Learning on the job as you go is a haphazard and uncertain technique. Judicial reform addressing judicial competence must provide a means for judges safely and without risk of censure to study and correct any confusions and mistakes or misunderstandings they have, irrespective of their years on the bench.
Judges are human and under severe pressure and time constraints. They often face complex and difficult dilemmas. Even with the best of motives and intentions, judges will from time to time make incorrect decisions. To ensure that the judicial system remains on track, judges must be given the chance to clarify and expand their own understanding of the law.
They should also be better trained before they ever take the bench. The want of formal, exacting training of judges is one of this societys most glaring examples of neglected priorities.
Baseball umpires endure months of daily and intensive training, first in private umpire training schools, then in major league baseballs own academy. Then, those who excel are assigned minor league positions, where they labor for years working their way through the ranks. Ultimately, one of every 200 or so gets to umpire in a major league game. Even beauticians and professional wrestlers go to school and are, in most jurisdictions, licensed by the state to practice their vocations.
On the other hand, judges are named, sworn in, and go to work.
Obviously, the judiciary needs to be as qualified to judge as is an umpire to call balls and strikes. Training academies, continuing education requirements, and even modest-length apprenticeships would be prudent investments in the preservation of the public trust and the provision of justice.
The Poison of Bias
Prejudice is a character flaw, but it is a part of daily life. Were it not so, there would be no need for legislation to outlaw it, constitutional guarantees to safeguard freedom from it or courts to enforce that legislation and those guarantees. Prejudice fills the vacuum left by ignorance, and the judiciary is hardly immune.
While it cannot be denied that gender-based bias, religious bias, and even racial bias find their way into judicial acts on a daily basis, the problem of judicial prejudice is even more insidious. When a judge, who is both human and who suffers from a paucity of training, confronts a vacuum, it becomes all too easy to rely on personal prejudice as a substitute for law or equity.
For example, it is widely recognized throughout the legal community that a party must hire a local attorney to avoid being home-towned in a different state or locale. Even when not required by a courts rules, prudence dictates hiring local residents. It is widely recognized that out-of-town counsel especially from Northern urban areas do not fare well in rural courts in the deep South.
In fact, this theme carried the movie My Cousin Vinnie, as well as numerous TV sitcoms.
This is not a matter of local prejudice which must be taken as a fact of life. It is a distortion of the judicial system and the American concept of law by promoting local old boy networks and systematic patterns of bias and favoritism.
Such bias and old boy networks insidiously add costs for local counsel and introduce hidden and unaddressable obstacles to justice. Justice is not supposed to be a basketball game where a primary factor of winning or losing is home court advantage.
Old boy networks exist and foster judicial irresponsibility. In the words of former Speaker of the House of Representatives, Sam Rayburn, You have to go along to get along. But controversial groups or individuals also have a difficult time getting true justice because of prejudgment and unrevealed alliances and presumptions.
In the infamous 1954 Sam Sheppard murder case in Bay Village, Ohio, Dr. Sheppard was convicted of the murder of his wife in a circus atmosphere engendered by a vicious and unrestrained media campaign against him. Twelve years after his conviction and sentence to life in prison, the United States Supreme Court overturned the jury verdict, stating that: ... the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom...
The truth of this statement is proven by a remark which the trial judge had made to a journalist before the start of the trial (but which she only revealed 10 years later): Its an open and shut case ... he is guilty as hell.
In California in 1986 a Superior Court judge allowed and encouraged a trial to go forward against the Church of Scientology in a similar circus atmosphere. The judge permitted the jury to be so inflamed by passion and prejudice created by the plaintiffs attorney that the California Court of Appeal cited those factors as their reason for reducing the damage assessment by more than 90 percent.
How the California Court of Appeal avoided finding that the jury was improperly swayed by passion and prejudice on the issue of punitive damages but not in its determination of the factual issues remains a mystery to this day. Perhaps it had something to do with the fact that the plaintiff lawyers law firm dominated the local trial attorney association. And that this association presented the Presiding Judge on the Court of Appeal panel which heard the case with the Appellate Judge of the Year award just months before the Churchs appeal. Even the fact that the trial judge later admitted to actual bias and prejudice to a reporter has not led to justice being imposed on this mockery.
Obviously, if any prejudice were easily untaught then there would be no need for a solution now. But judges have to force themselves to be free of the weakness and ignorance that prejudice represents. For example, the California Code of Judicial Conduct (as well as virtually every other judicial conduct code) requires judges to uphold the integrity and independence of the judiciary, and to avoid impropriety and the appearance of impropriety in all his activities, and to perform the duties of his office impartially and diligently.
Those platitudes require enforcement. If a judge violates those duties, ouster is warranted if the transgressions are severe or chronic. Getting a judge should be difficult, but policing improper conduct should be a priority. Unfortunately, enforcement of the rules on judges is a clinic on indifference and the laxity of camaraderie.
No Teeth, No Justice
|California Attorney General Dan Lungren recently complained to his legislature that judges are protected by a veil of secrecy.|
The absence of effective policing of judges is perhaps the greatest source of injustice in the courts. Incompetence and bias, even if corrected, are blights, but corruption has proven a poison, too, and without real enforcement, none of those problems can be corrected.
The judiciary suffers from systematic lack of accountability of judges and lack of mechanisms for the correction of judges who stray. Only the most flagrant violations of common sense, decency and the law are exposed to the publics awareness. Yet the lack of both correction and real enforcement of standards and discipline for wrongdoing demeans the judicial system and makes it unsafe for the entire country.
California Attorney General Dan Lungren recently complained to his legislature that judges are protected by a veil of secrecy. He alerted the legislature that the popular 1988 law, Proposition 92, which called for open judicial disciplinary hearings if charges against judges involved moral turpitude, dishonesty or corruption is not being enforced. An open hearing has yet to be conducted in this state, he wrote in 1994, a deplorable condition which has not changed.
Lundgren went on to warn the legislators that judges charged with such acts by the Commission on Judicial Performance have avoided public hearings after they sought and received some form of secret writ relief from other courts of record in this state. This complete frustration [of constitutional provisions concerning open hearings] raises troubling questions regarding the functioning of Californias judicial disciplinary procedures.
In one of his examples, Lungren described an unnamed judge who was given a closed hearing after his fellow judges decided that an open hearing would damage the accused judges re-election prospects. Lungren recommended that confidentiality be maintained while an investigation is in progress but that secrecy should end at the stage of formal charges and subsequent proceedings.
The ineffectiveness of Californias judicial oversight procedures is further illustrated by these astonishing statistics: In 1980, 260 complaints were made to the judicial commission regarding judge misconduct. Only eight judges were disciplined.
Thirteen years later, in 1993, there were 950 complaints to the commission and only 10 judges disciplined. With statistics such as these, it is no surprise to find that the commission is composed of judges and lawyers whose careers depend upon maintaining friendly relations with judges.
In 1994, in response to public demand and pressure from individuals such as Dan Lungren, the California Legislature revised the composition of the Judicial Commission by reducing the number of judges and increasing the number of lay public. The Commission is now composed of three judges appointed by the California Supreme Court, two lawyers appointed by the State Bar, and six members of the public appointed by the governor and the States legislative bodies.
Whether the legislatures reduction in the number of judges on the committee and increase in number of lay persons will result in more effective oversight remains to be seen. It is certain, however, that such oversight will not be effective while judges are protected by a network of old boy ties and back-scratching cronies, and the members judges, lawyers and lay persons remain political appointments. Oversight must be by neutral and disinterested officials and the proceedings must be conducted in the sunshine and open air. Otherwise, the problems will perpetuate, rather than resolve.
Movements for judicial reform such as those which currently seek to set limits on punitive damages are addressing a symptom, not the cause of the problem.
Attorneys frequently excuse losses by claiming that the judges who ruled against them did not read the papers or did not understand the law. Often this is nothing more than an excuse to the client for the courtroom loss. But too often there is truth to the charge. In fact, any experienced lawyer can tell you of judges who are widely known to be deficient in their understanding of the law and irresponsible in their handling of legal matters before them.
Judicial incompetence and irrationality has been mocked in movies such as And Justice For All, but it is truly no laughing matter. There is no system to correct judges who do not understand the law. There is no effective training to put a qualified, professional judiciary in place. Oversight committees protect rather than discipline judges who act improperly with prejudice, or who are simply corrupt. These problems mesh together to promote too much injustice.
Judicial oversight committees must be structured to avoid old boy networks which protect, excuse and hide incompetence. The public must be able to register its complaints and, where valid, complaints must be investigated and then acted upon in public.
This can be done in such a way to prevent harassment of the judiciary and to adequately recognize that the losing side is more likely to blame the judge than the facts or the law. Yet there is a true problem with the quality of the judicial system and new and fundamental reform is needed to correct it.