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Partial Justice

How a Judiciary Poisoned by Politics, Ideology, and Unaccountability Contributes to the Wrongful Conviction of Innocent Men and Women

by Christopher Zoukis, MBA

Alexander Hamilton said in Federalist Paper No. 78 that the judiciary “may truly be said to have neither force nor will but merely judgment.” Because the judiciary lacks the legislative purse and the executive sword, compliance with such judgment is largely voluntary. The Founding Fathers recognized this disability and crafted a judiciary that is grounded in impartiality, integrity, and independence.

A judiciary that is true to these critical principles has the confidence of the people and the respect of the other branches of government. The need for confidence in judicial integrity is, in the words of the U.S. Supreme Court, “genuine and compelling.” Without it, the American system of government under law is placed in serious jeopardy.

The last several decades have seen the judicial principles of impartiality, integrity, and independence eroded from within and attacked from without. Political campaigning for judicial office is rampant across the states, with rivers of cash flowing in from partisan sources. Judges running for election routinely jettison even the facade of impartiality, declaring themselves “tough on crime” and “pro-prosecution.” Ideological and political divides are the new norm for high court justices, both elected and appointed.

The judicial failure to stay true to the principles of impartiality, integrity, and independence—the canons of the judiciary—has had predictable results. Public confidence in the American court system is low. A 2014 poll showed that less than one-third of Americans have confidence in the U.S. Supreme Court, the highest court in the land.

Add to that the ever-increasing number of wrongfully convicted criminal defendants, and the public’s confidence in the judiciary falls off a cliff. Those who have personal experience with the criminal justice system are aware of just how easily an innocent American can end up convicted.

Judge and legal philosopher Learned Hand was wrong: The ghost of the innocent man convicted is not an unreal dream; it is a very real nightmare. The former prisoners whose wrongful convictions have been overturned can attest to that.

Wrongful convictions represent a kind of double whammy to the judiciary. The failures of impartiality, integrity, and independence that sometimes lead to wrongful convictions (but more often work to prevent their disclosure) weaken the public’s confidence in the judiciary. The wrongful convictions themselves, from the Central Park Five to the Norfolk Four, further limit the trust that the public is willing to place in the judicial function.

“Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,” says the commentary to Canon 1 of the Code of Conduct for United States Judges. The growing role of politics and partisan divides in the judiciary represent an existential threat to the “Third Branch” of government.

Politics: The Federal Judicial System

Federal judges are nominated by the President, confirmed in the Senate, and hold lifetime tenure. The Framers chose this system of judicial appointment to promote “that independent spirit in the judges which must be essential to the faithful performance” of the courts’ role as “bulwarks of a limited Constitution,” unaffected by fleeting “mischiefs.” Federalist Paper No. 78 (A. Hamilton). The Framers believed that federal judges should not “consult popularity,” but instead rely on “nothing . . . but the Constitution and the laws.”

In addition to (theoretically) shielding the judiciary from political winds, the Framers intended the judiciary to be completely distinct from both the legislature and the executive branches. Even in the absence of the purse and the sword, Alexander Hamilton warned the judiciary to take “all possible care … to defend itself against” intrusions by other branches. Indeed, Hamilton said that “there is no liberty if the power of judging be not separated from the legislative and executive powers.”

In short, the Framers went to great lengths to ensure judicial independence. According to Justice Clarence Thomas of the U.S. Supreme Court, the Framers understood “judicial independence” to mean independence from both external and internal threats.

“Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources,” wrote Justice Thomas, concurring in Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015). “Internal sources might include personal biases, while external sources might include pressure from the political branches, the public, or other interested parties.”

Alexander Hamilton would surely be aghast at the role that politics plays in the modern federal judiciary. The nomination and confirmation of judges, especially Supreme Court justices, has descended into political blood sport. Consider the Republican-led effort to block former President Obama’s attempt to fill the Supreme Court seat left open by the death of Justice Antonin Scalia. The President nominated Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, but Senate Republicans refused to hold a confirmation hearing in the hopes of winning the next presidential election. That turned out to be a good political strategy, at least in the short-term, but it surely did nothing to boost the public’s confidence in the independence of the Supreme Court.

The politicization of the nomination and confirmation process is, of course, not a new development. In fact, because the nomination and confirmation processes take place within the political branches, it is not necessarily surprising. But some, including Judge John M. Walker of the U.S. Court of Appeals for the Second Circuit, believe that the nomination and confirmation process for federal judges is “broken.”

“The nomination and confirmation process … politicizes the judiciary, misrepresents the judiciary’s role in our democracy, demeans highly qualified nominees, and unjustifiably delays or jettisons confirmations altogether,” Judge Walker said in an article for The Atlantic.

Notably, Judge Walker’s comments were made in 2012, well before the U.S. Senate abdicated its duty to advise and consent to then-President Obama’s nomination to fill Justice Scalia’s seat. Judge Walker’s concerns about politicizing the judiciary seem almost quaint when one considers the current state of affairs in the Senate.

Senate Majority Leader Mitch McConnell, for example, makes no bones about his desire to pack the federal judiciary with Republican-vetted conservative judges, as quickly as possible.

“We intend to keep confirming as many as we possibly can for as long as we are in a position to do that,” McConnell said. “It will still be my top priority in setting the agenda.”

In fact, under McConnell’s leadership, the Senate has set a record, confirming 29 circuit court judges, 53 district court judges, and two Supreme Court justices—all in the first two years of the Trump administration.

The politicization of the federal nomination and confirmation process “lowers the public esteem on which courts depend,” says Judge Walker. Recall that compliance with a court’s decree is largely voluntary, with public confidence in judicial impartiality, integrity, and independence a necessary condition of such compliance. Judge Walker points to President Nixon’s compliance with a court order to turn over the Watergate tapes as an example of the way the system works when confidence is not undermined by politicization. But, he argues, “as the public grows to perceive judges as political, it becomes easier for presidents and others to disregard judicial decisions as partisan pronouncements.”

If President Trump’s public statements, tweets, and actions are any indication, the time of diminishing public confidence in the federal judiciary is nigh. The President has referred to judges whose decisions he disagrees with as “Obama judges” and even questioned whether Judge Gonzalo Curiel of the federal Southern District of California could be fair in presiding over a lawsuit against him because the judge was “of Mexican heritage,” “Hispanic,” and a member of a Latino Lawyers’ Association.

When presidents question the impartiality, integrity, and independence of the judiciary, the public listens. As the public grows to perceive judges as political, says Judge Walker, “it becomes easier for presidents and others to disregard judicial decisions as partisan pronouncements.” And in all fairness, would anyone who has experienced the first two years of the Trump administration be surprised if the President defied a court order because he didn’t like it?

The question remains, however, whether the decisions of federal judges are actually influenced by political ideology. The answer is an unfortunate but resounding “yes”—especially at the Supreme Court level.

A 2018 study published in the Journal of Law and Courts, for example, found that both liberal and conservative Supreme Court justices were more supportive of free-speech claims when the speech matched their underlying ideological and political preferences. Conservative justices tend to uphold the rights of a speaker when the speech conforms to their political values, such as when the speech is “pro-life.”

Interestingly, liberal justices, who as a rule are more likely to support a free speech claim, are more likely to not support such a claim when, as in the “pro-life” example, they disagree with the political or ideological content of the speech.

The political nature of recent Supreme Court decisions goes well beyond free-speech claims. Party politics now seems to be the best predictor of how the Court will rule on almost any issue. The Supreme Court has never in its history ruled along party lines as consistently as it does today.

Judges will deny that they make decisions based on partisan ideology. During his confirmation hearing, Chief Justice John Roberts famously said, “It’s my job to call balls and strikes and not to pitch or bat.”

Decades earlier, Supreme Court Justice Felix Frankfurter said the Court “must observe a fastidious regard for limitations on its own power, and this precludes the Court giving effect to its own notion of what is wise or politic.” Despite these statements, which one presumes the Justices truly meant, the Court undoubtedly rules in a partisan manner. Why?

The authors of the 2018 study posit an answer: the automatic operation of a manifestation of social identity known as “in-group bias.” Ideological in-group bias, the authors suggest—the “us versus them” theory of human behavior—explains how a judge could be truly invested in impartiality, integrity, and independence and yet still rule in a partisan manner. This theory suggests that while Chief Justice Roberts may actually limit himself to calling balls and strikes, he sees the strike zone differently than the “out-group” Justices.

Whatever the underlying cause, there can be no doubt that the federal judiciary, including the Supreme Court, is influenced by politics. “[T]he Supreme Court,” said former Seventh Circuit Court of Appeals Judge Richard Posner, “is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.”

But, as we shall see, the federal judiciary has nothing on the court systems across the states, where the corrupting influence of money and politics has risen to an obscene level.

Politicians in Robes: Mud, Money, and Ethical Infidelity in the States

Alexander Hamilton and other Founding Fathers believed strongly in the necessity of an independent judiciary, free from popular influence. Hamilton et al., however, were responsible only for designing the federal government. In fact, they were very careful to leave to the states the right to set up lower-level governments how they wished.

Many states, motivated by Jacksonian populism, went on to establish governments in which the judiciary is held directly responsible to the voting public. Today, 39 states hold some form of election to choose judges for their high courts. Upwards of 90 percent of all state court judges face election, despite the fact that judicial elections are virtually unheard of anywhere else in the world. Over 90 percent of all felonies are resolved by elected judges.

Choosing a judiciary by way of popular election brings with it certain risks. Hamilton warned that fidelity to the law would be undermined when judges faced electoral pressures. He said that such pressures would be “fatal to their necessary independence.” Judicial integrity can be (and often is) compromised by the lengths one must go to get and stay elected to judicial office.

While establishing a direct connection between the election of a judiciary and wrongful convictions may be impossible, there is little doubt that the two go hand-in-hand. Judges who face reelection are not solely beholden to the law. They are, in fact, answerable to the constituency. As further developed below, there may be no faster way to lose a judicial election than to appear “soft on crime.”

Regardless of what the ethical canons say, and the U.S. Constitution requires, elected judges are very aware that they need votes in order to keep their judicial chambers.

Sue Bell Cobb, former Chief of the Alabama Supreme Court, said this of elected judges: “Judges would have to be saints to ignore the political reality, and judges aren’t saints.”

But, are elected judges politicians? In theory, the answer is no. U.S. Supreme Court Chief Justice John Roberts said that “Judges are not politicians, even when they come to the bench by way of the ballot.”

While politicians are expected to be responsive to the electorate, Chief Justice Roberts said, “A judge must observe the utmost fairness, striving to be perfectly and completely independent.”

The theory that politics does not invade the sacred province of the (elected) judiciary is not borne out in reality, however. Consider the lawless act of Alabama Supreme Court Chief Justice Roy S. Moore, an elected judge who in 2016 ordered all Alabama probate judges to defy federal court orders regarding same-sex marriage. Two other elected state Supreme Court justices suggested that they would not follow U.S. Supreme Court rulings on same-sex marriage. These were not the acts of impartial and principled judges who follow the law; they were instead the rebellious acts of ideological zealots, driven by politics.

Today’s judicial election, reelection, and retention campaigns share many of the trappings of a typical run for office, including an influx of campaign cash, a TV ad blitz, and a “tough on crime” message. These items have a symbiotic relationship: Campaign cash pays for the TV advertising, and those ads deliver the tough on crime message.

Campaign contributions can be a significant problem in any electoral system. Cash is used to buy things. When a campaign contribution is made, it is fair to ask what is being purchased. And, when the campaign in question is one for judicial office, that is a scary question.

Such a question was asked during the 2004 West Virginia Supreme Court of Appeals election. The debate over the answer went all the way to the U.S. Supreme Court.

Coal baron Don Blankenship, CEO of A.T. Massey Coal Co., had a problem. His company had just lost a case in which damages of $50 million were assessed. But he had a plan: get a “friendly” judge elected to the West Virginia Supreme Court of Appeals, where the case was heading on appeal.

Blankenship spent $3 million supporting the candidacy of Brent Benjamin for a seat on the court. Blankenship’s money represented more than 60 percent of the total amount spent to support Benjamin. After winning the election, Benjamin, now the acting Chief Justice of the court, refused to recuse himself and cast the deciding vote in the court’s 3-2 decision to overturn the verdict against Blankenship’s company.

In Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2752 (2009), the U.S. Supreme Court by a 5-4 vote reversed the West Virginia court. The serious, objective “probability of bias” that arose when Justice Benjamin refused to recuse himself offended due process, said the Court.

“Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome,” Justice Anthony M. Kennedy wrote for the majority. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause.”

Blankenship was not the first (and won’t be the last) whose judicial campaign contributions raised eyebrows. In what was then the most expensive state judicial campaign in U.S. history, $9.3 million was raised in 2004 to elect Lloyd Karmeier to the Illinois Supreme Court. About $1.3 million came from State Farm Insurance and affiliated groups. Surprise, surprise – a $450 million verdict against State Farm was pending at the high court, and after winning the election, now-Justice Karmeier refused to recuse himself from the case and cast the deciding vote to overturn the verdict.

The U.S. Supreme Court didn’t get involved in that case, but then-Justice Sandra Day O’Connor had this to say:

“It cost just over $9 million for that race. As you might have guessed, the winner of the race got his biggest contribution from a company that had an appeal pending before the court. You like that?”

Situations as outrageous as the apparently tainted judicial elections in West Virginia and Illinois are relatively rare. But the amount of money flowing into judicial campaign coffers is on the rise and has been for decades. From 1990 to 1999, about $83 million was spent on judicial high court campaigns. That number more than doubled over the next decade, with $206.9 million spent between 2000 and 2009.

The U.S. Supreme Court’s decision in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), virtually guarantees continual increases in the amount of money raised and spent to elect, reelect, and retain judges. In a decision that has dramatically altered the democratic election system in the United States, the Court said that corporations can finance independent campaigns directly from their treasury and can spend an unlimited amount to support the candidate of their choice.

Justice John Paul Stevens voiced his concern with how the decision would impact judicial elections in a dissenting opinion.

“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice Stevens wrote.

Campaign Special Interests

The concerns raised by Justice Stevens are real and are shared by the majority of Americans. A 2001 survey found that 76 percent of Americans believe that campaign cash affects court decisions. The same survey found that almost half of judges agree. The Conference of Chief Justices, which represents 57 chief justices from every state and U.S. territory, warned the U.S. Supreme Court in Caperton that confidence in the judiciary is threatened by the increasing flow of money into judicial elections.

“As judicial election campaigns become costlier and more politicized, public confidence in the fairness and integrity of the nation’s elected judges may be imperiled,” wrote the Chiefs, in a friend of the court brief.

Of course, those who spend money on judicial elections know that they are buying something. As the Justice at Stake Campaign said in a 2010 report on politics in judicial elections, “For big money interests, high court seats are one more investment.” One AFL-CIO official put it this way: “We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.”

Or take it right from the horse’s mouth:

“I never felt so much like a hooker down by the bus station . . . as I did in a judicial race,” Ohio Supreme Court Justice Paul Pfeifer told The New York Times in 2006. “Everyone interested in contributing has very specific interests. They mean to be buying a vote.”

Improper influence is not the only problem with million dollar judicial election campaigns. There is another significant issue, and it concerns where all that money is going: TV advertising.

The use of television ads in judicial elections has risen from 22 percent of all state supreme court elections in 2000 to essentially 100 percent today. The amount of money spent on TV ads has also spiked, with over $90 million spent on airtime in high court contests between 2000 and 2009.

And what do these television ads discuss? Why, crime, of course. And more specifically, how “tough on crime” the candidate is—especially as compared to his or her opponent, who is inevitably accused of being “soft on crime.” In 2013-14, more than half of all judicial election-ads discussed the candidate’s (or the opponent’s) record in criminal cases.

Judges who are running for election can’t seem to go far enough to establish how tough on crime they are. The reason for this is simple: American voters nearly universally believe that crime rates are higher than they actually are, and a large majority of voters believe that judges are too soft on criminals.

Consider the following “tough on crime” claims, all of which were made during judicial election runs:

• “Some complain that he’s too tough on criminals, AND HE IS . . . . We need him now more than ever.”

• “I will be a tough judge that supports the death penalty and isn’t afraid to use it.”

• “Sent more criminals—rapists, murderers, felons—to prison than any other judge in Contra Costa County history.”

• “Over 90% convicted criminals sentenced … prison commitment rate is more than twice the state average.”

• “Tough on sexual predators, refusing to allow technicalities to overturn convictions.”

• “The only candidate who has sent hundreds of criminals back to death row.”

• “Has committed his life to locking up criminals to keep families safe, putting child molesters behind bars for over 100 years.”

And these, “soft on crime” attack ads:

•   “Louis Butler worked to put criminals on the street, like Reuben Lee Mitchell who raped an 11-year-old girl with learning disabilities. Butler found a loophole; Mitchell went on to molest another child.” [The ad failed to mention that Butler was a lawyer at the time and represented Mitchell].

•   “[The opponent] gave probation to kidnappers who tortured and nearly beat a 92-year-old grandmother to death.”

• “Vote against Robertson because he’s opposed to the death penalty and he wants to let them all go.”

• “Hathaway granted probation to a man who was arrested in camouflage paint while carrying a loaded AK-47. His web page praised terrorists and declared his own personal jihad. Probation for a terrorist sympathizer? We’re at war with terrorists. Diane Hathaway, out of touch.”

• “[The opponent] gave easy bail to a woman later found guilty of murdering her 4-year-old stepson” and “gave probation instead of prison to a man who sexually assaulted a child.”

It’s easy to see how “tough on crime” and “soft on crime” television ads are effective. Narratives that invoke the elemental fear of hardened murderers, rapists, and serial child molesters motivate voters. Such ads work especially well when the electorate knows very little about the candidates. The majority of Americans don’t know much about the judiciary—a 2018 CSPAN poll found that 54 percent of voters could not name a single U.S. Supreme Court justice.

Voters know that they want rapists in prison, though.

The need to appear tough on crime in order to win a judicial election is a problem for the criminal justice system. A 2015 Brennan Center for Justice review of 10 prominent, widely cited studies found that election, reelection, and retention campaign pressures make judges more punitive toward defendants in criminal cases.

One of the studies looked at 22,000 sentences for aggravated assault, rape, and robbery in 1990s Pennsylvania. That study found that “sentences for these crimes are significantly longer the closer the sentencing judge is to standing for reelection,” and that “all judges, even the most punitive, increase their sentences as reelection nears.” The study authors concluded that from 1990 to 1999, for the crimes analyzed, judges added more than 2,000 years of additional prison time as a result of reelection pressures.

The increased use of attack ads in judicial campaigns drives this (mis)behavior. A 2014 study by the American Constitution Society concluded that state supreme court justices are less likely to rule in favor of criminal defendants when faced with the possibility of future attack ads. As former Mississippi Supreme Court Justice Oliver Diaz said, “Judges who are running for reelection do keep in mind what the next 30-second ad is going to look like.”

A significant issue for many judges who will face reelection is the death penalty. Bryan Stevenson, executive director of the Equal Justice Initiative, said, “If you’re a . . . judge who has to run for reelection, and you have to worry about your identity in the community—frankly, nothing says ‘tough on crime’ like the death penalty.”

Judges know this, and that’s why appellate judges facing reelection are more likely to affirm death sentences than their appointed brethren. The numbers should give pause to anyone concerned with the use (or misuse, in the case of a wrongful conviction) of the ultimate penalty: States with appointed justices reverse death penalty sentences 26 percent of the time, while those with elected justices reverse death penalty sentences 11 percent of the time.

Could this mean that 15 out of every 100 death penalty defendants will be executed because some judges needed to appear tough on crime in order to keep their jobs?

That appeared to be the case in Alabama, where until very recently, trial judges had the authority to overrule juries in capital cases. As of 2013, Alabama judges (elected judges, that is) imposed the death penalty contrary to the jury’s verdict in 97 cases. In a forceful dissent to the Court’s refusal to overturn this highly questionable system, U.S. Supreme Court Justice Sotomayor wondered why Alabama judges were so much more bloodthirsty than juries. The explanation? Judicial elections.

“The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system,” wrote Justice Sotomayor. “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

When Recusal is Necessary

Professor Keith Swisher of the Phoenix School of Law argues that these “tough on crime” judges should recuse themselves from all criminal cases or face disqualification. Electoral pressures, says Swisher, “produce a vicious cycle for judges: gaining office through tough-on-crime promises, issuing tough-on-crime rulings between elections, and then touting those tough-on-crime rulings in gaining reelection.”

Swisher, who is an expert on legal ethics, argues that both due process and ethical canons require the disqualification of all tough-on-crime judges from criminal trials.

Caperton, says Swisher, mandates disqualification “in light of the ‘serious risk[s]’ of ‘actual bias or prejudgment,’ ‘debt[s] of gratitude,’ or ‘possible temptations’ toward one large independent expender.” As such, due process “should mandate disqualification, a fortiori, when a judge faces a ‘serious risk’ of losing her job for appearing soft on crime.”

But even without the “nuclear option” of the Due Process Clause, Swisher says judicial canons of ethics mandate disqualification of tough-on-crime judges. Judges must be impartial, and the canons “quite clearly and quite universally require disqualification even at the appearance of partiality.” There is no doubt that tough-on-crime judges appear partial, and the data show that they are partial.

“Why, then, tough-on-crime judges persist in sitting on criminal cases is baffling,” Swisher writes. “It might be explained in part because the foxes guard the hen houses (that is, the actual or apparently biased judges are the ones who normally decide whether to disqualify themselves) and because the elective system itself renders those foxes even less trustworthy than normal.”

In addition to concluding that elected “tough on crime” judges should be disqualified from all criminal trials, Swisher argues that these judges are both lawless and immoral. All judges have an obligation to uphold the law and to do so in an impartial, fair, and objective manner. The actions of a “tough” or “pro-prosecution” judge fly in the face of impartiality.

“To be ‘tough on crime’ in the absence of careful and open-minded consideration of actual cases . . . is lawless, and a pledge of lawlessness is not something a judge can honor and still remain on the bench,” Swisher writes.

The tough-on-crime judge’s pledge and actions also are immoral.

“[I]t is immoral to pre-doom the future of another human being—particularly one whom the judge has never met—in order to further the judge’s personal (i) perversions (namely, sadism) or (ii) ambitions (namely, election and reelection),” Swisher argues.

The undeniable reality of the elected judiciary is grim. Immorality, illegality, lack of ethics … these are existential threats to a functioning judiciary. They also are the harbingers of wrongful conviction. A tough-on-crime judge—the only electable kind—must convict, convict, convict.

Norman Reimer of the National Association of Criminal Defense Lawyers said in 2014 that the constitutional rights of the accused are often the “roadkill in . . . camping wars.”

“Our freedom and our constitutional rights depend on judges who have the courage to be fair and impartial,” Reimer said.

“It’s a real problem if they know every ruling is likely to become fodder in a campaign.”

The Long Arm of the Judge

For the accused, it would be fair to say that the defense of his liberty and constitutional rights also depends on the effective assistance of counsel. The Sixth Amendment to the U.S. Constitution guarantees the assistance of counsel to all criminal defendants, regardless of their ability to pay. In order to act effectively, defense counsel must be independent and free from any outside influence.

In the federal system, indigent defense services are provided by either a Federal Public Defender Organization (“FPDO”) or appointed private counsel (“Panel attorneys”). Panel attorneys and FPDOs provide counsel to over 80 percent of all federal criminal defendants. For the most part, Federal Defenders and Panel attorneys provide competent representation. But there is a significant problem with the federal indigent defense system: It is funded, managed, and supervised by the federal judiciary.

In a 2017 article for the Cornell Law Review, executive director of the Federal Defenders of New York and NYU law professor David E. Patton argued that the judicially controlled federal public defense system is independence-compromised and called for establishing a new, independent federal defense agency.

Consider these aspects of the current federal public defense system, highlighted as worrisome by Patton:

Federal appellate judges select the federal public defenders in the districts they oversee and can choose to renew them (or not) every four years;

• Federal trial judges require Panel attorneys to describe and justify the hours they spend on a case;

• Federal trial judges decide whether Panel attorneys are permitted to obtain investigative or expert services;

• In many districts, trial judges decide whether private appointed counsel may remain on the Panel; and

• At the national level, judges decide how much money to seek from Congress to fund indigent defense.

Patton argues that this arrangement, wherein the entire federal indigent defense apparatus is under the thumb of the judiciary, creates serious constitutional, ethical, and policy concerns. The criminal justice system “relies on its adversarial nature to function properly,” says Patton, and “it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases.” It should be just as inconceivable for judges to control the defense in this way — but that is exactly what the scenario is, right now, for the federal indigent defense system.

A Step Too Far

From a constitutional perspective, it is reasonable to question whether the judiciary exceeds its Article III authority in managing the indigent defense function in federal courts. Article III limits the authority of federal judges to (mostly) adjudicative work. The U.S. Supreme Court has said that “executive or administrative duties of a nonjudicial nature many not be imposed on judges holding office under Article III of the Constitution.” Morrison v. Olson, 487 U.S. 654 (1988). The Court has, however, given the federal judiciary permission to engage in non-adjudicative functions in certain limited circumstances.

Patton argues that court involvement in regulating and administering the federal defense function is a step too far.

“[W]hen it comes to managing the defense function, [federal] judges determine (1) how much money to seek from Congress for the defense program overall (perhaps at the expense of the federal courts’ budget), (2) how to apportion those public dollars among Panel Attorneys and public defenders, (3) whether individual Panel Attorneys are permitted to use those dollars to investigate particular cases or engage in other out-of-court preparations, (4) how to apportion those dollars among defender offices nationwide, (5) what policies covering employment, information technology, and administration to apply to public defender offices, and (6) who among the bar is permitted to act as a Panel Attorney or the head of a federal public defender office,” Patton writes. “None of those decisions arise in the course of resolving disputes between the parties to cases or controversies, and nothing about the activity is inherently ‘judicial’ in nature.”

Moreover, judicial management of the indigent defense function arguably runs afoul of Gideon v. Wainwright, 372 U.S. 335 (1963), in which the U.S. Supreme Court declared that all indigent defendants have the right to the “guiding hand” of counsel. “Implicit in the concept of a guiding hand,” said the Court, “is the assumption that counsel will be free of state control.” There is no fair trial “unless the accused receives the services of an effective and independent advocate.”

But the constitutional concerns are dwarfed by the ethical problems inherent in a judge-controlled defense function. Lawyers, says Patton, are duty-bound to provide “diligent, zealous, and conflict-free counsel” to their clients. They must maintain strict confidentiality with respect to any information relating to the representation of a client.

Can a Federal Defender or Panel attorney act ethically when the defense function is controlled by the judiciary? Not always. Consider these scenarios, developed by Patton:

• A Panel attorney represents a client in a case involving voluminous amounts of electronic evidence on computers and mobile phones. She needs an expert and a lot of time to review the material and exceeds the $10,000 cap on fees she may receive in any case. In order to obtain the fees, she must fill out forms which may require the disclosure of confidential information forms that are reviewed by the judge hearing the case. Does she fill out the forms, breaching confidentiality, or does she forego payment of legitimately earned fees?

• A Panel attorney represents a client charged with downloading child pornography. A psychological test designed to measure the client’s risk for engaging in a “contact” offense with minors is available. If the results indicate the risk is low, the attorney will present that mitigating evidence at sentencing. If the risk is high, she will not present the results at all. Here’s the ethical dilemma: A Panel attorney (but not a Federal Defender or private attorney) must seek the judge’s permission to hire the expert. The judge knows what kind of evidence this expert produces. If the attorney proceeds with the test and then does not present the evidence at sentencing, the judge will be aware that the results indicated that the defendant is at a higher risk for committing a contact offense. This is a significant breach of confidentiality, which could have a very negative impact on the client.

Beyond the obvious ethical issues, Patton argues that a judicially managed defense function is a bad policy choice. Judges, after all, specialize in adjudication, not administration. They do not, as compared to independent administrators, “possess particular expertise . . . to make determinations about how funds should be allocated among the various competing demands on the defense function.” Moreover, ethical considerations may (and should), interfere with judicial administration of the defense function.

The Hobbesian choices that Federal Defenders and Panel attorneys must make on a regular basis represent a danger to federal criminal defendants. Panel attorneys, who do not wish to risk losing a place on the Panel by angering judges, rarely request the use of outside services, asking for investigators and experts in less than 20 percent of all cases. In some districts, they request such services less than 5 percent of the time.

There is nothing fair about an adversarial system in which the umpire administers and controls one side of the contest but not the other. And there can be little doubt that the collateral consequences of such a system include wrongful conviction.

How Important is the Question of Innocence to a Judge?

The National Registry of Exonerations has identified over 2,000 wrongful convictions resulting in exoneration.

Conservative estimates put the number of falsely convicted Americans who are still behind bars at over 20,000. Unfortunately, there are many examples of situations in which the innocence of a criminal defendant didn’t matter much to a judge.

The case of Glenn Ford is a prime example. Ford, a black man, was convicted by an all-white jury for a murder he did not commit. He spent 30 years on death row before being exonerated in 2014. He died from cancer soon after his release.

Ford was innocent of the crime during his entire prison ordeal, of course. But that didn’t matter to the many judges who rejected, over and over, his claim that he was a victim of police and prosecutorial misconduct. And his exoneration didn’t matter to the Louisiana appeals court that rejected his estate’s claim for compensation for his wrongful conviction and 30 years in prison.

It seems that the Louisiana appeals court, despite Ford’s exoneration (which was supported by the state), still didn’t believe he was innocent. So in what Andrew Cohen of The Marshall Project called “one of the most remarkable acts of judicial activism” he had ever seen, the appellate court added a “summary” to its order denying compensation. The summary amounts to a narrative that was never proven, or even asserted, in court—that Ford was “the sinister guardian” of the actual killers. As such, the court said, the estate was due no compensation.

The Texas Court of Criminal Appeals also found a lower court’s ruling as to innocence irrelevant. Benjamin Spencer was convicted and sentenced to life in prison for a fatal carjacking in 1987. He maintained his innocence throughout trial and the decades he has spent in prison.

In 2004, with the help of Centurion Ministries, he filed a petition for a writ of habeas corpus. The petition alleged that Spencer was actually innocent and included new evidence to support the claim.

After an evidentiary hearing, Texas District Court Judge Rick Magnis ruled that Spencer presented sufficient new evidence to require a retrial. Most of the original evidence against Spencer was eyewitness testimony. At the evidentiary hearing, an expert established to Judge Magnis’ satisfaction that the lighting was such that it was “physically impossible” for the eyewitnesses to have identified anyone. Some witnesses recanted their testimony.

William Alan Ledbetter, the foreman of the jury that convicted Spencer, took the day off work to watch the evidentiary hearing before Judge Magnis. He later told The Atlantic that as he observed the proceedings, “it was very clear that we had made a tragic mistake.”

“There’s a bit of personal culpability that one takes on,” said Ledbetter. “I had a role in this. Our role as jurors was to sort through the evidence and reach a reasonable conclusion. And it’s clear that we worked with what we had. But we were very wrong.”

The Texas Court of Criminal Appeals disagreed with both Ledbetter and Judge Magnis. In Texas, the lower court that conducts the evidentiary hearing can only recommend a new trial—the Court of Criminal Appeals is the only court that can grant such relief. And despite recantations, expert testimony, and Judge Magnis’ eight months of deliberations, the state high court said no.

The eight judges—all Republican, all elected, and five of them former prosecutors—found that Spencer had not established that “no rational jury would have convicted him in light of this new evidence”—the Texas standard for getting a new trial on the grounds of actual innocence. How difficult is it to meet that standard? According to The Atlantic, Texas judges call it a “Herculean burden.”

Why is that standard so high, and why do judges give such short shrift to claims of innocence? Part of the problem is the conveyor belt of the law enforcement system, wherein, as law professor and criminal justice expert Stephanos Bibas said, too much emphasis is placed on speed, cost, volume, and efficiency. The other part of the problem is, of course, political pressure. Ordering the release of a prisoner, regardless of his or her innocence, is something no elected judge is in a hurry to do.

Judges Behaving Badly

Judicial misconduct refers to acts that are unethical, illegal, or in violation of the judicial obligation of impartiality. As we have seen, there are myriad ways in which judicial misconduct rears its tainted head. More often than not, such misconduct is subtle. Sometimes it is blatant.

Cook County criminal court judge Slattery Boyle has a bad record with the Illinois Appellate Court. In the space of six years, the appellate court overturned Judge Boyle’s decisions 34 times. Three of those reversals resulted in the exoneration of the defendant.

For purposes of comparison, consider the record of five other criminal court judges in the same six-year span: Erica Reddick—3 reversals; Catherine M. Haberkorn—4 reversals; Carol M. Howard—8 reversals; Michael B. McHale—11 reversals; and Matthew E. Coghlan—12 reversals. That’s 38 total reversals for these five judges combined.

One of Judge Boyle’s cases involved disgraced former Chicago police detective Reynaldo Guevara. Armando Serrano was convicted of a murder based largely on the testimony of an eyewitness. Years later, the eyewitness recanted, saying that Guevara had encouraged him to give false testimony. Serrano then challenged his conviction.

Judge Boyle refused to allow much of the testimony related to the witness’ recantation and dismissed the case before the hearing was even complete.

On appeal, the Illinois Appellate Court called Judge Boyle’s actions “truly puzzling.” The court reversed Judge Boyle’s ruling, noting that she “turned a blind eye to much of the evidence and also refused to admit probative, admissible evidence that, when evaluated under the proper standing, is damning.” The case was reassigned to another judge, and prosecutors soon dropped the charges.

In another case, Judge Boyle convicted a man who had fired a gun into the air of murder, under the unusual theory of “accountability for murder by another.” Boyle sentenced the defendant to 43 years in prison and required him to register as a sex offender, though the crime was in no way related to sex.

The appellate court reversed, writing that “the evidence [was] so improbable and unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” The court also directed Judge Boyle to “conform to the requirements of the Sex Offender Registration Act before requiring defendant to register as a sex offender for a seemingly non-sexual crime.”

And then there is Comal County, Texas, district court Judge Jack Robinson. Judge Robinson improperly jailed Don Bandleman after he berated the judge in the bathroom. Judge Robinson had Bandleman arrested and ordered that he spend 30 days in jail. A court of appeals quickly intervened and ordered Bandleman immediately released.

The State Commission on Judicial Conduct reprimanded Judge Robinson for exceeding the scope—and authority of his office and for failure to comply with the law.

Several years later, Judge Robinson received a message from God during jury deliberations in a human trafficking case. He interrupted the jury’s deliberations to let them know that God said he should intervene because the defendant was not guilty of trafficking a teen girl for sex.

“When God tells me I gotta do something, I gotta do it,” Judge Robinson told the surely stunned jurors. Ultimately, the jury disregarded the Holy message and found the defendant guilty.

It’s not clear whether Judge Robinson was reprimanded again or disciplined in any way. What is clear, however, is that judges are very rarely held accountable for their actions, no matter how bizarre or egregious.

An investigation by The Guardian, in partnership with Contently.org, revealed that about 90 percent of all complaints filed against judges in 12 states over a five-year period were dismissed out of hand. Discipline was meted out less than 5 percent of the time. A total of 19 judges across the 12 states were removed from the bench for misconduct during the five years, about 3 per decade for each state. And in most cases, unless a sanction is imposed, complaints against judges are kept confidential.

Discipline on the federal bench is virtually unheard of. The investigation revealed that between 2010 and 2014, 5,228 grievances were filed against federal judges, about half of which alleged bias or a conflict of interest. A grand total of three federal judges were disciplined during those years. None were suspended or removed.

That’s not too surprising, given that federal judges may only be removed by impeachment in the House of Representatives and conviction in the Senate. According to Ballotpedia.org, eight federal judges have been convicted by the Senate, only four since 1936.

There is no evidence that any judge has ever been disciplined or removed from the bench for improper conduct leading to a wrongful conviction. In fact, given the statistics, discipline in such a situation would be highly unlikely. Convictions—wrongful or not—are business as usual for judges.

Appellate Courts Use ‘Harmless’ Error Review and Unpublished Opinions to Kneecap Defendants

Appellate affirmance of convictions that are later found to be wrongful is also business as usual. By the time a conviction is under review, whether on direct appeal or a collateral attack, the deck is heavily stacked against the defendant. Harmless error review and unpublished opinions render the path to fair review of a conviction very narrow.

Harmless error is defined by Black’s Law Dictionary as “[a] trial-court error that does not affect a party’s substantive rights or the case’s outcome.” The concept of harmless error is reduced to a rule of criminal procedure in Fed. R. Crim. P 52(a), which states that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Harmless error review is used, and used frequently, across states and the federal system.

The harmless error rule is one of judicial economy. The rule permits appellate judges to overlook lower court errors when in the court’s view, the defendant’s substantial rights were not impacted. The harmless error rule promotes finality and streamlines the criminal justice system. It also ensures that some Americans will be convicted, and even put to death, for crimes that they did not commit.

The U.S. Supreme Court case of Arizona v. Youngblood, 488 U.S. 51 (1988), is a good example of how the concept of a “harmless” error in a criminal prosecution can go wrong. Larry Youngblood was convicted of the sexual assault of a child in 1983. He appealed, arguing that the failure of the police to preserve semen samples taken from the victim’s body violated his due process rights.

The Arizona Court of Appeals agreed and reversed.

The U.S. Supreme Court took the case up on certiorari and reversed the Arizona Court of Appeals. The Court ruled that simple “negligent” destruction of potentially exculpatory evidence was harmless error. A due process violation would arise only if the destruction was done in “bad faith.”

But it turned out that the error wasn’t harmless at all. Twelve years after the Court’s decision, a rectal swab from the victim was tested, and the results excluded Youngblood as the assailant. He didn’t do it, but a “harmless” error helped keep him in prison for over a decade.

Harmless error also can mean the difference between life and death. Andrew Cohen, a fellow at the Brennan Center for Justice, wrote about a 2013 case in the Sixth Circuit in which “harmless” error may have resulted in a sentence of death instead of life. In Dixon v. Houk, 737 F.3d 1003 (6th Cir. 2013), the defendant argued that the trial judge erred when he refused to allow mitigating evidence relating to Dixon’s prior wrongful conviction and poor treatment as a child. The Sixth Circuit found that excluding such “negligibly mitigating” evidence amounted to simple harmless error. It was a 2-1 panel decision, with Judge Gilbert Merrit dissenting.

“We cannot know now how much jurors would have been influenced by the exoneration evidence and how the discussion of the death penalty in the jury room would have changed,” Judge Merrit wrote. “But certainly no one can confidently predict that it would not have been discussed as a serious basis for sparing Dixon’s life. It should not have been swept under the rug at the trial or on appeal.… It is our duty to see that individuals are not executed in the face of uncontested constitutional violations.”

Cohen called this “the story” of capital punishment in 21st century America. He lamented the “Orwellian” nature of harmless error.

“Our nation’s courts do not routinely seek out ways to remedy material errors in these cases,” Cohen said. “Instead, they routinely bend over backwards to justify results, convictions and death penalties even they themselves concede are inaccurate or based upon unfair procedures.”

The rise of the unpublished opinion is another significant blow to defendants on appeal. An unpublished opinion resolves the issue before the appellate court but is not binding precedent. Nearly 90 percent of all federal appellate decisions are designated as unpublished opinions, despite the concept not even existing in the American legal system until the early 1970s.

Unpublished opinions are usually brief — sometimes as short as a few words. They are written with less attention to detail than published, precedential opinions and often do not provide defendants the appellate analysis they deserve. And because they are not precedential, some worry that appellate judges use them to avoid creating binding law in their circuit.

Justice Thomas of the U.S. Supreme Court had such a concern in a 2015 case. The Court denied certiorari in Plumley v. Austin, 565 Fed. Appx. 175 (4th Cir. 2014) (unpublished), but Justice Thomas would have heard the case, even though it was unpublished perhaps because it was unpublished. The case was 39 pages long, included a dissent, and in Justice Thomas’s opinion, clearly should have been published.

“It is hard to imagine a reason why the Court of Appeals would not have published this [39 page] opinion except to avoid creating binding law for the Circuit,” Justice Thomas wrote in his dissent.

Judges defend the use of unpublished opinions by citing the bulging caseload of their circuits. There aren’t enough judges, they argue, to provide the time and attention that published opinions demand. But the Framers intended all judicial action to be precedential, primarily as a check on the use of the judicial power. Alexander Hamilton went so far as to declare it “indispensable” that the judiciary should be “bound down by strict rules and precedents.”

John Adams went even further:

“[E]very possible Case [should be] settled in a Precedent, leav[ing] nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge,” wrote Adams.

Adams and Hamilton would likely turn over in their graves if they learned that 90 percent of all federal judicial opinions are unpublished and non-precedential. They might leap from their graves if they learned that judges themselves decide whether to publish their own opinions. Justice Stevens of the U.S. Supreme Court had this to say:

“[A] rule which authorizes any court to censor the future of its own opinions rests on a false premise,” Justice Stevens wrote in a 1977 law review article. “Such a rule assumes that the author is a reliable judge of the quality and importance of his own work product.”

Such a rule also assumes that judicial misconduct doesn’t happen. It assumes that judges always act with integrity, impartiality, and independence. As we have seen, that is not the case.

Conclusion: The Judiciary is Part of the Problem

Justice Antonin Scalia referred to the principle of nulla poena sine lege — no punishment without law — as “one of the most widely held value judgments in the history of human thought.” This concept goes hand in hand with the vision of liberty embraced by the Framers. The U.S. Constitution was designed to maximize liberty, honor the law, and protect citizens from the power of the State.

In order to foster liberty and freedom, the Framers created a judiciary imbued with impartiality, integrity, and independence. Judges don’t make law, they adjudicate. Judges aren’t politicians, they are neutral umpires.

At least, that’s the idea.

In reality, the judiciary often fails to live up to its promise. When English jurist and law professor William Blackstone said in 1769 that “[i]t is better that ten guilty persons escape than that one innocent suffer,” he meant it—and the Framers believed it. The thousands of Americans who have been chewed apart by the judicial system despite having committed no crime are a testament to the failures of the judiciary.

Judges are complicit in the wrongful conviction and imprisonment of innocent Americans. Until the judiciary is de-politicized and judges are held accountable for their actions, wrongful convictions will continue unabated. 

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Sources: The Washington Post, The Economist, The New York Times, Politico, WashingtonTimes.com, The Atlantic, NPR.org, DallasNews.com, BallotPedia.org, AbaJournal.com, BrennanCenter.org, The Guardian, Statesman.com, Chicago.Suntimes.com, TheMarshallProject.org, “The Ethical Conundrums of Unpublished Opinions” by Shenoa L. Payne in Williamette Law Review, “The Structure of Federal Public Defense: A Call For Independence,” by David E. Patton in Cornell Law Review, “Supreme Court Survey, August 2018” by CSPAN, “The Death Penalty in Alabama: Judge Override” by Equal Justice Initiative, “How Judicial Elections Impact Criminal Cases” by Brennan Center for Justice, “The New Politics of Judicial Elections 2000-2009” by Justice at Stake, “Justice Out of Balance” by Lambda Legal, “Do Justices Defend the Speech They Hate?” by Epstein, Parker and Segal in Journal of Law and Courts, “Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts” by Senator Sheldon Whitehouse in Harvard Law & Policy Review, “Pro-Prosecution Judges: ‘Tough on Crime,’ Soft on Strategy, Ripe for Disqualification,” by Keith Swisher in Arizona Law Review.

About the Author: Christopher Zoukis, MBA, author of the Directory of Federal Prisons, Federal Prison Handbook, and Prison Education Guide, is the Managing Director of the Zoukis Consulting Group, a boutique federal prison consultancy which assists clients with prison preparation, in-prison matters, and reentry services. He can be found online at PrisonerResource.com

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