JUDGING CRIMES

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. 

Do I remind you of Ed Gein?  How about his fictionalized counterpart, Norman Bates?  Yup, that's me in the film clip, if you follow the link. 

There's something echt-lawyerish, getting right to something basic about the profession, about blogger Mark Bennett comparing me to a necrophiliac murderer.  Do accountants do that to each other?  Engineers?  Dentists?  Opera singers?  Okay, sopranos, maybe, but mezzos?  

The thing I did that reminded Mark of knifing women in the shower occurred in post 295.  In case you avoided getting spattered the first time round, I'll recap: I mentioned in passing that an ABA-sponsored poll found that 73% of Americans believe lawyers "spend too much time finding technicalities to get criminals released."  (Gruesome, ain't it?)  My point was that PR efforts by the state bar would never convince all those people that they're wrong, because they're right, in part: some lawyers do that.

Mark's objection was to the pejorative connotations of that word "technicality,"  which he wittily describes as "a rule that leads to the wrong result."   He makes another good point: "Criminal law is not about 'right and wrong;' it's about rules."

But that - of course - is what the poll respondents were saying.  Some people would like to have a criminal justice system that has more to do with right and wrong - and I bet a lot of them wouldn't even use scare quotes.

So what we have is a dispute about whether the word "technicalities" ought in all conscience to be replaced by the word "rules."  Fair enough.  But Norman Bates?  Would it even occur to anyone in any other profession to make such a comparison in order to make such a tiny point? 

Well, it's not a tiny point - if you see "technicalities" not as a word with certain connotations but as the symbolic expression of a whole set of crypto-fascist attitudes.   And that's what lawyers do, isn't it?  We use emotional rhetoric to turn a small reality into the symbol of something huge and important, and then ask the jury / judge / readers of the morning newspaper to respond to the symbol and ignore the reality.  

Mark's post ends with:

I'd like to see Joel, who is determined to "engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest," engage with the assumptions on which his post rests.

By "assumptions," Mark apparently means the hypocrisy evident in the fact that I (a) quoted in passing (b) without comment (c) an American Bar Association survey (d) that used a word (e) that makes Mark see red.  At the risk of being tactlessly blunt, I'm not altogether certain "assumptions" is quite the mot juste.