it done.

The other alternative, of not calling up counsel for one side and issuing ex parte orders, apparently didn't occur to the judge.   The judge's chief concern was that he might be featured on the Bill O'Reilly show, which is the most positive thing I've ever heard said about Bill O'Reilly.

When an attorney for the Department of Human Services made an appropriately smooth non-apology apology - he "apologized to the Court in the event DHR had done anything to place Judge DuBose in an awkward position" -  the judge explained the real cause of his ire: "But, considering what I have been through, this looked like a set-up to me."   When the attorney for the wife suggested politely that perhaps the problems could have been avoided if the judge had allowed his client to participate in proceedings concerning her child, the judge turned to his court reporter, poised at her stenotype machine: 

"You [Ms. Dunn] take your hands off the machine. Don't you write one thing he's saying. I'm running this show. This is my courtroom. We'll do it how I want to do it." In addition, Judge DuBose declared that he would put on the record whatever he wanted to put on the record and that nothing was going on the record unless he wanted it on the record.

He even told his court reporter to give him all her materials from the hearing and to delete the transcript from her computer (which she wisely chose not to do).  So far as the complaint reveals, Judge Dubose evinced no awareness that a child's welfare might also be involved.  Or, for that matter, a parent's.  (If you mentally remove the Phil Donahue thing from his head, Dubose even looks like a big baby.)

Then there's the judge's loudly-repeated threats to hometown Mobile attorneys in order to send a message to Mobile judges to stop obsessing about Judge Dubose:

"You need to go and let these judges know that I know they're meeting about me and how they got to stop fucking with me. They better be careful because I've got eyes and ears down there." Then he stated the following or words to the same effect: "You know John there are a lot more lawyers from Mobile that come up here than lawyers from up here that go down there. I'm going to send a message through these lawyers that come from Mobile that the judges need to stop messing with me."

After Dubose won the bitter Democratic primary - he won on the platform that his opponent was an unmarried man, nudge, nudge (see post 191) - the itty-bitty bar in his three-county district threw a reception for him at Ezell's Catfish House.  (More photos here; a U.S. Senator's invocation of the place as a reason for opposing economic development in Vietnam here.)  (The three counties in the First District have a combined population of a little over 70,000 souls, plus Dubose.)

Dubose stood up and promised to hometown opposing attorneys:

He told the Circuit's attorneys in effect that, with him as judge, they would have a "home-field advantage" over lawyers from other circuits. He also more specifically stated that they would have the home-field advantage in cases where the opposing counsel are lawyers from Mobile or Birmingham or defense attorneys.

After becoming judge, Dubose began systematically summoning lawyers who had supported his opponent in the primary and demanding that they sign pledges to support him when he ran for reelection.  Several attorneys caved, though perhaps only on the theory that it's best to humor an insane person holding a gun to your head, even if only figuratively. 

During a hearing, he peeled off his robe (apparently believing that it was the garment that imposed ethical restrictions, as a straitjacket on the conscience) and threatened any lawyer who cooperated with the Judicial Inquiry Commission: "I might be older or I may not be what I used to be, but I can still stomp a mud hole in an ass and walk it dry with the best of them."

(That right there tells you he's unqualified for his position.  Better judges deliver the same message through intermediaries, or warning-shot adverse rulings, preserving their plausible deniability.)

I'm leaving out a lot, but only because there's something even better in Dubose's answer to the complaint. After a blanket denial, he pled diminished capacity.

"Diminished capacity" is not guilty by reason of insanity lite.  A person who's not crazy enough to be acquitted may nonetheless be entitled to have charges reduced because he lacks the mental ability to appreciate the consequences of, say, shooting his estranged wife in the head.  Most of the time, naturally, the cause of the purported mental incapacity is alcohol or drugs.  Often, it comes down to asking the jury to go easy on you because, not only are you a killer, but you're a drunk, too.  It's what you might call a last ditch defense.  A before-the-current-drought kind of last ditch, at that.

In other words, Dubose's defense to the charge that he's unfit to remain a judge is that he wasn't fit to be a judge in the first place.  You have to admit, he has a point.

But just when you think things couldn't get more twisted in the poor old First District, along comes the Alabama Supreme Court to provide a final turn of the screw.   By a 5-4 majority, the court concluded that "the important constitutional issue of maintaining an independent judiciary" meant that the Alabama State Bar couldn't proceed with disciplinary proceedings against Dubose.  It didn't matter that disciplinary charges were filed before he descended the bench.

Some things are just more important than enforcing the legal profession's rules of ethics.  And immunity for judges has to rank high on anyone's list of what those things are.

(The Alabama Supreme Court makes it very difficult to view its opinions online, presumably because the justices are ashamed of their work, as indeed they should be.  The opinion is Alabama State Bar v. Dubose, issued March 14, 2008, available for only $200 from the Alabama Supreme Court.) 

Surely that's enough plot twists and turns?  Nope. 

Really, the competition for a featured place in this blog is getting out of hand.  I want to assure all my judicial readers that, whatever you might think, it's not necessary to go to the lengths of Las Vegas Judge Nicholas Anthony  Del Vecchio to get your name featured here.

First, some background on the man who would choose such a remarkably unflattering photograph as his official face to the world.  This is from Las Vegas Review Journal for November 19, 2000:

Del Vecchio, a Las Vegas lawyer, lost seven previous elections before winning a race this month for a new judgeship in Clark County Family Court.

He also sought appointments to four other judicial positions without success. And on yet another occasion, he filed as a candidate for a nonexistent judgeship, later losing a court battle over the issue.

Oh yeah, and it took him five tries to get into law school.

"I was the last of six boys to go to law school," Del Vecchio said during a recent interview in his office. "I did not have the most stellar academic record. I always believed that C stood for commencement, that D stood for diploma, and I graduated 'magna thank godem.' "

Del Vecchio, who often uses that kind of self-deprecating humor, said he graduated from the College of St. Thomas in St. Paul, Minn., in 1979 with a bachelor's degree in sociology. He had a grade point average of 2.71.

"Being a student was always hard for me," he said.

That year Del Vecchio applied for the first time to the William Mitchell College of Law in St. Paul. He continued to apply every year thereafter, until he was finally accepted in 1983. 

You might wonder if the reporter was misreading the new judge when she assumed his self-deprecation was intended humorously.   Certainly some reassessment might be in order following more recent articles:

The special prosecutor for the Judicial Discipline Commission has accused Family Court Judge Nicholas Del Vecchio of sexual misconduct and abuse of power, including coercing a judicial assistant into having a sexual relationship with him.

The complaint alleges that the relationship dates to before Del Vecchio was a judge, when the judicial assistant, the daughter of his ex-wife, was 14.

Del Vecchio took nude photos of the girl when she was between the ages of 14 and 16 and had her perform oral sex on him, the 38-count complaint states. The complaint adds that Del Vecchio kept the photos after he became a judge but later destroyed them.

The document, which is not a criminal complaint, also accuses Del Vecchio of using racial slurs against black and Hispanic court staff and of coercing staff into buying him lunches and airline tickets.

Again with the photographs.  Didn't he learn anything from Woody Allen's experience?  But then, so far as my doctors-waiting-room and supermarket-checkout-line reading has informed me, Woody never "made audio recordings of the [sexual] encounters without the woman's permission." 

Then there's Judge Del Vecchio's (alleged, alleged!) campaign technique, honed in all those unsuccessful bids:

He told a family court employee, Beata Funk, that he wanted to have sex with her and wanted her to wear tight shirts while campaigning for him, the complaint says.

Should we assume from the casual way the subject is introduced that it's part of a court employee's job in Las Vegas to campaign for her boss?  Well, it's an American tradition.  One we can trace all the way back to Andy Jackson, and he's on the twenty dollar bill, after all.

The complaint even alleges he asked one co-worker to take men to dinner saying he "could tell they were interested in her and she could solicit and obtain campaign contributions." The judge allegedly told the worker that "she should dress nice" or "seductively."

The complaint isn't up on the Nevada Commission on Judicial Discipline website yet. 

I've never understood the rationale for applying a beyond-a-reasonable-doubt standard in judicial removal proceedings, though it goes all the way back to Samuel Chase.  Removal from office doesn't mean the offender goes to jail.   

And it's not like reversing the decision of the electorate, either, even in those states that elect their judges in partisan races, because judicial candidates are "ethically" obliged not to tell us in advance what they plan to do with the power they seek.  (Del Vecchio's eight races should have told the voters that he wanted the power too badly to be trusted with it.)

When a judge is removed from office, all that happens is that he or she has to spend the rest of his career standing in front of the bench instead of sitting behind it - a fate many of us think no disgrace.

I think that when there's serious reason to believe a judge has sexually exploited his 14-year-old stepdaughter - when, in the jargon, there's probable cause - that's more than enough reason to remove the judge from the public payroll.  And you know what?  I'd say the same thing about murder, too.

I was reminded of Daniel J. Martinez (see post 327) by the case of Judge Restaino (see post 326).  Soon after Martinez was acquitted of two extraordinarily brutal crimes that he almost certainly committed, setting off an entirely justified uproar, a friend of the Martinez family wrote a letter to the editor of the Santa Fe Reporter, the alternative weekly.

Unfortunately the Reporter's online archives don't go back beyond 2000 and so I can't link to or even quote from the letter.  But I remember the gist: the writer had known Daniel for years, and he was a great guy except for when he lost his temper, and that didn't happen very often.

I was reminded of that by Raoul Felder's dissent from the order determining that Judge Restaino should be removed from office.  Felder wrote:

The record establishes that respondent, after a long period of personal stress, while presiding in a domestic violence part, simply “snapped” when he heard a cell phone go off in his courtroom and engaged in what can only be described as two hours of inexplicable madness.  The record also establishes that his conduct over those two hours was a total aberration from his character and demeanor as a judge for eleven years (and previously as public defender for ten years) and that he has received the support and praise of his judicial colleagues, court personnel and community leaders.

So just as Daniel Martinez was a great guy when he wasn't mad enough to rape or shoot anybody, Judge Restaino was a fine judge when he wasn't outrageously abusing his power.  You know, I don't really have any reason to doubt either evaluation.  (Though I do note that, at least in Felder's listing, Restaino's supporters didn't include lawyers who had practiced before him.)

Felder's dissent is actually quite thoughtful and he makes the powerful point that other New York judges have managed to keep their jobs despite behavior that would shame Bob Ewell.   But he also recycles a couple tired themes. 

First: "I cannot find it within myself to destroy this individual’s professional life over this regrettable episode."  Leaving aside the one-free-bite attitude, and the hint of moral preening, how does removing a judge from the bench destroy his professional life?  Only if "professional life" is used as a synonym for "career as a judge."  By that standard, every time Felder's firm informs an associate it's time to move on, the firm is destroying that person's professional life, because his or her career at the firm is over.  Has Felder ever found it within himself to do that? 

Being a judge is a job.  All that will happen to Restaino is that he returns to his prior job, practicing law.  The very fact that he voluntarily exposed himself to all the publicity his case has garnered shows how important his current job is to him.  From his point of view, it probably feels like the destruction of his professional life.  But when the exercise of power becomes that important to a person - more important, self-evidently, than avoiding public humiliation - it's time to relieve him of it.

 Second:

I am constrained to comment on Commission counsel’s attempt to belittle respondent’s explanation that he “snapped” because of personal stresses in his life. Although Commission counsel argues that such an explanation is not believable because no single triggering event in his personal life had occurred that morning and that prolonged stress cannot explain a temporary loss of reason, I believe that simple human experience has shown that that is simply untrue.

I don't know if Felder has ever been a judge, but he's mastered judge-speak: he's "constrained" to comment in the sense that that word means "want."   And I rather doubt that Commission counsel would have described his argument as an "attempt to belittle" Restaino's explanation. 

It's classic judge-sniping to say a person tried but failed to accomplish something that in itself is disreputable.  My favorite example is Justice Brennan on a majority opinion written by Justice Rehnquist in a criminal case: "The Court's attempted obfuscation in Part II, ante, at 135-139, of its total disregard of the statutory mandate is a transparent failure." 

You can practically hear Rehnquist muttering, "Foiled again!  I thought that this time, at long last, my disregard of the statutory mandate would be sufficiently obfuscated to slip past him!"  In the same way, no doubt Commission counsel said in a voice thick with frustration: "Curses!  I thought I could belittle the judge's explanation, but it remains the same size as when I began!"

In real life, probably Commission counsel was actually arguing something more along the lines of what the Commission eventually declared in its majority opinion: "every judge is obliged to set aside his or her personal problems upon entering the courtroom".   

You only have to scratch the surface of Felder's remark to see something else.  Restaino's defense, in essence, was that he shouldn't have been on the bench at all that day, because he was mentally unfit to perform the duties of his office.  That was very like Florida Judge Sloop's defense of his similar behavior (he ordered the arbitrary imprisonment of a bunch of people called for jury duty) on the ground that his mental handicaps rendered him incapable of professional competence.  (See post 87.) 

I sympathize with anyone who's feeling overwhelmed and stressed-out on the job.  But when those feelings become too huge to contain within the vessels of our skins, it's time to look for another job.  Mental or emotional incapacity is a reason for removing a judge from a position he can't handle, not a reason for keeping him there.

In an 1885 rape case, the Indiana Supreme Court approved this instruction as a correct statement of the law:

Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue.  You are not to understand from this that a rape cannot be committed on a woman of bad moral character.  A woman may be a common prostitute, and may still be the victim of a rape.  This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, -- upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste.  [State v. Anderson, 4 N.E. 63]

Fast forward 122 years:

A defendant accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services." ...

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave. ...

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

Women who are "really raped," of course, are women who don't perform sex acts for money.  If the woman is "of bad moral character," forcing her at gunpoint to have sex with four men is not rape.  It's theft.  She's not a person - she's candy displayed on the drugstore shelf for kids with sticky fingers to pilfer.

One point about Judge Deni's refusal to follow the law is pretty obvious: she revels in the self-righteous feeling that she has outraged people:

Deni acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."

This attitude - self-righteousness bizarrely divorced from any concept of righteousness - is a pretty common judicial syndrome, the third most frequently-encountered of the classic vocational  ailments of judges.  It's not simply a matter of épater les bourgeoisie, though I suspect there's an element of that: you can't get more bourgeois that being a judge, and pretending to be a little bit racy beneath the black robe is titillating.  More than that, though, it's a tell-tale symptom of Post-Civil Rights Era Syndrome, a psychological condition expressed (appropriately enough) in a syllogism:

The southern judges who upheld morality, decency and the grand principles of constitutional government by ruling against segregation in the 1950s and 1960s were heroes, whose example all judges should strive to emulate;

the rulings of those judges were met with great public uproar;

therefore, any judge whose ruling is met with great public uproar is a hero, whose example all judges should strive to emulate.

Well, it makes a great deal of emotional sense, which after all is what counts.  As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been the self-satisfaction of judges."

But how did we get to the point where the Philadelphia of 2007 is so much more reactionary with respect to violence against women than the near-frontier Indiana of the 1880s?

Because our collective consciousness has been so lowered.

DNA "exonerations" almost exclusively free males convicted of sex crimes against females, and it takes little imagination to realize that DNA testing will only rarely point unequivocally to a single perpetrator when the victim had sex with someone else in the day or two before the attack - a category that includes not only prostitutes but, you know, people with boyfriends and husbands.  (See post 246.) 

Liberal Slate has come out foursquare in favor of a return to the pre-1960s doctrine that rape convictions should never be based on the woman's testimony alone.  (See post 280 and post 290.)

A Nebraska judge made national news by prohibiting the victim of a rape from using her own words to tell the jury about what happened to her, on the ground that allowing the female to speak for herself might encourage the jury to convict the male defendant.

In my own New Mexico, a liberal legislature in 1975 removed "absence of consent" from the rape statute, so that any sexual penetration accomplished by force or coercion was criminal.  The idea back then was that in sex crimes, as with all other crimes, the only thing that counted was what the perpetrator did.  But in 2005, the Supreme Court rewrote its uniform jury instructions to reinsert (so to speak) that element, so that today, as 50 years ago, rape is lawful unless the prosecution can prove beyond a reasonable doubt that the victim isn't a slut who was practically begging for it.

There is a common thread to all these developments.

It may still be possible to believe the criminal justice system is not being transformed into an institutionalized backlash against the women's movement.   It requires a lot of faith, though.  Such unshakeable faith can be heartbreaking when manifested by, say, a 4-year-old cancer victim.  It's a little less touching when encountered in an otherwise-healthy adult.

I should add that the Philadelphia Bar Association's chancellor, Jane L. Dalton, has said what ought to be obvious, and was (I believe) the actual point of Judge Deni's ruling, even if the judge hid it from herself: "The victim has been brutalized twice in this case: first by the assailants, and now by the court."

Hi!  I'm back!

Um.  Back.  From being away.  See, I've been --

Well, okay.  *ahem*  Yes, indeed.  I have my notes right here -- just take me a second --

One of the advantages of being on-the-verge-of-a-nervous-breakdown busy and overwhelmed - though not, I hasten to add, quite to the laced-gezpacho verge - is that others step in to do the arduous research necessary to keep this blog going. 

For instance, from one loyal reader - okay, my brother, if you must know, but he still counts - I learned that the validity of post 317 has been scientifically demonstrated.  The eerie thing is that it was demonstrated even before it was written!  In 1999, Justin Kruger and David Dunning published a research paper in the Journal of Personality and Social Psychology entitled: "Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments."  Here's the abstract:

People tend to hold overly favorable views of their abilities in many social and intellectual domains. The authors suggest that this overestimation occurs, in part, because people who are unskilled in these domains suffer a dual burden: Not only do these people reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the metacognitive ability to realize it. ...  Paradoxically, improving the skills of participants, and thus increasing their metacognitive competence, helped them recognize the limitations of their abilities.

That, I think, explains a great deal about our legal system, or at least that part of it with which I have professional contact.  To take an example from the media, The New Yorker last spring had a story about the NYPD crime lab's hair and fiber unit (or what the magazine insisted on calling its "hair-and-fibre" unit).  A pair of FBI scientists described a review they performed of 170 hair comparisons, which resulted in 80 "associations" (which, as anybody who's dealt with hair-comparisons knows, is always presented to the jury in terms of "cannot be eliminated" rather than as a "match"):

But subsequent mtDNA tests of the hairs showed that in nine cases—more than ten per cent—the samples could not have come from the same person. The number of errors was concerning, Judge [Harry T.] Edwards said. According to his calculations, he added, the study’s error rate was actually close to thirty-five per cent.

Now, Edwards is one of those people inevitably described as "respected," a term that when applied to a person who has spent many decades exercising near-arbitrary power means little more than that he's never actually been indicted.  Despite all that respect, I'm nonetheless prepared to accept that Judge Edwards is perfectly competent within the sphere of his expertise, that is, the correct standard of review to be applied in an appeal from an agency decision.  (I'm not being snide.) 

But what are the odds that he understands statistics better than a pair of scientists?  Any scientists, it doesn't matter.  Edwards spent five years in the actual practice of law a couple generations ago, then ten years bullying law students, and the rest of his career receiving lawyers bowing and scraping and tugging their forelocks.  He could be a whole lot less ignorant about statistics than the average lawyer and still know less than any recent recipient of a B.S. degree.  By orders of magnitude.

If Edwards had any metacognitive ability to assess his own knowledge of statistics, he wouldn't have spoken so confidently to Jeffrey Toobin about the calculations he scribbled on his hotel-ballroom napkin.   As it is, I'm confident he didn't understand that he was embarrassing himself in a national magazine.  He was too clueless to know he was clueless - and, I suspect, too accustomed to being treated like royalty even to perceive the possibility. 

As it happens, Professor Dunning can explain the second part of that disrespectful evaluation, too, judging from the abstract of a paper in press.  Called "Faulty Self-Assessment: Why Evaluating One’s Own Competence Is an Intrinsically Difficult Task," it makes the point that "although people receive feedback over time that could correct faulty self-assessments, this feedback is often biased, difficult to recognize, or otherwise flawed."  Think for a second about the kind of "feedback" judges get: determined attempts to manipulate by flattery.  And that's just about it.

Arrogance is ignorance backed by power, and American judges are often arrogant.  Imagine, if you can, a world in which judges were required to understand a field of human activity before asserting their authority to regulate it.  For example, what if judges weren't permitted to rule on the reasonableness of a search pursuant to a warrant until they had been the first officer through the door a couple dozen times? 

Indecisive trial judges are terrible, but at least you can try to get the last word in.  A relatively dumb but emotionally secure judge isn't so bad: you just have to adjust your approach, like a middle-school teacher transferred to elementary school.  (Crooked judges are in a category of their own.)

I've long thought that the defining characteristic of the really, superlatively bad judge is that he's so dumb he doesn't realize he's not smart. 

But, on reflection, I suspect such judges secretly realize it.  They try to suppress their self-awareness, and expend great effort attempting to prevent others from learning their "secret" - which, as with the classic closeted gay of comedy, is no secret, of course - and those self-evasions, rather than the relatively low IQ, cause the worst problems.

I use "he" advisedly because in my experience the superlatively bad judge is always male.  Perhaps that's coincidence, but I think not.  He approaches each case as an opportunity to intellectually dominate others - something he's incapable of doing without the props of judicial office.  (That's why he wanted to become a judge in the first place.) 

Such judges are usually described as "arrogant" but that misses the point, I think.  The air of arrogance, when married to intellectual incapacity, is just the public acting-out of an interior psycho-drama. 

When a lawyer points out to such a judge that he's wrong, it produces symptoms of panic.  If it were true that the judge were wrong, it would mean that his underlying insecurities are justified, which would be emotionally intolerable, and so therefore it cannot possibly be true that he's wrong.  Rather, the person who tried to convince him of his error is a threat, or even a personal enemy, to be dealt with accordingly.

I was started on this line of reflection by a conversation with a law school friend who practices in one of those states with the funny irregular borders - you know, those weird little squiggly shapes over on the right side of the map.  This friend reported that his state has an appellate judge who is well-known in the legal community for two things: he thinks he's an intellectual, and he's not very bright.

So on the one hand you have the sad specimen, the psychological case study, an object worthy of our compassion.  It must be painful to be trapped inside this judge's skin.  On the other hand, you have a stupid judge imprinting his neuroses on the law of his state. 

My friend reports that this particular judge, while viewed as harmless enough by most of the bar, has developed an interesting reputation among appellate practitioners: his published opinions are full of lies.  When he can't refute the arguments of counsel, he misrepresents those arguments and then refutes the misrepresentations.  When the facts are inconsistent with his position, he ignores them or makes up others.  "When you read his opinions, you need to constantly remind yourself that there's no more than a 50/50 chance that he's describing the case honestly."

The judge is running little risk of having his lies exposed because most lawyers reading his opinions (and no one but lawyers will ever read them) know nothing about the case except what the judge himself has revealed.  The only lawyers in a position to expose his lies fall into one of two camps: those who aren't going to risk their client's victory by complaining; and those whose complaints would sound like sour grapes - and would almost certainly provoke retaliation.  (Bad judges hold conscientious counsel's clients hostage in that way.)

In theory, the other judges serving on the appellate panel could check this judge's lying.  But why would they want to?  What's in it for them?  As Judge Richard Posner has pointed out, appellate judges benefit in multiple ways by raising no objections to their colleagues' opinions.  Going along to get along is rewarded by increased leisure, while scruples only mean extra work.  

Perhaps even more importantly, passivity maintains cordial relations among colleagues.  If Judge X points out that Judge Y has misrepresented the facts, Judge Y will retaliate by dissenting from Judge X's next opinion, forcing Judge X to write crabbing footnotes in rebuttal, and so on, until someone boycotts the annual party and the feud becomes a real drag for everyone who works at the court.

You have to decide which is more important: justice for strangers, or a comfortable workplace for yourself.  (Whenever an appellate judge starts talking about "collegiality" on the court, pay attention, because it's a coded confession: he or she is admitting that the judges run the court primarily for their own benefit.) 

Professor Anthony d'Amato once published a paper called "The Ultimate Injustice: When a Court Misstates the Facts."  I think there are plenty of reasons why judges lie (which is what the professor means by "misstates the facts").  Bribes are a powerful incentive, and so is ideology, or friendship to one lawyer or antipathy to another.  But the psychological processes I've described are, I think, the single most common reason for judicial lying.  

After all, what better job than judge for the person who needs reassurance that he's not the intellectual mediocrity he secretly knows himself to be?  The fawning obsequiousness of lawyers provides an oxygen line of reassurance. 

And what better job than appellate judge for the person who feels a psychological need to win every argument but lacks the intellect to win any?  He can pretend to win the argument by lying about the facts of the case and misrepresenting the arguments of counsel, and he can then enlist the entire apparatus of the judiciary to make his pretense seem real.  And for such a superlatively bad judge, the simulacrum is the closest he's ever going to come to the real thing, so of course he seizes every opportunity to experience it.

It's just too bad he can't simulate in private.

A disturbing story from England's Telegraph describes what happened when the police failed to complete the routine processing of evidence:

A serial sex attacker went undetected because police failed to send his DNA samples for analysis, a court has heard.

Mark Campbell, 38, is accused of stalking, raping and assaulting a series of women and teenage girls in Sussex since 1998.

It emerged that four years into his alleged campaign of sexual violence he could have been stopped when he was arrested for a "peeping tom" offence.

Sussex Police took the man's DNA in 2002 but he was not linked to the crimes because an "oversight" led to the swabs not being sent for examination.

Only during an official police review last September were the samples sent for analysis and Campbell was arrested the next month.

In the time that elapsed, Campbell is accused of raping two 15-year-old schoolgirls in his work van, and sexually assaulting several others by breaking into their homes, Chichester Crown Court heard.

It's hard not to think that the police failure was, as we lawyers like to say, a "but-for cause" of the later attacks: but for the failure to analyze the DNA samples, Campbell would most likely have been arrested much earlier, and he could hardly have raped those schoolgirls from a jail cell.

If once we accept that cops' failures can "cause" violent crime, is there any reason to absolve other agencies from responsibility?  For instance, prison officials can, through their negligence, fail to immobilize the dangerous.  Probation and parole officers, too, might fail to act on the obvious need to restrain such people.  If their incompetence leads to another's death or serious injury, is there any reason they shouldn't be held responsible?

Modern judges have little difficulty answering these questions.  Lawsuits against cops and prison officials for failing to protect citizens from criminals are no longer a novelty (though they're hard to win).  But are there any other governmental agencies involved in the enforcement of criminal law who might also be deemed responsible for the consequences of their failures?  Well, let's see.  There's prosecutors and public defenders.  (Warmer ...)  There's bailiffs, tipstaffs and courtroom security guards.  (Getting hot ...)  Who else is left except -?

There are two big differences between judges and other actors in the criminal justice system.  First, judges get to decide who can be sued and who can't.  So, naturally, judges can't.  (No one knows the inadequacies of the legal system better than judges, so they don't trust their fates to it.) 

Second, by definition a judge's ruling is correct at the time it is issued.  It remains correct unless and until it is reversed by another, higher court.  That's why it was lawful, even if unconstitutional, to imprison Martin Luther King.   It doesn't matter how mistaken, corrupt or hopelessly stupid a judge's ruling was.   At the time it was issued, the ruling was justice embodied.  And what could be more perverse than blaming a judge for doing justice?

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.

This is a New Mexico story, so I'll omit all comment except to say that I don't know any of the people involved and have no inside knowledge.  Like Will Rogers said, all I know is just what I read in the papers, in this instance the Valencia County News-Bulletin.

(Though in the interests of saving my readers the trouble of Googling a rather obscure medical term contained in the article, I will add this link to a MedLine article about hepatic encephalopathy, a very unfortunate condition, symptoms of which can include "Changes in mental state, consciousness, behavior, personality" including confusion, delirium and dementia, each of which could be considered disadvantageous in someone exercising a judge's power over other people's lives.)

The State Supreme Court denied a motion this week filed by the Judicial Standards Commission seeking the removal or retirement of Valencia County Magistrate John "Buddy" Sanchez from office.
...
In June 2006, Sanchez agreed to undergo an evaluation for independent physical and psychological fitness for duty by a panel of four doctors, including a psychiatrist. The medical panel concluded in June that Sanchez was at that time both psychologically and physically unfit to perform the duties of a judge.

Sanchez was placed on indefinite paid administrative medical leave by the Supreme Court in July 2006.

In February, [Judicial Standards Commission counsel James A.] Noel told the Supreme Court during an open hearing that Sanchez was being treated for a number of ailments including alcohol dependency in early remission, severe alcoholic liver disease with cirrhosis, multiple organ failure (liver, renal and pulmonary), portal hypertension, persistent hepatic encephalopathy (a complication of liver failure) with elevated ammonia levels requiring ongoing therapy, and a bacterial infection associated with E. Coli.

The commission's executive director told the court that Sanchez was also diagnosed with chronic prescription opiate use for muscular skeleton pain, personality traits including denial and defensiveness affecting recovery from underlying illness, having a history of brief, reactive psychosis, psychosocial and environmental problems. He said the panel of two medical doctors, one psychiatrist and one sociologist, who evaluated Sanchez twice maintained that he suffers from a chronic alcohol problem and is in severe denial.

In January 2007, the same independent medical panel completed a second fitness for duty evaluation of Sanchez, and again concluded that he was unfit to perform the duties of a judge, Noel said.

Alabama Judge Stuart DuBose, with a name out of Tennessee Williams and ethics out of Warner Brothers' 1930s gangster films, was profiled in post 191.  Back then I mentioned the consideration shown by the Alabama disciplinary board, which thoughtfully scheduled DuBose's suspension to occupy the dead time between his election to a judgeship and his ascension to the bench, so as not to disqualify him from an office he was so theatrically unfit to assume.

The voters of southern Alabama knew that DuBose, if not strictly speaking crooked, wasn't exactly straight.  But they elected him anyway based on his campaign's hints that his opponent wasn't straight, either - was, in fact, an Idaho Republican, if-you-get-my-drift.  (In fairness to the voters, DuBose probably drafted on the name ID earned by his mom the county commissioner.)

Last Friday those same voters got to hear the next shoe drop in the will case:

A Washington County judge has been ordered to repay $1.2 million to a woman he represented in an estate case and give her back 600 acres of land, according to a Mobile County Circuit Court ruling.

Stuart DuBose, who was elected last year to serve as circuit judge over Choctaw, Clarke and Washington counties, responded in a letter faxed to Mobile County Circuit Judge John Lockett by saying that Lockett's ruling was "not legal" and "immoral."

"This order must not become public knowledge," DuBose wrote. "It must not be recorded. It will ruin me professionally and further ruin me financially."

DuBose's fax is an example of what is called in the trade "ex parte-ing the judge" (no, really, we say that - we can't help it).  And while lawyers' ethical rules are written with such care that it's nearly impossible to violate most of them, ex parte-ing the judge is probably the clearest-cut ethical violation that doesn't involve outright criminality.   

It's also what Latvian super-lawyer Andris Grutups is (if you read between the lines) accused of doing - though Grutups at least had the sense to do it (allegedly!) by phone rather than in writing.  (See post 305.)   Isn't it thrilling how quickly the ex-Communist countries are developing legal cultures as sophisticated as our own?