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Black robe; there's one group of criminals judges still go easy on: themselves.

Helen Guercio had been a clerical worker in the Detroit courts for 45 years, so she had a pretty good idea of how the system worked. And lately, federal bankruptcy judge Harry Hackett's cases didn't seem to fit it.

Guercio, who worked for another bankruptcy judge, had noticed that Hackett was drawing nearly all the court's large corporate bankruptcy cases--an oddity, since such cases were supposedly doled out at random. Moreover, most of these cases were being argued by one prominent bankruptcy lawyer, Irving August. After peering more closely into the court's financial records, Guercio also discovered that Hackett, who determined lawyers' fees in such cases, was awarding August what seemed to be excessively high payments.

It looked to Guercio like a case of kickbacks, but, still, she was just a secretary. So she took the evidence to the chief district judge, who was responsible for ruling on allegations of foul play. Her complaints soon disappeared unanswered into the abyss of the court system.

Guercio had logged enough experience in the labyrinthine legal system to know there was a second way to get charges heard. She'd break protocol and bypass the Detroit judiciary altogether, taking her suspicions to the Administrative Office of the U.S. Courts, an agency set up by Congress in 1980 to make sure complaints like hers don't get muzzled. Reaching a staff attorney in the bankruptcy division, Milner Benedict, she unloaded her fears.

Benedict listened, and then went to work. When the dust settled several months later, Guercio's uneasiness had proved founded. August had been sleeping with the clerk in charge of the blind draw and paying her off for ensuring that his big cases were handled by Hackett. As for Hackett, the investigators unearthed compelling evidence--like the fact that August had paid for trips taken by the judge and his girlfriend--that in return for awarding August cushy fees, the judge was taking a cut for himself. But while August was eventually sent to jail, Hackett simply retired at the end of his term--in good enough standing to have a courthouse dedicated to him in his hometown of Ann Arbor, Michigan.

Guercio didn't fare as well. A few years later, after raising questions about another judge, she was fired.

In the annals of the American judiciary, the Detroit case is atypical--not just because of the corruption, but because that corruption was investigated and exposed. Thanks to two decades of reforms, including the Freedom of Information Act and an explosion in the number of government investigators, the executive and legislative branches have come under closer scrutiny. But the judicial branch remains accountable to virtually no one but itself.

Not so fast, you say: We know what movies Robert Bork rents from the local Blockbuster Video, we know when Douglas Ginsburg got stoned, and many of us know more about Clarence Thomas than we can stomach. Indeed, after the Thomas hearings, politicians began complaining that there's too much public scrutiny of judges--and suggesting that the press and Congress and the lawyers should all lighten up.

But there's something this panorama of recent judicial inquiry doesn't take into account: All the klieg lights and interrogations are reserved for just nine of America's nearly 30,000 judges, the Brethren. Below them, the rules of the game are not only different, but written and implemented almost exclusively by other judges and the lawyers whose careers depend on them. While investigations of the judges who break those rules tend to be few and far between, lawyers and other observers who do complain are at best ignored and at worst punished for daring a point a finger. And even when the evidence against a judge is overwhelming, punishment tends to be of the wristslap variety.

Needless to say, the stakes here are enormous: While Supreme Court justices hear fewer than 130 cases a year, the federal courts alone hear more than 30,000 annually, and in the process create the bulk of the law of the land. Judges have one hell of a responsibility--and thus judicial oversees have an equally crucial obligation to make sure those on the bench deserve to be there. But the overseers don't seem to be sweating it. From 1989 through 1991, 988 complaints were filed by lawyers and other citizens against federal judges. Chief judges took corrective action in just 23 of those cases. Of the rest, 259 cases were channeled to "judicial councils"--select committees of judges charged with getting to the bottom of allegations. There, every single charge was dismissed.

In the meantime, the press and law enforcement officials have discovered enough judges taking kick-backs to suggest that corruption in the judiciary is not an unthinkable proposition--although getting bad judges off the payroll seems to be. Consider federal district judge Robert Collins in New Orleans, who was sentenced to six years in prison in 1991 for taking a bribe from a drug smuggler in exchange for a lighter sentence. He refused to resign and still collects a salary of $125,000 a year--and will continue to do so unless he is impeached by Congress.

Or consider the 1983 case of a Pennsylvania supreme court justice who came under investigation for, among other things, allegedly using his political clout to secure government jobs for his friends. An inquiry board of a lawyers and judges examined the charges, but one member, attorney Robert Surrick, left the board was giving the judge a free ride. Surrick filed a petition to turn the investigation over to the state supreme court, but the court refused to hear a case against one of its own members. So a frustrated Surrick took his charges to The Philadelphia Inquirer.

But the judge is question was still a sitting judge, and he struck back with the power of his position, initiating disciplinary proceedings against the lawyer to revoke his bar membership for publicly disgracing the bench. Surrick spent seven years fighting disbarment, eventually clearing his record. But then, exhausted and disillusioned, he retired. Today, the judge is still sitting.

Problems cases like these help explain an even bigger problem: Because judicial discipline is so inadequate, reasonable people won't risk the hassle of coming forward, even when they know something is wrong. At least Anita Hill still has her job, and millions of supporters. But people like Helen Guercio and Robert Surrick aren't so lucky.

Hun jury

In a perfect world, bag judges would be plucked out before they had a chance to wrinkle their robes. And on paper at least, the complext nomination system looks like it's primed to pluck away. All federal judiciary candidates, once nominated by the president, must be confirmed by the Senate, which in turn relies on its judiciary committee for a recommendation.

Unfortunately, the committee isn't always exacting in its standards. Last year, it debated and held roll call votes on only two of 58 nominations, Clarence Thomas and Kenneth Ryskamp. And only one, Ryskamp, was rejected. "There is an informal quota up there of about one or two year [who are challenged]," says Allan Morrison, head of Public Citizen's Litigation Group. "Other than that you could send up Attila the Hun and they'd pass him. They don't have the stomach or the resources to oppose too many candidates."

Of course, the judiciary committee has a cover: It relies heavily on the American Bar Association (ABA) and the FBI for its investigate legwork. But as became clear during the Thomas hearings, the FBI consider the White House, not the Senate, its client. And the ABA--well, it's got its own problems. Much of the ABA's information comes from a questionaire that candidates are asked to complete on their judicial temperament, years on the bench, professional competence, integrity, health, and so on. Not surprisingly, most potential judges think they're swell.

After completing the self-evaluation, each candidate is scouted by a lone ABA investigator--putatively the tough part of the drill. But in most cases that detective work consists of a few phone calls to the nominee's colleagues.

This lackadaisical effort at investigating nominees has had a predictable result: Of the more than 500 recommendations issued by the ABA since 1980, just one was unfavorable (and that unlucky man died during the confirmation process). How confidence-inspiring is a track record like that? As Senate Judiciary Committee Member Paul Simon said during a 1989 hearing on the ABA's role in the nominating process, he occasionally gets the "uneasy feeling when a nominee is front of me that I hope he doesn't get anything very complicated in front of him if he is a federal judge."

That's perturbing enough. But, unfortunately, the nomination process is Chinese water torture compared to the kind of scrutiny judges receive once on the bench.


Thankfully, a handful of judges have been expelled from the judiciary for violating the laws they swore to uphold. U.S. District Court Judge Harry Claiborne in Las Vegas was found guilty in 1984 of filing false income tax returns and was later impeached by the Senate, as was Alcee Hastings, a U.S. District Court judge in Miami who allegedly solicited bribes. But in more than 200 years, only 14 federal judges have been dragged before the Senate for impeachment hearings; of these, seven were convicted and removed from office.

But don't point the finger at the Senate; it can act only on cases that get that far. And most don't, thanks primarily to a system that allows judges to rule on cases that involve their peers. In each of the 13 federal judidical circuits, a chief judge is appointed to review all complaints lodged against fellow judges. He can either refer a case to a council of district and appellate judges for further review and a decision, or dismiss it as he sees fit. If the case is referred for further investigation, the punishment can be censure or a reprimard, which can range from a private scolding to temporary suspension.

The problem is not just that these judge-jurors rarely punish their fellow benchmates, it's that their word is the final say. In fact, they aren't even required to make the reasoning behind their decisions--or even the decisions themselves--public. And while the ABA sets the judicial code of conduct, it hasn't the teeth to enforce it.

Of course, the FBI can conduct independent investigations of sitting judges, but such probings have remained a low priority. "The're not going to pull guys from the drug squad or the organized crime unit just to see if some judge is taking kickbacks," snaps FBI spokesman Nestor Michnyak. The other agency deputized to investigate complaints of court crime, the Administrative Office of the U.S. Courts, has only five or six auditors to oversee all 837 federal judges. And while most states have set up a system of grievance committees and judicial inquiry booards, the boards' domain is limited to the state court system.

The result? "Forget about filing a complaint against a judge unless it's something on the front page," laments Kay Ostberg, executive director of the legal reform group HALT. "The [judicial] community is set up to protect them."

Lawyerhood of silence

No one knows that better than the lawyers. Although they have the best view of the playing field, they also have the most to lose by taking on a judge. Even high-profile lawyers, such as Brooklyn District Attorney and former congresswoman Elizabeth Holtzman, arent's safe from retribution. In the midst of a 1987 sexual assault trial in Kings County District Court, Judge Irving W. Levine ordered the rape victim down on her hands and knees to demonstrate the position in which the crime occurred. Holtzman, who felt the judge's behavior was "profoundly humiliating and degrading to the victim," filed a complaint with the state's commission on judicial conduct; she also took her case to the press. The allegations did finally lead to an investigation--not of Levine, but of Holtzman. She was charged by the district court's grievance committee--made up, of course, of judges--with making public accusations of misconduct against their fellow judge.

After nine days of hearings, the committee conceded that the rape demonstration had in fact occurred. Even so, the committee concluded that by making her complaint public, Holtzman was guilty of violating the professional code of conduct, not to mention "thoroughly reducing the public confidence in the entire judicial/legal system." In the end, the committee with the state's commission on judicial conduct; she also took her case to the press. The allegations did finally lead to an investigation--not of Levine, but of Holtzman. She was charged by the district court's grievance committee--made up, of course, of judges--with making public accusations of misconduct against their fellow judge.

After nine days of hearings, the committee conceded that the rape demonstration had in fact occurred. Even so, the committee concluded that by making her complaint public, Holtzman was guilty of violating the professional code of conduct, not to mention "thoroughly reducing public confidence in the entire judicial/legal system." In the end, the committee never called Levine's conduct into question.

Mind you, that judicial committee was merely following the law. Not suprisingly, the courts have upheld the notion that lawyers may be disciplined or disbarred for criticizing judges--even if the criticism is found to be true. In fact, 13 state supreme courts have ruled that lawyers are not protected by the First Amendment when it comes to criticizing judges.

Some sort of judicial protection is perfectly reasonable. The public must have faith in the judicial system for it to work, and if judges are publicly and frequently criticized, that faith will be eroded. And the bench also needs some insulation from lawyers (or their clients) who think that just because they lost a case the judge is on the take. But the pendulum has swung so far in favor of the bench that when lawyers moan that judges think they're God, they're not far from the legal truth.

In Florida, the court rules in 1973 that "the judicial process as an institution of government is a sacred proceeding." Any criticism that "brings into scorn and disrepute the administration of justice" is not protected by the First Amendment. The U.S. Supreme court has reinforced the limit on lawyers free speech rights by refusing to address the issue.

Bribed imbibers

By stifling criticism and abdicating judicial oversight to the judges themselves, our system invites the type of abuse that festered in Chicago's Cook County Circuit (the largest court system in the nation) in the early eighties. What the Justice Department finally found makes a Scott Turow novel look boring.

Judges were taking kickbacks and bribes, even in their chambers. Several were alcoholics, including one circuit court judge who was on occasion so hung over that he had his courtroom police sergeant don a black robe and work his morning shift. (The sergeant-turned-judge apparently reveled in his promotion. He once sentenced a drunk to death because he criticized the justice system while in the lockup behind the courtroom).

Justice's eight-year investigation, known as Operation Greylord, produced indictments against 88 judges, lawyers, police officers, and court personnel on charges including racketeering, bribery, and tax and mail fraud. But while these charges were new to Justice, they were old news to many lawyers. John Jiganti was president of the Chicago Bar Association in 1987, when many of the indictments were handed down. Despite years of corruption not one lawyer came forward to report the malfeasance, he recalls, even lawyers who weren't on the take. The lawyers didn't use the internal mechanisms for reporting the fraud, he explains, because they knew they didn't work.

The disciplinary system in place in Chicago at the time of Greylord is very much like the current system for federal judges. But if federal judges are content with the status quo, Greylord showed Chicago that there had to be a better way.

Since the sting, the Chicago Bar Association (CBA) has attempted to turn peer review of state judges, who come up for evaluation every six years, into more than a rubber-stamp process. In recent years, anywhere between two to five of the 60 judges annually reviewed have been found unfit to remain on the bench. "A lot more passes were given before Greylord," says Jiganti.

The CBA has also made a stab at better review of federal judges. Instead of relying primarily on self-evaluations, it now surveys the federal judiciary and interviews lawyers confidentially about each judge's performance. But these small reforms are just a start--and they still leave judges and lawyers in charge. For truly effective oversight, we'll pretty much have to start from scratch.

The first thing to do is get tougher on judges before they become judges--that is, before they achieve their "untouchable" status. To complement the flimsy FBI and ABA investigations, we might empower a Senate-appointed permanent, nonpartisan investigations commission to probe the backgrounds of federal judicial nominees. Congress had created such independent oversight bodies in the past--see the Congressional Budge Office or the Office of Technology Assessment. Another approach would be to create committees of lawyers and citizens to review candidates--which would encourage input from a wider range of interested parties.

Once judges get on, though, the task is even larger: ending the closed, self-regulating disciplinary culture. One key reform would be to try misconduct cases by jury rather than behind the closed doors of another judge's chambers. Another is to create independent bodies, made up of lawyers and nonlawyers, to thoroughly investigate charges against the judiciary. And one drastic solution is to end life terms for federal judges, which isolate them from public scrutiny.

But we can't expect the judiciary to see the wisdom of ideas like these without a little nudge, which is why the most likely path to the reform of judicial discipline lies outside the courtroom. The press, which slathers over the Supreme Court but considers the lower courts unworthy of its scrutiny, has some rich new territory here--although that territory has a few build-in perils. When The Philadelphia Inquirer report on corruption in the Pennsylvania case, it found itself slapped with a libel suit. Today, the paper that criticized the judiciary awaits a judgment from the bench. Where would you place your bets?

In 1990, Congress created a commission to examine both the impeachment and disciplinary processes; that commission offers a window of opportunity for real reform. But clearly, fixing the judicial discipline system won't be easy or politically painless. It involves adjustments at every level, from the ABA to the Judiciary Committee to the courts' internal investigative mechanisms to the press. But just ask Helen Guercio or Elizabeth Holtzman or Robert Surrick--not reforming it is courting real disaster.

Stephanie Mencimer is a Washington writer. Research assitance was provided by Scott Greenberger.
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Author:Mencimer, Stephanie
Publication:Washington Monthly
Date:Apr 1, 1992
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