400. How it's done

This blog has periodically asked what it takes to fire a judge.  (See post 60 and post 185.)  It's also frequently pointed out the extremes many judges have to go to before attracting the attention of disciplinary commissions.  (See post 326 and post 343.)  A couple items recently have spelled out the way in which judicial independence can mean independence from more than political interference.  It can mean independence from scrutiny and from the law, for instance.

First is the acquittal (in part by directed verdict) of former Alabama Judge Herman Thomas.  In an editorial that might qualify for the adjective "judicial" but for the icky associations of that word, the Birmingham News/Huntsville Times (newspaper websites are getting increasingly difficult to narrow down to a geographic location) wrote:

Although he was acquitted, the scope of misconduct in office remains disturbing — even more so now that testimony from the trial revealed a regular pattern of checking young black male inmates out of the Metro Jail and, at the very least, directly intervening in their cases.

There is still the question of how, according to testimony, semen from two inmates came to be lodged in the carpet of Mr. Thomas' special private office, where it was alleged that he paddled inmates on their bare buttocks.

Also, how was Mr. Thomas able for years to manipulate cases by taking them from other judges, alter rulings of other judges and, most appalling, personally take inmates out of jail? Granted, the power of any judge is extensive and often goes unquestioned, but didn't anyone in the courthouse notice what Mr. Thomas was doing and think it was wrong?

The first part of the last sentence answers the two "how" questions.  The second part suggests a different "how" question: how could anyone in the courthouse intervene and yet remain employed (and employable--I imagine there's nothing quite like a negative reference from a judge to close doors in the legal world).

The Philadelphia Inquirer takes a look at the ways in which the gangster judges of Luzerne County (see post 390) got away with committing what sure looks like a long list of crimes--much longer than the charges against them--in plain sight of the county's entire law enforcement apparatus.  It turns out to have been easy:

Judge Chester B. Muroski, who succeeded Ciavarella as president judge this year, ... said Conahan and Ciavarella had packed the courthouse with relatives. Conahan's cousin was the court administrator, a brother-in-law was jury management supervisor, and another brother-in-law was paid $1.1 million in public funds for court-ordered psychological evaluations.

According to Muroski, other court-related workers knew they were "there at Conahan's pleasure."

"When I bucked them in 2005, they reassigned me," he added. "That was a message to everyone: Keep your mouth shut."

Simply bullying also worked, too.  Being a judge means you can bully without breaking character.  Often it's hard for an outsider to know what's ordinary courtroom business and what's abuse--they look exactly the same, even down to the detail of the lawyer bleating, "Thank you, your honor."

Abuse of power also worked.

To further the kickback scheme, the center said, Conahan shut down Luzerne County's juvenile detention facility in 2002, contending it was unsafe. Then he persuaded the county commissioners to enter a 20-year, $58 million agreement with PA Child Care L.L.C. to lease the new private facility. Soon Ciavarella was filling the prison beds with delinquents, allegedly in exchange for kickbacks.

"Conahan had no power to close the center like that," said Ronald P. Williams, a member of the interbranch commission and a former commissioner in nearby Wyoming County. "Why did the commissioners allow him to get away with it?"

Well, I can think of a number of reasons why, some of them the same sort of thing Florida county commissioners routinely do in Carl Hiaasen novels.  Whatever the explanation, it shows that boldly violating the law can be an extremely effective technique for a judge.

Big helpings of self-righteous bullshit are always indicated:

Ciavarella's "zero tolerance" policy was warmly embraced by school administrators, teachers unions, and many teachers, Muroski and Williams said. "Everybody loved him," said Muroski. "He was putting bad kids away. That's how it was perceived."

Black-hole disciplinary boards are extremely helpful, by tricking would-be whistle-blowers into whispering their secrets into a drainpipe:

The Pennsylvania Judicial Conduct Board, which is charged with investigating and prosecuting complaints of wrongdoing by judges, received an anonymous complaint about Conahan in 2006. However, the board has strict confidentiality rules, and it has refused to say whether it followed up on these allegations.

The Board had information that should have triggered an investigation long before 2006.  In 2001, Ciavarella told the Wilkes-Barre Times Leader that "Even if they come in and tell me they don't want a lawyer, they're going to have one."  That is, the judge publicly acknowledged that he wasn't informing juveniles of their right to an attorney.  Not a matter of interest to the Board, so far as we can tell.  (Yeah, yeah, yeah, it's bound by confidentiality rules, imposed by the people it's supposed to be investigating.)

Then, as the New York Times reported, there was "the 56-foot yacht in front of the judges’ Florida condo."  If the Board didn't know the judges were crooked, it was only because it didn't want to find out.

And that's why the law is optional for judges.

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