301. Probable cause

Last Wednesday the feds indicted Pennsylvania Superior Court (i.e., appellate court) Judge Michael T. Joyce

on three counts of mail fraud and six counts of money laundering related to insurance claims he made after an August 2001 auto accident. Judge Joyce said he was so seriously injured after an SUV rear-ended his Mercedes Benz that he was unable to golf, swim, jog, scuba dive or otherwise exercise regularly. He received $440,000 from Erie Insurance Exchange and State Farm insurance companies.

After an 18-month investigation, the FBI and IRS said that while making those claims, Judge Joyce was golfing, scuba diving and otherwise doing what he said he couldn't do. He even applied for, and received, a pilot's license. On that application, he ''indicated he had no injuries, physical problems or physical limitations,'' according to the indictment.

Judge Joyce routinely presides over Superior Court cases involving insurance, yet, he had the audacity to use his judicial letterhead to press for compensation. ''He clearly presented himself as a judge,'' noted U.S. Attorney Mary Beth Buchanan, ''and it is possible the insurance company considered that in weighing his claim.''

That's from the Allentown Morning Call.  In the press release from the office of Pittsburgh's U.S. Attorney Mary Beth Buchanan, additional details are given:

According to the indictment, during the same time period that Joyce made these claims[ of being unable to play golf or exercise], he played multiple rounds of golf in Runaway Bay, Jamaica, Tampa, Florida, Findley Lake, New York, and Fairview, Pennsylvania; went scuba diving in Runaway Bay, Jamaica and renewed his diving instructor certificate with the Professional Association of Diving Instructors; went roller blading on multiple occasions; and exercised at the Nautilus Fitness and Racquet Club, in Millcreek Township. 

The press release also alleges that the car accident was a low-speed affair - 5 mph, says the AP - and that "neither medical nor law enforcement personnel were called to the accident scene".  Sound like a $440,000 claim to you?  My guess is that the insurers decided to pay up without fuss because he was a judge - and launched their investigation at once.   (Wonder if their investigator got an expense-account trip to Jamaica, or if they hired a local tec?)

It's worth remembering that U.S. Attorney Buchanan narrowly escaped the honor of being axed last winter, which to a cynical person might suggest she's someone who, under pressure, agreed to play ball.  (See post 275.)  And Republican politics do seem to be involved in the Judge Joyce case, though perhaps not in the way you'd expect:

In addition, the indictment alleges that Joyce, in support of his claims, asserted that he had received the Republican endorsement and nomination in the 2001 election for a seat on the Pennsylvania Supreme Court in 2002.  In fact, he had neither the endorsement nor the nomination.

His claim, apparently, was that he would be sitting on the Supreme Court, pulling down the bigger salary, but for the debilitating pain of the car accident, which curtailed his campaigning.

All very entertaining, provided you don't have any appeals pending in Pennsylvania's appellate courts.  But now listen to "Joseph A. Massa Jr., chief counsel for the state Judicial Conduct Board, which investigates and prosecutes charges of misconduct by judges."  He told reporters that "Joyce is not legally required to step down because of the indictment since the charges do not directly involve his court-related duties". 

I don't doubt that Massa is correct on the law (and, even if he's wrong, it's unfair to accuse him of "foggy thinking"), but it's an interesting law.  The AP quotes Judge Joyce himself saying "he is innocent until proven guilty" - which of course is bogus.  He's presumed innocent, a different thing altogether, and then only for purposes of a criminal trial.   

There's an excellent reason for the presumption: "[i]f convicted, Judge Joyce could be sentenced to 120 years in prison and fined up to $2.25 million."  (Oh, those federal sentencing laws!)   On the other hand, if he's removed from the bench, his maximum sentence is: practicing his profession, the same as he did before he ascended the bench.  And many of us consider practicing law to be qualitatively different from a stretch in stir, for all that it can be a trifle unpleasant to appear in front of certain judges.

Should we really apply the same burden of proof to 120-year sentences and removing a lawyer from the public payroll?

The Philippine Supreme Court thinks so.  As explained by the Bohol Chronicle under the charming headline: "'Kissing' Judge Acquitted",

The Supreme Court yesterday dismissed the sexual harassment charges filed against a judge of Davao City Regional Trial Court Branch 16 by a court stenographer for her failure to prove her allegations beyond reasonable doubt.

The kissing judge himself,  Emmanuel Carpio, was anything but charming.  According to the Supreme Court order, the court reporter alleged that the judge cornered her when she was alone and forcibly kissed her.  When she didn't respond as he wished he made his chambers into what might be considered a hostile work environment: "There were times when respondent judge would place his gun on top of her table which would give her a scare."

An investigating judge found the charges substantiated and recommended Judge Carpio be suspended for three months.  But the Supreme Court disagreed:

In administrative or disciplinary proceedings, the burden of proving the allegations in the complaint rests on the complainant.  While substantial evidence would ordinarily suffice to support a finding of guilt, the rule is a bit different where the proceedings involve judges charged with grave offense. Administrative proceedings against judges are, by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges or to establish the ground/s for the removal of a judicial officer should thus be more than substantial; they must be proven beyond reasonable doubt.  To borrow from Reyes v. Mangino:

           Inasmuch as what is imputed against respondent Judge connotes a misconduct so grave that, if proven, would entail dismissal from the bench, the quantum of proof required should be more than substantial.      

Of course, three months' suspension isn't exactly "dismissal from the bench", but that's only one example of slippery language: a moment before hearing about dismissal from the bench, we're told that proceedings against judges are "highly penal in character."  There you have it: dismissing a judge is "highly penal", the equivalent of a penitentiary term.  And since removal (or, apparently, even a temporary suspension) is the equivalent of being thrown in a Philippine prison, naturally the two must be treated the same.

Returning to Erie, Judge Joyce is an appellate judge, which means that his word is - quite literally, as lawyers know - law, in most of the cases that come before him.  A grand jury made of Pennsylvania citizens found probable cause to believe he's a crook and a liar.  Why should the people of Pennsylvania be forced to submit to the law as announced by someone they have good reason to believe is a crook and a liar? 

If Judge Joyce's guilt can't be proved beyond all reasonable doubt, then fine, let him practice law and defend against the insurance companies' civil suits.  But probable cause to believe a judge is a crook is too much - way too much - evidence to allow him to remain on the bench. 

The Pennsylvania Supreme Court agreed, sort of.  The justices suspended Judge Joyce with pay.  As the Philadelphia Daily News observed, "With suspension, judge has more time for golf".  This morning Judge Joyce announced his retirement, last week's bravado having largely seeped away over the weekend.

Comments

[Erin Baldwin]

I need to confirm the following information:

Judge Joseph R. Brisco (San Bernardino Superior Court – CA) is the brother of Attorney Todd A Brisco in Anaheim, CA.

Judge John M. Pacheco (San Bernardino Superior Court – CA) is the brother of Commissioner Richard E. Pacheco (Orange County Superior Court – CA)

I am 97% sure it is true; but as a reporter, I have to have 100%. Please help.

Erin Baldwin
Tenant Advocates of California