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’

 

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