Who Is Judging the Judge?
By Thomas D. Williams
www.truthout.org
Monday 16 October 2006
Federal judges, like Congressmen, federal agency heads and even US presidents, sometimes take actions believed by other government officials, the public and the press to be outrageous, unethical or even criminal.
The difference for alleged victims and others complaining about federal jurists' behavior, as opposed to other officials' behavior, is striking. Congressmen, agency heads and presidents are not appointed to their jobs for life. Federal judges are. And justices of the US Supreme Court are not even bound by the ethics code that other federal judges are. Usually, any federal jurist can be removed only by the incredibly complex and difficult Congressional impeachment process.
Close scrutiny of the federal judicial disciplinary system nationwide reveals that in about 99 percent of all misconduct complaints in the past six years, judges received no punishment at all. Nationwide, state judges do get regularly removed from the bench, suspended and otherwise punished. In that same past six years, 74 judges have been removed and 563 have been publicly, not privately, sanctioned for misconduct, according to statel court statistics.
Short of being removed, judges, excluding justices, can be punished through a complainant's allegations to the chief circuit court of appeals judge through the court clerk's offices in the appropriate circuit court area. The judge can either dismiss the complaint, conclude proceedings after corrective action is ordered, or appoint a special committee to investigate. Any findings are submitted to the judicial council of judges for a ruling, which can be appealed to the judicial conference and finally the court.
In Connecticut a year ago, seven state prosecutors and a couple of legislators made two simultaneous and unprecedented complaints. They brought charges respectively to the chief judge of the Second US Circuit Court of Appeals and the US House of Representatives' Judiciary Committee. Their allegations targeted a federal judge who delayed the execution of Michael Ross, a convicted rapist and murderer of eight New York and Connecticut women, when the jurist had previously and tangentially participated in Ross's defense during his days as a lawyer.
During the lengthy case, at the eleventh hour, US District Court Judge Robert N. Chatigny excoriated Glastonbury defense lawyer T.R. Paulding for failing to check once again on convict Michael Ross's mental condition, specifically related to Ross's years of solitary confinement on death row. Chatigny told Paulding that if Ross's mental condition had become impaired, "I'll have your law license," according to court records. As a result, Paulding called for still another competency hearing in state court and Ross was deemed sane.
In late January 2005, eleven hours before Ross was slated to die by lethal injection, Chatigny had convened a conference call with Paulding and other attorneys involved in the case, as last-minute attempts to stop the execution were playing out in state and federal courts. Ultimately, the US Supreme Court lifted a stay of execution Chatigny had imposed because he questioned Ross's mental capacity. A day later, the 2nd Circuit Court of Appeals did so as well. The US Supreme Court then upheld the appellate rulings.
In late July, a three-judge special committee recommended clearing Chatigny of misconduct, a decision then approved by the appeals court's Judicial Council, another body of more than half a dozen judges. In a rare development, the council made public the normally secret ruling, which is appealable to the US Judicial Conference in Washington, DC, a body of 27 judges including the chief justice of the US Supreme Court.
The committee quoted Chatigny as saying he had not remembered his minor role as a lawyer in the Ross case, but if he had, he would have disqualified himself. "A failure to recuse from an innocent and reasonable memory lapse is not misconduct," the committee ruled.
In chastising Paulding, said the court, Chatigny, based on credible evidence before him, reasonably perceived Ross's Constitutional rights to a fair hearing might be violated because of questions about his mental competency. And, said the committee, Chatigny later apologized to Paulding for his threatening remarks.
Earlier this year, Paulding, who never complained about the judge's conduct, supplied a sworn statement to the court inquiry. Chatigny was required to file an affidavit too, but it's not essential in the rules that a judge even make a statement in his defense, or if he does, that it be under oath. Indeed, in many cases, said a source familiar with the process, judges don't defend themselves at all before being cleared. Since none of the parties to the complaint against Chatigny called for a hearing with sworn testimony, none was ever held.
The US House has taken no action to date on a separate complaint by state Republican General Assembly leaders and is unlikely ever to do so. Only Congress can begin impeachment inquiries.
Reacting to the judicial council ruling, State Senator Louis C. DeLuca said, "Although we felt Judge Chatigny's actions were out of bounds and likely deserved some form of censure, we are satisfied that the review panel examined the facts and came to a fair and impartial decision."
In calling for the investigation, DeLuca said: "Consider what he is putting the families of the victims through who were brutalized by this convicted rapist and murderer. Once again, their lives are put on hold because of this judicial activism. The higher courts ruled numerous times that the execution should go forward."
Edwin Shelley of Griswold, Connecticut, the father of one of Michael Ross's victims, his 14-year-old daughter Leslie, said he believes Chatigny deserved serious punishment for what amounted to a "blackmail" threat to Paulding. "I would think that being a judge, there are better ways of talking to people. I don't feel that seven state prosecutors would have brought this complaint if it warranted dismissal." Any panel deciding the fate of a judge should be composed of lawyers and lay persons as well as judges to make sure rulings are likely to be unbiased, he added.
Normally, when a judge like Chatigny is either cleared or privately censured by the federal circuit court, that too would be secret. Penalties for unethical conduct also include public censure, suspension from the bench or referral to Congress for impeachment.
This death penalty case had unprecedented exposure to the public eye through news coverage. In a decade and a half, newspapers and television outlets on the East Coast blared out thousands of stories about convicted killer Ross, who consistently said he wanted to die, and was finally executed last May. Chatigny and his lawyer, Jack Zeldes, declined comment on the case.
After a 50-year hiatus, one federal judge, Harry E. Claiborne of Nevada, was removed in 1986 after he was convicted three years earlier of bribery, fraud and tax evasion. Claiborne, who committed suicide in January 2004, became the fifth impeachment casualty in US history. Just over two years later, two others, Alcee L. Hastings of Florida and Walter L. Nixon of Mississippi, were both impeached for perjury by the US Senate. Prior to 1986, twenty-two of thirty-five judges charged with serious misconduct had resigned rather than face impeachment proceedings. The National Commission on Judicial Discipline and Removal did the research.
In the last six years, when just less than 4,300 court users or others complained about judicial misconduct, four federal judges received the least public punishment, censure, and one a lesser private censure. Other undefined, secret action was taken against another judge.
No information is publicly available on how much time or money was spent on investigations, how many special committees were appointed to investigate, or how many hearings were held. But during that time, the disciplinary system's decision-maker of last resort - excluding an almost unique court appeal - the Judicial Conference, did not make a single ruling, according to federal court statistics.
Nationwide federal judicial misconduct figures, cited in a 1993 report by Jeffrey N. Barr and Thomas E. Willging for the National Commission on Judicial Discipline and Removal, reveal a slightly higher national remedial action rate than the most current one. In that decade, there were close to half the number of complaints filed in the past six years. From 1980 and 1991, say those figures, five judges were privately reprimanded, one was impeached, and three were voluntarily retired. Once again, those figures don't reveal how many special committees investigated, how many hearings they held, or how much funding and time was devoted to inquiries.
Some familiar with judicial ethics investigations believe these kinds of figures prove systems of judges judging other judges don't work, or at least cannot work effectively without outside oversight. Most recently, US Congressman F. James Sensenbrenner Jr. (R-Wis.), Chairman of the Committee on the Judiciary, introduced legislation establishing an independent Inspector General for the Judicial Branch. The bill is co-sponsored by Senator Charles Grassley (R-Iowa), another Judiciary Committee member.
"Integrity and accountability are the hallmarks of a public servant's trust with the public. It's my hope an independent Inspector General for the Judicial Branch will help restore some of this trust with the public that has been damaged by the actions of some federal judges who have carelessly ignored the ethical guidelines established," Sensenbrenner said.
Additionally, Senator Patrick Leahy (D-Vt.) in January introduced a bill aimed at preserving the public's confidence in the federal judiciary by targeting special interest-funded junkets. The bill would require judges to allow greater access to lists of corporations and individuals for whom their past relations require their disqualification from federal cases.
As a result of persistent complaints from Congress about the federal judicial discipline system, two years ago former Supreme Court Chief Justice William H. Rehnquist, since deceased, called for a committee of all judges save one, an administrative assistant to the chief justice, to investigate.
That committee concluded in September that the overwhelming majority of complaints, 97 or 98 percent, are handled correctly. However, it said that five of 17 high-profile, press-publicized cases were improperly handled, representing too high a failure rate, 30 percent, for those particular complaints.
While insisting that most complaints against judges "come from disgruntled litigants," Jeffrey Shaman, a law professor at Depaul University, considered expert on judicial ethics, said he was surprised by the apparent lack of federal hearings for as many as 4,300 complaints within six years.
"In the states many [judicial disciplinary systems] have changed their operations from inactive and secret to more active and open and transparent," said Shaman. Apparently, he added, the federal courts have lagged behind the states in creating public accountability.
For instance, California's Commission on Judicial Performance has since 1960 recommended 16 judges' removal to the Supreme Court, removed five judges on its own, censured 20 judges, publicly admonished 38 jurists, and issued 17 public reprovals of other jurists. The commission has an elaborate and detailed Internet site laying out exactly what the public needs to do to file a complaint against a judge, and giving a detailed record of past misconduct by jurists.
The agency is composed of non-lawyers, lawyers and judges. Unlike the federal system, California has "the authority to open hearings at the request of the respondent judge." It can also do so "when the charges involve moral turpitude, corruption or dishonesty, and [to promote] the pursuit of public confidence and in the interests of justice."
Shaman believes the federal system needs transparency to promote public confidence in the judiciary. "Once there is a finding of probable cause [that a judge has committed misconduct] the records and the proceedings should be open," he said. "But, that doesn't seem to solve this problem, because the circuit judges have the sole power to decide these cases, and there is no possible oversight of the circuit judges' decisions. If you are going to give that much power to the circuit judges, you need to have oversight."
Suzanne Blonder, an associate council for HALT, a 50,000-member national legal reform organization, agrees, but believes all complaints and hearings should be open to the public.
"The secrecy that pervades the system of judicial discipline - particularly discipline of federal judges - makes it impossible for the public and the press to determine whether complaints against judges are receiving fair consideration," said Blonder. "Without access to explanations for dismissals, the only information [eventually] available to us comes from those cases which are brought to a special committee. And with such few cases going to committee, we are granted almost no insight into the process. As a result, the system for holding judges accountable manages to avoid exactly that - accountability."
"Judges judging other judges gives the appearance of impropriety," said Blonder. "Many Americans have already lost confidence in the judiciary and when they find out that judges are policing their own, their trust in the nation's courts erodes even further. An independent body, led by lay persons, would go a long way toward regaining the confidence of the American people. Lawyers and judges can have roles on the committees, but they should not dominate the decision-making process."
Even one expert supporting the system, Washington, DC, attorney Michael J. Remington, former director of the National Commission on Judicial Discipline and Removal, said the system could use an approach more open to the public.
"I believe that the system works relatively well today," said Remington. "The appointments and 'advise and consent' process, combined lifetime tenure, ensures that there are very few misbehaving federal judges. As with any self-regulated system, however, the system seems to suffer from lack of public knowledge about how it operates. I believe that the system would benefit from a regular outside audit. The House Judiciary Committee has done a commendable job of exercising congressional oversight and also amending the law when necessary."
"More than half of Americans are angry and disappointed with the nation's judiciary," a September 2005 survey for the American Bar Association Journal Report shows. "A majority of the survey respondents agreed with statements that 'judicial activism' has reached the crisis stage, and that judges who ignore voters' values should be impeached," says the survey. "Nearly half agreed with a congressman who said judges are 'arrogant, out-of-control and unaccountable.'"
Thomas "Dennie" Williams is a former state and federal court reporter, specializing in investigations, for the Hartford Courant. Since the 1970s, he has written extensively about irregularities in the Connecticut Superior Court and Probate Court systems for disciplining both judges and lawyers for misconduct. His stories about the corrupt activities inside the Hartford Probate Court helped encourage a federal grand jury probe leading to the conviction of the court's investigator for corrupt activities, the first attempted impeachment of a judge or any official in the state's history, and a legislative probe that resulted in major changes of the court's disciplinary system for state lawyers. Another of his investigative inquiries in the 1980s led to the forced resignation of a Superior Court judge who was hiring and appointing friends and relatives for lucrative court duties. His most recent freelance stories exposed failings of the Connecticut Judicial Review Council, investigating misconduct by Superior Court judges and the regular one and a half year delays in deciding State Appellate Court cases. He has received numerous awards for his investigative and in-depth reporting.
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