In the New Year, Watch Those Piggies Fly

The New York Times reported on Dec 31, 2011 (Chief Justice Defends Peers’ Hearing Case on Health Law by ADAM LIPTAK) that, under federal law, judges must recuse themselves under certain circumstances. 


From the Times article:


Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given advice or expressed an opinion “concerning the merits of the particular case” or when their “impartiality might reasonably be questioned.” 


In my experience, this 'law' is not prosecuted by U.S. attorneys. Nor do supervising federal judges enforce such strictures upon the judges they supervise.


I have been disbarred in Louisiana and two other states for insisting that my judge recuse himself or be recused from my clients' matter after I reported to other judges:

- the judge accepted overseas travel from a lawyers' organization

-the judge ignored the procedural rules of his own court so as to benefit - into the high hundreds of thousands of dollars - the president of this same group

- there is a document filed with the Louisiana Secretary of State, which shows that the judge's former law firm was paying him rent while bringing matters into his court

I brought these matters before the Judicial Council of the federal Fifth Circuit, who did nothing. Nothing, except deny my complaint and send me and my clients back into the court of this gifted judge.


My complaint to the Judicial Council (the Circuit Judges) was made in confidence, as the judicial complaint rules require. All this meant was that I was outed by the judge about whom I complained. (See below.)


I made my Judicial Council complaints in compliance with ethical standards then applicable to me, which mandate that a lawyer "shall" report the misconduct of a judge, when this conduct becomes known.


What happened? Nothing at all happened to the judge but the consequences were devastating to me.


The judge - in violation of the judicial complaint rules - identified me in a formal decision as a confidential judicial complainant. This meant, of course, that my clients' matter before this judge was wrecked. All opposing counsel had to do was wait for the judge to finish me off, since my effectiveness before this judge had been nullified by the judge himself. (He ordered that his clerk accept no more pleadings from me, including a motion for a stay of further sanctions against me. I was to be gagged before my execution.)


The judge fined me a total of $15,000 - a sum which bankrupted my solo legal practice. 


The judge also instructed me to withdraw from representation of my clients and apologize to him - under threat of further fines. I did so. 


My destruction as a lawyer was complete. Almost.


Two years after I had withdrawn from the lawsuit and discontinued my law business, the Supreme Court of Louisiana, through its employees in the office of the disciplinary counsel, prosecuted me for having filed a confidential complaint with the Judicial Council.


To guarantee my conviction, the prosecution was conducted before a three-person committee, whose chair was a member of the organization that had gifted the judge in the first place.


My underlying complaints about the judge were never investigated. They were never referred to a US attorney, as I had pleaded be done. I was convicted of abuse of the federal judiciary, by insisting that my clients receive a hearing before a judge who was not on the take.


I will never get my law licence back, in Louisiana or in Hawaii or Maryland - the three jurisdictions whose highest judges prefer to destroy the career of an office of their own court rather than embarrass a federal judge by asking him uncomfortable questions.


I will never be a lawyer again because I first must "apologize" to the Louisiana Supreme Court for my misconduct. I will not apologize for insisting that my clients are assured of appearing before an honest judge. It is disgraceful that these justices (quite a misnomer) require an apology for my having made allegations against a judicial colleague of theirs long after their own refusal to investigate my complaints. 


I have done nothing which requires an apology, but I do have many regrets. Here is the litany:


I regret that I ever thought federal judges were held to ethical standards that were actually enforced by someone.


I regret that a lawyer who brings documented evidence of a federal judge's misconduct before supervising judges can expect not protection but the destruction of his client's case and of his own career.


I regret that my clients - dozens of incarcerated women who were being abused and sexually assaulted by prison guards - were too poor to do what was expected of them: pay-to-play in federal court.


I regret that the attorney oath I took in New Orleans, promising to follow high ethical standards myself, was merely for show, that no judge actually expected me to turn in a judge for misconduct, as I swore I would do.


I regret that no one on the highest court in Louisiana actually expected me to report a federal judge for taking gifts and doing favors in return, and that this court, instead, would punish me in the most personally destructive manner that they could devise.


I regret that the Louisiana Supreme Court conducted a Disciplinary Counsel charade instead of an actual investigation into my documented complaints of federal judicial misconduct.


I regret that the judicial lemmings on the Supreme Court of Hawaii and the Maryland Court of Appeals think so little of themselves as independent jurists that they were willing to destroy the legal career of an officer of their own court rather than publish the uncomfortable truth about the misbehavior of a be-robed miscreant on the federal bench.


I regret the prevalence of the notion that pigs don't fly. I know that some pigs do fly, the ones in judicial robes - so long as someone else is paying for the piggy's flight. 


I regret that the book I have written about this mess, MAY IT PLEASE THE COURT, is not permitted to be advertised to members of the Louisiana State Bar Association.


- 

HYPERLINKED TO AN ERRATUM

Do money gifts to judges effect their rulings?

Good question. Just don’t expect judges to answer it.

Some months ago Vernon Palmer, a professor at Tulane Law School, wrote to each of the Justices of the Louisiana Supreme Court to ask them to make available details of campaign contributions to the judges from litigators who appear before them and before the courts that the Justices supervise.

Professor Palmer received no response. A second letter from Professor Palmer likewise was ignored by the busy Justices.

No response to an inquiry is, of course, a response. None of your damn business.

A coordinated non-response is also revealing. When a covey of judges sitting on the same judicial bench, ignore a letter from a law school professor, it’s reasonable to conclude that those seven people have made a joint decision to stiff-arm the prof.

CONCLUSION NUMBER ONE:

This set of state Supreme Court Justices are not about to respond when a law professor asks them to account for their ethics.  

The Justices will not even be polite when an inquiry is directed to them about their own conduct. They will not even answer the mail. Why let anyone get into all that when we can take the money and pretend the gift does not influence our decisions.  

And so, Professor Palmer, ignored by judges who would not facilitate his research, went a fateful step further. Working with John Levendis, associate professor of economics at Loyola University in New Orleans, the scholars tracked electoral contributions to the Justices against their decisions for or against the gift giver. In 2008, their study was published in the law review of Tulane Law School. Vernon V. Palmer and John Levendis, "The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function," Tulane Law Review, Vol. 82, Issue 4, 1291-1314 (2008).

To the surprise of no one, the article’s conclusions pointed to a correlation between the gifting of judges and favorable decisions benefitting the gift givers. The conclusion was tentative. No one made a claim of a definitive association. More research would be required.

At this point hysteria set in at the Louisiana State Supreme Court. The Court engineered a fusillade of personally hostile critiques directed at the authors of the report.

A couple of Louisiana litigators hustled into print in the very next edition of the Louisiana State University law review with their own critique of the Palmer-Levendis study. The musings of a couple lawyers, with business before the very court that has been criticized, cannot be taken seriously as an objective critique of statistical research. Their article is worthless. 

The attorneys’ fly-by at serious research is nothing more than an acolyte's benediction. The lawyers' document, hurried into print at a fawning law journal, is a proffer of absolution, a solemn pantomime, the making of the dollar sign over the bowed heads of the judges. In the name of the gold, the sliver and the greenback. Aaaaamen. 

The Justices, blessed and renewed by this put-up job, transformed the acolytes’ encyclical into a press release and posted it at the high court’s website. See E. Phelps Gay and Kevin R. Tully, “Rebuttal of  ‘The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function’,” June 12, 2008.http://www.lasc.org/  (If the document is removed by the time you look for it, let me know. You should also visit http://www.tulanelink.com/tulanelink/electorappoint_08b.htm. ) 

A transparently worthless diatribe against two scholars was not enough for the Justices. They were not yet satisfied that Professors Palmer and Levendis had been put in their place. Fortunately, Tulane Law School rode to the further rescue of the state Supreme Court Justices.

The age-old incestuous exchange of favors is taboo in some cultures. But according to our French Quarter and Uptown New Orleans observations, party-time happily happens between the be-robed and the be-deaned at the B-law schools of Louisiana. (Now. Now. I am a graduate of one of ’em.)  

Enough background. Lo, the (then) Dean of Tulane’s Law School sent a letter of “apology” to each of the Justices of the Louisiana Supreme Court. This was done even though reports in what used to be called “the press” find Professor Palmer standing behind his research. 

Never you mind. While the Justices of the Louisiana Supreme Court were pleased to ignore Professor Palmer’s earlier letters, they were so thrilled to receive Dean Ponoroff’s abject letter of apology that they post it, too, at the Court website. http://www.lasc.org/

In his letter, Dean Ponoroff implied that the authors of the Study essentially disowned their own research. Dean Ponoroff wrote that the scholars, now under attack by a dean or two, had “reviewed their underlying data” and then “advised the Tulane Law Review that there were numerous errors in the recording of the data that formed the basis of their study [. . .].”

Writing “on behalf of Tulane Law School” the Dean informed the wounded Justices that “the law review will issue an erratum on its website.” The same “erratum” will be sent, wrote the Dean, to all subscribers; electronic archives will likewise be “hyperlinked” to the erratum.

Wow. A “hyperlink” to an “erratum” means this could be serious business. Or is this erratum hyperlink merely a measure of the reach of state Supreme Court justices, who are seriously pissed? I move and second: seriously pissed.

What is also serious is that two supposedly scholarly publications at two law schools within the jurisdiction of a state Supreme Court, were pre-empted so as to placate the ire of the Justices.

The demeaning manipulation of the two publications (and their student staff) point to an entrenched subservience by important members of the Louisiana legal community.  Everyone on both banks of the Mississippi is just shocked at the notion that leading legal lights are judicial acolytes. For the past two years, this episode has been the buzz of Mardi Gras and JazzFest, too. Yeah. Right.  

But even a trivial “critique” and a so-sorry letter from a law school dean were not enough.

The justices realized that a rushed-into-print bogus rebuttal, written by beholdin’ officers of their own court, plus an abject apology by a law school dean, who had no part whatsoever in any scientific assessment of peer-reviewed research, might be seen as cartoonish. Yep. It is. 

So, the state Supreme Court engineered a further “study” by three economists, who zealously joined the chorus of denunciation.

It would be one thing for scientists (for the sake of argument, let us think of economists as scientists) to conduct their own study. This sort of professionalism would involve an extended period for research and at least an attempt to place their own results in a peer-reviewed journal, where a debate might be engendered about the impact of campaign contributions upon judicial decisions.

That is not what happened. Why not? An actual debate among scientists would not permit the Justices to retain control of the process of character assignation directed at those who had criticized them.

So, the three economists –Moe, Larry and Curley in this episode – published their work at . . . you guessed it . . . the website of the Louisiana Supreme Court. http://www.lasc.org/  (If the item has been removed by the time you hunt for it, go to: http://www.tulanelink.com/tulanelink/electorappoint_08b.htm.)

How much public money did the Justices pay the economists for their “research?”

Good question. But that question likely will not be answered by the Justices. They receive and publicize letters that please them and ignore the rest of their mail. I bet they won’t even hyperlink this question to an erratum.

CONCLUSION NUMBER TWO:

Louisiana State Supreme Court Justices “continually decide cases involving their own donors without recusing themselves” 

Worthwhile to emphasize is that the authors of the original study have not disowned the measured conclusions they reached. On Sept 15, 2008, Professor Palmer said, despite the court-sponsored criticisms, that “the study's conclusions, broadly speaking, are the same.” Palmer added that a central finding in the study has not been disputed: justices “continually decide cases involving their own donors without recusing themselves.  That right there is the most important part of the study.” See Note 10 and commentary at: http://www.tulanelink.com/tulanelink/electorappoint_08b.htm.

By the way, there is other research on the influence of gifts-to-deciders, which has not been engineered into print by lawyer suck-ups, and judges’ hired-gun hacks.

These studies indicate that gifts of any size create an unconscious inclination by the recipient to want to do favors for the gift-giver.

Recent studies of brain activity indicate that “Gifts affect the decision-making process in ways that are very hard to control,” said Michael J. Friedlander, director of the Baylor University neuroscience department. Friedlander, again: “Even when you are aware of it, even when you want to be objective, you can't help it.” (“Doctors moving to limit gifts from drug firms,” Baltimore Sun, May 20, 2008.) See also MAY IT PLEASE THE COURT by Richard Baldwin Cook (Nativa LCC, page 178, at Amazon.com or lulu.com for e-book download.)

Moe, Larry and Curley apparently know nothing about these studies.

Wop. Wop. Wop.