Equal Justice Under Law
 
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1999 Petition for Recusal
2001 Appeal for Recusal
Attorney Misconduct
Judicial Misconduct
"It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers."

Camero v. United States, 375 F.2d 777 (U.S. Claims 1967), at 781.
The Inns and Outs of Court
Receptions, Retreats, and Exclusive Meetings Provide Opportunities for Privileged Attorneys to Discuss the Business of Litigation with Judges
 
 
In 1999, Bernofsky argued to the U.S. Supreme Court:
“The duties of Judge Berrigan's adjunct professorship periodically bring her into professional and social contact with Tulane employees, students, administrators, and other professors.  Thus, there is no barrier to her private, non-judicial association with the University.  Judge Berrigan's contact with defendant subjects her to the receipt of extrajudicial information that can include rumor and innuendo about petitioner.  Judge Berrigan has admitted to receiving information about petitioner from unnamed "lawyers in town, although I have not sought them out myself."  Appendix, at A-7.”
The special case above is indicative of an even more pervasive mechanism that lawyers from the wealthiest law firms employ to influence judges.  The process entails meetings that are designed to bring lawyers and judges together under "social" conditions and conducted under the guise of collegial exchanges.  Such gatherings include, but are not limited to, private receptions for judges and the Inns of Court, from which many independent attorneys (the "Outs") and the public are ordinarily excluded.

Wealthy individuals and institutions are more likely to be represented by large law firms that are costly to retain.  It is no secret that such well-heeled organizations are also able to create access to judges by holding social and semi-social events where they can become better acquainted and share information in an atmosphere of cozy informality.  The venerable law firm of Chaffe, McCall, Phillips, Toler & Sarpy, with about 64 attorneys, not only cosponsors the annual Federal Judges Reception, it also hosts an American Inn of Court for the New Orleans Bar Association.

Attorneys and judge in a collegial exchange. Attorneys and judge in a collegial exchange at the Annual Federal Judges Reception, hosted by Chaffe, McCall, Phillips, Toler & Sarpy and other major law firms at the Windsor Court Hotel on November 2, 2000 [1].  Chaffe, McCall is also a sponsor of the New Orleans Bar Association's American Inn of Court, which brings together judges, attorneys, and law professors to discuss the business of litigation.

American Inns of Court

National and regional bar associations, and numerous other organizations that represent legal subspecialties, conduct activities for their members that include conventions, educational seminars, open forums, and semi-private retreats.  Less well-known, and more exclusive, are groups such as the Inns of Court, whose objectives are more narrowly focused.  Judges are integrated into the activities of all these organizations.

There are 14 American Inns of Court in Louisiana (twice the national average), and three in New Orleans [2].  A member of the law firm of Chaffe, McCall Phillips, Toler & Sarpy directs the Inn of Court for the New Orleans Bar Association; a judge from the U.S. District Court for the Eastern District of Louisiana directs the Inn of Court for Tulane Law School; and a member of the law firm of Gordon, Arata, McCollam, Duplantis and Egan directs the Inn of Court for Loyola Law School [2].

According to published descriptions [2], each Inn of Court has an exclusive membership limited to 80.  Attendance is by invitation only, and membership is by nomination.  Information about the activities of the New Orleans Bar Association's Inn of Court appears to be privileged as details on its Web site about its operation is protected by secret password [3].  Information about the Tulane and Loyola Inns of Court is somewhat more available because of the willingness of their program officers to discuss them.

The Inns of Court organization describes itself as an "amalgam" of judges, lawyers, law professors, and students who meet monthly to "break bread" and have "conversations about the practice of law." [2]  Small "teams" are encouraged to meet informally outside of monthly meetings.  Its high priests, known as "Masters of the Bench," are comprised of judges, senior lawyers, and law professors.  Other members, in decreasing order of rank, are known as "Barristers, Associates, and Pupils," respectively, following the British tradition.

The Inns of Court are primarily supported by the dues of its professional members.  Student attendees are selected by the deans of the respective law schools.  Meetings of the Tulane Inn of Court are held at the Federal Courthouse about four times a year, where evening sessions are followed by catered sit-down meals or cocktail buffets that encourage interaction among the participating judges, lawyers, students, and law professors.  Meetings of the Loyola Inn of Court appear to follow a similar pattern.  Whereas meetings of the Tulane and Loyola Inns tend to involve former graduates and seniors graduating from those schools, the meetings of the Bar Association's Inn primarily involve only local attorneys and judges without regard to past law school affiliation.  A joint meeting of the three Inns, featuring a legal expert of national prominence, is held annually.

The principal aim of the Inns of Court is described as: "a forum, outside the courtroom, where judges and lawyers can meet to discuss issues of concern."  Its motto, "Reclaiming a Noble Profession," is not clarified with respect to from what or whom the "noble profession" is to be reclaimed.  However, the subtext of the organization's promotional materials suggests a dissatisfaction with liberal judges and zealous plaintiff's attorneys and a desire for a more orderly system of jurisprudence, perhaps controlled by an elite consortium of judges and lawyers who hammer out amongst themselves what would comprise justice in each case.

The exclusionary fee structure of its dues helps define the economic status of Inn members and contributes to the establishment of a legal aristocracy in which the meeting of minds between judges and attorneys can have a profound effect on the outcome of any proceeding, to the prejudice of an opposing side.  This impact of political influence on judicial outcome is not lost on savvy lawyers whose purchase into the system is part of the cost of winning their cases.  The fact that this practice goes against the grain of democratic fairness and would change the ending of the Pledge of Allegiance to "...with liberty and justice for some," illustrates the contempt of these Lords of the Law for the very ideals they hide behind.

One attorney who was denied membership by her local Inn of Court in Florida expressed concern about the organization's exclusivity in an interview with Dr. Bernofsky.

Questionable Conduct

As exemplified by the judicial scandals of the 1980s in Illinois, and 1990s in California, the cultivation of relationships between judges and the often higher-paid attorneys who appear before them in court can produce an imperfect soil from which weeds of corruption emerge. Aside from being an ethical minefield, such conduct impedes the course of justice, degrades the court and the legal profession, and damages public trust in judicial institutions.  In Illinois, the aggressive cultivation of such relationships, and the judicial abuse that it spawned, outraged many citizens and led to the scandal known as Operation Greylord [4].

With reference to that scandal, the Illinois Police and Sheriff's News (IPSN) reported: "An amazing array of 92 individuals, including many well known defense attorneys . . . and 13 esteemed veterans of the bench were indicted in Greylord, a scandal with far-reaching repercussions that stemmed from an 'old boy network,' the result of too much familiarity among the courtroom crowd." [4]  In all, 19 Cook County judges were convicted in the wake of the Greylord and subsequent Operation Gambat investigations.

An arresting officer commented [4]:
"In those days, the judges, the lawyers, and the people we arrested were all joined at the hip."  "It was a brotherhood of corruption where you take care of me, I'll take care of you."
Richard Lindberg, writing in 1994 for IPSN, described meetings of an attorney and judge in restaurants and casinos, where they could socialize, drink, and "share secrets in an atmosphere of collegiality."  Both were convicted of bribery and corruption in the Operation Greylord case.  The judge retired from the bench and later committed suicide [4].

Yet, only years after these scandals rocked Cook County, an outraged executor who had been sucked into the litigation vortex created by the collaboration of judges and attorneys, observed to the U.S. House Judiciary Committee [5]:
"...There are hundreds of cases, like mine, where there is conspiracy between the lawyers and judges to defraud the estates and beneficiaries by years and years of needless litigation. The lawyers decide amongst themselves who will lose the case based on their pretenses of ignorance of uncomplicated legal issues.

I never expected to get any results from the hierarchy of Cook County Circuit Court. The lawyers' and judges' criminal activity is pervasive and obvious. One is forced to conclude that the presiding judges and chief judge are aware of it. The lawyers and judges are so brazen about their conduct, it appears that corruption is routine in Cook County Court..."

The doctrine of judicial immunity generally shields judges from prosecution for judgments that are malicious or corrupted by improper influence, and instances of misconduct can be found almost wherever it is sought, such as in Las Vegas, where judges routinely rule in cases involving friends, former clients and business associates, and where they openly favor lawyers who contribute to their reelection campaigns.  However, in a 2006 precedent-setting case, the New York State Court of Appeals held that former State Supreme Court Justice Gerald P. Garson could be criminally prosecuted for misconduct in his official capacity for acts stemming from a violation of the state's Rules of Judicial Conduct.  This ruling [PDF] might reflect a desire to quell growing public dissatisfaction with prejudicial misconduct on the bench and could signal a sea-change in the way judicial discipline is applied by the higher courts.

Citizens Who Speak "Out" Wind up in Jail...

Ordinary attempts by citizens to prevent corrupt lawyers and judges from being elevated to the federal bench are routinely ignored, creating the need for a more effective means of citizen input into the selection process.  However, legislators have become increasingly intolerant of such challenges as illustrated by the case of Elena Sassower, a judicial reform activist, who was arrested and imprisoned for asking permission at a congressional hearing to present evidence of corruption of a judge who was being considered for the federal bench.

...or Exile

The use of judicial power to silence government critics is exemplified by the case of Dr. Les Sachs, an American writer who was forced to seek refuge in Europe after a federal judge punished him ruthlessly for speaking out against a politically-connected ally of the Bush administration.  Incidents such as this, in which the courts play a role in enforcing the political policies of the administrations that appoint them, appear to violate the principle of separation of powers among the three branches of government.

Attorneys Who are "Out" Wind up in Jail

Roger Weidner is a former attorney and public prosecutor who battled pervasive corruption in the Oregon court system for 12 years as he struggled to return the now-valued $100 million Kettleberg estate to its rightful beneficiary after it had been wrongfully seized by an unscrupulous but well-connected attorney.  For his efforts, Weidner was repeatedly arrested, imprisoned, confined to an insane asylum, and finally disbarred.  His story, as told to writer Hedy Hammond, testifies to how the judiciary has usurped the law for its own purposes and replaced constitutional guarantees with a system in which judges rule by decree.  It exemplifies the failure of meaningful accountability within the judicial branch.

According to Weidner:
"The real facts in the case are never presented because the attorneys, the parties that are framing the issue that's being discussed in the courtroom, do not state the real facts. People do not realize that. Compound that with the fact that the judge and the attorney on the other side have already gotten together, and all the attorneys have gotten together. They've already decided the outcome before you ever even enter the courtroom. It is simply a show trial. There is no genuine litigation going on. The judge has already decided what the facts are and what the conclusion is going to be."
Other attorneys have independently mirrored Weidner's sentiments.  Attorneys who criticize the courts or expose corrupt judges are frequently disciplined and faced with professional ruin.  Despite having her license suspended, attorney Doris Sassower has received public recognition for her persistent efforts to expose and fight against corrupt political and judicial practices in New York State.  The corrupt political process by which judges are selected in New York has been the subject of newspaper editorials.  Veteran New York attorney Israel Weinstock, who reported massive fraud and cover-ups by rival attorneys and their collaborators within the judiciary and major financial institutions, was summarily disbarred in 2002 and is still fighting for reinstatement in 2005.  Florida attorney Mark Adams was cited for contempt, fined, and faced with arrest after moving to disqualify a Pinellas County judge whom he confronted with evidence of bias.  Virginia attorney Linda Kennedy was disbarred for speaking out against the erosion of civil liberties and due process rights in American courts.  In Rhode Island, criticism of the judiciary by lawyers is considered professional treason [see PDF] punishable by both courts and other lawyers [6].  In California, attorney Richard Fine, who was hailed as a champion of people's rights, was targeted for disbarment when he alleged government financial malfeasance that involved judges.  Attorney Richard Baldwin Cook attempted to recuse a judge who sat in a case brought by the judge's former law partner, who as president of a local bar association arranged a $4,500 grant for the judge to travel to Italy to address the association's meeting.  For his efforts, Cook was disciplined with a $7,500 fine and three-year suspension of his law license.

Such examples help explain the frustration of many attorneys who question whether the courts simply do the bidding of the well connected.  The protection of attorneys who blow the whistle on judicial corruption has become an issue of such concern that a lobbying group, the National Judicial Conduct and Disability Law Project, Inc. (http://www.njcdlp.org) is calling for the passage of special federal legislation that seeks to prevent retaliation against attorneys who raise evidence of improper judicial conduct.

Attorneys Who are "In" Wind up Rich

The pillaging of estates disguised as protection has emerged as a lucrative industry for certain well-connected lawyers and their fraternity brothers on the bench, and cases not appearing in the print media are being publicized by victims in increasing numbers via the Internet [7].

A recent case in Louisiana involves the $250 million real estate fortune of the Meraux family of St. Bernard Parish.  In 2002, Louisiana District Court Judge Wayne Cresap declared the 79-year old heiress, Arlene Soper Meraux, unfit to govern her affairs and assigned attorney Salvador E. Gutierrez, Jr. to look after her estate [8,9].  Meraux had a son and daughter as well as a niece, and the latter two sought legal power over the estate.  All were disfranchised by Judge Cresap.  The niece had been Meraux's guardian and caretaker for years and earlier had been nominated by Meraux to take custody of her affairs if she ever became unfit.  Although Arlene Meraux's children had been estranged from their mother for some time, the Napoleonic Code, which is unique to Louisiana, discourages parents from disinheriting their children.  All that was cast aside by the judgment.

Mr. Gutierrez now had the option of distributing the Meraux properties to his friends and associates at bargain prices and charging the estate for his "services."  He began by appointing St. Bernard Sheriff Jack Stephens (a Gutierrez associate and former employer of Judge Cresap) to the board of a charitable foundation that will oversee the liquidation of the Meraux estate, and next sought to disqualify Meraux's niece from participation [9].  The Meraux properties are especially valuable because of their potential use for Wall-Mart and parish government projects, thus insuring their resale to developers at a handsome profit.  A detailed description of this case has been published [10], with important consequences from the publicity.

Forced guardianships of the elderly with significant assets are a coveted source of income for court-appointed attorneys acting in concert with cooperating judges and doctors.  Judge Cresap, a board member of the Alliance for Good Government, engaged in other corrupt practices and eventually was arrested and charged with accepting cash bribes for allowing inmates to be released from St. Bernard Parish Prison without putting up money for their bonds.  In 2010, the corrupt judge was sentenced to five years in prison for his criminal behavior.

The relationships between judges and law firms can mature into a type of judicial complicity that could allow unscrupulous lawyers to prey upon the assets of vulnerable parties with relative impunity.  Clearly, as illustrated by the cases of Judge Ronald Bodenheimer and Judge Oliver Diaz and others, the business dealings of judges and attorneys are legitimate subjects for scrutiny whenever there is cause for concern about judgments that might involve a conflict of interest.  However, as shown by the case of Douglas Schafer, any attorney who would blow the whistle on a conniving judge does so at his own peril.  In the case of businesswoman Anne Morrow, her life was nearly ruined by an encounter with a corrupt judicial system.  Circumstances such as these, which increasingly populate the Internet, strongly argue for the creation of independent, citizens' grand juries to investigate allegations of judicial misconduct.

Significance to Tulane Litigants

The direct ties of Tulane University to the federal court, and the association with the court of Tulane's legal representative, Chaffe, McCall, through local bar associations, creates a significant impediment to justice for any Tulane litigant no matter how meritorious the complaint against the university.  It remains to be seen whether the judges involved understand the dilemma into which they are drawn.  Harry McCall, Jr., one of the original partners of Chaffe, McCall and a King of Carnival [11], served as Chairman of Tulane Medical Center's Board of Governors, of which federal district judge, the Hon. Morey L. Sear, was also a member [12].  In keeping with tradition, McCall's son, Jonathan, followed his father both into the Chaffe, McCall law firm and onto Tulane Medical Center's Board of Governors [13].

The relationships that deny Tulane litigants access to an impartial tribunal are depicted below in the form of an iron quadrangle.  The elements holding this structure together are detailed at various places in this Web site.
Inside the Iron Quadrangle
Inside the Iron Quadrangle.
Mix and Mingle

For those who do not qualify for its Inn of Court, the New Orleans Bar Association still offers this attractive access to judges:

Discuss what's really going on when lawyers and judges link together through the bar.
Learn how our judges think and operate their courtrooms.
Mix and mingle with the judges in social settings. [14]
Laissez les bon temps rouler

In a city that knows how to party, there is no need to depend solely on bar associations for opportunities to engage judges.  For example, Tulane's Admiralty Institute and the law firm of Lemle & Kelleher hosted a "gala reception" for attorneys and judges, including many Fifth Circuit judges, at the New Orleans D-Day Museum, at which food and live entertainment were provided [15].  Events such as this underscore the widespread practice by the legal and business communities of maintaining personal relationships with judges through social events.  Apparently, passing the champagne across the table is more palatable than passing the buck under it and often just as effective.

From: The Times-Picayune [16].

"...the Academy of New Orleans Trial Lawyers rounded up its constituency for crustaceans [at] the annual "Life's A Beach" seafood dinner at Andrew Jaeger's Restaurant..."

"...it was an occasion for local judges and lawyers to socialize in an informal setting.  Also, to savor such seafood as boiled crawfish and fried catfish.  A thematic pasta, too.  Richard T. Gallagher Jr. was among the organizational forces of the feasting fun that included Judges Robert A. Pitre Jr., Roland L. Belsome, Nadine M. Ramsey, Richard J. Ganucheau, Ethel Simms Jullen, Charles R. Jones, Miriam G. Waltzer, Ginger Berrigan, Carl J. Barbier, Paul A. Bonin, Leon A. Cannizzaro, Adrian G. Duplantier, G. Thomas Porteous Jr., Joan S. Benge, and Stephen J. Windhorst."

[Also present at the "Legal Levity" were Judges Sonja Spears, Terry Alarcon, and Lance Africk.]
Tipping the scales of justice

Dinner for Two is "In"

When U.S. Supreme Court Justice Antonin Scalia was seen dining in private with Vice President Dick Cheney at a restaurant on Maryland's Eastern Shore, government watchdogs raised concerns about the appearance of impropriety [17].  At issue was a lawsuit in front of the Supreme Court charging that Cheney and his staff violated open-government rules when they met in secret with energy industry lobbyists prior to drafting the administration's energy policy.  Canon 2B of of the judicial code of conduct forbids a judge to allow "social, political or other relationships to influence the judge's judicial conduct or judgment."  This canon is regularly ignored.  In New Orleans, for example, a judge and an attorney who were close friends and both involved in the litigation that grew out of the disaster when Katrina struck the city, would find much in common to discuss during an excursion to an out-of-state football game.

Working for the Common Good

Judges and lawyers have numerous opportunities to interact at affairs of mutual interest, such as those that are intended to strengthen the impact of their profession on the public.  For example, among the notables at the 2009 gala cocktail-reception fundraiser for the newly-formed, non-profit legal advocacy group, Louisiana Appleseed, were Judge Stanwood Duval, Jr. and his wife, Janet, and Calvin Fayard, Jr. and his wife, Francis, and daughter, Caroline, the organization's treasurer [18].  The two friends also meet frequently in court as judge and attorney, respectively.

The Royal Rule

Few public affirmations of "royalty" are as ostentatious as those that are part of the New Orleans Mardi Gras spectacle.  In 2002, Chaffe McCall's William Francis Grace Jr. paraded as "His Majesty Rex" with Tulane University's Kathryn Lee Reily as "Queen of Carnival" at his side [19].  While some may dismiss the proceedings of the Mardi Gras "Courts" as merely decadent revelry, they nonetheless convey a powerful political message.  In 1998, former chairman of Tulane's Board of Administrators, businessman Robert H. Boh, paraded as Rex, King of Carnival [20].  Between 1912 and 2000, Tulane has claimed 45 Kings and 36 Queens of Carnival, the latter drawn from leading families whose daughters were educated on its Newcomb campus [21]

In the documentary, A House Divided, lawyer Lolis Elie expressed astonishment that the great decisions in New Orleans were made by individuals who did not hold public office.
“It was the people who run Mardi Gras, the people from the Boston and Pickwick Clubs, the bankers, were the people who were really making the decisions for everybody in the city.” [22]

According to Tulane's Southern Institute for Education and Research, "...The business elite of the city comprised members of the wealthy uptown neighborhoods, men who ran the banks, the law firms, the large businesses in the city.  These same men participated in the Mardi Gras organizations such as Momus, Proteus, Rex, and Comus.  They were members of the Boston Club, the Louisiana Club, and the Pickwick Club.  Not a few of the business elite had grandfathers who fought as Confederate soldiers in the Civil War."  Harry McCall Jr. (supra) was among those who played decisive roles on the part of the historically racist business elite that opposed desegregation in the 1960's [22].

Morton Inger described the city's business leaders as a closed elite, hostile to outsiders and anti-Semitic — a stagnant, inward-looking group that lacked civic consciousness and displayed more interest in prestige, tradition and family than in economic development [23].  In 1960, Betty Wisdom observed that “New Orleans . . . is one of the few American cities I know of in which the populace is still content with bread and circuses once a year and the aristocracy, having provided the free show, feels no obligation to provide anything further.” [24]

In speaking of the exclusive clubs and carnival "krewes" of New Orleans, J. M. Barry, author of Rising Tide commented:

“[P]erhaps more than any other city in America, New Orleans was run by a cabal of insiders, and everything from politics to the money the jazz musicians made depended upon them.  Looking on as if from behind a two-way mirror, these insiders watched and judged and decided.  There were layers of insiders, and folds within layers, with position largely defined by Mardi Gras.  "Mardi Gras runs New Orleans." said one socialite.  "It separates people." . . .  A few other organisations, such as the Board of Trustees of Tulane University, indicated even closer proximity to the inside of New Orleans than did club membership.” [25]

Those who think Mardi Gras is not primarily a political event should consider the 2004 report of Tulane President Scott Cowen:
“The Louisiana congressional delegation hosted its annual Mardi Gras celebration in Washington, D.C. this week, and I attended the reception honoring the Washington King of Carnival last night.  This annual celebration is a great time to network with decision-makers whose actions can impact Tulane.  I also had the chance to meet with several alumni, potential donors as well as legislators on the Hill.” [26]

In 2005, it was revealed that former University of New Orleans Chancellor Gregory O'Brien had used UNO Foundation funds to help sponsor the Washington Mardi Gras, an affair "complete with a Mystic Krewe of Louisiana that blends political networking and partying."  According to UNO officials, the annual event fosters contacts with powerful figures about campus needs [27].

Skiing, Sunning and Surfing for Success

At the height of the 2001 ski season, the Louisiana Trial Lawyers Association invited Judges Carl J. Barbier, Lance M. Africk and a host of other federal and state judges to an Aspen, Colorado ski resort for a conference [28].  It seems unlikely that the main purpose of the lawyers who attended this "Winter Ski Seminar" was to get educated.  Those who would rather get a seaside tan along with their education attend the "Summer School for Judges" at Sandestin, Florida, while still others find the Jamaican Sunset venue more desirable [28].

Extolling an Exemplar of "In"

At an affair hosted at the Hotel Continental, the New Orleans Bar Association presented its "2002 President's Award" to attorney and former member of Tulane's Board of Administrators, Robert B. Acomb, Jr. [29].  Guests included numerous judges as well as officials from Tulane, the Catholic Church, and representatives of the business community, law firms, and politicians.  Exercising its political outreach, the Bar Association obtained formal recognition of the honoree from President George W. Bush, Louisiana Governor Mike Foster, and New Orleans Mayor Ray Nagin [29].

Judges who are not "In" are "Out"

Judge Mathew E. McMillan, was a former police officer, prosecuting attorney, and a judicial reformer who dared to run against and defeat an entrenched incumbent judge in a 1998 Florida public election.  Immediately, the unseated judge, the Hon. George K. Brown Jr., with the help of local politicians and judicial colleagues in the state court system and Bar Association, undertook a campaign of harassment, defamation, and legal skulduggery to remove Judge McMillan from the bench and retake it for himself.  Activities such as this, at the hands of a "Mafia-style" judicial/legal gang, herald the demise of elective democracy and argue for the enactment of strong laws to curb the power of the established judiciary.

Governor Jeb Bush subsequently reappointed Judge Brown to the county bench, thereby disfranchising the 14,000 voters of Manatee County, Florida who had voted Brown out of office.

More from the "Sunshine" State

In Florida, new judges were directed by their established peers to show deference to certain favored litigants and were ostracized when they refused [30].

Judge Alvarez: A friend of mine came in front of you today.
Judge Evans: Yeah, I hammered him pretty heavy.
Judge Alvarez: Yeah, you sure did.  That was the reason I was calling you, because he was a friend of mine.
Look, you're going to have people that are friends of yours come in front of me.  I'm going to have friends come in front of you.
I would like to be comfortable calling you.  If a friend of yours comes in front of me, I would like you to be comfortable calling me.
See:  Learning the Judicial Ropes in Florida 

Judges Who Criticize a Fellow Judge are "Out"

An appellate judge in Florida who broke the code of secrecy that protects errant fellow judges faced harsh discipline when he criticized a fellow judge for having a conflict of interest in a case.

The Jury is "Out"

The American jury, which has been a central vehicle for citizen participation in the legal system, is slowly being supplanted by coalitions of lawyers and judges such as described above.  According to reporter William Glaberson [31], only 5.4% of federal civil cases were resolved by juries in 1962, and by 1988 that number had fallen to 1.5%.  These statistics, while inexact, signal widespread violation of the VII Amendment, which preserves "the right of trial by jury."  In addition, judges can now determine what evidence jurors are allowed to see, jury prerogatives have been curtailed by laws that limit jury awards, and judges often alter jury verdicts by reducing punitive damage awards made against powerful defendants.  Judges also rarely inform jurors of their right to judge the law itself and often assist in dismissing prospective jurors who admit knowing about this right [32].

This retrograde evolution of judicial democracy is the result of the gradual but relentless transfer of power from the citizenry into the hands of elitist legal practitioners who are increasingly controlled by wealthy individuals and institutions.  Moreover, recent initiatives of the U.S. Supreme Court appear to be accelerating the erosion of individual rights and inching us ever closer toward a police state [33,34].  The abridgement of individual freedoms is confirmed by the granting of extraordinary police powers to the federal government under the USA Patriot Act of 2001 and by revelations of the existence of a secret high court [35].  Clearly, this trend must be resisted if constitutional ideals of liberty and justice are to be preserved.

The Moment of Enlightenment
(Permission requested)

Constitutionality is "Out"

The issue of government secrecy came to a head in 2006 with reauthorization of the USA Patriot Act, when it was revealed that President George Bush by means of a "signing statement" had quietly given himself the authority to ignore the act's requirement that he inform Congress of how the FBI was using its expanded police powers [36].  It soon came to light that Bush had claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution [37].  He has also signed executive orders giving himself sole authority to impose martial law [38].  This alarming trend toward the usurpation of power has continued undiminished with President Barack Obama's signing of the National Defense Authorization Act in 2011 [39].

President Bush's pursuit and exercise of arbitrary power led to a call for his impeachment by former Attorney General Ramsey Clark [40] and by institutions such as the Illinois State Legislature, which cited a train of constitutional abuses that includes spying on American citizens without warrant and imprisoning citizens without charge or trial [41].  Democratic members of the House Judiciary Committee have called for creation of a Special Committee to Investigate Administrative Abuses of Power [42], and Representative John Conyers (D-Mich.) along with 10 other Congressmen filed a lawsuit against President Bush and members of his administration [43].  Although the administration's secretive, warrantless surveillance program, conducted by the National Security Agency, has been judged unconstitutional [44], its Senate supporters are attempting to pass legislation, S.2453 [PDF], intended to legalize the program and immunize officials who have been engaged in its conduct.

In 2008, calls for the impeachment of President Bush and Vice President Dick Cheney by members of Congress reached a fevered pitch [45] and culminated June 9, 2008 with the introduction by Ohio Congressman Dennis Kucinich of Articles of Impeachment [PDF] to the U.S. House of Representatives [46].  This was soon followed by House Judiciary Committee hearings July 25, 2008 [47].

Court Secrecy is "In"

The internal work of the federal courts and the process of judicial deliberation are more clearly revealed in "chambers papers" than by the official case files made available to the public.  Chambers papers frequently include predecisional material such as draft memoranda, draft opinions, orders, correspondence and research.  They also describe exchanges between the bench and the bar and relationships between the court and the community in ways that published opinions and official case files cannot.  Such private dealings among judges, lawyers, and other involved parties are kept confidential and are not available to the public because the Freedom of Information Act does not apply to the federal courts.  It is a practice that is fraught with opportunity for abuse and which flouts the XIV Amendment's provision of "equal protection of the laws."

Related to the judicial penchant for control and confidentiality is the little known special training provided by government agencies that instructs judges in ways to discourage pro-se litigants from seeking or achieving a full measure of access to the courts.  The tactics appear designed to prevent citizens who cannot or do not wish to hire an attorney from being equally served by the judicial system, the constitution notwithstanding.

Nondiscriminative Publication of Opinions is "Out"

Along with the decline of jury trials is a similar trend in the publication of court opinions, which can result in the selective publication of opinions that favor (or damage) certain parties or issues.  In the 11th Circuit, for example, only 33% of cases had published opinions in 1988, and by 1997 that publication rate had dropped to 15% [48].  According to the U.S. Judicial Conference, only about 20% of federal appellate decisions are published, and in some states, such as Texas and California, that figure is less than 10% [49].  Related to the non-publication of judicial opinions is an increase in the number of federal prosecutions that are kept secret [50].

The authority of the courts to decide what can and cannot be published provides yet another avenue for potential abuse.  In Bernofsky v. Tulane, the ruling of the Appellate Court that contained the dissenting opinion of Chief Judge King that was critical of Judge Berrigan's conduct was designated not to be published.  On the other hand, Judge Berrigan's opinion — which totally embraced Tulane's position and included false and defamatory assertions about Bernofsky that were strongly disputed — was published and remains today the only public record of that case that is readily accessible aside from this Web site [51].  The practice of using non-publication of an opinion to deny a litigant the equal protection of the laws has been condemned by ACLU's Arthur Spitzer:

“[W]hen a decision isn't published and can't be cited, the court becomes free to make unprincipled and inconsistent decisions.  Publicity is the most important constraint on the court.” [52]
Law professor Monroe Freedman suggests that non-publication of opinions has been used to cover up judicial opinions that falsify facts or omit other types of material information.

A Global Problem

Judicial corruption is widespread in the U.S. and has spawned many reform-minded groups intent on redressing the issue of judicial abuse, including one that is dedicated to reforming the judiciary by means of ballot initiatives.  However, corruption in the U.S. appears to be no different from the corruption that has undermined judicial systems around the world and which has led to the creation of international agencies such as Transparency International.

References

  1. See Advocate, Vol. 11, No. 3 (2000),  published on the Web by the New Orleans Chapter of the Federal Bar Association (www.nofba.org/pdf/fedbarwinter.pdf).

  2. American Inns of Court (www.innsofcourt.org).

  3. New Orleans Bar Association (www.neworleansbar.org).

  4. IPSN Archives, Summer, 1994 (www.ipsn.org/greylord.html).

  5. See letter of July 21, 1998 from Renee Kalish to the House Judiciary Committee, reprinted by Citizens for Legal Responsibility, www.clr.org/hsejudic.html (accessed Aug. 4, 2001).

  6. Carl T. Bogus, "The Culture of Quiescence," Roger Williams University Law Review, 9, 351, 2004.

  7. See, for example, the case of Herskowitz v. Delibert, reprinted by Citizens for Judicial Accountability, http://www.judicialaccountability.org/individualcases.htm (accessed Jan. 17, 2003).

  8. Sarah Brown, "Lawyer to run heiress' affairs," The Times-Picayune, New Orleans, Oct. 29, 2002, p. B-3.

  9. Karen Turni Bazile, "Meraux fortune fight is back in court; Niece: Curator puts friends on board," The Times-Picayune, Feb. 26, 2003, p. B-1.  See also: Karen Turni Bazile, "Millionaire's curator takes aim at niece," The Times-Picayune, March 11, 2003, p. B-2.

  10. Karen Turni Bazile and Amy Blakely, "Meraux's Millions," The Times-Picayune, New Orleans, September 14, 2003, p. A-1.

  11. "Lawyer, civic leader Harry McCall dies; Carnival, chocolate, poodles his passions," The Times-Picayune, Nov. 20, 2001, p. B-1.

  12. "Board of Administrators," Tulane Faculty/Staff Directory, 80-81, p. 32.

  13. "Jonathan C. McCall," www.chaffe.com/bios/mccall.htm (accessed June 17, 2002).

  14. The New Orleans Bar Association, http://www.neworleansbar.org/join_bar.html, accessed 08/23/06.

  15. Nell Nolan, "Amazing affair and legal levity," The Times-Picayune, New Orleans, April 14, 2001, p. E-2.

  16. Nell Nolan, "Purposeful partying spreads across town," The Times-Picayune, New Orleans, June 18, 2002, p. D-2.

  17. Jonathan D. Salant, "Critics question propriety of Cheney, Scalia socializing," The Advocate, Baton Rouge, January 18, 2004.

  18. Nell Nolan, "Good Apples all around," The Times-Picayune, New Orleans, March 21, 2009, Living, p. 2.

  19. The Times-Picayune, New Orleans, February 12, 2002:  Brian Thevenot, "Lundi Gras bash whets appetites; Music and food has crowd living it up," p. A-1;  John Pope, "Kings ready to take royal reins; Rex 2002 is steeped in Mardi Gras lore," p. B-1;  Siona LaFrance, "Queen Katy; 'It's like a dream,' says Kathryn Lee Reily, a duke's daughter who will reign today with Rex," p. E-1;  and The Times-Picayune, New Orleans, February 17, 2002: Nell Nolan, "Round of revelry; Once again, the meeting of the courts of Rex and Comus completes the social whirl that started in early January," p. E-1.

  20. "Rex concludes his reign at royal reception," The Times-Picayune, New Orleans, February 25, 1998, p. F-3.  See also: Nell Nolan, "Crowning glories; Rex and his consort reign over a glittering gala that closes Carnival '98," The Times-Picayune, New Orleans, March 1, 1998, p. E-1.

  21. Beatrice M. Field and Amanda R. Rittenhouse, POTPOURRI, pp. 105-106, 2002 (http://alumni.tulane.edu/potpourri/) accessed 1/18/05.

  22. "Study Guide to A House Divided," The Southern Institute for Education and Research (http://www.tulane.edu/~so-inst/divided19.html) accessed September 19, 2002.

  23. Morton Inger, Politics and Reality in an American City: The New Orleans School Crisis of 1960, Center for Urban Education, New York, 1969, pp. 70-88, as reported in Adam Fairclough, Race and Democracy: The Civil Rights Struggle in Louisiana, 1915-1972, University of Georgia Press, Athens, Georgia, 1995, pp. 253-4 and 525.

  24. Betty Wisdom to Paul Rilling, October 26, 1960, as quoted in Adam Fairclough, supra, pp. 254 and 525.

  25. John M. Barry, Rising Tide — The Great Mississippi Flood of 1927 and How It Changed America, Simon & Schuster, New York, 1997, pp. 215 & 220.  See also: James Gill, Lords of Misrule: Mardi Gras and the Politics of Race in New Orleans, University Press of Mississippi, 1997.

  26. Scott Cowen, "Tulane Talk," February 13, 2004, http://www2.tulane.edu/tulane_talk/tt_021304.cfm, accessed 5/21/04.  See also: Stephanie Grace, "Party Politics," The Times-Picayune, New Orleans, January 27, 2008, Metro, p. 7.

  27. Coleman Warner, "Ex-chief lived high on gifts to UNO; Foundation got bills for gifts, Cher tickets," The Times-Picayune, New Orleans, May 1, 2005, p. A-1.

  28. Louisiana Trial Lawyers Association, "Winter Ski Seminar 2001," Aspen, Colorado, www.ltla.org/LegalEducation/CLEs/aspencle.asp, accessed 1/23/02.  See also: Jeffrey Meitrodt and James Varney, "Judicial Privilege; Summer School for Judges often turns out to be a day at the beach — and taxpapers foot the bill," The Times-Picayune, New Orleans, June 18, 2006, p. A-1. See also: James Varney and Jeffrey Meitrodt, "Jamaica vs. work? Judges head for beach — Meanwhile, cases continue to pile up," The Times-Picayune, New Orleans, July 9, 2006, p. A-1.

  29. Nell Nolan, "Award and Angels make parties A-plus," The Times-Picayune, New Orleans, August 13, 2002, p. F-2.

  30. John W. Allman & Michael Fechter, "Ex-Judge Recounts Invitation to Clique," The Tampa Tribune, May 2, 2004.

  31. William Glaberson, "Juries, their powers under siege, find their role is being eroded," The New York Times, March 2, 2001.

  32. The Fully Informed Jury Association (www.fija.org).

  33. David G. Savage, "High court scales back civil rights challenges," Los Angeles Times, reprinted in The Times-Picayune, April 25, 2001, p. A-1.

  34. David G. Savage and Josh Meyer, "Court sees broad power for police to make arrests," Los Angeles Times, reprinted in The Times-Picayune, April 25, 2001, p. A-6.

  35. Dan Eggen and Susan Schmidt, "Secret fed court thwarts Ashcroft," The Washington Post, reprinted in The Times-Picayune, August 23, 2002, p. A-1.  Note: The unconstitutional aspects of the USA Patriot Act are depicted in the 2004 documentary, Unconstitutional: The War on Our Civil Rights, written and directed by Nonny de la Peña, produced by Robert Greenwald, et al., and released by Cinema Libre.

  36. Charlie Savage, "Bush shuns Patriot Act requirement; In addendum to law, he says oversight rules are not binding," The Boston Globe, March 24, 2006.

  37. Andrew Sullivan, "We Don't Need a New King George; How can the President interpret the law as if it didn't apply to him?" Time Magazine, January 23, 2006, p. 74.  See also: Charlie Savage, "Bush challenges hundreds of laws; President cites powers of his office," The Boston Globe, April 30, 2006.

  38. Doug Thompson, "Bush could seize absolute control of U.S. government," Capitol Hill Blue, January 13, 2006, http://www.capitolhillblue.com/artman/publish/article_7986.shtml, accessed 06/05/06.

  39. David Nakamura, "Obama signs defense bill, pledges to maintain legal rights of U.S. citizens," [PostPolitics], The Washington Post, December 31, 2011.

  40. Ramsey Clark, "What's At Stake; A Message from Ramsey Clark," ImpeachBush, May 3, 2006, http://www.impeachbush.org/..., accessed 08/16/06.  See also: Francis A. Boyle, "Draft Impeachment Resolution Against President George W. Bush," CounterPunch, January 17, 2003, http://www.counterpunch.org/boyle01172003.html, accessed 08/16/06.

  41. Steven Leser, "Bush Impeachment – The Illinois State Legislature is Preparing to Drop a Bombshell; Utilizing a Little Known Rule of the US House to Bring Impeachment Charges," OpEdNews.com, April 22, 2006.  See also: Steven Leser, "Bush Impeachment First Follow Up – People Go Rushing for a Copy of Jefferson's Manual; Does the Idea of a State Legislature Initiating Impeachment Proceedings Make Sense?" OpEdNews.com, April 29, 2006.  See also: Lewis Lapham, "Pretensions to Empire: Notes on the Criminal Folly of the Bush Administration," The New Press, New York, 304 pp., 2006.

  42. See: "The Constitution in Crisis; Investigative Status Report of the House Judiciary Committee Democratic Staff," 273 pp., Academy Chicago Publishers, 2006, http://www.rawstory.com/other/conyersreportrawstory.pdf, accessed 05/08/06.  See also: http://johnconyers.com/..., accessed 05/08/06.

  43. "Conyers v. Bush: Lawsuit over Federal Deficit Reduction Act," TalkLeft, July 20, 2006, http://talkleft.com/new_archives/015368.html, accessed 08/16/06.  See also: John Conyers, "Taking the President to Court" [Blog], Daily Kos, April 27, 2006, http://www.dailykos.com/story/2006/4/27/154625/574, accessed 08/16/06.

  44. Dan Eggen and Dafna Linzer, "Judge Rules Against Wiretaps; NSA Program Called Unconstitutional," Washington Post, August 18, 2006, p. A1, http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html, accessed 09/18/06.

  45. See, for example, "Wexler Calls for Impeachment Hearings," (Rep. Robert Wexler, D Florida), January 15, 2008, http://www.youtube.com/watch?v=3VRRtTA41hg, (Video, 4 min 58 sec), accessed 01/18/08.  See also: Center for Constitutional Rights, Articles of Impeachment Against George Bush, Melville House Publishing, Hoboken, 144 pp., 2006.  See also: Craig R. Leslie, The 2007 Bush-Cheney Impeachments: Year 2008 10th Grade Civics Exam, Layman's Press, 165 pp., 2006.  See also: Elizabeth Holtzman and Cynthia L. Cooper, The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens, Nation Books, 256 pp., 2006.  See also: Dennis Loo, Peter Phillips and Howard Zinn, Impeach the President: The Case Against Bush and Cheney, Seven Stories Press, 326 pp., 2006.  See also: Dave Lindorff and Barbara Olshansky, The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office, 288 pp., St. Martin's Press, 2007.  See also: Vincent Bugliosi, The Prosecution of George W. Bush for Murder, Vanguard Press, 352 pp., 2008.

  46. David Swanson, "Congressman Dennis Kucinich Introduced 35 Articles of Impeachment [PDF] Against President Bush on Monday Night," OpEdNews.com, June 10, 2008, http://www.opednews.com/articles/Full-Text-of-Articles-of-I-by-David-Swanson-080610-895.html, accessed 06/10/08.  See also: Gore Vidal, "Gore Vidal's Article of Impeachment," June 11, 2008, Truthdig.com, June 11, 2008, http://www.truthdig.com/report/item/20080612_taking_back_the_republic/, accessed 06/14/08.

  47. U.S. House of Representatives, Committee on the Judiciary, "Hearing on Executive Power and Its Constitutional Limitaions," http://judiciary.house.gov/hearings/hear_072508.html, accessed 07/29/08.  See also the video: http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=280000-1&showVid=true, accessed 07/29/08.

  48. Chief Judge Hatchett, in: Commission on Structural Alternatives for the Federal Courts of Appeals, Administrative Office of the United States Courts, Public Hearing, Atlanta, Georgia, Monday, March 23, 1998. Transcript, p. 12, lines 8-12.

  49. Gary Young, "Rule Crusader; His target: court opinions that aren't officially published," The National Law Journal, June 26, 2002.  See also: www.nonpublication.com, and www.rule-of-law.info.

  50. Michael J. Sniffen and John Solomon, "Thousands of Federal Cases Kept Secret," Associated Press, March 5, 2006.

  51. Bernofsky v. Tulane University Medical School, 962 F.Supp. 895 (E.D.La. 1997).

  52. Arthur Spitzer, as quoted in Groner, "Bill Pressed to Curb Unpublished Opinions," Legal Times, 1, 13, December 23, 1991.
 
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