In defense of the judiciary
Mark A. Fogg and Charles F. Garcia
Published March 2, 2008 at midnight
In his Speakout commentary of Feb. 10, “Prosecutorial misconduct, ineffective defense counsel, inexpert judges plague system,” a local attorney made a sweeping indictment of the American criminal justice system. He wrote that the “United States has the very worst criminal justice system in the civilized world.” Nothing could be more wrong.
He claims that judges are selected on the basis of who they know, not what they know, and that they don’t enforce the rules of evidence and rules of conduct for attorneys. This results, he alleges, in courts wrongfully favoring the prosecution and upholding invalid criminal convictions. These allegations against prosecutors and defense counsel are untrue; however, we are focusing on his attack on judges.
According to the American Judicature Society, the United States has approximately 30,000 judges — this in a population exceeding 300 million. As a result, U.S. court systems often are overwhelmed.
The intimation that the selection of judges is a political payoff is simply untrue. In Colorado, we are blessed with a variant of the Missouri Plan (named after the state that first adopted it), a merit system in which nonpartisan committees composed of lawyers and nonlawyers identify and evaluate judicial candidates and pass on the names of the most qualified applicants to the governor for consideration. This way of selecting judges de-emphasizes political connections. Further, judges are appointed for only one provisional term through this merit system and then they must face the voters in retention elections.
With regard to the writer’s claims that the courts fail to uphold the rules of evidence, rules of conduct for attorneys, and the rule of law, our experience defies that claim. As an ex-chief deputy district attorney in Denver and ex-chief public defender in Colorado, respectively, we spent years practicing every day before the judges in Colorado. In the overwhelming majority of courts, and in the overwhelming majority of cases, judges do not tolerate inappropriate behavior by the police, the prosecutor or the defense counsel.
We are respectful that the author was able to express his opinions about our justice system. We are thankful to the courts for protecting his right to do so.
Mark A. Fogg is an attorney with Kennedy, Childs & Fogg in Denver. Charles F. Garcia is head of the Denver Office of the Colorado State Public Defender.
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March 2, 2008
4:40 a.m.
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freethinker07 writes:
While I am not an attorney, I can look up and read the statutes. I have attended court sessions. I have fought traffic charges and won.
I have three complaints against "the system."
The first is that plea bargains distort and degrade justice.
The second is that the law doesn't look fair to the public. An example: the right of privacy give a woman a right to an abortion, but not the right to smoke marijuana or take certain drugs without a prescription. Seems inconsistent. Another example: In Denver, someone under the age of 18 may not possess a weapon of any kind in public yet is not guaranteed police protection.
The third is that the law is selectively enforced. In the famed CU case of the Current World Affairs conference attended by Boulder High School students, one of the speakers encouraged minors to have sex and use drugs. http://www.dailycamera.com/news/2007/...
It is my understand that while encouraging a minor to commit a crime (C.R.S. 18-6-701) is a class 4 felony no charges were filed or investigated. The Boulder County DA refused to discuss the matter.The whole immigration issue is another example of selective enforcement against illegals and employers.
The legal system does not look like a justice system. If that doesn't change, we are doomed.
March 2, 2008
9:33 a.m.
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kathyM writes:
You're right: The law doesn't look fair to the public. But does that mean our entire law enforcement system is "distorted"? Perception does not equal reality.
March 2, 2008
11:22 a.m.
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aeb1barfo writes:
A FOX defending the henhouse....yeah, right.
The name is fitting, as this comment is FOGGING the real problems.
Check GONZALES vs Castle Rock to see just how perverted the (IN)Justice system is today.
How about the BRAZEN land-grab by a set of LAWYERS and a JUDGE in Boulder? I could go on, but the point is made.
How about POLICING YOUR OWN before the US CITIZEN is forced to do it the hard way???
Because if things are going to continue, the US CITIZEN is going to have to clean up YOUR mess. And it won't be pretty.
March 2, 2008
11:41 a.m.
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a_watcher writes:
Because I hade a judge in a civil case who couldn't rule on a motion in two years when the state law says he must rule in 90 days, and because that same judge couldn't bring himself to stop obvious attorney misconduct including filing false answers to motions and making obviously false arguments, I have become a gadfly against the system.
What has happened to me has happened to many other people, but most suffer silently.
I have told my story in multiple meetings and in both of the legislative judiciary committees. I have told it before at least 200 different lawyers and judges. To date, NOT A SINGLE lawyer or judge has had the good manners to come to me publicly or privately and express outrage that this has happened to me and routinely happens to others. Why, because none think it wrong. It is obvious that neither Fogg nor Garcia would think what happened to me was wrong.
March 2, 2008
12:57 p.m.
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freethinker07 writes:
kathym
You are correct. Perception does not equal reality. But in the case of judges, the tradition is that they have to be above suspicion. The same is true of the law.
When people believe that the law is unjust, they turn to extra-legal solutions.
In one college town, Sunday football games created a serious lack of parking places. Fans started blocking in driveways in adjacent residential areas. The police did not have enough manpower to have the cars towed promptly. Homeowners started using large hammers to attack the offending cars. Since there were no witnesses, there were no prosecutions. After a few news stories, the problem went away.
The police failed to protect the rights of citizens, and people took the law into their own hands.
March 2, 2008
2:02 p.m.
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rg writes:
While at DU Law School, Judge Kirshbaum told his class "A lawyer that is not active in bar organization will not be appointed to the bar." The bar controls the 3rd branch of government as in dictatorship. I once challenged lawyerdom and it incarcerated me for six months and assessed me $1300. I'd like to see judicial colleges in which lawyers are barred so that a separation of powers could exist. Richard Grimes: http://www.geocities.com/r22037/think... perhaps to commence a movement resulting in change.
March 3, 2008
7:02 a.m.
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VVVV writes:
Reality is what is tried, tested, and observed. I have seen an educator's career destroyed by lawyers and judges, simply because he was willing to cooperate, and the real culprit was a minor. A lie detector test and one false witness recalling a voice on the phone ruined what he had spent years trying to do. All because he couldn't afford the expense to defend himself in court, and took the plea bargain his lawyer assured him would allow him to keep his job. Of course it didn't, but they all got paid anyway.
When reality is measured by those that are guilty of distorting reality, of course it will look pristine. Perception is all we have when reality is just smoke blown in our rears. All three branches of government are subject to corruption, and the judicial branch is the most grossly underscrutinized. It would be naive to not see the corruption. And it is just brevity that limits the concerns to only judges.
March 3, 2008
10:20 a.m.
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Eagle5 writes:
The main problem with the justice system is there is none for the victims. Our process is much too slow (follow Texas speed if not better) and execution by hanging or shooting is the answer for proven beyond any reasonable doubt murderers - yes, Dunlap, Harlen, Martinez - that means you!!!
March 4, 2008
3:44 p.m.
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peteSmith writes:
I agree with Mr. Fogg. Indeed, the Colorado judiciary is among the finest we could ever ask for.
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In fac, in 41 years, our Commission on Judicial Discipline has never recommended that a judge be removed because of misconduct. Instead, judges are given the option of retiring (with pension) or resigning when there's an investigation pending against them (because, once judges leave, the Commission loses jurisdiction to discipline and the record of their misconduct remains private). See http://www.knowyourcourts.com/JDC/JDC...
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Indeed, our judges truly are exemplary: Take, for example, judges Frank Martinez and Norman Arends, who falsified affidavits (see http://www.knowyourcourts.com/News/Ju...). And, how about the judges in Trinidad, accusing one another of illicit drug use? See http://web.archive.org/web/2005041811... Then there was the drug investigation/arrest of district judge Joel S. Thompson's live-in girlfriend (see http://www.steamboatpilot.com/news/20...), who surely had no idea what was going on. (Note that Judge Thompson has a "distinguished" record of presiding over drug cases (See, e g., http://caselaw.lp.findlaw.com/scripts...). Then you have judges, who don't rule on motions for 2½ years, suspending the proceedings (see http://www.knowyourcourts.com/Harring... ) and, who allegedly fine pro se litigants for the filing of any claim or defense (see http://www.knowyourcourts.com/Spoffor... ). Let's not forget former district judge Larry Manzares and his story that he was sold a laptop (missing from the court bldg) in the parking lot outside the court bldg (where most of us go to purchase our computing hardware & software); or Grafton Biddle, who made it into work very early in the morning to shower with the prosecutor. Finally, how could we forget federal judge Eddie Nottingham, who admitted to spending $3K in a titty-bar in one night but, "couldn't recall" how he spent it (purportedly, because he had too much too drink) and, who doesn't have time to read litigants' briefs but reportedly has time for one-handed internet surfing from the Alfred A. Arraj courthouse? See http://www.knowyourcourts.com/Notting... He was also recently accused of parking in a Walgreens handicapped spot and then threatening a wheelchair-bound heckler with removal by the U.S. Marshalls, because he's a federal judge. See http://www.knowyourcourts.com/Notting...
March 5, 2008
12:13 p.m.
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RobinHood writes:
Is that name short for "Pettifogg," Mark?
Our judiciary is not unlike our sewer system: When you get too close to it, the stench is unimaginable, and you only get concerned about it when it backs up in your living room.
If the complaints about our judiciary could be distilled to a single sentence, the Maine Supreme Court has managed it:
<i>Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.</i>
In re Ross, 428 A.2d 858, 861 (Me. 1981).
The undeniable reality is that, like Captain Barbossa in Pirates of the Caribbean, jud ges consistently treat the Uni ted States Code and Colorado Revised Statutes as “more like guidelines.” Pirates of the Caribbean: The Curse of the Black Pearl (Warner Bros. 2003). No mere statute, treaty, precedent, or consti tutional pro vision can hope to withstand a determined assault by a judge.
Lawyers like Pettifogg know this, but know that they can't fight it. Outing a corrupt judge is a “career-limiting move,” which few dare to attempt. Consider the craven cowardice of O.J. Simpson “Dream Team” alum Professor Alan Dershowitz of Harvard Law School:
<i>It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, “I don’t care if my opponent knows the law, as long as I know the judge.” In the old days, it was financial corruption -- cash changed hands. Then it became the “favor bank,” in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.</i>
Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001), p. 116.
If Dershowitz had ‘seen it with his own eyes’, he had an affirmative obligation to report it. Mass. RPC 8.3(b) (A lawyer “having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office SHALL inform the Commission on Judicial Conduct.”) But he didn’t, and didn’t even have the courage to name names. If an attorney with the stature of a Dershowitz can even be cowed into silence by the fear of retribution, the average barrister can’t hope to survive retaliation by the judges’ guild.
The best that can be said about Colorado's appellate court system is that it is reminiscent of “the Tudors’ Court of the Star Chamber, but without the Tudors’ charm.” Arthur L. Jacobson, Publishing Dissent, 62 Wash. & Lee L. Rev. 1607, 1608 (Fall 2005).
March 5, 2008
12:33 p.m.
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peteSmith writes:
Well, spoken, Robin Hood.
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Honestly, the adulation of the judiciary by Fogg and Garcia was expected. "Saying that lawyers treat the judges with deference fails to capture the interaction; it is more accurate to say that lawyers bow and scrape. Some lawyers have elevated fawning to an art form, pulling it off with subtle elegance." Carl Bogus, Culture of Quiescence, 9 Roger Williams U. L. Rev. 351, 352 (2004). See also Monroe H. Freedman, The Threat to Judicial Independence by Criticism of Judges—A Proposed Solution to the Real Problem, 25 Hofstra L. Rev. 729, 729 (1997) (“The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable”).
March 5, 2008
12:58 p.m.
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RobinHood writes:
Mr. Fogg looks like he's just returned from a month in Cancun, Pete. How else could a nose get that brown in these climes?
Those who doubt that our judges get their appointments as a political payoff need only look at Rebecca Love Kourlis, daughter of Gov. John Love. Selectors are chosen for their party loyalty, and the judicial candidates are always well-connected.
These people don't do it for the money. Karen Abbott, “State’s First Black Justice To Leave Supreme Court,” Rocky Mountain News, Mar. 7, 2000 at 7A (it’s hard to find qualified Supreme Court justices “because of the low pay”). The typical state judge is a third-rate lawyer with first-rate political connections, and with a salary of $100K/year, the average associate at Fogg's firm could probably do better right out of law school.
Judicial sinecures are essentially bought on E-bay by third-rate political hacks. Of special interest is Salon’s recent observation that “The money trail leading from Bush judges to influential politicians runs particularly deep through the political battleground states of Ohio and Pennsylvania.” Will Evans, “Money Trails Lead to Bush Judges,” Salon.com, Oct. 31, 2006. Suffice it to say that the underlying report by the Center for Investigative Reporting doesn’t exactly portray federal district judge John Jones of Pennsylvania in a flattering light:
Jones, a former attorney in private practice, gave $1,000 to the state GOP and $1,000 to Sen. Santorum’s political action committee after having interviewed for the judgeship. He also gave more than $1,000 to state and local Republicans after his August 2001 inter view process, including $380 to his county Republican committee. Overall, Jones gave about $15,000 in federal contributions to Republicans from 1990 to 2001, including more than $4,000 each to both Sens. Specter and Santorum. Jones had been involved in Republican politics, making an unsuccessful run for Congress in 1992, and serving on the finance committee of the Pennsylvania Republican State Committee from 1999 till his nomination. He also has hosted fundraisers at his house for Sens. Specter and Santorum, as well as other Republicans.
“Money Trails to the Federal Bench,” Center for Investigative Reporting, Oct. 31, 2006, at 51-2.
Our judges are the functional equivalent of Karla Faye Tucker, who got an orgasm every time she stabbed someone. They are not fit to be judges and certainly, not fit to hold power without accountability.
March 6, 2008
9:27 a.m.
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rg writes:
"The judge does any damn thing he pleases," Professor Brody: DU Law School: "Tell the judge the topic and he will tell you how it will turn out and evidence has nothing to do with it," and, "The law is a prostitute, if you can afford her she is yours," from two judges at DU. I had a case before Judge Robert Hyatt in which the defendant lied to his lawyer, to the Bench (Hyatt) and in his pleadings, and in his affidavit that he had not been served. It is called judicial nullification: Judge Hyatt annulled the law ( rule with force of law) and the defendant won. It is common for the Bar on the Bench to hold pro se litigants in contempt whereas the Bar gets a free pass for a worse offense. Richard Grimes: Deicide.
ps: Judge Hyatt believed the process server and in a second hearing defendant confessed to being served.