Opticians and optometrists could be excused for being a touch grandiose about what was always going to be the Year of Optometry. But it is hard to say why a 1993 panel of 43 Californians charged by leaders of the state judiciary with brainstorming about reforming the legal system recorded dreams of progress, by 2020, that must have seemed absurd even a quarter-century ago.
The Commission on the Future of the California Courts, staffed by a wide range of distinguished professionals, was designed by the Chief Justice of the day — Malcolm Lucas — to address ‘a widespread public perception that the judicial branch is in need of major repair’.Although it took two years to produce its report, this contained nothing resembling a plan of action. As an exercise in so-called alternative futures planning, its objective was merely to inspire planning for a ‘preferred’ future with a ‘vision statement’ — something like conjuring up fake sizzles to encourage the butchering and barbecuing of an actual steak.
Its inclusion of a ‘wild card’ proposal for a judiciary so sublimely capable that it ‘is ascendant and has assumed responsibility for virtually all the functions of government’ in California was justified by pointing to space travel and the collapse of the Soviet Union as evidence of the power of dreaming big.
But that and virtually all the Commission’s other visions make for exceedingly sad reading on the cusp of 2020, and three months after the release of preliminary findings of the state bar’s investigation into a ‘justice gap’— ‘the first comprehensive study on the need for civil [ rather than criminal ] legal assistance in California.’
IT IS 2020. In both perception and practice the California courts are scrupulously fair, accessible to all. […] IT IS 2020. Justice’s greatest asset is its servants, who in every action personify respect for public service and a commitment to the public’s interest. Judges and other dispute resolution providers are the embodiments of excellence. They are culturally competent, representative of the genders, races, and ethnicities they serve. They are community leaders, outspoken advocates for justice in its broadest sense.
The October 2019 interim update of the California bar’s study — scheduled for completion on 31 December, which happens to be tomorrow — included these highlights:
While all of the problems asked about in the survey could have been legally actionable, legal help was only sought and received for about 3 in 10 of them. … Lack of knowledge and concerns about cost are substantial barriers for not seeking legal help. …Overall, when it comes to perceptions of the civil legal system, Californians at or below [ the poverty level ] are more likely to have negative perceptions than those earning more. They are less likely to feel that they can use the courts to protect themselves (39% vs. 45%) and that they are treated fairly by the courts (34% vs. 45%) most or all of the time. … Most Californians do not receive legal help: 27 percent of low-income Californians received some legal help, while 34 percent of higher-income Californians did. … Experience with the legal system […] is not associated with confidence in the system …
In other words, Californians were just as unhappy with their justice system in 2019 as they were in 1993.
The virtual invisibility of the Judicial Council and its concerns with reform, even within professional circles, was the subject of remark in 1975, when an opinion survey revealed “that only 7 percent of the lawyers admitted to practice [in California] . . . have ever heard of [ … it …].” … In 1980 students of the Judicial Council’s record contended that […it…] had “consciously remained extremely conservative in its scope of interest and its willingness to apply pressure for implementation of its policies,” …
What he was really saying is what one COTIN entry after another — including last month’s post about the disciplining of bad judges — has been spotlighting. Nothing about the way the California judiciary and the rest of the legal system operate will change in the right direction until California’s judges stop obstructing reform.
But this is the brink of a new year, and it is incumbent on us all to be hopeful.
All the signs so far suggest that COTIN’s pessimism is more than justified — about the likelihood that the deliberately lax, inefficient body charged with disciplining corrupt, incompetent and misbehaving California judges will be reformed urgently, if at all. This site’s gloomy spring and early summer prognostications on that topic followed the publication on 25 April of the California Auditor’s minutely detailed exposé of the workings of that body — the Commission on Judicial Performance (CJP).
Here are links to essential reading for anyone who wishes to know exactly how the California judiciary has since been evading the Auditor’s diligent attempt to correct injustice, through tactics that fit the judges’ historic tendency to rank ‘protecting their own’ above the public interest:
• Shielding judges from public complaints and criticism (but not the public, from bad judges) was immediately given the highest priority
The Auditor, Elaine Howle, has no means of directly or semi-directly translating her organisation’s recommendations for reforming the CJP into action. She has to accomplish that through Sacramento politicians — that is, win the support of members of the California State Assembly. According to The Reporter, in a29 June article,
A state legislative committee earlier this month issued several proposals, including an amendment to the state Constitution,that would make investigations of alleged judicial misconduct more fair to judges and, at the same time, increase public awareness of a commission that hears complaints about judges and disciplines them, … [ COTIN’s highlighting ]
In view of the seriousness of the wrongs in dire, urgent need of righting — and given that the Auditor’s report was related to the mistreatment of litigants by rogue judges, rather than the reverse — should the committee have made an issue of the sensitivities of the judiciary, at this time?
• Somehow, the CJP failed to meet its deadline for applying for the money it needs to start implementing the Auditor’s recommendations for its reform
This past April, the much-anticipated California State Audit reviewing the Commission on Judicial Performance (CJP) exposed a crisis in the state’s only judicial oversight agency, which allows for severe judicial misconduct to persist. In order to enact the changes set forth in the audit, the CJP should have requested funding from the State by the June deadline. However, they missed it, using, as executive director Kathleen Russell stated, a “classic stalling tactic” to continue resisting efforts to change its practices.
• The second stage of California legislators’ investigation of precisely what needs to be done about judicial misconduct was somehow postponed to 2020
In a conventional prelude to action by lawmakers, the Joint Legislative Audit Committee (JLAC) held a hearing in Sacramento on 12 June to discuss the Auditor’s recommendations. It was set for continuation in October, but that did not happen. Katie Guthrie in the office of the committee’s chairman, Rudy Salas, said on 15 October that no date had been set for the next stage of JLAC’s discussion of the CJP, but that she might be able to answer that question for COTIN in December or after 6 January, when the Assembly reconvenes.
Probably, the involvement of the youngest California voters.
Mark Zuckerberg, and the WordPress co-founder Matt Mullenweg, whose blogging platform’s home page proclaims that it ‘powers 34% of the internet’ (not excluding COTIN) — were both born in 1984. Their vintage makes their achievements especially astounding, and that is in keeping with the apparent trend for the world’s most effective revolutionaries — whether driven by greed or pure conscience — to be getting younger every year. But if Mark and Matt were computer systems, they would have been consigned to crematoriums decades ago. This would be true if they were not 35 but 25 years old — or the same age as the IT system that the Auditor found the CJP using to process complaints about judges by lawyers and litigants in 2018. As noted on this site last summer, this has meant that instead of accepting complaint forms through email or via a web site, the CJP was using Californians’ tax dollars to pay staff for retyping postal submissions from complainants into its prehistoric IT marvel, keystroke by keystroke.
There is no way to interpret that other than as proof of the lengths to which the judges’ disciplinary authority has gone to avoid disciplining judges.
Surely California needs a firebreathing activist, an equivalent of 16 year-old Greta Thunberg — nine years younger than the CJP computer system — to emerge from the populace and get to work?
The Center for Judicial Excellence (CJE) in Northern California, founded and run by Kathleen Russell, has been among the most vigorous and prominent campaigners against judicial misconduct in the state — and is widely seen as the principal prod responsible for the official audit of the CJP.
Child custody rulings outnumber all other cases of alleged misconduct in which the CJE intervenes to assist litigants who believe that they have been hurt by those decisions. Too many are horrific and heart-stopping. It could be appropriate for some of the older children — teenagers — in such cases to model themselves on Ms Thunberg and draw attention to the harm that can be inflicted on families and individuals from judicial benches whose occupants are demonstrably guilty of bias, incompetence, failure to follow the law, or all three.
In general, kids start waving signs when adults are slow to act, and, according to Alcides Velasquez, who researches social media and political activism and participation at the University of Kansas, there is a perception among adults that children will be more effective at trumpeting future-looking messages. (Also, as political commentator Tucker Carlson pointed out, it’s harder to justify eviscerating a child for political gain.) That’s only the most cynical piece of Thunberg’s appeal, though. “We learn from observing people who are similar to us,” he says. “If you want young people to get involved, showing them that another teenager can do this type of stuff will be very empowering.” He also notes that youth demonstrations, like the climate marches Thunberg and others have led, put direct pressure on reelection-minded public officials: “They’re going to be voting in three, four, five years, and politicians will be feeling the pressure.”
For long interludes in recent months, though fortunately not at present, a malfunctioning algorithm — presumably — has been automatically redirecting would-be COTIN.org visitors to search results for Church on the Rock, a Protestant institution in Indiana unconnected with any information on law, judges, or California courts on this site. No such aberrant behaviour has been triggered by COTIN queries on Bing, DuckDuckGo or the Russian search engine Yandex. It seems reasonable to guess that someone at Google is responsible for creating a rogue algorithm.
If you are given a date for a first court hearing about anything that matters to you, your immediate reaction is likely to be going online to look for information about the judge. Your search will almost certainly be disappointing.
Retaining a lawyer to represent you is no guarantee that your advocate will tell you the truth about what to expect from any judicial officer, because — for reasons explained further on in this post — lawyers tend to be as close-mouthed as judges are, on this topic and most other knowledge about the workings of the legal community.
Unfortunately, judges work to widely differing standards. Those who distinguish themselves as scrupulous upholders of the law — its letter and spirit — stand out across time for their rarity. Search engine-mediated serendipity produces some fascinating examples of paragons. For instance: John Hyde, an 18th-century judge working in a regional power centre in the still embryonic British Empire in India. Apparently an early believer in historical transparency and accountability for judges and courts, his most notable achievement was in the 74 notebooks he used to record details of proceedings over which he and his fellow judges presided. He relied on an idiosyncratic shorthand to conceal his jottings about bench colleagues accepting bribes.
His page in the online encyclopedia says that ‘Hyde gained a reputation as a morally upright judge in a time of general corruption’ — refusing bribes that judges at the summit of the judiciary accepted from the governor in the jurisdiction where he toiled. He ‘was unique among judges in thinking that all individuals … Indians and British alike, deserved the same rights …’ . Just as suspicious of more flattering attempts to compromise his integrity, he also turned down an offer of a knighthood.
The most intriguing fact about him is that several of his notebooks have been spirited away by unknown actors, including a few containing his records of particularly controversial trials.**
To this day, in places a long way from Hyde’s old courtroom, too many judges prefer the evidence about their conduct of trials to be as scarce as possible. As noted in a post earlier this year on COTIN, the recent report by the California Auditor about the operation of the body responsible for disciplining errant judges stated that ‘many courts were responding to budget cuts by eliminating court reporter services.’ It also observed that if that disciplinary panel — the California Commission on Judicial Performance — ‘believes the absence of court transcripts or recordings regularly impedes its ability to conduct investigations, it should expand its efforts to inform policymakers’ about the missing records.
The lack of publicly accessible documents about exactly what trial judges do in courts partially explains why, during the prelude to a judicial election in San Francisco last year, COTIN quoted Jessica Levinson — a professor at the Loyola Law School in southern California — pointing out that:
most people know next to nothing about the judges who they vote for. There are few resources available, even for the minority of civically engaged voters who might want to research their candidates.
Three groups of professionals that might be expected, a priori, to have or be capable of easily obtaining information about judges’ performance — who could fill in yawning gaps in public knowledge — do nothing of the kind:
In a 2017 interview with Jed Rakoff — a senior New York judge and legal scholar — published in the journal of the American Bar Association, Joel Cohen — a lawyer who wrote Broken Scales: Reflections on Injustice — obtained a frank answer to a question about the reluctance of judges to share views and information that might be valuable to the public, even on the general topic of injustice:
JC: You are willing, particularly in your extracurricular writings, to speak out about “injustice.” In my view, judges are in a better position than literally anyone else to speak out on these issues given their experience on the bench, yet many are unwilling to do it. JSR: I agree. I think what is often overlooked, is that the judicial canons of ethics authorize judges to speak out publicly on matters of importance to the administration of justice and the development of the law. … I think that many judges have the view that it detracts from the public image of the judiciary: unlike political figures, we should be remote; we should be super-cautious. And there’s something to that. There’s a certain amount of reticence that is appropriate. And a second reason is, to be frank, judges who do speak out are spoken of behind their backs by their colleagues as publicity hounds.
I agree completely with Judge Rakoff. However, based upon my experience this applies equally well to lawyers. I know this all too well because I’ve lived it. While I may not have been called a “publicity hound”, a great many of my colleagues bad mouth me behind my back (and sometimes to my face) . Why would most people want to provide valuable information from which people can learn, when they are treated so poorly as a result?
Editors take the view that their readers no longer need to understand why the courts have reached a particular decision.
It was against this background that the lord chief justice expressed concern last week about the decline in coverage of the courts, with local papers in particular no longer sending reporters to hearings.
‘Just as an independent press can expose the errors made by local authorities and governments, so too, the administration of justice in the courts should be open to the public scrutiny which an independent press provides,’ Lord Judge told journalists.
‘Unless the right has been expressly taken away, your right to be in court is no different to and no less than the right of the lawyers, the advocates, even the judge himself or herself. You are not performing the same function as the judge, but you have a valued function to perform.’
Lawyers and rich litigants can afford to pay the steep fees for access to legal research platforms — such as Lexis-Nexis Total Litigator — some of which have sections dedicated to opening doors to profiles of judges and records of their decisions. Or they can buy compilations of carefully balanced judge assessments such as California Judge Reviews, compiled from interviews with members of the legal community conducted by experienced interviewers (print version: $269; e-reader $269; print & e-reader $399). Good, well-funded libraries — not necessarily specialising in law — can help poorer litigants to gain access to parts of those data troves.
Online judge review sites open to anyone vary greatly in the quality of their offerings, and are as open to manipulation as other such forums. The Robing Room, run from New York — ‘a site by lawyers for lawyers’ — is always worth a look for judge reviews that range from incisive and crisply-written to rambling and incoherent. It is a shame that this site appears to have been receiving less attention from its founders, lately, because their judge-rating system is an intelligent prototype of something potentially even more forensic and valuable.
Of course search engines are crucial for drawing attention to all these resources, but their performance is unpredictable, glitch-prone, and corruptible. See the note at the start of this post.
What if the performance of judges across the U.S. could be monitored by an equivalent of the National Basketball Association’s four year-old, high-tech, Replay Center — in which referees vet the fairness and accuracy of other referees in games played across the country, without delay?
This web site’s focus on using technology to make today’s too often strictly nominal courts of justice radically transparent — and so, fully accountable to citizens — is in perfect sync with Against the Rules, a podcast by Michael Lewis, who is best-known as the author of Moneyball and The Big Short.
Launching his series in late April, he explained to The New York Times that his subject was ‘all the poorly refereed corners of life’ — and growing, mass outrage about the reflexive tendency of ‘[t]he privileged to try to protect what they have by evading authority and regulation.’
In the podcast’s introductory segment, one of Lewis’s interviewees tells him that ‘whether it’s in baseball or any other walk of life, you cannot turn the clock back on transparency.’
Nor is there going to be any more reflexive genuflecting before undeserved or unearned authority, in any profession or post — even if it is only this one class of sport referee, in American basketball, that has so far acquired such a comprehensive, systematised check on its latitude for biased, corrupt, or otherwise delinquent behaviour. As Lewis sums up his discoveries about its genesis and effects, ’Everyone believed that the only way to ensure the fairness of the game was to let the referee play God. The Replay Center is an admission that the referee is not God — and that he makes mistakes.’
It is an innovation that appears to have been a great success. Nothing could gladden the hearts of fighters for genuine impartiality and fairness more than the evidence of changes in the right direction that the Replay Center appears to have brought about.
Ira Glass: The journalist Michael Lewis, … was looking around at what’s going on in America these days. And he noticed that one way you can describe the current moment that we’re all living through is that Americans don’t trust the refs — in all walks of life. They don’t trust their impartiality.
I’m talking about police, Supreme Court justices, journalists, the people who regulate the banks and Wall Street and student loans, the people setting medical costs, judges. So many people today feel the system is rigged. I mean, Bernie Sanders and Donald Trump both ran on that. So many people feel that the figures of authority, charged with enforcing rules impartially, keeping everybody on a level playing field, that they’re failing at their jobs.
[ … ]
Michael Lewis: … So we’re walking across a parking lot in Secaucus, New Jersey. And there are chain hotels and motels in someone’s idea of a mall. And we’re surrounded on all sides by freeways. … And we’re approaching a four-story, rectangular, otherwise nondescript concrete building.
There’s a discreet little sign here that says NBA and shows a logo with a basketball player. Inside, a recent concession to the world we live in– the Replay Center, a place where basketball referees review the calls made by other basketball referees in real time, to minimize referee error. The Replay Center was built to persuade people that life was fair.
… It’s wall-to-wall screens, 110 of them. What’s on them is whatever is captured by all the cameras in 29 NBA arenas across the country. They may have a screen somewhere with scores on it, but I didn’t see it. And they’re all muted. What you hear is referees staring at basketball games. What you see is nothing but angles on professional basketball courts.
… These Replay Center refs have video technicians with them, who can freeze a moment on screen, then zoom out or zoom in so that the entire screen contains only a player’s fingertips or his toes. Here you just scroll through tiny slivers of the game, not the game itself. The sliver is where injustices might occur.
[ … ]
Justin Wolfers: Look, I don’t really like writing papers about sports. I’d prefer to write about the economy.
Michael Lewis: That’s Justin Wolfers, a behavioral economist at the University of Michigan, and the co-author of a paper about NBA refs.
Justin Wolfers: But the thing is, this is a domain where the NBA referees have tremendous incentives not to make the wrong call. Every error they make is tracked. Those errors determine whether they get more games. Those games determine how much they get paid. This is arguably the most analyzed workforce in the country.
Michael Lewis: Basketball referees are now picked apart in ways that not long ago would have seemed preposterous– not just for the fairness of their calls but for their unconscious behavior. Wolfers took data from over a decade of NBA basketball games, more than 250,000 of them. Then he set out to look for evidence of the refs’ racial bias.
Justin Wolfers: The question here isn’t whether people are anti-black or anti-white but whether there’s an in-group bias. So if a predominately black team is playing and the refereeing crew is predominantly white, are there more fouls called against them than on nights when the same team is playing with a predominantly black refereeing crew? And it turns out, the answer is yes.
Michael Lewis: Wolfers wrote his paper back in 2007, before this new age of referee transparency. … And the NBA wasn’t happy. The commissioner at the time attacked the study and embarrassed the league by trying and failing to refute its findings. … When the dust settled, Justin Wolfers was curious to know if his paper had had any effect. He made another study of referees after the controversy he’d created. And guess what.
Justin Wolfers: The most recent study that we did seems to suggest that that form of racial bias has gone away.
Michael Lewis: For a while anyway. He has no idea why. Maybe simply making the refs aware of the problem was enough to correct it. By the way, the NBA disputes this study too. But in the end, this became a case study — not in ref ineptitude but in ref reform. NBA refs have now achieved what police forces can only dream of, though the refs have no choice. The world’s now too good at seeing their mistakes.
In 2018, the World Justice Project — not international in origin, like the United Nations, but a brainchild of the American Bar Association — tried to quantify the ill effects of litigation on litigants, with international comparisons. It collected survey respondents’ answers to a question about whether they had experienced‘stress-related illness’ — among other forms of hardship — in trying to resolve their legal problems. One discovery was that an almost identical proportion of respondents in the U.S., U.K. and Canada — just under a third — answered in the affirmative.
There was no comparable attempt by the California Auditor, Elaine Howle, to measure unpleasant consequences for litigants and lawyers of the failures of judge monitors at the Commission on Judicial Performance (CJP) to do their job responsibly or competently. Humanising her findings and helping the public to relate to them was not part of her remit in ‘the first audit of an agency that receives more than 1,000 complaints about judges each year and publicly disciplines fewer than 10,’ according to The San Francisco Chronicle.
Had the Auditor been able to simply name judges who have been the subject of accusations, and their accusers — with outlines of their grievances — the audit’s results would have automatically become relatable for people outside the legal community. But by suing the Auditor in an attempt to prevent the investigation of its operations — the only one in the nearly 60 years since it was founded — the CJP contrived to suppress all references to real-life identities. It made keeping that information out of public view a condition of settling the dispute — a demand to which the Auditor had to agree, to unfreeze the audit after two years of legalistic wrangling.
Without narratives animated by experiences of actual, flesh-and-blood citizens, and no hint of the despair of the 99 per cent of complainants whose submissions to the CJP led to no publicly-known consequences for judges, the Auditor’s report has receivedpractically no media attention — aside from terse summaries in specialised legal media and California newspapers of record.
As this state has the largest court system in the U.S., it is surprising that national media have so far failed to show any sign of noticing the following devices — among others — that the California judiciary has used to screen itself off from oversight by anyone but fellow-judges, to avert censure and reform:
Useless, out-of-date tools: As COTIN readers saw last month,the decrepit computer system still being used by the CJP to process complaints in the middle of the second decade of the 21st century was a quarter-century old. Members of the public had every reason to assume that they should be able to make those submissions from their smartphones as effortlessly as filing tax returns online, but instead had to deal with mailing paper forms in stamped envelopes. The computer which, according to the Auditor’s report, CJP staff could neither run nor repair, was of the same vintage as floppy disks mouldering in basements, wreathed in cobwebs — as handy as a horse-and-buggy on a five-lane freeway.
Holes in trial records: Another revelation in the audit report was that the CJP’s investigations into several cases were superficial and incomplete because of a lack of court transcripts — objective, word-for-word records of exactly what the judge in a particular trial said and did. The Auditor quoted the CJP’s own statement about this handicap, in testifying before an Assembly Budget Subcommittee in 2016 — but had little sympathy for the implication that there was nothing that the judge monitor could do about this: ‘If CJP believes the absence of court transcripts or recordings regularly impedes its ability to conduct investigations, it should expand its efforts to inform policymakers’ about that lack.
Terminating the creation of transcripts of trial proceedings at public expense: Courts have been laying off court reporters for years. The complete record by a professional trained in accurate transcribing of what happens in the trial of a case is indispensable for any litigant who wants to take a decision by a trial judge to a court of appeal for vetting and possible overruling. But in another quotation of the CJP, the Auditor’s report records that ‘many courts were responding to budget cuts by eliminating court reporter services.’ This trend and excuse in one of the world’s richest regions is curious, to say the least.
Destroying court records: Courts have been deliberately and systematically destroying records of court proceedings. On another part of this site, COTIN has drawn attention to the unconvincing claim by courts that — even though digital storage is cheap and its costs have shrunk spectacularly, decade after decade — economic considerations dictate that many case records must be destroyed, on a prescribed schedule.
Sooner or later, anyone weighing these facts is bound to wonder about the failure of thousands of conscientious California judges and lawyers to raise the alarm — professionals well aware of the degree to which bad judges are assisted in covering their tracks and evading punishment, but saying nothing about this to taxpayers.They have stayed silent, despite the obligation that their code of conduct imposes on them:
As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. [… A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.
It would be heartening to learn that any members of the profession suffer agonies of private guilt about their failure to speak up and push for reform. As the actor George Clooney said at the height of the #MeToo uproar,
I suppose the argument would be that […] every time you see someone using their power and influence to take advantage of someone without power and influence and you don’t speak up, you’re complicit.
Transparency and a wholesale, top-to-bottom restructuring are the chief recommendations for California’s Commission on Judicial Performance (CJP) by Elaine Howle, the state’s Auditor — in her 25 April report card that adds up to a big red ‘F’ for fail. Because the CJP acquired a new director at a late stage of the audit, in 2017, there is some hope of remedial action and reform, but the historical record shows that judges excel at evading public control.
The five-year audit of the way the CJP treats complaints about judges not behaving or doing their work as judges should revealed — among other things — that:
From 2013-14 to 2017-18, the CJP ‘closed at intake about 85 per cent of the almost 6,000 complaints it closed.’ This means that they were tossed out without investigation.
The CJP’s complaint-investigators failed to delve adequately into about a third of the cases that the Auditor examined in detail, ‘even though these investigations involved serious allegations.’
California judges shield each other from censure and discipline. Though California voters passed a proposition twenty-five years ago that was designed to make this harder, by ‘increasing the public’s involvement with judicial discipline,’ the CJP still hands the task of hearing evidence of judicial misconduct to members of the same tribe, ‘a panel of three judges — known as special masters.’
No summary on this site or anywhere else could be an adequate substitute for reading the Auditor’s crisp presentation of her findings, which — despite the unavoidably bloodless officialese — is liable to make a reader’s skin creep.
For instance, in the section about the CJP’s failure to look for patterns in following up on reports of misbehaving judges, the report highlights the case of the Commission receiving twelve complaints in less than ten years ‘about the demeanour and bias’ of a particular judge. In reviewing the fifth of those complaints — that the judge ‘had displayed poor demeanour and and showed favouritism during a court proceeding’ — the CJP’s investigator interviewed only the complainant and a single witness before he decided that the allegations could not be proved. The CJP ‘closed the complaint without issuing discipline.’ Worse, this CJP complaint-investigator agreed that ‘he could have expanded the scope of the review,’ which would have made it possible for him ‘to determine whether a systemic problem with the judge’s behaviour existed.’ But he told the Auditor’s team that he could not remember why he did not take that obvious step — yet was still certain that he was not guilty of any lapse in diligence.
Most astounding of all — given that the CJP’s office is in San Francisco, at the northern limit of Silicon Valley — the computer system that this body uses to manage cases is nearly 25 years old, and therefore incapable of accepting electronic submissions of allegations against judges by lawyers and litigants. The IT expert who created it for the Commission retired in 2014 without leaving ‘any written instructions for operating and maintaining the system.’
Gently castigating the CJP for its failure to update its tools — and restricting communications from complainants to snail mail — the Auditor noted that if the Commission were to accept digital submissions, its vintage case management system would require its staff to enter these into it manually, keystroke by keystroke. The result? ‘[A]s long as it relies on its outdated system, CJP will be significantly hindered from increasing its accessibility to the public.’
In whose interests could it be to under-equip the CJP so woefully? Powerful people with sharp brains bent on ensuring that the Commission is only barely capable of executing the tasks for which taxpayers pay it handsomely.
Impressively, the Auditor’s report was released with the CJP’s response to a final draft of it — and Elaine Howle’s reply to that reaction (on the same web page). Their bristly exchange prefigures the colossal struggle on the horizon between representatives of the public interest and the California judiciary. If the past is any guide, the judges will win — succeed in ensuring that the CJP remains virtually toothless — even if the Auditor’s office gets the support it needs from legislators in Sacramento. The comprehensive structural overhaul Elaine Howle recommends for the CJP cannot happen without an amendment to the state’s constitution. That can only be accomplished by vote, in the legislature.
Answering the CJP’s claim that it had ‘fully cooperated with the audit,’ the Auditor made it clear that the Commission had only done so after crippling this review for nearly two years by initiating a legal action intended to obstruct or kill it. Of course the CJP does not believe that it needs reorganisation, or that the Auditor was right to conclude that its present, ‘unitary’ structure is problematic, even though this means that the same group of people conducts investigations into charges of judges doing their jobs poorly and decides whether or not they deserve punishment, and by what means. With extraordinary tact, the Auditor refrained from spelling out what makes that grouping-together undesirable. It is essentially this: that it makes it too easy to shield bad judges from chastisement by conveniently failing to discover evidence to support charges against them; or by declining to look for it at all.
Rejecting the Commission’s argument that ‘the California Supreme Court has consistently upheld the unitary structure of CJP as a judicial discipline agency,’ the Auditor pointed out that ’17 states have adopted a bicameral structure for their judicial oversight commissions,’ and that ‘the American Bar Association’s model rules for judicial disciplinary enforcement’ prescribe precisely such a form of organisation ‘that separates investigating and adjudicative functions.’
The CJP did agree to improve its transparency and modernise its antiquated operations without making any specific commitments, such as whether it would or would not be following the recommendations that it hold meetings open to the public and enable electronic submissions by complainants.
Ominously, though, it warned that ‘[t]here has never been a successful challenge to CJP’s structure and authority,’ — a history which, it claimed, ‘establishes that there is no problem …’.
The California judiciary is highly skilled at batting away demands for reform by voters and legislators, and at neutralising legal statutes imposing new rules for its functioning.
Anyone interested in this record need look no further than a topic that this site has touched on before — so-called ‘unpublished’ opinions, or rationales for decisions by courts of appeal. An appellate opinion explains exactly how a panel of judges arrived at their decision and chose to apply the relevant law, in determining the fate of an appeal against a lower court’sjudgment.
But because too many judges would rather not take responsibility for any of that, branches of the U.S. judiciary have for decades insisted on labelling as ‘unpublished’ the texts of too many appellate opinionsthat are, in fact, widely circulated, and accessible anywhere on the internet, at no charge, almost immediately after they are issued.The designation has crucial implications . Among these is that it more or less absolves loftier courts of the responsibility to vet them — effectively insulating lower-ranking judges from being held accountable and punishable for what they do.
For how long have judges been using this form of deception to conceal defective or corrupt reasoning and disregard for the law they are supposed to follow? In his eye-opening historical treatise on the subject — going back to the mid-19th century, and restricted to California — Rafi Moghadam has shown how the practice is only the latest ploy for averting accountability, after the state’s judiciary could no longer dodge the task of issuing written opinions. In 1854, state lawmakers introduced new law requiring that the opinions of courts of appeal at every level be delivered in writing. The state’s highest court ‘responded by invalidating the statute,’ and ‘held that the legislature was without authority to require the judicial branch to provide written reasons for its decisions.’ Then, in 1879, ‘the voters of this state disapproved opinionless judgments …’.
Eventually, the California judiciary adopted the ruse of ‘unpublished’ opinions — a decision committed to writing, but of limited value for ensuring accountability because ‘casting doubt on the soundness of its reasoning’ without taking anyone to task for that is what its tricky labelling accomplishes.
Elaine Howle, the California Auditor, said in her rebuttal of the Commission’s objections to her audit: ’We look forward to reviewing evidence of how CJP implements our recommendations.’
With supernatural luck — and enough pressure from the public and valiant lobbying organisations, such as the Center for Judicial Excellence— this site might have something significant of that nature to report.
But any readers waiting for it would be ill-advised to hold their breath.
** in the twelve months to 30 September 2018, according to government statistics on U.S. courts, to which Professor Entrikin was kind enough to send COTIN a link.
In the panic over the infamous Y2K or millennium bug two decades ago, poorly paid Indian computer coders became the outsourcing miracle that staved off chaos as they toiled to correct the software error that had made the world’s computers incapable of shifting into the dates of a new millennium. Because their work resembled dull clerical labour, few in the West — even among the highly-educated and well-travelled — understood the implications of this labour pool’s existence. They could not see that it was only the unimpressive (if mission-critical) end of far deeper technological expertise and potential. It was impossible to convince them that India would ever be capable of much more than providing hives of software coolies — even though Bill Gates, still at Microsoft’s helm at the time, said that it would be extremely difficult to run his company without its Chinese and Indian software engineers.
Twenty years later, Microsoft and Google are being run by chief executives born in India and mostly educated there.
There remain sceptics who refuse to acknowledge that Asia could soon be more than a match for the U.S. and other leading Western nations in virtually all the most significant technologies. It is hard to see how they can explain away — for instance — this passage in ‘China gains the upper hand over Germany,’ a report by Wolfgang Münchau published in The Financial Times on 3 March:
The two countries do have a lot in common. [ … ] But Germany’s economic strategy is not nearly as consistent. The German political preference is to reduce public debt. Yet the country’s biggest problem is falling behind in the technological race. Excessive fiscal consolidation has been the main cause of under-investment in roads, telecoms networks, and other new technologies.
What he says there fits what frequent intercontinental flyers have been remarking on for at least fifteen years — that Asia has been overtaking the West in updating infrastructure, especially airports and roads, even if large segments of the Chinese and Indian populations continue to live in primitive housing and can lack facilities as basic as toilets. Technological progress andmodernising infrastructure are apparently part of the same feedback loop, as much a fact of life in those countries as dire poverty.
This paradoxical reality accounts for the experts’ inability to agree on whether or not the world is on the brink of a so-called ‘Asian century’ — in which the continent on which India and China coexist replaces the West as the world’s economic powerhouse, on its way to military and cultural dominance. If the facts truly support a headline in the same newspaper last week — ‘The Asian century is about to begin’ — the future tense will soon no longer serve for discussions of this topic. A London School of Economics conference on it at the start of this month was timed to coincide with the launch of The Future is Asian, a book by an Indian-American public intellectual, Parag Khanna. The counter-arguments in older books, such as The Rise and Decline of the Asian Century: False Starts on the Path to the Global Millennium, published in 1998, have been eclipsed by strong, recent economic trends.
What does any of that have to do with this web site’s focus on translating the digital revolution into the redesign of the legal system and courts? Just this: it cannot be a mere coincidence that here, too, the leaders are the Asian giants, China and India, and not the West — with the notable exception of Britain,in spite the monumental distractions of Brexit.
A country’s legal system is crucial in the social counterpart of the physical infrastructure that holds it together.
Monitoring and delving into the progress of the litigation revolution across the world was never the purpose of this site. Through a single, fully substantiated case study, COTIN is intended to demonstrate how genuinely open or ‘transparent’ legal proceedings accessible by anyone would almost certainly have made the lamentable markers of this case inconceivable — a judge wholly unqualified and struggling, by her own admission, to adjudicate in a branch of law in which she had no experience whatsoever, in a trial skewed blatantly for the benefit of a colleague on the bench.
Questions about whether and when digital communication and broadcasting would be deployed by courts in California and the rest of America to achieve that transparency have led to discovering that they are laggards in this transformation. Entries on this site about courts at the forefront of change — in faraway countries — are based on woefully incomplete information, but they should encourage American media with the large long-distance travel budgets that this subject deserves to fill in the blanks. They include:
… … Dear Jeff Bezos, For a few days earlier this month, you were an internet hero for scuppering the National Enquirer’s attempt to bully and humiliate you with legalistic tactics. You challenged its overseers to go ahead and carry out their threat to publish embarrassing private photographs of you if you did not sign a […]
… Surely it’s time for an American presidential candidate from either party to run on bringing U.S. law and the courts into the 21st century? Start a campaign for yoking digital technology to putting justice within the reach of the poor and comparatively powerless? That there has been no such initiative, no parallel in […]
In his 1987 magnum opus The Fatal Shore, Robert Hughes sketches the early days of his country’s legal system — in which prisoners of the state served time as farm workers in ‘the continental prison that was Australia.’ When they were abused by their masters, they had to go to court for help. In the 1800s, ‘[d]istrict benches close to Sydney were apt to treat convicts fairly and well, partly because their magistrates were more in the public eye.’ Where there was less transparency or none, justice was a scarce commodity: ‘[T]he further outback a farm was, the more opportunity it held for tyranny and the more likelihood there was of collusion between settlers and magistrates.’
Outside museums, no ordinary visitor to the land Down Under can detect any trace of its convict-society past. But today’s Australians are as eager as people on every continent to see how transparency through live-streamed court proceedings can sanitise their justice system. Whether from experiences as plaintiffs, defendants or court insiders, from civil or criminal trials, there is no shortage of witnesses capable of testifying in jurisdictions almost anywhere in the world that versions of this account from settler-era Australia quoted by Hughes are still playing out — far removed from public oversight:
One magistrate will bring his men to be tried before a neighbour magistrate, and it is a frequent practice for the master to pay a private visit to the magistrate, and say he is going to bring such a man or men before him, and wishes that such or such particular punishment may be dealt out. On the arrival of the men … the magistrate enquires what they have to say in answer to this charge, and frequently […] interrupts them, saying “I will not believe a word you have to say, and I shall sentence you to receive so many lashes.”
‘We are all pushing on this boulder,’ read the message of encouragement from a fellow-campaigner for exposing injustice in California, reacting to last month’s entry on COTIN. The boulder is the resistance of too many American courts, including the very highest one, to streaming trials on the internet in real time — an evolutionary jump in which the golden state famous as a crucible of innovation and for pioneering social legislation is trailing other states at a lackadaisical pace. This is not because courts in California work too well to warrant close, daily public scrutiny. Rankings of judicial accountability by state, published by the Center for Public Integrity in 2015, point to the opposite conclusion. The blog of the California Supreme Court noted:
In the CPI’s just-published report on California, the state judiciary received an F grade. This is a significant drop from the C-minus California received in 2012, the last time the CPI evaluated the state.
Yet Media Law Monitorrecorded in 2016 that ‘[w]ith its new live-streaming video,’ California’s Supreme Court became merely ‘the 35th state court of last resort to provide live or near-live online video access to its proceedings’— at about the same time asAlaska, Michigan, South Carolina and Delaware.
In a parallel that seems just as unlikely, given America’s status as the most influential digital technology pioneer, the U.S. is being overtaken by most countries whose legal systems have their roots in the English common law tradition — a group that includes India, despite its economic disadvantages and sprawling and unwieldy network of courts serving a population three times larger. Writing for The Guardian in August about Britain — whose Supreme Court went live on the net in 2011, and Court of Appeal made its maiden appearance on YouTube last month — the eminent London barrister Geoffrey Robertson said, in welcoming the prospect of television cameras in lower courts,
Barristers frequently wish they could include as a ground of appeal an objection to a trial judge’s prejudicial tone of voice or body language – prejudice which is not apparent from reading a trial transcript. […]
There will always be claims of privacy, but trials are public occasions. […] My own experience in proceedings in other countries has been that televising trials means that the barristers are better prepared, the judges better behaved, and the public better informed.
If any U.S. lawyer of comparable seniority or any high-ranking judge has expressed similar sentiments in public, they have gone strikingly unreported. There have been very few reports of the legal profession recommending or cheering for truly open court proceedings, viewable live and online, in U.S. newspapers — in startling contrast to other common law countries.
Assisted unwittingly by an uniformed public, and by politicians who have failed to make this an election issue, the U.S. Supreme Court has dug in its heels about rejecting live streaming. This explains why federal courts and several oftheir state counterparts continue to hold out against the admission of disinfecting sunlight into their deliberations. In late 2017, Ars Technica reported:
The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome. […]
“I am sure you are … familiar with the Justices’ concerns [ that ] the live broadcast or streaming of oral arguments … could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request.”
Cross-national comparisons on this topic suggest a consensus about the need for transparency being most acute in courts at the local level, close to the human dramas in which rights are being asserted — rather than in appellate courts, wherejustices debate airy, often arcane, legal abstractions. This is evident in, for instance, readers’ comments (see screen shots below) on a Times of India story in September titled ‘People can watch courtroom drama live, SC allows live-streaming of court proceedings’— which, with minor adjustments for place, could easily have been made on behalf of millions in other countries where courts are making this transition.
A legal system functioning honestly and correctly is the proof of a civilised society. But as taxpayers grow less and less confident that it is doing so, serving their needs, that foundation becomes progressively more unstable. Before any repair work can be done, they need to be able to see exactly what in happening in the courts. Transparency, followed by resolute, persistent corrective action. Simply and eloquently, in the same chapter of The Fatal Shore quoted at the start of this entry, Hughes states a profound truth:
Rights emerge by bargaining between the powerful and the relatively powerless; they are not simply granted, for if they were, there would be none. … Rights are solidified claims, sanctioned by use and expectation.
If court proceedings were streamed online — for the excellent reasons this site advocates with illustrations from a case study — the manipulation by unknown hands of search engine results about judges would be far more difficult. Of course this matters because most litigating taxpayers want — and deserve to obtain easily — information that lets them assess the likelihood that their case will be tried fairly (or not) and reassure themselves that the judge hearing it will know the law that applies (or not).
This entry in COTIN is a sequel to a part of the last one, and records a continuing void in Google where there should be facts and news about the progress of the California State Auditor’s first-ever investigation of the Commission for Judicial Performance, the disciplinary body charged with vetting allegations of misconduct against California judges. As noted earlier, a settlement in September gave the Auditor a green light to proceed after the CJP sued to block the enquiry into its handling of complaints against judges by litigants and lawyers. Unfortunately, as this post will show, discovering that vital news from internet searches has gone from unlikely to near-impossible.
Whether this has been accomplished through the efforts of actors inside or outside Google, the effect recalls the memory hole in George Orwell’s Nineteen Eighty-Four — ‘a small chute in the wall used to carry documents to a large incinerator, in order to censor information and or remnants of the past,’ which helped the Ministry of Truth ‘to serve the propaganda interests of the government.’
Obstructing the flow of facts about court officers is out of keeping with the fundamental principle in the Western legal tradition that makes court proceedings public information. It is in the reverse direction from the overarching trend in legal reform, which is to harness computer power and the internet for transparency — which would make it harder to hide judicial misconduct — and accountability, which would mean holding misbehaving or incompetent judges responsible for their actions.
Unless the distractions of Brexit act like a spanner in the works — impeding the British government’s performance of its role in the process — trials in Britain will begin to go online in 2020. Surprisingly, the United States is not at the forefront of this revolution, even if it is the home of Silicon Valley. Interviewing Justice Stephen Breyer of the U.S. Supreme Court on the occasion of the 800th anniversary of Magna Carta — to which American revolutionaries had looked for guidance about their rights — the philanthropist-billionaire David Rubenstein asked him: ‘Why not let the American people see the justices when you’re hearing cases? Why not televise them?’
Watching Justice Breyer’s struggle not to give a clear, quotable answer is a revelation. He says that members of the public watching Supreme Court deliberations will not understand that ‘the process is mostly in writing.’ On the assumption that the camera in the courtroom will be controlled by television journalists and the footage edited by them selectively, he says that he expects that any justice could be made to look ‘like a terrible idiot’. He says that permitting proceedings to be televised would involve ‘too much risk for a group of conservative people’ — though not for their successors, whom he expects to be far more comfortable with the internet as a communication medium. And then he says, finally: ‘So the answer to that is, Id o n’ t k n o w.’
Four years later, it is unlikely that he would say what he did then. Hearings of the U.K. Supreme Court, whose work is also mostly written rather than oral, have been televised since May 2011; and of all Court of Appeal deliberations, since last month. They are streamed live over the net by the court, not journalists — in an evolutionary jump that has evidently encountered no criticism — and have found a growing audience.
But it is hard to believe that even in 2014, the humane and high culture-loving Justice Breyer (the only one on SCOTUS from California) was speaking on his own behalf, about his personal beliefs — rather than, perhaps, protecting camera-averse fellow judges. Active Liberty, his book published in 2005 in which he laid out his philosophical framework for his work, can be read as a call for active participation by the public in all branches of government. In its introduction, he praises the emphasis by Benjamin Constant, an 18th-century philosopher from French-speaking Switzerland, on sharing ‘sovereign authority’ with citizens to establish ‘“among them a kind of intellectual equality which forms the glory and the power of a people.”’ This comes with ‘the citizen’s right to “deliberate in the public place,” … “to enact law,” to examine the actions and accounts of those who administer government, and to hold them responsible for their misdeeds.’
Attempts to conceal from public view the recommencement of the California State Auditor’s examination of the CJP, the institution that was set up to delve into the misdeeds of California judges, would be deeply inconsistent with ensuring the ‘active liberty’ of California citizens. Yet the first links Google supplied for ‘cjp v. california state auditor’ in September, in the week after a court-ordered settlement allowed the audit to begin — including the one highlighted here with an alert by the California Protective Parents Association to ‘get your complaints to the CA Auditor now!’ — have vanished completely from the search engine’s crucial first three pages. So has the other link featured in that COTIN post, from law.com, which also came from the first page of Google’s end-of-September results.
But those disappearances are far less serious than the burying on Google — all but out of sight — of the report on the settlement by a leading California newspaper of record, The San Francisco Chronicle. The piece ranon the day after this news emerged (eleven days before the CJP and the Auditor published their joint press release about it).
That news item would certainly have been mentioned on COTIN if it had been possible to find it using ‘CJP,’ everyone’s shorthand reference to this body, rather than ‘california commission for judicial performance v. state auditor’ — a rigid and unnatural requirement of which Google is seldom guilty. The exemplary paragraphs about the background to and consequences of the resolution of the dispute between the CJP and the Auditor beneath ‘California’s judicial disciplinary agency to be audited after complaints’ by the Chronicle’s courts reporter, Bob Egelko, were listed high on the first page of Google’s offerings in the first week of October. But they have slipped steadily in the search engine’s rankings until by yesterday, 6 November, the story had been moved to page 2, at the very bottom of Google’s list of links.
This would hardly merit notice if there were as many links to the news about the unfreezing of the Auditor as you might reasonably expect to be capable of finding on any of Google’s first three pages. There were almost none. There was a page 1 link to a Chronicle piece on the battle between the Auditor and CJP — but that was for ‘Showdown over state auditor’s access to records on probe of state judges,’ dated 17 August2017. Several other links on that page were at least a year out of date — a most curious discovery, given that timeliness is a point of pride and a Google boast on behalf of its search engine.
Just two pages of results appeared yesterday for the search terms ‘settlement cjp v. california state auditor,’ virtually none supplying the information. The Chronicle’s report was nowhere to be found on either page. Nor was there any report by other newspapers, if ever published. The only link about the settlement was for COTIN’s post, halfway down page 1. Searchers with the patience to type in ‘settlement california commission for judicial performance v california state auditor’ would have found the Chronicle piece in the fourth position on the first Google page, with three further down pointing to COTIN, and no other report.
Similarly, for ‘cjp v. california state auditor’ — the terms employed and discussed in COTIN’s 30 September entry — there was nothing whatsoever about the settlement on Google’s first page of links yesterday. COTIN was listed in the ninth position on page 2 (photograph, above), just below the East Bay Times’s headline announcing ‘Peele: California judges trying to stop accountability move,’ which must have been shocking for readers when it ran — but that was over a year ago, on 25 August 2017.
The listing by Google of innumerable links, mostly from 2017 or earlier, for the fight between the Auditor and CJP — several of these from the Chronicle — shows that there is no lack of interest in either the subject or the newspaper. It is, to restate the obvious, that someone does not want members of the public with a legitimate complaint about the CJP and, or, California judges, to find the news about the unblocking of the audit. [ All the Google search pages mentioned here have been saved and are obtainable with a note to email@example.com. ]
‘The United States is a nation built upon principles of liberty,’ says Justice Breyer in Active Liberty — going on to cite the Founders’ invocation of ‘the freedom of the individual citizen … to share with others the right to make or control the nation’s public acts.’
All good and true, no doubt. But surely to do any of that they need — first — reliable, fully current information protected from being shoved down that dangerous Orwellian memory hole?
Anyone reading this post is being let in on a secret. Unless the leading search engines can no longer supply reliable results, search queries reveal that not a single newspaper has so far reported that the chief obstacle to independent scrutiny of the Commission on Judicial Performance (CJP) — whose job is to vet and discipline California judges against whom complaints have been filed — was removed two weeks ago.
This media silence is bizarre, to say the least. There was a blizzard of headlines last December about the CJP’s successful obstruction of a probe into its methods and records, after it sued to block the State Auditor, Elaine Howle, from carrying out this task. National and regional newspapers reported that a trial judge in San Francisco had ruled in favour of the CJP. In an editorial titled ‘Who judges the judges?’ the San Francisco Chronicle describedthe CJP’s insistence that its operations be treated as ‘secret and untouchable’ as ‘indefensible’ — but said that its court victory showed that this stance was nonetheless ‘working so far.’
The Auditor appealed against that judgment. In the settlement of the appeal on 18 September,both sides agreed that the trial judge’s ruling should be reversed in full. Also, that the Auditor’s office will be allowed to inspect the CJP’s confidential records of how it went about investigating criticism of the performance of judges by litigants and lawyers.
This will be the very first time in the fifty-eight years of its existence that the CJP will be subjected to an audit, even though it subsists on taxpayer contributions.
Typing ‘cjp v california state auditor’ into a Google search box in the early hours of last Saturday yielded just one link to news and information about the settlement. It pointed to the website of the California Protective Parents Association (CPPA), a campaign for protecting children from mistreatment, which alleges that the CJP ‘has been dismissing valid complaints [against judges], which allows for abuse, including sexual abuse, of children.’ The CPPA’s post on the conclusion of the fight between the CJP and Auditor contained a link to the site of The Recorder on law.com — which led to a subdued official record of it on the California government’s site dedicated to supplying information about appellate cases, and to the text of the six-page settlement agreement. Neither the CPPA nor The Recorder came up in search results for the identical query on Bing or DuckDuckGo.
Stop and think about what this means for a moment. Just one search engine, Google, and one intelligent web site with — apparently — no professional publishers, journalists or editors behind it, have so far revealed that the people of California can now assist and look forward to a comprehensive assessment of the CJP’s objectivity and trustworthiness.
How can this be possible?
The most likely explanation is that there has been no press release to alert media to the settlement by either the office of the Auditor or the CJP — as nothing of the kind is listed on the web site of either organisation (on the evening of Sunday, September the 30th).
Why might that be?
Perhaps because, in an apparent face-saving measure, page 4 of the settlement terms includes these words: ‘[N]either party shall claim that they “prevailed” on the appeal or that the reversal was anything other than a stipulated result reached after settlement discussions.’ [ emphasis by COTIN ]
Californians must keep a close eye out for signs of the legal profession’s matchless record for undermining and reversing attempts by the public and its guardians to rein in its tendency to behave as if it is above correction and reform. So must anyone else who cares that for guidance about reform, so-called banana republics and kangaroo courts around the world look to this state rich enough to become a shining model of justice.
Consider — aside from the missing press releases about the settlement — these reasons for concern:
Information and news about the settlement is sinking in search results, or disappearing entirely, when it should be rising to the top. Forty-eight hours later, the two links to news of the deal that Google was supplying in the early hours of Saturday are not appearing in results for the original query, ‘cjp v california state auditor’. In fact, there are no results on the first two pages of links — with those or other obvious search terms.
Bad news for transparency. On 17 September — not insignificantly, the last day before the settlement was released — Governor Jerry Brown signed a bill that bars the Auditor from releasing to the public any confidential records of judicial misconduct that its investigators find in the CJP’s files.
An example of the lengths to which judges can go to evade control. In a riveting scholarly paper in the Hastings Law Journal about so-called ‘unpublished opinions’ — also referred to as the ‘no-citation rule,’ because they cannot be cited as legal precedents — Rafi Moghadam has shown how these came to be used frequently by courts of appeal to conceal cover-ups and minimise the likelihood that their vetting of lower court decisions will be reviewed by the California Supreme Court. He demonstrates that this labelling of judicial decisions is a device invented by appellate justices in the 1970s to thwart oversight. Its introduction subverted the demand by California voters, as long ago as the late 1800s, that appellate courts write down, publish and be held accountable for the reasoning behind their judgments. A written opinion that somehow both does and does not exist is just a devious means of averting responsibility for decisions committed to print — and now in such wide circulation, on the internet, as to make nonsense of any suggestion that they are not published.
There is a warning that could be warranted in the post on the CPPA website urging complainants who believe that they were let down by the CJP — when they sought its help with bringing a judge to book — to submit their evidence to the Auditor. They should check that in the two years in which the audit was delayed by the legal battle, their files were not mysteriously induced to disappear and are still part of the CJP’s records.
With or without human intervention — and for no discernible reason other than mentions of a Chinese-American judge with a Chinese-American name — the Google algorithm that indexes this site keeps drawing attention to a Chinese innovation that has largely been ignored by mainstream Western media.
For several days, typing the terms ‘cotin.org courts’ into the search engine has yielded for a final result on page one — after nine results related to COTIN or California’s legal system, including one about Governor Jerry Brown and the Supreme Court — a link to a story on the Endgadget site dated 18 August 2017 and titled ‘China’s online court heard its first case today.’
Taken at face value, that news would mean that Britain has fallen behind China in putting its court system online — despite Lord Justice Briggs’s prediction in 2016, featured on another part of this site, that Britain would be first in moving a key element of court proceedings onto the internet, a ‘digitised “triage process”’. But when the China story surfaced last summer, Britain still only had what Endgadget called ‘an online court pilot program,’ while Canada, its closest rival, had launched ‘an online tribunal for small claims disputes.’ A German magazine reported that the Chinese had launched ‘probably the very first virtual court worldwide and will hear disputes arising from internet-related activities.’
But China’s legal system is sufficiently different from all its counterparts in the Western tradition to be incommensurable with them — lacking anything resembling a common yardstick.
Susan Finder, an American legal scholar who has spent more than thirty years of her career in Hong Kong and China, has explained that while ordinary Chinese people are beginning to understand that they have rights under law, ‘government officials at high and low levels don’t always have what the Chinese call “rule of law thinking”’. Speaking at a conference in California in 2016, she said that there is ‘a fuzzy line between law and party policy;’ that this policy changes often; and that government enforcement of law ‘presents practical issues’ for both individuals and companies.
It is a shame that those characteristics mean that there is probably not very much in the Chinese launch of a cyber or virtual court that Western legal systems can use as a guide or model.
If there were, the information would not necessarily be easy to come by. Professor Finder says that most writing on the Chinese legal system is ‘siloed,’ addressing specialists both inside and outside China. This is obvious from her web site that serves both as an English-language gateway to the online Supreme People’s Court and as a frame for ‘a blog discussing China’s highest court,’ of which she is an official ‘monitor’.
It is hardly her fault that this job, like much of her writing on the site, seems as mysterious, baffling and remote as might be expected from its deeply foreign context. About — for instance — the drafting of the first comprehensive overhaul of China’s ‘law of the people’s courts’ since 1979, she says: ‘Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political Legal Committee.’
Yet in both China and Britain, the power of the internet is being harnessed for sweeping legal reforms with the same laudable, principal aim: transparency. As a 2016 BBC report from China noted about the commencement on tingshen.court.gov.cn of proceedings streamed online from (traditional rather than virtual) courts across the country:
According to Zhou Qiang, the head of China’s Supreme People’s Court, the streaming site will “better safeguard people’s right to know and supervise” but its value could go well beyond that, by helping Chinese citizens get a glimpse of what’s actually going on inside their country, beyond the filter of state-controlled media.
In a parable for newspaper reporters about missing the story, probably from the era of figures squinting under green eyeshades at clickety-clack typewriters, an unripe hack returns to the office to tell his editor that he has nothing to fill the space on the front page saved for his review of the new play. Why? Because the theatre, the only one in town, caught on fire just before curtain time and was burnt to the ground.
Deservedly or not, there was a glancing reminder of that legend in the mostly blank screens in all media, where there might have been analysis of the improbable 2018 judges’ election in San Francisco. When the results were announced on the night of 5 June and since then, the few reports on the contest between four sitting judges and their unexpected challengers — four public defenders, poorly-paid lawyers assigned to defendants in criminal cases who cannot afford to hire one — merely recorded that this attempt at a radical shake-up of the bench failed because all the incumbents won enough votes to retain their positions.
Once again, this site — COTIN — found itself agreeing on every point with an attentive Martian observer of the happenings in a conversation that sparked fresh, alarming reminders of the case study featured here :
Martian:Did no one notice that despite the sitting judges’ advantage of years of appearing before their fellow-earthlings in black robes designed to awe and threaten, their victories were not necessarily landslides — less than 70 per cent of the votes cast?
COTIN: Quite so. The most successful winner, Andrew Cheng, defeated his opponent, Phoenix Streets, by a margin of 28 points (64 per cent of the votes). Cynthia Ming-Mei Lee — though she was lucky enough to be the only incumbent with two challengers, who weakened the vote against her — kept her seat with only a 25-point overall margin: 62 per cent of the votes, compared to 27 per cent for Kwixuan Maloof, her more successful rival, and 10 per cent for the other. Curtis Karnow placed a scant 8 points ahead of his challenger, Maria Evangelista (54/46), and Jeffrey Ross won by 19 points over his opponent, Niki Solis (59/40).
Martian: Are elections on Earth supposed to happen like this? None of the challengers did any campaigning, according to our extra-planetary intelligence nerds. None of them even named the judges they were running against, as if they were spectres. Nor did they attack or say a critical word about their records on the bench — though I saw that supporters of the contestant for Curtis Karnow’s seat did all they could to broadcast his history of rulings hostile to rent control.
Consider another. Nothing in the rules prohibits public defenders from campaigning to unseat and replace judges. But with the election on the horizon, this makes them players challenging referees for their positions while still playing in refereed matches. That is, they have to keep appearing in court as advocates and supplicants, hoping that the judges supporting their fellow-judges will not punish them or exact revenge for being so bold.
Martian: But they were punished publicly, weren’t they? Didn’t you say on COTIN that senior judges and politicians ripped into them after they announced their candidacies?
COTIN: An astounding, savage, spectacle. Yes. The public defenders obviously made their announcement about running jointly because they foresaw correctly that people in high places would be furious that they were exercising their right to compete for judicial offices — as their colleague Matt Gonzalez has recorded in a splendid encapsulation. They joined forces to protect each other. But who’d have thought that the state’s entire legal Establishment — including top-ranking appellate judges who are meant to be shining models of impartiality — would unite and turn on them the way it did?
Martian: The newspaper headlines about this contest were even more astounding. Two, especially — alternatives for the same opinion piece in The Sacramento Bee. One read, ‘Mobs targeting judges will wreck democracy’; the other, ‘Mobs are going after the judiciary this election. Don’t let them corrupt the law.’ What mobs? And where was the guillotine?
COTIN: When you looked under those headlines, all you found was outrage about the challengers emphasising that the four sitting judges were appointed by Republican governors, and that they believed that the bench should have more appointees beholden to a governor from the other party. It was obvious that the public defenders had to concentrate on making just a general point because they dared not risk criticising their opponents as individuals.
But this, along with obliging the judges to seek voters’ permission to stay in office, was framed as ‘politicising’ judicial selection in a system in which judges are usually known publicly as either Democrats or Republicans.
Martian: Yes, and they were accused of threatening judicial independence.
COTIN: Read the American-owned Encyclopaedia Britannica’s excellent entry on judicial independence — which means, essentially, allowing judges to do their jobs without pressure or undue influence from any quarter — and you will be more baffled yet. For a start, it makes it clear that there are two ways to look at any campaign to replace a judge — one of which is that it is a fundamental democratic right in a legal system designed like America’s.
The EB says that ‘it is difficult, if not impossible, to create a perfectly independent judiciary that is completely insulated from all forms of political and popular influence.’ It refers to the history of the increasingly partisan and frankly political U.S. Supreme Court to hammer home that fact.
Readers of the case to which this site is devoted — especially the Treatment of Law section — will be reminded of it in this passage of the EB’s discussion:
[I]f judicial independence is ensured at the individual level, individual judges will find themselves at liberty to pursue their individual preferences. Unchecked discretion of that kind not only invites abuse but also raises the likelihood that judges will decide cases in inconsistent ways, with the potential effect of undermining the predictability and stability of the law.
Martian: So, why didn’t the critics shouting about this 2018 judges’ election destroying judicial independence mention those other dimensions?
COTIN: Why indeed. Members of a profession dedicated to debate pretended that there was only one side to this ideal — that ‘judicial independence’ translates as making judges free to do as they please.
The fuss about independence was a smokescreen. It succeeded brilliantly in diverting attention from what the public defenders were trying to highlight — which is, their belief that San Francisco needs more judges from racial minorities. Not least because members of some minorities make up a staggering majority of the prison population — at least partly because of what the challengers say is racial bias in sentencing.
Martian: Just their opinion, or a substantiated fact?
COTIN: As it happens, it is now well-substantiated — in a new research paper published on 7 May, nearly a whole month before the election. It was featured high up on the home page of The New York Times the week before the judges’ election, in a column by Adam Liptak with a photograph of a California prison. He quoted an authority on sentencing law who said described it as ‘amazing new empirical research’.
But in spite of its critical significance in the judges’ election in San Francisco, it seems — from a trawl through search engines — that only one local newspaper carried any reference to it. Even then, The San Francisco Chronicle did not run its own report about the new research. It republished the one that ran in The Washington Post.
Martian:And the gist of the study’s findings was — ?
COTIN: That the political parties to which judges belong or owe their positions do unquestionably influence sentencing. The Washington Post reporter Christopher Ingraham summarised their conclusion:
Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of the Harvard Law School.
That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes.
To arrive at these numbers, Cohen and Yang examined over 500,000 sentences handed down by nearly 1,400 federal judges between 1999 and 2015.
Martian: So the Chronicle published a report, but without an editorial or any comment — or reference to the public defenders’ campaign statement and mission? And there was no discussion at all of those findings in San Francisco media?
COTIN: Any reader who finds a record of one will please post a link in the comment box below this post.
There is rarely any talk about the doings of the California judiciary, about which the citizens know far too little to cast their votes for judges. These are judges ferociously resisting any monitoring of their performance and correction.
COTIN: Why, yes — at the risk of being tiresomely repetitious!
Between roughly a third and half of the San Francisco electorate — those who ignored the sermonising from on high to vote against the incumbent judges — must be ready for justice not merely done but seen to be done, by streaming the process on the net.
Perhaps these voters did that because they — or someone they know well — had the misfortune to seek justice locally and see for themselves that something is truly rotten in parts of the California judiciary.
Martian: Ah, California as the new Denmark? (Where art thou, dear Hamlet?) Let’s hope not …
Martian spectators at the contest for four San Francisco judges’ seats in state election campaigning are surely rubbing their antennae in disbelief.
Why aren’t earthlings dissecting and debating furious objections to the contest by some of California’s most powerful judges?
J. Anthony Kline, for example, is a senior presiding justice of the state’s Court of Appeal, where litigants must go to seek corrections of decisions by lower (‘trial’ or ‘superior’) courts. In his scathing opinion piece in The San Francisco Chronicle about four public defender-lawyers challenging four incumbent judges for their seats on the city’s bench, he wrote:
The effort to defeat four of the most able, compassionate, and experienced judges in Northern California simply because they were appointed by a Republican governor in an overwhelmingly Democratic county is an unmitigated act of political opportunism.[…] [W]hatever the intentions of the challengers may be, the effect of their effort threatens to undermine the independence and integrity of the California judiciary.
Of course Justice Kline was exercising his right to free speech. But for anyone brought up with the idea of a judge as all but synonymous with strict and unbending impartiality, it was a shock to read not just his fiercely partisan argument in favour of four incumbent judges, but its near-perfect echo in a legal newspaper by an even higher-ranking member of the judiciary, Justice Mariano-Florentino Cuéllar of the California Supreme Court.
If appellate court justices — by effectively backing particular lower-court judges whose work they are supposed to vet for fairness and accuracy — create emotional bonds with them, how can they be objective when they have to scrutinise their reasoning and rulings?
And what happens to any challenger lucky enough to win enough votes to defeat a rival backed by higher-court justices? Once such a challenger becomes a trial judge, can this turn out to be very bad luck — because the winner’s work is liable to be reviewed more harshly by appellate justices angry about that victory?
With nothing to stop top justices from praising particular trial judges, should they have to supply evidence justifying their praise — and address hard proof to the contrary, that makes such praise incomprehensible?
Consider, for example, Judge Cynthia Ming-Mei Lee, who presided over the case anatomised on this site. She just happens to be one of the San Francisco judges forced to defend their seats in preparation for next week’s election.
When Justice Kline referred to her as one of the ‘most able, compassionate, and experienced judges in Northern California’, had he forgotten that she herself has testified to the strenuous difficulty for her, that followed from her complete lack of experience as a civil court trial judge — a reassignment after four decades of specialising exclusively in criminal justice? A change of assignment she chose, because she felt like a change? Even lawyers — more lightly burdened with responsibilities than judges are — rarely straddle the separation between civil and criminal law, which each have their own courts and judiciary; or switch from one to the other.
It is unlikely that Justice Kline knows that in the appellate case on which this site focuses, to which Judge Ming-Mei Lee appointed herself, the court of appeal deliberately blocked official evidence of this judge’s lack of knowhow in the relevant branches of law — contained in an outline of her career published by her own court. The order dated 20 April 2016 shutting this document out of the review of her handling of the case stated:
It would also be surprising for Justice Kline to have described her as compassionate, had he read many reviews of her performance. Aside from the unmediated contributions from lawyers and litigants on her page of the online reviewing forum, The Robing Room, there are the comments about her by attorneys in the clip below —mostly about her record in criminal law courts — gathered and scrupulously balanced by the authors of California Judge Reviews,in which the judge was given a chance to defend herself:
Our Martian onlookers would have to conclude that neutrality is a scarce commodity in this judicial election. Commentators are as likely to be partisan as candidates — and are breaking no laws when they are. Incumbency is no guarantee of either expertise or knowledge in contenders.