The Complicity of Judges In The Generation of Wrongful Convictions

by Hans Sherrer

Justice:Denied magazine, Issue 25, page 22

PART II of a 5 part serialization

A. Federal Judges

All federal judgeships at the district court, appellate court and Supreme Court level are lifetime political appointments for as long as a person exhibits “good behavior,” which in today’s climate translates into politically acceptable behavior. Men and women appointed to the federal bench attain their positions through political patronage, inside connections and behind the scenes maneuvering. Consequently, as a product of the political process, a federal judge is as political a person as any in this country. The lifetime tenure accorded them does not breed judicial independence because they are invisibly tethered to the pole of their roots and their peer group, as well as possible ruination by public disclosure of the skeletons in their closet if they get too far out of line.

The largely overlooked truth that the best of federal judges are first and foremost political actors pretending to be above the political fray is clearly explained in Injustice For All, “The robe, in fact, is most usually an item of barter in the political swap-meet: either purchased openly with legal tender, awarded as payoff for personal or political debts, or acknowledged as an IOU toward future favors. ‘Political rewards, personal friendships, party service, and even prior judicial experience have been the major qualifications’ for appointment to the United States Supreme Court.” Prominent New York defense attorney Martin Erdman echoed that assessment when he said, “I would like to [be a judge], but the only way you can get it is to be in politics or buy it – and I don’t even know the going price.” Those observations are consistent with the insistence on seating federal and state judges that adhere to the core beliefs of the dominant political party. A prime example is that during Ronald Reagan’s presidency, 97% of all new federal judges were Republicans. In the face of such evidence, only the intellectually dishonest or the unconscious can maintain a straight face while denying the political partisanship of federal judges.

A classic example of the political scheming involved in the seating of a federal judge that goes on undetected by the public’s radar, is starkly revealed in the personal diaries of the late Supreme Court Justice Thurgood Marshall. He candidly recorded how before becoming a federal circuit court judge in 1961, he was an FBI mole inside the NAACP while employed as one of the organizations attorneys and publicly criticizing the agency. As a transparently duplicitous act, Justice Marshall continued to publicly criticize the FBI after his appointment to the federal judiciary.

Another example is the backroom cronyism underlying Justice William O. Douglas’ seating on the Supreme Court in 1939 as detailed in a 2003 biography, Wild Bill: The Legend and Life of William O. Douglas. William O. Douglas was so well connected that without any prior judicial experience, at the age of 40 he went from being the presidentially appointed Chairman of the Security and Exchange Commission to filling Justice Brandeis’ vacated seat on the Court.

The circumstances of the appointments of Justices Marshall and Douglas to the Supreme Court are just two indicators that there is every reason to think a story waits to be discovered and told about the behind the scenes political shenanigans every federal judge in the United States is involved in, both prior to and after they take office. Particularly since each federal judicial nominee must pass the scrutiny of an FBI investigation that compiles every known scrap of information about their life.

Former L.A. Deputy D.A. Vincent Bugliosi scratched the surface of several such stories about current Supreme Court Justices in The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. In that book, he analyzed some of the political considerations influencing the decision of the five members of the Supreme Court that voted in favor of George Bush’s position in Bush v. Gore. The value of Mr. Bugliosi’s analysis is to demonstrate that the decisions of Supreme Court justices are as likely to be the result of deep-rooted personal and political prejudices and influences as are those of every federal and state judge in this country.

However, Mr. Bugliosi does not play favorites, since he recognizes appointing ideologically supportive judges is considered to be a political spoil for whoever holds the reigns of power at a given time:

As to the political aspect of judges, the appointment of judgeships by governors (or the president in federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97 percent of President Reagan’s appointments to the federal bench were Republicans. Thus, in the overwhelming majority of cases there is an umbilical cord between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards, or he is a favored friend of one who has (oftentimes a generous financial supporter of the party in power). As Roy Mersky, professor at the University of Texas Law School, says: “To be appointed a judge, to a great extent is a result of one’s political activity.

It is difficult to overstate the corruption involved in a federal judicial appointment, and the process predictably results in the instilling of shady, untoward and marginally, or even wholly, unqualified people at all echelons of the federal judicial system. The relative cushiness of a federal judgeship is one of the job’s prime attractions to the type of people that seek it. It has prestige, passable pay to live an upper middle class lifestyle, excellent medical, holiday, vacation and retirement benefits, and an easy work schedule with “much less pressure than is found in practice.” However, as appealing as those conditions may seem, they serve to filter out bright, ambitious, highly motivated men and women with razor sharp minds whose services are most in demand and who have the highest incomes, since becoming a federal judge would involve a dramatic reduction in their compensation and standard of living.

The near anonymity in which federal judges function tends to exacerbate their ability to rely on overtly political considerations when making decisions. A recent poll showed two-thirds of Americans cannot name a single Supreme Court Justice, and Diogenes might have a hard time finding anyone other than someone in the legal profession who could name a single federal circuit court judge.

Mr. Bugliosi makes it clear that federal judges are not special people possessing wisdom or divinity, but can more likely be described as black-robed, second tier lawyers with extraordinary political connections. Becoming a judge does not magically bestow admirable qualities on a person where they were lacking beforehand. So the very process by which a person becomes ensconced as a judge ensures that he or she will be unlikely to rise above their own self-interest and make decisions that fundamentally conflict with their political, ideological and economic background or interests.

Thus, the men and women selected for federal judgeships are as politically partisan and biased in their attitudes as are state judges. However, unlike state judges, once seated a federal judge is virtually assured of being in office until he or she either dies or retires, whichever occurs first. The one avenue for removing a federal judge involves the same process required for removal of a President, impeachment by the House of Representatives and conviction after a trial by the Senate. It has been used so rarely that for all practical purposes it is a non-factor as a consideration, or a threat, for ending a federal judge’s career before he or she does so either by choice or by nature following its course. Since 1791, only seven federal judges have been convicted by the Senate, and only three since 1936.

Federal judges are only slightly less immune to being reprimanded for egregious conduct, than they are to being removed from office. In Judges Escape Ethical Punishment, reporter Anne Gearan revealed that out of 766 ethics complaints filed against a federal judge in 2001, only one resulted in any punishment. That judge suffered the mild punishment of a private censure, although neither the judge’s name nor details of the conduct were released to the public. That is confirmation of law professor Paul Rice’s observation that judges cover each other’s back by ignoring everything possible because they never know when they might be on the hot seat, or as he put it, “We don't like burning brothers in the bond, because you don't know whose ox is going to be gored in the future.”

It has also been recognized that the wanton conduct of federal judges is just one indicator that while the breadth of their power is greater than state judges, their character and susceptibility to the allure of financial influences is not. As noted in Injustice For All, a federal judge is,

all too often a person ‘whose ignorance, intolerance and impatience are such as to sicken anyone who stops to think about them ... [the federal judiciary is overloaded with] bias, intolerance, cowardice, impatience, and sometimes graft ... [t]hat some judges are arbitrary and even sadistic ... is notoriously a matter of record.’

He neglected to include the small-minded judges who can use their position to express their prejudice towards blacks, Hispanics, Arabs, Asians and other racial or religious groups.

Lord Acton’s oft repeated admonition that “power tends to corrupt, and absolute power corrupts absolutely,” needs no more proof that it is grounded in reality than the conduct of federal judges nationwide. The permanence of federal judgeships and the sort of person chosen a judge creates a perfect environment for enabling the basest attitudes of a person so empowered to be exercised. The most dramatic and recent example of what is the norm behind the scenes was the decision of five Supreme Court judges in Bush v. Gore, which was an expression of their preference for George Bush to be President. Such unconscionable conduct is a predictable consequence of empowering generally unprincipled mortals with the ability to exercise power that has no effective check or balance. The pervasiveness of such conduct is cause for concern by people of all political persuasions, since there is a constant cycle of reversing political fortunes.

It is reasonable to think Vincent Bugliosi’s carefully reasoned conclusion that the five Supreme Court Justices who voted with the majority in Bush v. Gore are sophisticated criminals of the worst sort who used their privileged position to commit a grave crime, could in different circumstances be said of all federal judges. The most disturbing aspect of this situation, as Mr. Bugliosi notes, is that “Though the five Justices clearly are criminals, no one is treating them this way.” The same blind-eye is being given to federal judges across the country engaging in untoward conduct that negatively affects “ordinary” Americans. Given the short-shrift justice the Supreme Court majority accorded the defendant of a contrary political persuasion in a case effectively determining the outcome of a presidential election, one can just imagine the dismissive attitude those judges hold towards politically powerless defendants.

B. State Judges

The pervasive influence of political considerations on the decisions of trial and appellate judges is not limited to the federal judiciary, but dominates the decisions of state judges as well. As would be expected, the same dynamics interact to corrupt the rulings of appointed state judges that affect federal judges. However, rather than short circuiting that process, the alternate methods of electing state judges are at best merely deceptive window dressing that conceals the power behind the judicial throne, and at worst, compounds the flaws inherent in appointing judges. Given the number of judges that run unopposed and the number of incumbents re-elected, the voting process functions more to confirm state judges than to elect them.

The corruption of state judges, whether appointed or elected, has been widely exposed in recent years. In a 1999 PBS Frontline program, Justice For Sale, it was reported how the favoritism of Pennsylvania, Louisiana and Texas judges is bought like cattle at an auction. The same is true of every other state’s judicial elections. A judge’s position on a case can reliably be predicted by an awareness of the nature and source of their campaign contributions, in conjunction with their political ideology. It was also suggested in a September 2, 2002 cover article in The Nation, State Judges For Sale, that the corruption rife in state judiciaries can be expected to worsen after a June 2002 decision by the Supreme Court that opens the door for judicial candidates to publicly take politically partisan positions. In Republican Party of Minnesota v. White, a five-to-four majority ruled that it is an infringement of a judicial candidates free speech rights for a State to restrict the candidate from announcing his or her views on disputed legal or political issues. The Supreme Court’s decision will have less of an impact than The Nation’s article presupposes, because it merely permits judicial candidates to publicly express their position on issues that they have previously openly expressed privately.

The open bazaar-like atmosphere of buying judicial favoritism is as much an element of a non-partisan as a partisan election, since a judge’s preferences are as important to political and monied interests in the former form of election process as the latter. For example, the cost of winning a seat on the Oregon Court of Appeals in that state’s non-partisan election process was estimated to be over $500,000 in 2002. That was for an election in which slightly more than one and a quarter million people voted, or about forty cents was spent per voter by both of the candidates, for what on the surface appears to be a relatively obscure position in a small state. That highlights how coveted it is to possess influence with appellate judges who set precedents applicable to lower courts.

There is nothing new about the blatant politization of the judiciary, which is now becoming more evident to the public. For example, in the 1993 booklet, Justice For Sale, it was disclosed that business interests began a concerted effort in 1971 to gain and maintain control of the judicial system in the U.S. to serve their own ends. The manifesto of that effort was a memorandum written for the U.S. Chamber of Commerce by Virginia attorney and future Supreme Court Justice, Lewis Powell. Tactics such as those are indicative of how much effort is expended in an effort to ensure that state and federal judges do not function independently. The lack of judicial independence throughout the country is so apparent that the Brennan Center for Justice at the NYU School of Law maintains an ever-expanding website that lists hundreds of news stories, studies and reports on the subject.

A general lack of public awareness, however, does not detract from the impact of judges representing those people and organizations to which they are politically, ideologically and financially beholden. A judge need only pay lip service to voters and other people in society that lack the muscle to curry special favor with the judge. Judge Samuel Rosenman observed with no hint of cynicism, but simply as a statement of the cold hard facts:

The idea that the voters themselves select their judges is something of a farce. The real electors are a few political leaders who do the nominating. ... Political leaders nominate practically anybody whom they choose ... the voters, as a whole, know little more about the candidates than what their campaign pictures may reveal. For example ... [a poll] showed that not more than one per cent of the voters in New York City could remember the name of the man they had just elected Chief Judge of the Court of Appeals – our highest judicial post. In Buffalo, not a single voter could remember his name.

The fact that most state judges are elected in near anonymity by voters who do not know who they are, compounds the effects of the corrupting nature of the campaign process that ensures their lack of impartiality. Thus, the circumstances under which state judges are elected or nominated and confirmed, creates a situation in which the people who become state and federal judges serve their own interests and those who are responsible to, and not those of society at large.

An awareness of the sort of people that typically become judges can help one’s understanding of the corruption pervading the judicial process. As noted in Injustice For All:

Most judges ... are ex-prosecutors, ex-cops, ex-officials who worked on the hard side of government, or ex-party workers. Most of them were hacks – small-time lawyers with big-time friends – and some were crooks the week before they went on the bench ... Most of those men have no respect for the individual and no interest in his character or his future. And many of them are outright bigots, too.

In the same book another commentator had a similar lament, “Let us face this sad fact: that in many – far too many – instances, the benches of our courts in the United States are occupied by mediocrity's – men of small talent, undistinguished in performance, technically deficient and inept.” One astute observer of the situation in Oregon, which has a non-partisan election process, recognized, “Our system of judicial selection is nothing more than an “old boys network” of insiders and lawyers.” The same could be said of judges and the judicial selection process in virtually every state in the country.

C. Legislative Influences

One indication that judges have a strong tendency to go with the flow of outside pressures is when they succumb to the influence of periodic media and politically inspired hysteria campaigns to get tough on the “bad” people who commit crimes. These campaigns and the judicial pressure they exert can be local as well as national. Furthermore, they typically have no basis in fact, but are opportunistic devices to boost the poll number of politicians and the ratings or readership of television or print media, respectively.

Representative of this process was a U. S. News & World Report cover story published on January 17, 1994 and entitled, Violence in America. The article encouraged judicial action to stem the growing tide of violent crime in America. However, the article and others like it made a grossly false call to action because, at the time it was written, violent crime had not risen in 20 years and had, in fact, been in general decline since the early 1970’s. As a result of the media-generated hysteria campaign, Congress was able to enact the Violent Crime Control and Law Enforcement Act of 1994, without even deliberating the statute’s merits.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) is another example of legislation developed and enacted through the hysteria process. It was enacted on the basis of a false public hysteria whipped up by media proclamations of a non-existent wave of terrorism in the United States, and an unfounded belief inculcated in the general public and politicians that criminals were filing large numbers of frivolous federal habeas corpus petitions challenging the legality of their convictions or sentences. The AEDPA places a general one year time limitation on the filing of a federal habeas corpus petition by a convicted person after the exhaustion of their direct appeal, and in federal cases it gives the trial judge both the power to grant or deny that petition, and the power to determine whether the denial can be appealed. A glimpse into the inequities built into the AEDPA is provided by considering that even though the judge that presided over a person’s wrongful conviction is the judge most likely to be biased towards upholding the conviction, and thus the judge most incapable of making an impartial determination about evidence supporting the person’s innocence, the merits of a federal defendant’s 28 U.S.C. § 2255 petition filed under the AEDPA is reviewed by the one judge in the world who should not do so: the trial judge.

The AEDPA’s limitations on filing a federal habeas corpus petition is an example of how legislation enacted on the basis of an emotional response to media and political rhetoric that has no basis in fact, can compound the wrongful conviction of an innocent person by impairing their ability to pursue, or outright denying, one of the few potential avenues available to correct the error. It is also cause for concern that the federal judiciary did not maintain an arm’s length distance from the debate underlying the AEDPA’s restrictive provisions, since they were a reflection of Supreme Court Chief Justice William Rehnquist’s longstanding support for restrictions on the filing and consideration of habeas corpus petitions. However, there is no apparent concern by politicians, judges and prosecutors that an innocent defendant is likely to be harmed by an ill-advised law that results from a public hysteria campaign, imposes procedural bars to their vindication and empowers the judge most biased against him or her to rule on the merits of a legal challenge to their conviction.

Part III will be in the next issue of Justice:Denied. To order the complete 27,000 word article, send $10 (check or m/o) with a request for - Vol. 30, No. 4, Symposium Issue to: Northern Kentucky Law Review; Salmon P. Chase College of Law; Nunn Hall - Room 402; Highland Heights, KY 41099.