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CALLING JUDICIARY TO ACCOUNT

Judges Need to be More Responsible, Not More Independent

By Gary L. Zerman, a Newhall Attorney, Los Angeles Daily Journal, 09-22-99, P. 6

In "State Bar Associations Can Aid Imperiled Judiciary" (Forum, Sept. 14), Alfred P. Carlon Jr., chair of the American Bar Association's Standing Committee on Judicial independence, wrote that federal and state judges are under increasing attack from "groups with narrow, single-issue agendas" that want  to "intimidate judges into doing... what is politically correct."

On my first read, Mr. Carlton's  piece seemed somewhat responsible, claiming the concern is about judicial independence and checks and balances.  He is correct that the judiciary is "imperiled."  However on closer look, I have concluded that Mr. Carlton's arguments are mistaken and appear more like cheerleading for the powers that be.

What actually is needed is more judicial accountability, not independence.  And rather than protecting the judiciary from criticism, lawyers should be protecting the public from miscreant judges - and protecting the judges from themselves.  Let me explain.

Suggesting that bar associations come to judges' aid is like asking the foxes to guard the hen houses.  Today, almost every judge is a former lawyer (and the legislative and executive branches also are populated with an inordinate amount of attorneys).  Also many lawyers, for self-interest (and that of their clients), attempt to curry favor, or worse, with judges.

In California the last few years have shown the State Bar itself has been "imperiled" - with dues disputes, political agendas, discipline and minimum continuing legal education problems, to name a few.  The bar has its hands full trying to keep its own head above water.  My reading has shown several other state bars suffer from the same.  State bars (and the ABA) should clean up their own acts first, before attempting to offer anyone else such help or advice.

The judiciary is fully capable of defending itself, and it clearly has the power to.  This is due to lifetime appointment for federal judges; self-granted immunity from civil suit for judicial acts; and a government attorney furnished when such suits are brought.  In California, when a formal complaint is filed against a judge with the Commission on Judicial Performance, it is kept "confidential."  The CJP members and staff, like the judges, have "immunity" for their conduct.  Also, other judges review the ultimate disposition of any final action taken against a fellow judge.

Mr. Carlton said:  "Last year, Tennessee became the first state to receive ABA assistance."  No one can argue that Tennessee needs assistance, but the quarrel is over helping or handling its judges, and with what source will provide the aid.

For example, "Critics Say TV Judge Cannot Serve Two Masters" (Aug. 30), reported:  "The Tennessee Supreme Court recently reviewed [Judge Joe Brown's] court attendance and denied his request to have a regular substitute fill in while he is in Los Angeles taping his show."  Where is the Tennessee State Bar regarding Judge Joe Brown?  Where are his colleagues?

And where was the Tennessee State Bar (or all the lawyers in that state or the ABA) regarding the saga of Dyersburg, Tenn., Chancery Judge David W. Lanier, who's predatory black-robe sexual advances dated back to 1979, yet were ignored by county and state authorities?

Lanier was the son of the county's Democratic political boss and his brother was the county district attorney.  In 1992, federal prosecutors finally stepped in and a federal grand jury in Memphis later indicted Lanier on 11 counts of sexual assault, including two rapes.  The jury convicted Lanier on five counts and the trial judge gave him a 25-year prison term.

Then, in 1995, his esteemed brethren on the 6th U.S. Circuit Court of Appeals (in a 100-5 en banc decision) set Lanier free on the ground that 18 U.S.C. Section 242 "does not specifically mention or contemplate sex crimes" and that "it is not publicly known or understood that [the right not to be sexually assaulted] rises to the level of a constitutional right."

Next, probably acting more out of embarrassment than justice, the U.S. Supreme Court in March 1997 reversed the 6th Circuit and affirmed Lanier's conviction.  However, Lanier did not turn himself in and instead chose to become a fugitive.  A national manhunt was initiated for the fleeing felon.  He later was featured on "American's Most Wanted," and in October 1997 was apprehended in Mexico and turned over to U.S. authorities at the border.

Of course, in California, we have former Los Angeles Superior Court Judge George W. Trammell III.  An Orange County Superior Court judge hearing a habeas corpus petition found that Trammell allegedly had coerced sex from a woman he had tried and placed on probation.  She was the wife of the defendant who filed the habeas corpus petition.

Like ex-judge Lanier, it seems it will be a crap shoot whether ex-judge Trammell will ever be brought to justice.  He has not yet been charged with a crime.  Maybe that is because, as pointed out in the Los Angeles Times, there is "insider justice" due to the existence of an "inappropriate relationship between the judiciary and prosecution.  The vast majority of judges are ex-prosecutors, and many current prosecutors aspire to become judges.  As such, the system is essentially a closed fraternity."  Trammell is a former Los Angeles County prosecutor.  Charles T. Lindner, "L.A. County's Dual Standard of Justice Marches On," Los Angeles Times, Jan. 11, 1998, at M.6.

Judicial corruption damages the integrity of the legal system more than anything else.  It can corrupt and undermine an entire nation; it invites anarchy.  What is needed is more judicial accountability, not judicial independence.  How often we forget, in America it is the people who are sovereign - not his or her honor.

 
 

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