Monthly Archives: March 2012

Solution #1: Legislative Oversight And Impeachment Process For Judges

Friday, March 23, 2012, Minnesota Senator Julianne Ortman offered a delete-all amendment for consideration.

The amendment offers an interesting solution worthy of discussion.  I’ll highlight two interesting points here:

1.     the judiciary would continue running the Judicial Standards Board, which accepts complaints about judges, while permitting legislative oversight of the process (if you go through the JSB process and are not satisfied, you can submit the complaint to the legislature); and

2.     it creates legislative impeachment procedures, which are long overdue (the legislature has never done this since the creation of our current Minnesota Constitution).

I like the idea of legislative oversight, so that people who complain to the JSB and encounter a problem there (or believe their serious complaint was ignored) have a place to go.

The impeachment process should be in place.  The Minnesota Constitution calls upon the legislature to create that process, and its creation is long overdue.  It is far from certain whether the judiciary has the authority at this time to de-bench a judge.  It’s clear the judicial branch has the authority to suspend a judge, but what if the judicial misconduct is severe enough to warrant dis-robing the judge, it’s not clear there is any present authority or process in place at this time for any branch to do that.

I’m happy to engage in further discussions of these issues.

The proposed amendment is here.

Senator Ortman’s presentation of the delete-all amendment is on U-Tube here.  I like the way she invites discussion from the judiciary and from the public.

The bill was amended, and laid on the table.  The Minutes of the 3/23/12 hearing are here.

I am supportive of solutions to problems that I have observed in the justice system.  I am hoping that judges who discuss these issues, who lobby on these issues, or who otherwise have an impact on the legislative process are willing to put political party aside, and do what’s best for the public.

A Decade Of Observing The Bench: 2002: Judge Wexler: Part 1

In 2002, I was representing a woman born in Ethiopia in a state criminal action.  In my opinion, the criminal case should never have been brought.  I would come to learn a lot about such cases.  But this blog really features my experience with Judge Wexler.

At the time the Honorable Thomas W. Wexler was an elected judge, serving on the Hennepin County bench in Minnesota.  (He is no longer an elected judge.)

I believe it was the first time I had encountered Judge Wexler in a case.  Upon arriving at court that day (having subpoena’d witnesses, and with an expert witness waiting in the lobby to testify), we have been told our client’s motion would not get heard.  This was a problem for my client.  My client had a constitutional right to bring motions, so that she could effectuate her other constitutional rights.

There were 4 of us sitting in chambers at the Southdale Courthouse, where Judge Wexler was assigned that day.   Judge Wexler, me (acting as defense attorney), a second defense attorneys, and a municipal prosecutor.  Judge Wexler was reading another judge’s written order on a motion my client had brought prior.  Pointing to the order, Judge Wexler said,

“This is not the first black person to appear in my courtroom.  If we allow these people to bring these motions, they will clog the system.”

Judge Wexler’s statement caused me a lot of concern.  In a system that had acknowledged the statistical reality of the over-charging, over-conviction of people of color, this showed an unwillingness to deal with the issue in the case.  I was concerned about Judge Wexler’s bias (and the effect it could have on my client), but also about systemic bias.

But my focus for this blog is the aftermath of that statement.

There were four people in that room when the statement was made on January 8, 2002.  I immediately reacted to the statement, expressing my concerns about the statement – directly to Judge Wexler.  This was appropriate, both in representing my client, and to give Judge Wexler a chance to explain himself.  I raised the findings of the 1993 Task Report of the Supreme Court Committee.  (See article about that report here and another article about the statistics here).  I said perhaps things had to start to be done differently.

We discussed it.  Eventually, Judge Wexler backed down a bit, stating that perhaps my client’s case was an “exception.”  (Although her motion scheduled for that day never got heard.)  In other words, this was not an isolated statement that I might have misheard, or taken out of context.  Judge Wexler’s views were clearly stated.  I, in representation of my client, clearly opposed those views.

At no time did Judge Wexler withdraw the statement quoted above.

The Prosecutor left the room.

I made note of the statement quoted above, and committed it to an affidavit signed under oath.  (Both defense attorneys signed affidavits memorializing Judge Wexler’s statement under oath.)

Even after those two affidavits were filed in the district court file, and the issue was discussed in a court hearing, neither Judge Wexler nor the Prosecutor denied that the statement had been made by Judge Wexler in January 2002.

In fact, a lot of time went by before anybody denied it.

Quite some time later, the Prosecutor wrote a letter to the Court of Appeals (not an affidavit submitted under oath), denying in some form that the statement had been made.  I am in a unique position in writing this post.  I had been in the room.  I had heard the statement with my own ears.  I knew that the Prosecutor was not telling the truth to the Court of Appeals.

I am not saying this Prosecutor is a bad person.  I rather like him.  But clearly, once it became an issue in the case, he was not willing to admit that Judge Wexler had made that statement.

Why not?

It seems the statement would not have to be denied, unless is showed Judge Wexler in a bad light.  I don’t think this is the only case in which a lawyer “forgot” hearing a statement made by a judge, or lied to protect a judge.  Why does this occur?  Is it because lawyers fear that they will be harmed (perhaps lose the case, or just be ‘disliked’ by the bench) if they do not?  Or, do they think the judge or the judge’s friends will favor them if they do?

We just need to talk more about this vital issue:  lying by those within the justice system, a system that tells the public it is about seeking the truth.  I mean, call me simplistic, but I think that a system that says it is about seeking the truth should be about seeking the truth.

By this point in the case, now months after that discussion in chambers in January 2002, Judge Wexler had never denied making the statement.  Do you know when he finally denied making it?

Watch for 2002:  Judge Wexler:  Part 2.

Blog News #3

In addition to discussing issues and problems (and judicial misconduct), this blog will, from time to time, offer potential solutions.

This blogger is well aware of the many well-intentioned folks who regularly work to better the justice system.  Those who attend committee meetings to focus on a specific problem, those who spearhead initiatives (such as Minnesota Judge Tanya Bransford’s work to reduce the amount of time juveniles spend in jail), and those who do the day-to-day work to create the systems, and tweak the mechanics, so that the engine runs.

By offering potential solutions, I am not, in any way, seeking to diminish the hard work and ideas of those folks.  And I am not intending to suggest that I am the first person to come up with potential solutions.  I know that many within the system work hard on a consistent basis to come up with solutions.  Those people who care are to be thanked and praised.

But I believe the way we arrive at the best solutions, is to have open discussion about them.  And I believe that members of the public do have something to offer justice system insiders.

So I’ll put out some of my ideas.  I’ll talk about ideas that I hear as I am out in the community.  And I’ll talk about the ideas of others, in the various forms in which they reach me.

Every time you see the picture at the left, it’s a “solution” blog.  As with all of these posts, when you see the “solution” blog, you can read it, don’t read it, consider it, reject, you choose.  If you think I’m all wet because it’s been tried before, or considered before and rejected, well, that’s fine, too.  As I am wont to say, it’s hard at times to figure out what is going behind the iron curtain (that’s my name of the wall between the public and the ‘inner workings’ of the justice system).  So maybe I sound uninformed about something you insiders know a lot about.  But just perhaps the solution blogs will engender some type of discussion.  And if any of you want to help take down the iron curtain by sharing what you do back there (so I can tell, for example, that you’ve considered something and rejected it), that would be welcome, too.

If some of the potential solutions offend you, I am kinda sorry, but kinda not.  I am not intending to offend anyone.  But I have a right to describe my ideas, even if someone is offended.  There are times when I dont’ think the statement is offensive at all, yet some judge (or group of judges) is offended.  I simply cannot get inside someone else’s head and decide what they might not want me to say.

I have certainly noticed ire after I deliver some type of public statement or idea about the courts.  I am a human being of 55 years on the planet, and I can tell if someone is PO’d (even if that person is wearing a robe).  Such when I talk publicly on the radio on a Thursday evening, and come to court the next Friday morning, and before anything happens in the case, the judge is huffy, fuming and harsh facial expression, shooting daggers my direction (c’mon, y’all, do you think I don’t notice?), you know, the things we humans key off of from each other, to interpret the other one is upset.  And if nothing has happened in the case to warrant this, I do consider that this could be engered by what I said.  This has happened to me a lot.  I find it kinda sad, and kinda funny.

It’s sad because these people are supposed to be mature, reasoned and termperate.  When they get PO’d just because of something I said about a public institution, I am sad because I expect more from these people who chose to become judges.  (No one is forcing them to be judges; do you know how much in the community it comes up, “if you don’t like your job why don’t you just quit!”)

It’s kinda funny because it shows a real inability to handle criticism.  An adult judge, some of these people judges for 10, 20 years.  Yet they have not learned to handle criticism.  If certain judges cannot even handle my criticizing an entire branch of government, what chance is there that a Minnesotan could criticize that judge without invoking the same ire?  (Ok, so this makes me sad, too.)

There is much to be said about the entire debate over elections v. appointment of judges.  But one thing that hits me over and over, is that on the campaign trail, the candidate is criticized all the time (every week if not every day, depending on the profile of the campaign).  This is an important de-sensitizing process.  You will find that most adults, if they are criticized a lot, will learn to manage it, and not to get so bent about it.

I don’t believe judges should be criticized less.  I believe judges should be criticized more.  I think they need to be criticized to the point they are de-sensitized, and more able to accept the criticism as just something that occurs, and not get bilious about it.

I’m not in any way endorsing being nasty to judges in the courtroom.  That’s not at all my style.  I’m talking about discussing ideas about the justice system.  You cannot talk about the justice system without talking about judges.

If you have a strong feeling about one of the potential solutions or if you want to share some information with me, you can go to About, fill out information about yourself, and send me a message.  Your comment will be reviewed but it will not publicly post.

Is It International?

This online story reported that near Naples, Italy, 16 judges were arrested and police allege they were accepting bribes to rule in favor of a crime network.  This story was also reported here.

This is an interesting development which causes me to wonder whether the public’s desire for judicial reform stretches around the world.

Blog News #2

I vividly remember 2002, when I told the truth about a statement a judge had made in chambers.  Little did I know at the time that 2002 would mark the beginning of a decade of telling the truth about judicial conduct that I observed in cases.  Little did I know the ramifications of doing so.

A Decade of Observing the Bench: 2002-2012, is a multi-part series.  Starting with the year 2002, I begin to relay what I observed, how I stated the truth, and what happened as a result.  I can’t possibly include all the details, or even talk about all the incidents.  But I will walk through each year, highlighting what happened in those years, up to this one: 2012.

Of course, in 2012, the Minnesota Office of Lawyers Professional Responsibility publicly charged me with making ‘false’ statements about a judge.  This series will be a march from 2002 toward 2012, with hopes that by the time I reach the present day, I can be telling you about what is happening now in my case (I’ll blog about why I can’t talk about the evidence yet, in upcoming blog).

The segments will not all come in a row.  There will be other important topics to cover, so the series will get broken up.  But each one will start with the year, to signal this series.  Watch for, “2002:  Judge Wexler.”

Americans Watch As Judges Get Charges

News hit big on the web yesterday, about judicial misconduct charges filed against Wisconsin Supreme Court Justice David Prosser over an incident in June 2011.  Sample story here, and here .

I am in favor, in general, of judges getting charged when they do things like assault.  Minimum, there needs to be an investigation.  And, when you consider how frequently criminal prosecutors accuse Americans of assault on the basis of one person’s complaint, alone, shouldn’t judges be charged at the same rate?  It’s just not appropriate for judges to sit in judgment of human behavior, and get away with assault.

I don’t have any idea what happened in that Wisconsin room in June 2011, and I’m not interested in choosing sides.  My commentary is not about that specific set of facts, but about charging judges, in general.

Of course, in this situation, it appears everyone in the room during the June 2011 incident had ‘status’ in the system.  It’s unclear whether the Wisconsin Judicial Commission would have charged someone like Prosser if the one accusing him of assault-like conduct was a mere lawyer, or a party who comes before the court.

Justice Prosser is defending.  And of course, he has a right to do that.  Judges who are accused of misconduct by an official agency are entitled to due process.  But what’s fascinating is to see the ‘shoe on the other foot.’

Years ago, a doctor told me a story about an attorney patient who had represented insurance companies, work comp carriers, for years.  In that capacity, he played ‘hard ball’ with people claiming injuries, by denying benefits, pushing them back to work, etc.  Then he got injured and sought medical treatment and benefits.  And guess what, he was treated by the insurance-company’s lawyer, the way he had treated people.  He was experiencing his industry from the other side, the ‘shoe was on the other foot.’  The experience ended up changing his life.  Once he’d seen that other perspective, he could not go back to what he was doing.

As we enter a time in America where official agencies are finally charging some judges, it’s interesting to see how judges are dealing with getting charged.  Justice Prosser has stated various versions of him being innocent, that he will vigorously defend.  Of course, he’s entitled to do that.  But what I am wondering is, did Prosser ever feel such passion when a case of a lowly Wisconsinite came before his court?  How did he react when Wisconsinites accused in the criminal system passionately declared their innocence?  Did he do what many judges seem to do, turn a deaf ear?  Did he do what many judges seem to do, to squeeze all of the moral outrage out of a case and to ignore the passionate pleas?  Did he think they were being ridiculous to protest their innocence?  Did he curse them in his mind, or in his chambers?

And what did Justice Prosser think of the Wisconsinites who decided to vigorously defend?  Not just the criminal defendants, but also the parents (in custody and child welfare cases), or people denied unemployment benefits, or accused of welfare fraud?  When those people sought to vigorously defend, did Justice Prosser stand up for them and their right to fight for justice?

Or did he think they were just taking too much court time?

That’s really the question, isn’t it?

Now that judges are being charged, it is axiomatic that wrongful prosecutions of judges will occur.  Either because the investigation is flawed.  Or because the process is political.   Or for some other wrongful reason.  As Americans, we have seen the various flavors of wrongful prosecutions.

As a lawyer, I believe some prosecutions of judges are politically-motivated.  And I don’t want wrongful prosecutions of judges, any more than I want wrongful prosecutions of any American.

So to judges who think they are being wrongfully prosecuted, I say, join the club.  As Americans, Minnesotans, we have put up with wrongful prosecutions for many years.  And, worse yet, when we bemoan those wrongful prosecutions, what Americans experience from many judges is some version of, be quiet and let us move to the next case.

Perhaps as judges experience wrongful prosecutions, they will be more tuned in to members of the public who stand in their courtrooms and protest their innocence.

So, even with all the huh-bub and political commentary, I think it is a good thing Justice Prosser was charged.  Welcome to your fate being in the hands of the justice system!

As Americans, we need to see these prosecutions will occur (that judges are not above the law).  And, as judges experience prosecutions, hopefully they will bear witness about what can be changed to make all prosecutions more fair.