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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 received practically 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.
COTIN 