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’

 

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?

A hush-hush settlement will — at last — allow the State Auditor to look into the vetting and disciplining of bad California judges

 

CJP v. CA State Auditor The Recorder + CPPA cotin.org
On 29 September, only Google served up this article about the settlement in The Recorder (left), and a report about it on the web site of the California Protective Parents Association (right)

Anyone reading this post is being let in on a secret. Unless the leading search engines can no longer supply reliable results, search queries reveal that not a single newspaper has so far reported that the chief obstacle to independent scrutiny of the Commission on Judicial Performance (CJP) — whose job is to vet and discipline California judges against whom complaints have been filed — was removed two weeks ago.

This media silence is bizarre, to say the least. There was a blizzard of headlines last December about the CJP’s successful obstruction of a probe into its methods and records, after it sued to block the State Auditor, Elaine Howle, from carrying out this task. National and regional newspapers reported that a trial judge in San Francisco had ruled in favour of the CJP. In an editorial titled ‘Who judges the judges?’ the San Francisco Chronicle described the CJP’s insistence that its operations be treated as ‘secret and untouchable’ as ‘indefensible’ — but said that its court victory showed that this stance was nonetheless ‘working so far.’

The Auditor appealed against that judgment. In the settlement of the appeal on 18 September, both sides agreed that the trial judge’s ruling should be reversed in full. Also, that the Auditor’s office will be allowed to inspect the CJP’s confidential records of how it went about investigating criticism of the performance of judges by litigants and lawyers.

This will be the very first time in the fifty-eight years of its existence that the CJP will be subjected to an audit, even though it subsists on taxpayer contributions.

How did COTIN learn about this most welcome development, even if it is only a partial victory for transparency — because the Auditor will not be able to tell the public exactly what it finds in those records? By the sort of discovery that can follow from nonstop mental churning about an experience as horrific as being the plaintiff in a trial as surreal as the one on which this site is focused; a trial conducted by a San Francisco judge who — as she has explained — simply felt like a change from criminal law to hearing civil law cases, a switch for which she had no qualifications or experience whatsoever. In other words, a trial that was a travesty of the obligation of lawyers and judges, in their very own professional code, to ensure due process and the correct application of the law — or offer remedies for a failure to do so in a court of appeal.

Typing ‘cjp v california state auditor’ into a Google search box in the early hours of last Saturday yielded just one link to news and information about the settlement. It pointed to the website of the California Protective Parents Association (CPPA), a campaign for protecting children from mistreatment, which alleges that the CJP ‘has been dismissing valid complaints [against judges], which allows for abuse, including sexual abuse, of children.’ The CPPA’s post on the conclusion of the fight between the CJP and Auditor contained a link to the site of The Recorder on law.com — which led to a subdued official record of it on the California government’s site dedicated to supplying information about appellate cases, and to the text of the six-page settlement agreement. Neither the CPPA nor The Recorder came up in search results for the identical query on Bing or DuckDuckGo.

Stop and think about what this means for a moment. Just one search engine, Google, and one intelligent web site with — apparently — no professional publishers, journalists or editors behind it, have so far revealed that the people of California can now assist and look forward to a comprehensive assessment of the CJP’s objectivity and trustworthiness.

How can this be possible?

The most likely explanation is that there has been no press release to alert media to the settlement by either the office of the Auditor or the CJP — as nothing of the kind is listed on the web site of either organisation (on the evening of Sunday, September the 30th).

Why might that be?

Perhaps because, in an apparent face-saving measure, page 4 of the settlement terms includes these words: ‘[N]either party shall claim that they “prevailed” on the appeal or that the reversal was anything other than a stipulated result reached after settlement discussions.’ [ emphasis by COTIN ]

Californians must keep a close eye out for signs of the legal profession’s matchless record for undermining and reversing attempts by the public and its guardians to rein in its tendency to behave as if it is above correction and reform. So must anyone else who cares that for guidance about reform, so-called banana republics and kangaroo courts around the world look to this state rich enough to become a shining model of justice.

Consider — aside from the missing press releases about the settlement — these reasons for concern:

  • Information and news about the settlement is sinking in search results, or disappearing entirely, when it should be rising to the top. Forty-eight hours later, the two links to news of the deal that Google was supplying in the early hours of Saturday are not appearing in results for the original query, ‘cjp v california state auditor’. In fact, there are no results on the first two pages of links — with those or other obvious search terms.
  • Bad news for transparency. On 17 September — not insignificantly, the last day before the settlement was released — Governor Jerry Brown signed a bill that bars the Auditor from releasing to the public any confidential records of judicial misconduct that its investigators find in the CJP’s files.
  • An example of the lengths to which judges can go to evade control. In a riveting scholarly paper in the Hastings Law Journal about so-called ‘unpublished opinions’ — also referred to as the ‘no-citation rule,’ because they cannot be cited as legal precedents — Rafi Moghadam has shown how these came to be used frequently by courts of appeal to conceal cover-ups and minimise the likelihood that their vetting of lower court decisions will be reviewed by the California Supreme Court. He demonstrates that this labelling of judicial decisions is a device invented by appellate justices in the 1970s to thwart oversight. Its introduction subverted the demand by California voters, as long ago as the late 1800s, that appellate courts write down, publish and be held accountable for the reasoning behind their judgments. A written opinion that somehow both does and does not exist is just a devious means of averting responsibility for decisions committed to print — and now in such wide circulation, on the internet, as to make nonsense of any suggestion that they are not published. 

There is a warning that could be warranted in the post on the CPPA website urging complainants who believe that they were let down by the CJP — when they sought its help with bringing a judge to book — to submit their evidence to the Auditor. They should check that in the two years in which the audit was delayed by the legal battle, their files were not mysteriously induced to disappear and are still part of the CJP’s records.