Judges Judging Judges

When Foxes Guard the Hen House

March 31, 2023
/ Author: Rick

The Daily Journal, a newspaper for the professedly-legal profession, reports that complaints about judges hit two records last year. I can’t link it, because it’s behind a paywall that even some attorneys cannot afford to pay.

Many of you know that I have become quite critical of judges, as I’ve become less able to stomach their frequent refusal to actually apply the law, or legal reasoning. In fact, they usually work very hard not to apply the law, and do so using spurious reasoning.

In most counties, it’s quite clear that they believe their job is to provide backup for prosecutors, who constitute the second-biggest problem with our legal system — you can’t say “justice system,” because that’s a lie, so it’s “legal.”

Actually, it’s kind of a lie that it’s “legal,” as well. Most often, it’s a judge ignoring the law, with “ignoring the law” making it illegal. Unfortunately, since it is the judge ignoring the law, the courts say otherwise.

And there is no recourse to justice. At best, a bad judge — like a bad cop — is allowed to quit his cushy job to move on to another cushy job.

Judging Oneself

“A person cannot be a judge in his or her own cause.” 

Woody’s Group, Inc. v. City of Newport Beach, 233 Cal.App.4th 1012, 1027 (2015)

I’ve given a quote from a more recent case, but this is a very old rule, and one allegedly sacrosanct. Woody’s Group, Inc. quotes an 1898 case, but that case points out that it goes back even farther than that, to Lord Coke.

“This is but an expression of the ancient maxim that no man ought to be a judge in his own cause, a maxim which appeals with such force to one’s sense of justice that it is said by Lord Coke to be a natural right so inflexible that an act of parliament seeking to subvert it would be declared void. ”

Woody’s Group, Inc. v. City of Newport Beach, 233 Cal.App.4th 1012, 1027 (2015), quoting (Meyer v. City of San Diego, 121 Cal. 102, 104, (1898) second italics added by the Woody’s Group, Inc. Court)

Of course, the idea of a judge judging another judge is not only not exactly the same: it’s unavoidable. We only really have one system — two, sort of, if you count the feds, but they seldom sit in judgment on the misdeeds of state court judges. And, technically, the judge is judging a colleague, not him-, or her-, self.

Thus, the idea is to try to at least get a “disinterested” judge to judge a(nother) judge.

How does one find a disinterested judge, though? It might be slightly easier than getting a cop to cop to the misdeeds of another cop. There is, after all, a cultural belief in the idea of higher courts reviewing lower courts on appeals and writs.

Still, there is a great deal of deference given by one judge to another on writs and appeals, and even more so when pointing the bony finger of condemnation. There’s sort of an unwritten, unspoken code, like that of the various extrajudicial mafias.

Especially in more than one county in which I practice, the incestuous nature of the bench creates a scenario where a judge isn’t just judging a “brother judge,” but literally the judge might be his own biological brother! Or sister, wife, husband, son, or daughter. (But, that’s how oligarchies work. Power is concentrated in the hands of one, or a few, families.)

And, after all, given the ubiquity of judicial failure, virtually any and every judge could be the target of blame; every judge knows she, or he, could easily be on either end of the bony finger.

So, Lord Coke is not really applicable. We’re stuck with Lord Pepsi.

Foxes Guard the Hen House

You’re forgiven for becoming dyspeptic over that joke, and over the idea that judges judging judges makes it clear that we are mere hens, at the mercy of the foxes guarding us.

I mean, who you gonna call? There’s no such thing as Judgebusters. Don’t forget: except for the possibility of another judge judging them, judges have complete immunity for their acts on the bench. And it’s often even better if their misconduct occurred while they were prosecutors, before they became judges.

So outing bad judges is dangerous work, with little chance of even moderate success, and few want to take it on.

In fact, when discussing this post with a friend, he said, “If you really want to get readers, name names.” But, as I told him, it’s probably risky enough writing about judicial abuses in general. Unlike my friend, I’m not retired. If I named a judge, I’m going to have to appear in front of that judge some day. Judges being what they are, it would be my client who pays the price, not me. Or, at least, not just me.

And, unlike judges, I understand the concept of “duty.”

Thus, what I aim to do is to convince the foxes that they are “special” foxes: and truly special foxes are above eating the hens, I explain.

Sometimes, it works.

Targeting the Poor & Underrepresented

Why do judges ignore the law, though? At first glance, these next few sections might seem to be a diversion from the issue of judges judging judges. Yet one reason judges judging judges does not work is because we built abuse into the system.

And the primary reason for that is that the system needs bodies. The Constitution established the United States on the idea that certain people don’t really count as people — except to exploit them and boost slaveholders’ representation in Congress. For that, they initially counted as three-fifths of a person. They weren’t, however, considered real people. They had no rights. Not even to their own bodies.

That foundation upon which we built our country has changed a little through the years, as our sensibilities have changed. After the Civil War, we did not end slavery; it just transformed into the Black Codes/Jim Crow, and plantation prisons. Today’s criminal injustice system evolved from that. It got a boost with the Drug War, whose not-so-hidden agenda is subjugation. And now,

From arrest to sentencing, racial and ethnic disparities are a defining characteristic of our country’s criminal legal system. The system of mass incarceration particularly targets Black people, who are 13 percent of the U.S. population but are 38 percent of the people in jails and prisons.

— Mike Wessler, “Updated charts provide insights on racial disparities, correctional control, jail suicides, and more” (May 19, 2022)

Thus, this national fact still remains as it began: large portions of our people make their livings off the bodies of other people whose rights we obliterate. And for this we target the poor, people of color, and those who cannot afford to fight back.

Abusive judges make sure of that.

Our Punitive System Targets the Poor

Throughout history, people in power have sought to control groups they perceived to be a threat and/or groups they wished to dominate for political or economic gain.

— Randall G. Sheldon and Morghan Vélez Young, Our Punitive Society: Race, Class, Gender, and Punishment in America, p. 87 (2d ed. 2021)

As noted, the judges do what judges do with impunity — or, at least, they can get away with it for a very long time — because the system in which they work primarily targets the poor. The system especially targets people of color who are poor, because for so long, the majority of this nation has been white. And white people don’t work themselves up over targeting non-white people, especially if they’re also poor.

Their non-whiteness, and poverty, makes them too much “the Other.” And that makes it easy not to care. And too easy to ignore.

But let’s get back to the political and economic gain: despite the fact that the system targets the poor, targeting large numbers of them still generates a profit. Taking a few pennies might not seem so profitable, until you add up the pennies taken from the roughly 10 million people arrested each year. Sheldon and Young, supra, at 15. And disenfranchisement of convicts ensures their political inability to do anything about it.

The Poor Can’t Fight Back

Typically, underrepresentation plagues the poor. Only overworked, underfunded public defenders defend the poor. The poor can seldom afford to hire attorneys like me who might have a lower case load, and more time to devote to hand-holding, research, and going the extra mile. (When able, they typically do it by borrowing, and pooling money from family, friends, or loan companies.) And, when they do hire private attorneys, they don’t have money left over for other necessary resources, like investigators, and experts.

Do not misinterpret that last paragraph. I have said before, if someone walks into my office, slamming public defenders, and continues to do so, that person is invited to walk right back out of my office. I’ve written about that more extensively elsewhere. This is not about public defenders not wanting to do their jobs. Public defenders fight bravely, deliberately barely-armed by the system that grinds their clients, and them.

Because, as noted, we underfund public defender systems. (And, for the work they do, we underpay individual public defenders.) Public defender offices employ full-time investigators. Presumably, they hire experts when needed. Yet, again, relative to the need, underfunding plagues ancillary services everywhere.

Therefore, judges in the criminal injustice system are typically ruling against poor people with little ability to fight back. They often do so rudely, and with a heaping dose of verbal abuse toward them, and anyone who gets in the way.

And when someone tries to complain about mistreatment at the hands of the judge who mistreated them, another judge is going to judge the judge, whether by appeal, writ, or complaint of misconduct.

The Solution: There Really Isn’t One

Experience shows that when a complaint is lodged against a judge, it usually goes nowhere. The most that ever happens is that the judge resigns, promising never to be a judge again, keeps his law license, and lands a cushy job somewhere else.

I mean, after all, “we know he fucked a lot of people, but he’s really a good guy.”

And, trust me, there are some bad judges essentially being slapped on the hand for conduct that would land my clients — I’ve never yet represented a judge — in prison for a long time. Peon (lower level) judges might suffer a little more, forced to take up to six months of vacation, followed by two years of “we’re kinda sorta watching you to see if you kill someone,” while remaining in their positions.

Here’s the thing: as long as judges judge judges, trying to get things fixed is dangerous to those trying to do the fixing.

Because the fix is in. And it does not favor fixing anything.

The Role of Defense Attorneys

And, finally, the nail in the coffin, so to speak, is too often defense attorneys.

Humans are frail, weak, irrational, and insecure. But they are also beautiful, kind, thoughtful, and strong. At their worst, they are automatic flesh robots. At their best, they are dynamic, biological thinking machines.

— Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System, 143 (2019)

But there is “the divergence between the law as it is written, and the law as it is lived.” Id. at 146. Judges exploit that, and not enough defense attorneys push back.

It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal. It is also a failure of the legal profession.

— Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System, 146 (2019)

It takes energy to fight this judge-driven system. Too often defense attorneys advocate against adversaries in the District Attorney’s Office and on the bench.

Nor is the fight fair. You hear complaints from conservatives about “progressive” DAs who refuse to enforce certain laws. Well, that goes the other way, too. California has laws requiring leniency under certain conditions (age, immigration status, etc.). Constitutional and case law forbids pre-trial imprisonment in all but the most exceptional cases. But prosecutors and judges not only fight to overturn such laws, when they fail at that, they simply ignore laws they don’t like.

Facing these issues alongside the normal need to defend against the criminal charges grinds attorneys down, especially those who are overworked.

Too many attorneys give up.

But we must not give up. Rather, we must rally to do more.

It is the intellectual responsibility of lawyers to ensure our fidelity to neutral principles—to ensure that our legal system does not allow practices to develop or to persiste because of who they are happening to, and to ensure that the magnitude of grievous harm is witnessed and weighed regardless of the bodies and minds on whom that harm is visited.

— Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System, 150 (2019)

I would add that it’s our moral responsibility. And our professional responsibility.

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