Without a Greta Thunberg for assistance, the California Auditor’s best efforts to protect the public from bad California judges seem well on their way to failure

 

16 november 2019 Greta Thunberg arriving - Private Eye No. 1503 August-September 2019 COTIN.org
If only that were true — for victims of judicial misconduct in California ( Drawing in Private Eye, Issue 1503, 23 August – 5 September 2019 )

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 a  29 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

According to The San Jose Mercury News on 15 July, in ‘California’s troubled judicial misconduct watchdog may miss key deadlines to improve: Problems could undermine public trust in court system’:

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. 

By means explained in earlier entries on this site, California’s judiciary has a centuries-long record for going to extraordinary lengths to frustrate attempts by voters to bring it back into line with the state’s ideals of justice. ( See: ‘… the long-running feud about mythical ‘unpublished’ opinions’)   

What is the solution? 

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.

The September issue of Wired magazine offered this compelling argument for their involvement:

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.”

 

In the quest for justice, we the public look to search engines for sources of good online information about the performance of trial judges — that we mostly do not find

ohn Hyde, an 18th-century British judge in Bengal -- WIKIPEDIA.org image on COTIN.org
John Hyde, an 18th-century judge in the embryonic British Empire in India who carved out his niche in history by promoting judicial accountability, and through his reputation for being incorruptible — distinctions still rare for judges all over the world. Source: oil painting on Wikipedia.org

NOTE TO GOOGLE:

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:

OTHER  JUDGES

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.

LAWYERS

Commenting on that revelation by Judge Rakoff in Psychology Today — in ‘Injustice at the Hands of Judges and Justices’ — Mark Baer, a California lawyer who specialises in mediation, wrote:

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?

(See ‘The Silence of the Lawyers’ on this site.)

JOURNALISTS AND OTHER MEDIA PROFESSIONALS

This trend in Britain — explained ten years ago in The Law Society Gazette by Joshua Rozenberg  — is unchanged there, and just as evident in the U.S.:

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.

** For depressing contemporary parallels, see:

‘Insurance against the destruction of court records’

… and …

‘Bad news for everyone hoping to make judges in the largest U.S. court system accountable for their actions: so far, they have deflected attention from the California Auditor’s findings about them’

 

‘You cannot turn the clock back on transparency’ 

 

michael lewis 'against the rules' podcast graphic -- cotin.org
Michael Lewis’s Against the Rules — a podcast in seven parts — is indispensable listening for anyone anxious to see technology deployed forensically to stamp out the injustice that follows when powerful people duck laws and regulations

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.

What follows are extracts from the transcript of ‘Hoop Reams,’ an edition of National Public Radio’s This American Life that featured a special condensation of Against the Rules — after a framing narrative by Ira Glass, the show’s host.

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.

Regular readers of COTIN will remember last year’s post about the clear, incontrovertible evidence of racial bias in the rulings of American judges in the findings of Alma Cohen and Crystal Yang, for their study at the Harvard Law School — in the course of which they examined over 500,000 sentences handed down by nearly 1,400 federal judges between 1999 and 2015. 

Imagine the difference that a Replay Center counterpart for judges could make to that pattern of injustice — for a start.

Bad news for everyone hoping to make judges in the largest U.S. court system accountable for their actions: so far, they have deflected attention from the California Auditor’s findings about them

Extract from the 25 April 2019 report by the California Auditor on the Commission on Judicial Performance - COTIN.org
Above: excerpts from the report by the California Auditor on one barrier to investigations by the judge monitor — the Commission on Judicial Performance — of complaints about judges by lawyers and litigants.  Below: quotation of George Clooney in The Daily Mail, 10 October 2017

George Clooney, quoted in The Daily Mail 10 October 2017 - COTIN.org

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.