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’

 

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.

History says that little will be done about the California Auditor’s damning report on the state’s job-shirking discipliner of bad judges. Clue: the long-running feud about mythical ‘unpublished’ opinions

Clip 1 from the California Auditor's report on the Commission on Judicial Performance, 25 April 2019, COTIN.org

Clip 2 from the California Auditor's report on the Commission on Judicial Performance, 25 april 2019 COTIN.org
Clips from the 25 April 2019 report by the California Auditor on the Commission on Judicial Performance. The second is from a section about staff who cannot operate or maintain their 25 year-old computer system — in their office at the northern end of Silicon Valley

Transparency and a wholesale, top-to-bottom restructuring are the chief recommendations for California’s Commission on Judicial Performance (CJP) by Elaine Howle, the state’s Auditor — in her 25 April report card that adds up to a big red ‘F’ for fail. Because the CJP acquired a new director at a late stage of the audit, in 2017, there is some hope of remedial action and reform, but the historical record shows that judges excel at evading public control.

The five-year audit of the way the CJP treats complaints about judges not behaving or doing their work as judges should revealed — among other things — that:

  • From 2013-14 to 2017-18, the CJP ‘closed at intake about 85 per cent of the almost 6,000 complaints it closed.’ This means that they were tossed out without investigation. 
  • The CJP’s complaint-investigators failed to delve adequately into about a third of the cases that the Auditor examined in detail, ‘even though these investigations involved serious allegations.’
  • California judges shield each other from censure and discipline. Though California voters passed a proposition twenty-five years ago that was designed to make this harder, by ‘increasing the public’s involvement with judicial discipline,’ the CJP still hands the task of hearing evidence of judicial misconduct to members of the same tribe, ‘a panel of three judges — known as special masters.’

No summary on this site or anywhere else could be an adequate substitute for reading the Auditor’s crisp presentation of her findings, which — despite the unavoidably bloodless officialese — is liable to make a reader’s skin creep. 

For instance, in the section about the CJP’s failure to look for patterns in following up on reports of misbehaving judges, the report highlights the case of the Commission receiving twelve complaints in less than ten years ‘about the demeanour and bias’ of a particular judge. In reviewing the fifth of those complaints — that the judge ‘had displayed poor demeanour and and showed favouritism during a court proceeding’ — the CJP’s investigator interviewed only the complainant and a single witness before he decided that the allegations could not be proved. The CJP ‘closed the complaint without issuing discipline.’ Worse, this CJP complaint-investigator agreed that ‘he could have expanded the scope of the review,’ which would have made it possible for him ‘to determine whether a systemic problem with the judge’s behaviour existed.’ But he told the Auditor’s team that he could not remember why he did not take that obvious step — yet was still certain that he was not guilty of any lapse in diligence.

Most astounding of all — given that the CJP’s office is in San Francisco, at the northern limit of Silicon Valley — the computer system that this body uses to manage cases is nearly 25 years old, and therefore incapable of accepting electronic submissions of allegations against judges by lawyers and litigants. The IT expert who created it for the Commission retired in 2014 without leaving ‘any written instructions for operating and maintaining the system.’

Gently castigating the CJP for its failure to update its tools — and restricting communications from complainants to snail mail — the Auditor noted that if the Commission were to accept digital submissions, its vintage case management system would require its staff to enter these into it manually, keystroke by keystroke. The result? ‘[A]s long as it relies on its outdated system, CJP will be significantly hindered from increasing its accessibility to the public.’

In whose interests could it be to under-equip the CJP so woefully? Powerful people with sharp brains bent on ensuring that the Commission is only barely capable of executing the tasks for which taxpayers pay it handsomely.

Impressively, the Auditor’s report was released with the CJP’s response to a final draft of it — and Elaine Howle’s reply to that reaction (on the same web page).  Their bristly exchange prefigures the colossal struggle on the horizon between representatives of the public interest and the California judiciary. If the past is any guide, the judges will win — succeed in ensuring that the CJP remains virtually toothless — even if the Auditor’s office gets the support it needs from legislators in Sacramento. The comprehensive structural overhaul Elaine Howle recommends for the CJP cannot happen without an amendment to the state’s constitution. That can only be accomplished by vote, in the legislature.

Answering the CJP’s claim that it had ‘fully cooperated with the audit,’ the Auditor made it clear that the Commission had only done so after crippling this review for nearly two years by initiating a legal action intended to obstruct or kill it.  Of course the CJP does not believe that it needs reorganisation, or that the Auditor was right to conclude that its present, ‘unitary’ structure is problematic, even though this means that the same group of people conducts investigations into charges of judges doing their jobs poorly and decides whether or not they deserve punishment, and by what means. With extraordinary tact, the Auditor refrained from spelling out what makes that grouping-together undesirable. It is essentially this: that it makes it too easy to shield bad judges from chastisement by conveniently failing to discover evidence to support charges against them; or by declining to look for it at all. 

Rejecting the Commission’s argument that ‘the California Supreme Court has consistently upheld the unitary structure of CJP as a judicial discipline agency,’ the Auditor pointed out that ’17 states have adopted a bicameral structure for their judicial oversight commissions,’ and that ‘the American Bar Association’s model rules for judicial disciplinary enforcement’ prescribe precisely such a form of organisation ‘that separates investigating and adjudicative functions.’ 

The CJP did agree to improve its transparency and modernise its antiquated operations without making any specific commitments, such as whether it would or would not be following the recommendations that it hold meetings open to the public and enable electronic submissions by complainants.

Ominously, though, it warned that ‘[t]here has never been a successful challenge to CJP’s structure and authority,’ — a history which, it claimed, ‘establishes that there is no problem …’.

The California judiciary is highly skilled at batting away demands for reform by voters and legislators, and at neutralising legal statutes imposing new rules for its functioning.

Anyone interested in this record need look no further than a topic that this site has touched on before — so-called ‘unpublished’ opinions, or rationales for decisions by courts of appeal. An appellate opinion explains exactly how a panel of judges arrived at their decision and chose to apply the relevant law, in determining the fate of an appeal against a lower court’s  judgment.

But because too many judges would rather not take responsibility for any of that, branches of the U.S. judiciary have for decades insisted on labelling as ‘unpublished’ the texts of too many appellate opinions  that are, in fact, widely circulated, and accessible anywhere on the internet, at no charge, almost immediately after they are issued.  The designation has crucial implications . Among these is that it more or less absolves loftier courts of the responsibility to vet them — effectively insulating lower-ranking judges from being held accountable and punishable for what they do.

For how long have judges been using this form of deception to conceal defective or corrupt reasoning and disregard for the law they are supposed to follow? In his eye-opening historical treatise on the subject — going back to the mid-19th century, and restricted to California  — Rafi Moghadam has shown how the practice is only the latest ploy for averting accountability, after the state’s judiciary could no longer dodge the task of issuing written opinions. In 1854, state lawmakers introduced new law requiring that the opinions of courts of appeal at every level be delivered in writing. The state’s highest court ‘responded by invalidating the statute,’ and ‘held that the legislature was without authority to require the judicial branch to provide written reasons for its decisions.’ Then, in 1879, ‘the voters of this state disapproved opinionless judgments …’. 

Eventually, the California judiciary adopted the ruse of ‘unpublished’ opinions — a decision committed to writing, but of limited value for ensuring accountability because ‘casting doubt on the soundness of its reasoning’ without taking anyone to task for that is what its tricky labelling accomplishes.

This device is still being used in the 21st century. In her contribution to the debate — ‘Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor’  — J. Lyn Entrikin Goering noted in 2005 that ‘eighty percent of the decisions issued each year by the thirteen federal courts of appeal are designated as “unpublished” or “nonprecedential’’.’ That number has since soared to 88 per cent.**

Elaine Howle, the California Auditor, said in her rebuttal of the Commission’s objections to her audit: ’We look forward to reviewing evidence of how CJP implements our recommendations.’ 

With supernatural luck — and enough pressure from the public and valiant lobbying organisations, such as the Center for Judicial Excellence  — this site might have something significant of that nature to report.

But any readers waiting for it would be ill-advised to hold their breath.

** in the twelve months to 30 September 2018, according to government statistics on U.S. courts, to which Professor Entrikin was kind enough to send COTIN a link.