‘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.

Digitalising law and the courts on a faster clock fits the infrastructure edge helping to create an ‘Asian century’

 

'asia century' - two books and opinions - cotin.org
Justifications for The Rise and Decline of the Asian Century: False Starts on the Path to the Global Millennium, published in 1998, have been eclipsed by developments supporting The Future is Asian, launched this month

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. 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 and modernising 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 has 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:

As another year closes, U.S.-invented technology is helping courts worldwide to realise a dream of live-streamed justice — streaking ahead of their change-resistant American counterparts

Is China leading the world in developing cyber-courts conducting trials online?

Who or what is making it harder to find news about performance-vetting and disciplining of California judges in Google — and why might this dismay Justice Breyer of the US Supreme Court?

Rich America is still the bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters? — post-Gutenberg

… 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 […]

via Rich America is still the most bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters?  — post-Gutenberg

As another year closes, U.S.-invented technology is helping courts worldwide to realise a dream of live-streamed justice — streaking ahead of their change-resistant American counterparts

 

+000 Headlines live streaming court proceedings Times of India and Australian Financial Review COTIN.org
Press and reader attention to the debate on live-streaming of trials from courts at various levels, or its commencement  — above, left: The Australian Financial Review, 12 October 2017; right: The Times of India, 26 September 2018. Below: comment from a reader of that report from India (scroll to the end to read other selections); and The Guardian, 24 August 2018

3 Reader comment Times of India 26 September 2018 COTIN.org

001 Headline, cameras in court, The Guardian, COTIN.org

In his 1987 magnum opus The Fatal ShoreRobert 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 Monitor recorded 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 as Alaska, 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 of  their 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, where justices 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.

1 Reader comment Times of India 26 September 2018 COTIN.org

2 Reader comment Times of India 26 September 2018 COTIN.org

4 Reader comment Times of India 26 September 2018 COTIN.org

5 Reader comment Times of India 26 September 2018 COTIN.org

6 Reader comment Times of India 26 September 2018 COTIN.org
Above: Readers’ comments in The Times of India  on 26 September 2018 about the announcement of live-streamed hearings for India’s Supreme Court

 

Who or what is making it harder to find news about performance-vetting and disciplining of California judges in Google — and why might this dismay Justice Breyer of the US Supreme Court?

 

+Justice Stephen Breyer interview by David Rubenstein 9.12.2014 COTIN.org
Above: On YouTube, Justice Stephen Breyer being  interviewed by David Rubenstein for C-Span on 9 December 2014. One of the questions was, ‘Why not let the American people see the justices when you’re hearing cases?’ Below: Extract from the introduction to Justice Breyer’s Active Liberty

+Clip from Active Liberty by Stephen Breyer COTIN.org

Page 2 Google search results CJP v California State Auditor 11 nov 2018 COTIN.org
… In the lower half of p2 of Google’s search results for ‘cjp v. california state auditor’ on 6 November, the COTIN link is the only one supplied for the year 2018. None of the links on p1 mentioned the settlement and green light for the investigation

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, I  d 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 Libertyhis 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 ran on 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 August 2017. 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 portia9@tutanota.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?

Part 3: Any Martian can tell that California voters have no inkling of how well or badly judges do their jobs — or why they should demand true judicial independence & court proceedings they can watch online

extract nbc op-ed voters know nothing about judicial candidates cotin.org
Extract from an opinion piece by Jessica A. Levinson, a professor of law and president of the Los Angeles Ethics Commission, NBCNews.com, 7 June 2018
Screenshot NYT on Harvard prison sentencing study 28may 2018 cotin.org.jpg
On this strictly apolitical website we must ask: why pretend that judges are not influenced by their political loyalties? Headline and photograph from the home page of The New York Times, 28 May 2018

Part 1; Part 2; and a new page added on 19 June 2018: ‘Unpublished’ opinions as tools of deceit and lawlessness deployed by courts of appeal

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.

COTIN: Well, elections are not supposed to have some candidates competing with one arm tied behind their backs — and in this instance, both legs too. But the 2018 San Francisco election is merely one illustration of the strangeness of the American tradition of selecting judges.

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.

Extract from Encyclopaedia Britannica entry on judicial independence COTIN.org
Extract from the entry on judicial independence by David S. Law in the Encyclopaedia Britannica

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.

Their range of tactics for covering their tracks is immense — and has been expanding. Court records are being destroyed by official edict.

Courts of appeal that are meant to vet the sifting of facts and interpretations of law by trial courts objectively not only seem to treat supporting them as a higher goal than impartiality — rubber-stamping their work and decisions whenever possible — but use tricky devices like ‘unpublished opinions’ to hide errors and the actions of some judges disinclined to do their duty and follow the law.

Martian: So that’s why COTIN wants to use the power of the net to put court proceedings online — to let voters see what actually happens there?

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 …

** Alma Cohen and Crystal S. Yang

Part 2, the Martian perspective on the 2018 judges’ elections in San Francisco: can an electable judiciary be seen as independent when appellate judges also choose a side in elections?

2. NYTimes 25 May 2008 (2) on tradition of US tradition of voting for judges cotin.org
Above and below: headline and extracts from a report in The New York Times, 25 May 2008, about the inseparability of politics and the judiciary in America

Excerpt NY Times -- 25 may 2008 ROW judges independent SC cotin.org

3. NY Times excerpt French judges know what they are doing SC cotin.org

Part 1 can be read here

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?

If they feel so strongly compelled to protect these trial judges from the humiliation of running for office, in contests fully sanctioned by California’s constitution, would these appellate judges not feel equally compelled to spare them from the embarrassment of having their trial decisions overturned?

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:

The appellate record will not be augmented […] with a September 29, 2010 press release regarding a San Francisco Superior Court judge.

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:

California Judge Reviews Judge entry on Cynthia Ming Mei Lee supplied by law ibrary in 2016
Extract from the entry on Cynthia Ming-Mei Lee, mostly as a criminal law judge, in California Judge Reviews, Elizabeth Smith and Mark Thompson, 2016

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.

4. Charles Koch excerpt no tradition of selecting independent judges SC cotin.org
Highlight from a 2004 paper by the late Charles H. Koch Jr.  — a respected legal scholar and section-leader of the American Bar Association in the Indiana Journal of Global Legal Studies, Vol. 11: Iss. 1, Article 6

What would a Martian make of the 2018 judges’ election in San Francisco — in which candidates are being scolded and lambasted for running at all?

 

excerpt paper by CHARLES KOCH cotin.org
These highlights from a 2004 paper by the late Charles H. Koch Jr.  — a respected legal scholar and section-leader of the American Bar Association — show that judges running for election is just the way the legal system works in America. (Indiana Journal of Global Legal Studies, Vol. 11: Iss. 1, Article 6**)

Part 2 can be read here

Would-be judges in the rest of the world have to stay out of politics, but the U.S. constitution makes judicial officers electable through election campaigns that can be stunningly dull or ferociously contentious. In next month’s state elections in California, four public defenders — lawyers who represent poor people accused of committing crimes, at the taxpayers’ expense — are hoping to win enough votes to replace four San Francisco judges. They are being castigated for doing this.

Here are some questions about a mystifying opinion piece that ran in The San Francisco Examiner on 2 May 2018, headlined ‘Election threatens San Francisco judiciary’. Let’s be perfectly clear. That header is not a reference to any accusation of illegal or antisocial behaviour by the public defenders in the election, but to the fact that there are any contests at all for judicial positions. It is as strange as if an American were criticising fellow-Americans for ignoring the rules of cricket in playing football — even though everyone knows that cricket is not and never was America’s game.

Yet the piece is only one of several op-eds on the same theme in the run-up to the 5 June state election — many of them written by senior judges and politicians.

Examiner readers’ comments beneath the opinion essay of Amy Bacharach — a psychologist specialising in juvenile justice — suggest that Americans are as confused as any outsider by how their legal system works and ensures impartiality. Their remarks underline the urgent, dire need to make court proceedings open, transparent, and debatable by the public.

Until there are answers to the questions in this blog post — arranged as a virtual conversation with Ms. Bacharach — there is no saying how such a revolution is going to happen. The queries are linked to facts on record about the San Francisco case to which this site is dedicated

Amy Bacharach (AB): ‘The process of running against sitting judges defies judicial ethics in the first place … … The U.S. is alone in electing its judges, which puts judges in a role of politician. […] Overwhelming evidence suggests it’s dangerous to start playing politics with the judiciary.’

COTIN: ‘Defies’? ‘Start playing politics’? Surely those cannot be the right words. Until someone rewrites the California constitution so that judges no longer have to run for election every six years to retain their seats, how can these accusations against the four public defenders make sense?

At least one of the four judges being challenged in this election — Cynthia Ming-Mei Lee in seat #9 on the San Francisco bench — campaigned for a senior judicial post herself in 2012. An internal poll, the first contested election in the court’s history, made her the presiding justice.

Nor is this judge above open political affiliation. According to The San Francisco Examiner, she ‘registered as a Democrat after this election began, [and] previously listed no party preference, though she was a registered Republican in the 1990s.’

AB: ‘To be clear, the incumbent judges have no ethical concerns and have done their jobs diligently … … To be sure, the attorneys running for judge in San Francisco would likely make excellent judges, just as those currently serving are excellent judges.’

COTIN: How could anyone know any of that for a fact, when the state judiciary is notoriously so secretive about how it operates?

Only last December, an editorial in The San Francisco Chronicle said:

California’s courtrooms may be open to the public, but there’s no openness when it comes to disciplinary complaints against judges. The Commission on Judicial Performance insists that its oversight work be kept secret and untouchable.

It’s an indefensible stance, but it’s working so far. A state-ordered audit is seeking a look at the commission’s private world, but the judicial agency won a first-round victory — from a judge, no less — in blocking the outside inquiry. [The state Auditor has appealed against that decision.]

Elsewhere, the public defenders galvanising this election have been condemned for trying to unseat ‘experienced’ judges. The incumbents have unquestionably earned that label in some branch of law — but can still lack fundamental experience in others, with deadly consequences for litigants appearing before them.

Six years ago, after a long career as a specialist in criminal law, Judge Cynthia Ming-Mei Lee decided to preside over civil cases. In 2015, the year she turned 66, she herself testified to the difficulty she was having acquiring the necessary expertise, as a clip from a profile in a legal newspaper, The Daily Journal, shows (below).

graphic+ pull quote (1) Daily Journal 29 july 2015 COTIN.ORG
Extract from the profile of the career of Judge Cynthia Ming-Mei Lee in The San Francisco Daily Journal, 29 July 2015 (access via subscription or libraries)

The knowledge and principles behind civil and criminal law are profoundly different. As one legal reference site explains: ‘The standard of proof is also very different in a criminal case versus a civil case. Crimes must generally be proved “beyond a reasonable doubt”, whereas civil cases are proved by lower standards of proof such as “the preponderance of the evidence” (which essentially means that it was more likely than not that something occurred in a certain way).’

Nearly a year after Judge Ming-Mei Lee decided the case examined on this site — which required expertise at the junction of family and contract law — it was clear that she lacked any of the necessary background. This can feel like a tree surgeon appearing in scrubs beside your operating table, as the anaesthetic begins to take effect, with consequences as disastrous as you might expect

AB: … ‘Finally, judicial elections are often so low on the public’s radar that, as one writer noted, they provide the illusion of popular control at the expense of actual accountability.’

COTIN: Everyone who knows anything about California courts agrees that demanding accountability — with transparency — should be the highest priority of California voters who care about their legal system.

Surely the four public defenders in this election are performing an even more valuable public service than in their jobs, by forcing Californians to stop being oblivious and start paying close attention to what is happening in their legal system?

That is an objective perfectly in line with the mission of this site, and trends far across the world.

Recommended further reading at 48hills.org:

A challenge to sitting judges — and the secretive judicial system

** ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, Charles H. Koch Jr., Indiana Journal of Global Legal Studies, 2004.

Part 2 of this series of posts on COTIN can be read here