Monthly Archives: May 2012

Another Georgia Judge Retires

I posted here about a number of Georgia judges retiring in the wake of investigations.  WSB-TV Atlanta reported that,

On Saturday, long-serving Superior Court Judge John Lee Parrott of the Ocmulgee Judicial Circuit notified Gov. Nathan Deal he was retiring immediately. … [T]he state Judicial Qualifications Commission said it had been investigating  allegations that Parrott “allowed the prestige of his office to advance  his private interests.”

Story here.

It’s not clear what those private interests were.

America’s Consciousness about Wrongful Convictions on the Rise

National media USA Today reported a story with the headline, Wrongful convictions shine spotlight on judicial system.  Story here.  The story states,

Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions….

And it goes on to describe a registry of cases in which wrongful conviction was found.  The story specifically notes that the registry does not include innocent people who plead guilty to avoid risk, or cases reversed on legal error, where new evidence could have shown innocence.

The story quoted Samuel Gross, the registry’s editor, a University of Michigan professor.  “What this shows is that the criminal justice system makes mistakes, and they are more common than people think…..”

This is a theme I have noticed in my practice since the year 2000.  And district court judges are very much part of this wrongful conviction rate.  Really – do you think you are not?

Judges need to hold prosecutors accountable; in my experience, that just so rarely happens.

I’ve seen too many courtrooms run by prosecutors, too many prosecutors getting away with whatever they want, and too few judges willing to question them at all.  Indeed, what I observe mostly is judges actively engaged in protecting prosecutors from any scrutiny.  

It is very difficult to sue a criminal prosecutor.  And it seems the Minnesota Lawyers Board refuses to prosecute them for ethics violations (more on that in another post).  Criminal prosecutors are not some magic exception to human nature.  So who is going to hold prosecutors accountable?

The registry appears to be telling us that perjury is a big problem.  Gosh, do you think this could possibly include perjury by co-defendants who are convinced by prosecutors to testify against the guy they ‘want’ in exchange for a deal?  Don’t you think it’s just interesting how often the ‘new’ testimony from a co-defendant matches precisely the prosecutor’s version of the case?  Things like this need real scrutiny.

Judges are called upon to scrutinize prosecutors’ behavior within the case as it is occurring.  Don’t wait until some post-conviction action, when the system is having to pay for a second look at the case.   Looking the other way because the prosecutor’s conduct will help avoid a trial is not what the public demands of its judges.

If judges are not willing to do the job of scrutinizing criminal prosecutors (for whatever reason, more on that in another post), the system breaks down.  Innocent lives are damaged (not to mention the lives of everyone in their family, their friends, their place of employment), and the public pays huge incarceration or probation costs, because someone was not willing to do their job.

Cases in which it has been proven that an innocent person was convicted are on the rise.  But surely that is the tip of the proverbial iceberg.

Are we willing to take a look at this?

California Judge Off Bench for Fixing Tickets

A California Superior Court Judge Richard W. Stanford Jr.’s case is over.  He was removed from the bench, and the California Supreme Court recently declined to hear his case, reported the Organge County Register.  Story here.  According to the Register,

“The state’s Commission on Judicial Performance charged Stanford, one of the longest-serving judges in the county, with nine allegations of giving preferential treatment to relatives, acquaintances and his pastor in traffic-citation cases over seven years.”

“In handing down discipline earlier this year, the commission said, ‘This pattern of misconduct between 2005 and 2010 created both the appearance and reality of a two-track system of justice – one for his family and friends and another for all others.'”

There are judges our there fixing cases.  That’s been proven in a number of states.

It seems that several states are sending a message to judges who remain on the bench, by removing judges for fixing tickets.

This spate of cases is important for the public to see.  I think that this is the kind of problem that the public is demanding be addressed.

Bias in Favor of Law Enforcement is Judicial Misconduct

According to Thomson Reuters News & Insight, an upstate town justice has resigned amid accusations by the New York Commission on Judicial Conduct that he engaged in a range of misconduct, including improper ex-parte communications and showing bias toward law enforcement in criminal cases.  Story here.

A review of documents on the New York Commissioner’s website make clear that this is about bias in favor of law enforcement (as well as other allegations).

The commission also claimed Reome inappropriately questioned defendants during arraignment and, in one instance, failed to rule on a motion to dismiss, reported News & Insight.

The Commission has announced that town justice Richard Reome has vacated his seat and agreed not to act again as judge.

As goes New York, so goes the nation….

Solution #6: Legislation Requiring that Prosecutors Disclose Evidence

In the aftermath of the Senator Ted Stevens case in Alaska, a bill has been introduced in Congress that would require federal prosecutors to disclose evidence favorable to the defense.  Story here.

In my humble opinion, the Brady doctrine (which is named after the US Supreme Court case Brady v. Maryland, and is supposed to require prosecutors to self-disclose evidence favorable to the accused) does not work, because judges don’t enforce it.

How many people are sitting in prison because favorable evidence was not disclosed?

Time after time I am shocked to learn how few prosecutors understand Brady law and how few judges are willing to enforce it.  Brady evidence includes not just the prototypical “exculpatory” evidence (meaning evidence that proves innocence, such as DNA evidence proving the rapist was a different guy), but also impeachment evidence (evidence that can be used to cast doubt on the testimony of witnesses at trial), and also evidence of plea bargain deals that prosecutors make with co-defendants.

If we are going to reform the criminal justice system, and keep innocent people from being convicted (and spending inordinate amounts on jail and prison time for people who should not be there and would not be there had they gotten the evidence they needed to win), prosecutors need to know there will be consequences if they don’t produce the evidence.  As it stands now, in my opinion, they don’t think they’ll ever get caught, or even if they are caught, that anyone will do anything about it.

In my experience, it seems that judges don’t want to find prosecutorial misconduct in a case, because they are concerned that such a finding also likely means an ethics charge for the prosecutor.  (This is the loyalty to public employees that I’ve discussed in other posts.)  This is an unfortunate allegiance.  The private person hailed into court by the government deserves a ruling based on the facts and the law, and not based on the judge’s loyalty to the public attorney(s).  It is an awfully sad commentary on the system that some judges are willing to let innocent people go off to multiple years in prison, rather than hold a public prosecutor accountable for producing evidence.

Sometimes a case comes along where the defendant has enough money, or enough status, or somehow gets enough media attention, to shine a light on problems that most of us see every day in the criminal justice system.  The Ted Stevens case seems to have been such a case.  The proposed legislation seems to have flowed out of lessons learned from that case.  And maybe legislation is a way of removing the impediments to disclosure of evidence.

New York Judge Removed for Fixing Tickets

According to the Daily Mail, the New York State Commission of Judicial Conduct has ordered East Greenbush justice Diane L. Schilling to be removed from the bench for ticket-fixing.  Story here.

According to that story,

The complaint states the Schilling: (1) “improperly intervened in the disposition of a speeding ticket issued to the wife of another judge and (2) four years earlier, accepted special consideration with respect to a speeding ticket issued to her.”

The commission went on to say Schilling “initiated a series of actions that led not only to a failure to prosecute the case but also to the disappearance of all copies of the ticket, except for the one issued to her colleague’s wife by the police officer.”

The commission also found Schilling culpable in fixing a ticket she received in 2005 from a rookie trooper who later offered to withdraw the summons. The commission states that under questioning at one of their hearings, Schilling testified that “she assumed the trooper was taking the ticket back because he knew that she was a judge.”


“Ticket fixing strikes at the heart of our system of justice, which is based on equal treatment for all…” the commission’s opinion reads. “We thus conclude that the respondent (Schilling) has engaged in serious misconduct.”

 

For judicial reform, it’s important to go after case fixing at all levels, from tickets all the way to large civil and criminal cases.

The Charges Against Me: a Summary

The Charges against me are not the typical types of charges you usually see against lawyers.  Instead, all of the charges were generated or instigated by Hennepin County Judges.

Many of you know that I have been willing to take client cases in which judicial conduct was questioned.  When the client decides to question judicial authority (by filing a motion to recuse, or by making a complaint to the Judicial Standards Board, for example), and if the law and facts support that, I will help them with the legal process.  It seems there are judges who wish I would not do that lawyer work.  But the work is important for clients and in pursuit of justice, and I take those things seriously.

Did I realize that I was painting a target on myself by doing this work?  Kind of.  That is, I never thought of it at the beginning.  I just did my job.  I had yet to learn how many lawyers were initmidated into not doing this type of work.  I really didn’t know I was standing out.

I know it now.

And I still continue to do this work.

My clients’ right to criticize judges is protected by the First Amendment.  And I am their spokesperson.  If all Americans shut up and back down when we are pressed, the First Amendment would shrivel up and blow away.

Over the years, judges have been asked to uphold the First Amendment in this country.  Sadly, they have not been quite so willing to do so – when it comes to judges.  (See my discussion of lawyer gag rules and In re Graham).

Let’s see how this plays out.

Over time, I’ll go through each of the charges against me with you in some detail.  But for this post, I’m just giving an overview.

Judge Lucy Wieland’s complaints

In 2006, I encountered some conduct of Minnesota Judge Lucy Wieland.  At the time, she was Chief Judge of the Fourth Judicial District (Hennepin County).  My clients and I filed a complaint with the Judicial Standards Board.  This was the first time I had done this.  Boy was I naïve.  Even as much as I knew about accusing government insiders, I guess I assumed that the Board would investigate, and hold her accountable.

As it was, Judge Wieland was not held accountable.  The JSB did not even investigate.  Instead, the JSB faxed Judge Wieland a copy of the complaint I’d written.  And Judge Wieland turned around and sent it to the Lawyers Board, claiming that I had made “false” statements against her in that complaint.

Usually, the toughest part of proving retaliation is proving the connection between the protected conduct (here, filing the complaint with the JSB) and the retaliatory conduct.  Judge Wieland has made that part easy in this case, by actually filing the JSB complaint with the Lawyers Board.

Also in 2006, when we realized that the JSB was not going to help, I helped the same client file a federal lawsuit naming Judge Lucy Wieland.  After my client settled the case with the Attorney General’s Office, Judge Wieland turned around and sent the complaint(s) in that case (yup, the ones we’d filed with the federal court, also First-Amendment-protected conduct) to the Lawyers Board, and claimed I’d made “false” statements about her.

Ok, so now I got how it worked.  Criticize a judge – we attack your law license.  Folks, it’s been this way in the system for many years.  But based on what I know about the current Minnesota justice system, I am hopeful that a lawyer can defend against these types of charges.  And, I have raised the First Amendment as one of my defenses.

The Office of Lawyers Professional Responsibility

Some of you already know that I have for several years defended lawyers at the Office of Lawyers Professional Responsibility (the prosecutorial arm of the Lawyers Board).  I defend lawyers there as zealously as I defend all types of people.  Based on what I know about government prosecutors (and this, from much experience) I would venture to say that there are those prosecutors within the OLPR who are not thrilled to litigate against me.

Make no mistake, the OLPR which decided to charge me in this case is my opposing counsel in other (Lawyers Board) cases.  Do you wonder whether the OLPR has charged me to try to get me out of their hair?  I’ve wondered that.

The OLPR added one of its own charges to the complaints made by Judge Wieland.  The OLPR alleged that I had made true statements about a hearing in a criminal case.  That’s right, true statements.  And what did they charge me with?  Making a false statement.

Judge Lloyd Zimmerman

In late 2010, a client and I filed a JSB complaint against Judge Lloyd Zimmerman (district judge in Hennepin County, Minnesota) after we observed disturbing conduct by him during a hearing.

Within a few months, Judge Zimmerman had generated or continued two of the charges that are now filed against me.  Hennepin County Judge Robert Blaeser and retired Hennepin County Judge Thomas Wexler are the official “complainants.”  But Judge Zimmerman’s conduct and motivation loom large in both of these charges.

In one of those two charges, I am being accused of filing a document that removed Judge Zimmerman from a client’s case (meaning he would get a new judge assigned, which he did) without cause (meaning we did not have to state a reason).  This seems to have disturbed Judge Zimmerman, who made an ex parte communication by email, to get Judge Blaeser to go out of his way to put Judge Zimmerman back on the case.  Which  he did.  My client immediatley made a complaint about this process, even before we knew about the ex parte email.  But the JSB did nothing to hold these judges accountable.  And I was the one that got charged.

In the other of those two charges, I was accused of stapling two documents wrong (mixing up the pages).  Yup, mixing up the pages.

Sigh.

(Is this how you want your tax dollars spent?)

Chief Justice seat up for Election this year (2012)

These Charges are set on a stage in which it might be important to remember that in 2010, I and two others worked to get the Chief Justice position on the ballot this year – 2012.  (That seat had not ben run for 10 years.)  In that 2010 lawsuit, I stated my intention of filing to run for that office.

I have not made a secret of the fact that I am a judicial reformist.

Let’s see how this plays out.

As more than one person has commented, it’s easy to see who would want me not to succeed in a campaign to be Chief Justice.  How about those who are committing or benefitting from judicial misconduct?  Once this image is drawn, it’s tough to get it out of your head.

Watch to see who has already attacked me, and who lines up to attack me this year.  What we’ll probably end up with is a list of those who want to keep the “old ways” – that is, protecting judicial misconduct and the judges who commit it, and those who benefit from it.