J.A.I.L. News Journal
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Los Angeles, California                                                     April 1, 2005
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Attorney Zerman
Replies to ABA President
 
Inasmuch as the President of the American Bar Association has thought to defend judges by saying, "...they deserve our respect, not our scorn," Attorney Gary Zerman, the National J.A.I.L. Lt. Commander-In-Chief, has respond to him using actual court decisions and cases to show by evidence that the courts have not earned the respect of the People of this country.
 
By way of warning, Zerman's response is neither short, nor milk for beginners, but rather very strong meat that is the subject for those desirous of deep study into the subject of judicial immunity. If such study is not your "cup of tea," then I recommend you simply delete this email, or save it to a folder, and go on doing what you have been doing. Remember, this is a conversation from one attorney to another.  
 
-Ron Branson
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 Statement of Robert J. Grey Jr., President,
American Bar Association


Re: Attacks on the Judiciary in the Terri Schiavo Case

WASHINGTON, D.C., March 25, 2005 -- The tragic circumstances of the Terri Schiavo case have elicited strong feelings from all quarters. While this is completely understandable, many commentators and observers have crossed the line in using this tragedy to needlessly, gratuitously and viciously attack the dedicated men and women who serve as America's judges. This needs to stop.

Regardless of how one feels about the specific circumstances of this situation, the role of the judiciary in it is clear and straightforward. The federal and state judges who have been assigned this case have been charged with weighing the facts of the case and the remedies set forth in the law, responsibilities they have carried out valiantly and with great dignity and sensitivity to the anguish that all of the participants in this case have endured.

While it is appropriate for commentators, policymakers and the broader public to debate the societal challenges and dilemmas brought to light by Terri Schiavo's case, there is no need for personal attacks on the judges in this case. They are not killers as some have called them, nor are they activists bent on pushing an ideological agenda. They are simply dedicated public servants called on to serve as impartial arbiters in a very difficult case. Instead of maligning them for applying existing law to the case at hand, even though it may not reflect the current will of Congress, we should praise them for dispensing even-handed justice and upholding the independence of the judiciary even under the most difficult circumstances. These judges deserve our respect, not our scorn.

For further information:
Contact: Damien LaVera
Phone: 202/662-1094
E-mail:
laverad@staff.abanet.org
 

March 31, 2005

Reply to ABA President, Mr. Robert J. Grey, Jr.'s Statement re Attacks on the Judiciary.
March 31, 2005

Mr. Grey claims - in rather blanket fashion - that "judges deserve our respect, not our scorn."  A basic rule of life, is that respect is earned, it is not just given, or presumed as Mr. Grey claims.  As Supreme Court Justice Louis Brandeis stated:  "If we desire respect for the law, we must first make the law respectful."

Below are a few examples, why some may not think that some judges warrant our respect, or trust, well deserve our scorn and even that we should fear them..

First, is the case of Bradley v. Fisher, 80 U.S. (13 Wall) 335, 20 L. Ed 646 (1872), authored by Justice Stephen Field, that grabbed absolute judicial immunity for judges - including corrupt and malicious judicial acts committed by judges, without any reference to a purported Constitutional basis for doing such. (Article III provides no immunity to the judiciary.) There Justice Fields claimed that absolute immunity was taken from long-established English common-law and that this was being done for the "benefit" of the people - not the judges.  Well, the People were never asked, and the smart money says that if they were asked, they would have said, "NO!"

Further, we fought a revolution to get out from under the yoke of the English King's tyrannical absolute power and the mantra "The king can do no wrong," not to have it now replaced by the yoke and tyranny of judges.  Cleary, under our Constitution the absolute immunity power- grab - placing the judges above the People, turns the principle that the People are sovereign - the masters, and that the government (all branches) are under, and the servants of, the People - on its head.  Further, that power-grab violates the doctrine of separation of powers - the so-called checks and balances.

Under our Constitution, the only way judges should get any immunity (and that would be a limited and qualified) must come from the legislative branch, and arguably through a Constitutional Amendment.  Article I though, provides no express basis for placing the judges over the People's sovereignty and rights either, and in fact the Article has some prohibitions in Sections 9 & 10:  "No Title of Nobility shall be granted by the United States: …" and "No State shall …-or grant any Title of Nobility."  The sovereign immunity - "the King can do no wrong" - came from the nobility of his birthright and title.

One should take a moment here to ponder the profound quote by Lord Acton:  "Power tends to corrupt and absolute power corrupts absolutely."  Substitute "immunity" in place of "power."  Now repeat Lord Acton's quote.  Judges sit at the pinnacle of power; federal judges are appointed (not elected by the People) for life, and they grabbed absolute immunity for themselves.  Power + immunity = abuse by judges and danger for the People.

Is that the type of judge Mr. Grey wants us to respect?

The facts in Bradley v. Fisher:  Joseph Bradley was an attorney, who successfully defended and obtained a hung jury for his client, John Suratt, one of the alleged assassins of President Lincoln. George Fisher was the judge who presided over the trial, which started on June 10, 1867 and concluded on August 10, 1867.  After the trial, Fisher unilaterally issued an order on November 9, 1867 striking Bradley's name from the rolls of attorneys that could practice in the court, claiming that on July 2, 1867 Bradley "threatened" Fisher "with personal chastisement for alleged conduct of the judge during the progress of a criminal trial then pending."  (at 356.)  Bradley was shortly returned to the "rolls."  Ex Parte Bradley, 74 U.S. (7 Wallace) 364 (1868).  He then sued Judge Fisher for monetary damages in Bradley v. Fisher.

Judicial retribution by Judge Fisher?  Beyond the issue of whether it is constitutional, is the question:  Is this the foundation, the basis, on which to plant the questionable doctrine of absolute judicial immunity?

To his credit, Justice David Davis (joined by Justice Nathan Clifford) dissented in Bradley and wrote at 357:

"… I dissent from the rule laid down by the majority of the court, that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly.  If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances."

Note: Just four years before his 1872 Bradley v. Fisher decision, Justice Field authored Randall v. Brigham, 74 (7 Wallace) 523 (1868). There Justice Field wrote that there was an exception to judicial immunity when acts are done maliciously or corruptly.  Ironically, Randall, like Bradley, also involved a trial judge disbarring an attorney from a case before him. Randall likewise is absent consitutional authority for judicial immunity.

Second, is the case of Buck v. Bell, 274 U.S. 200 (1927), a decision written by Justice Holmes.  There Holmes stated at 205:  "Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form.  She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child."  In affirming the forced sterilization of Carrie Buck, Justice Holmes stated:  "Three generations of imbeciles are enough."  (at 207.)

Peter Irons, in "A People's History of the SUPREME COURT" (1999) Penguin Books, discussed the Buck v.  Bell case at 252 stating:

"… His [Holmes] opinion reeked of the arrogance of aristocracy, and could easily have been written by Herbert Spencer. ‘It is better for all the world,' Holmes pontificated, ‘if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.'  [P]  Five decades later, a journalist who tracked down Carrie Buck and dug into old records discovered that she had been committed to Virginia's ‘State Colony for Epileptics and Feeble Minded' only because she had been raped by the eminent doctor who employed her as a housekeeper.  Her daughter, Emma, was a perfectly normal child, and the ‘eugenic expert' who recommended her sterilization was later honored by the German Nazi regime for helping draft its ‘Race Hygiene' law, which laid the tracks that ended in the gas chambers of Auschwitz and other death camps.  Holmes knew nothing about the scientific fallacies of the ‘eugenic' movement; more important, he did not feel any duty to look behind the fabricated record in the Buck case."

Immunity allowed Justice Holmes to act with impunity while he disregarded basic rights due Carrie Buck. Clearly, judicial power must be curbed and held accountable.

Third, is the case of Stump v. Sparkman, 435 U.S. 349 (1978).  There, Judge Harold Stump was sued by fifteen-year-old Linda Kay (Spitler) Sparkman, because without her knowledge or consent she was sterilized, after Judge Stump granted a "PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR AND INDEMNITY AGREEMENT" brought by the mother-Ora Spitler McFarlin's attorney and signed an order for the sterilization.  The "petition" claimed she Linda was "somewhat retarded."  Linda Spitler never appeared in court, never had counsel, never had a chance to appeal, and never even knew what happened - as she was falsely told she was going to the hospital to have her appendix removed.

Justice Byron White (joined by Chief Justice Burger and Associate Justices Blackmun, Renquist and Stevens) wrote Stump v. Sparkman, which reversed the appellate court's denial, and upheld the federal trial court's grant of absolute judicial immunity for Judge Stump. Justice White's decision is absent of any Constitutional authority for the immunity.  Mr. Grey, is Justice White the type of judge you are referring to, who deserves our respect? and those justices who joined him?  How about Judge Stump?

How can one have respect for any "judge" who could support and write such an obscene decision, upholding such perverse imperial judicial power, while sanctioning the desecration of  the fundamental Constitutional rights of citizens.  These judges did not protect the Constitution - they trashed it.  These judges did not protect Linda (Spitler) Sparkman's rights - they trashed them.  This is the dark legacy of Bradley v. Fisher.

To their credit, Justice Stewart (joined by Justices Marshall and Powell) dissented.  At p.365 Justice Stewart wrote:

"… and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act."  [continued at 369:]  "The petitioners' brief speaks of ‘an aura of deism which surrounds the bench …'  Though the rhetoric may be overblown, I do not quarrel with it.  But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here.  And if intimidation would serve to deter its recurrence, that would surely be in the public interest. (ftnt. 9 omitted.)"

Aura of deism?  Such lawless conduct?  Mr. Grey, is this the type of judging we are to respect?

The underlying appellate decision Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), a 3/0 opinion by Judges Swygert (joined by Judges Wood and East), held Judge Stump did not have immunity and did not have jurisdiction to sterilize young Linda Spitler. At p.174 Judge Swygert wrote:

"…Although this grant of judicial power is broad, we cannot accept the
assertion that it cloaks an Indiana Circuit Court judge with blanket
immunity.  He may not arbitrarily order or approve anything presented to him in the form of an affidavit or petition."


At p.176 Judge Swygert held that to order sterilization under the circumstances here:

"...we would be sanctioning tyranny from the bench.  There are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take. (ftnt, 7 - omitted). … [P]  Finally, the petition and order were never filed in court. This kind of purported justice does not fall within the categories of cases at law or in equity."

Never filed in court? We would be sanctioning tyranny from the bench?  Tyranny - that is exactly what the Supreme Court justices committed in Stump v. Sparkman when they reversed Judges Swygert, Wood and East giving immunity to Judge Stump..

Fourth, is the case of Pierson v. Ray, 386 U.S. 547 (1967), an 8/1 decision written by Chief Justice Warren, that affirmed immunity for judges under section 1983 civil rights statute that imposed liability on "Every person who, under color of [law] … subjects or causes … any citizen of the United States … to the deprivation of any rights … secured by the constitution and laws …".  The decision is absent of any Constitutional basis/authority for absolute judicial immunity.

To his credit, Justice Douglas wrote in his lone dissent at 559:

"… The court's ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow from inexorably from our prior decisions. … [P] To most, ‘every person' would mean every person, not every person except judges."  [Continuing at 562:]  The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke on the issue assumed that the words of the statute meant what they said and judges would be liable. … [P] The section's purpose was to provide redress for the deprivation of civil rights.  It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied.  The parade of cases coming to this Court shows that a similar condition now obtains in some of the States.  Some states courts have been instruments of suppression of civil rights."

[Continuing at 565:]  "The argument that the actions of officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying ‘The King can do no wrong.' (ftnt. 5 omitted.)  Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:  ‘I can not believe that judges … would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences … from any fear of exposing themselves to actions at law.  I am persuaded that the number of such actions would be infinitely small and would be easily disposed of.  While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged.'  Dawkins v Lord Paulet, LR 5 QB 94, 110 (C.J. Cockburn, dissenting)."

[Concluding at 566 Douglas wrote:]   "… What about the judge who conspires with local law enforcement officers to ‘railroad' a dissenter?  What about the judge who knowingly turns a trial into a ‘kangaroo' court?  Or one who knowingly flouts the Constitution in order to obtain a conviction? …"


What about judges like that Mr. Grey?  Should we give them absolute judicial immunity?  Should we respect them?  More important Mr. Grey, what about the citizens who's rights those judges trampled?

A look at what some legal commentaries have said on the issue is helpful here.  In "Liability of Judicial Officers Under Section 1983" 79 Yale L.J. 322 (1969), it is written at p.322:

"… This Note contends that the congressional intent of Section 1983 and the policies underlying this exemption do not support a grant of judicial immunity, but rather argue for judicial liability under an actual malice standard. (ftnt. 3 omitted.)  [Continuing at 337:]  [P]  But whatever the long term results of imposing liability, there is no adequate rationale—in history or policy—for altogether exempting judicial officers from liability under section 1983. …"

Note, absent from "Liability of Judicial Officers Under Section 1983" are the questions of whether the Court ever had the constitutional authority/power to give itself immunity and whether that would violate the doctrine of separation of powers.

In "Immunity of Federal and State Judges from Civil Suit—Time for Qualified Immunity?" 27 Case Western L. Rev. 727 (1977), Douglas K. Barth wrote at p.741:

"The Court's decision in Bradley and Pierson firmly entrench the judiciary's immunity from either tort or section 1983 suits.  Even so, the four policy reasons typically recited to support judicial immunity demonstrate the doctrine's inherent fallacies. (ftnt. 82 omitted.)"

Note:  Mr. Barth's article was written just prior to the Supreme Court's Stump v. Sparkman decision, thus the Court clearly ignored his criticism of the doctrine's inherent fallacies.  Absent from Mr. Barth's paper are the questions of whether the Court ever had the constitutional authority/power to give itself immunity and whether that would violate the doctrine of separation of powers.

In "Stump v. Sparkman:  The Doctrine of Judicial Immunity," 64 Virginia L.Rev. 833 (1978), Irene Merker Rosenberg wrote at 833:

"Ever since the Supreme Court's ruling in 1967 that state judges acting within their jurisdiction are absolutely immune from suit for damages under section 1983, (ftnt.1 omitted) legal commentators have persistently condemned this unqualified exemption. (ftnt.2 omitted.)  In Stump v. Sparkman, (ftnt.3 omitted) the Court gave its response to these critiques by not only reaffirming but also apparently expanding the immunity doctrine, thus facilitating the use of still another mechanism for federal courts to avoid the merits of constitutional claims. (ftnt.4 omitted.)

[Continuing at 856:]  "That these judges will be deterred by proceedings against them in criminal courts or before judicial disciplinary committees is no answer. (ftnt.93 omitted.)  The possibility that a district attorney will prosecute a judge for misconduct other than crass, monetary schemes is remote, (ftnt.94 omitted) and judicial qualifications commissions are less than renowned for their prosecutorial zeal. (ftnt.95 omitted.)  Finally, the electorate cannot always be depended upon to oust judges who have trampled individual rights. (fntn.96 omitted.)

[Concluding at 858:]  "… It is understandable that the Justices would wish to construct a protective umbrella considerably broader that strict necessity would mandate to assure coverage of all the deserving.  It is quite another matter, however, to stretch that umbrella so that it also
covers Daumier caricatures in judicial robes on their way to a masquerade ball."

Note:  Absent from Ms. Rosenberg's paper are the questions of whether the Court ever had the constitutional authority/power to give itself immunity and whether that would violate the doctrine of separation of powers.

In "Stump v. Sparkman and the History of Judicial Immunity," (1980) Duke L.J. 879, No.5, J. Randolph Block wrote at p.924:

"… The availability of appellate correction of error is, therefore, absolutely central to the logic of judicial immunity.  For this reason, judicial immunity should not be available when, as in Sparkman, the actions complained of prevented the complainant from seeking normal correction of error."

Mr. Block misses the point here, immunity in fact was available/granted to Judge Stump - not by the 7th Circuit, Sparkman v. McFarlin, 552 F.2d 172, who correctly denied him such - but it was given to him by the U.S. Supreme Court - which reversed!  This clearly demonstrates that the Courts, the judges, the judiciary - look out for themselves - instead of fiercely protecting and upholding the Constitution and the sovereignty and rights of the People.  The government (here the judges) win, the People lose, our sovereignty is inverted.  Clearly the courts cannot be trusted and their powers must be curbed.

In "Suing Judges:  History and Theory" 31 South Carolina L.Rev. 201 (1980) Jay M. Feinman and Roy S. Cohen wrote at p.203:

"We conclude that statements such as that in Bradley are inadequate history at two levels, reflecting judicial misunderstanding of both what the law was and how and why it developed. Actually, English law began with a position of general judicial liability and developed only limited exceptions on ground irrelevant to a discussion of judicial liability today.  When the English law was received in the United States, this limited immunity was expanded significantly, notably by James Kent, to limit liability, and throughout the nineteenth century a mixed pattern of judicial liability and immunity existed in America.  In Bradley, Justice Field provided a confused reformation of the law, which led to a further limitation of liability.  At no point, however, were the advantages and disadvantages of judicial immunity fairly examined.  Because the case for immunity is inconclusive and unpersuasive on historical grounds, we also examine the issue on policy grounds; our analysis proceeds from a thorough review of the case law and literature.  We conclude that immunity is indefensible on policy grounds as well …"

[Continuing at 205:]  "Most of the major judicial liability cases use the common-law origins of judicial immunity as a justification for the doctrine.   For example, as noted above, Bradley v.  Fisher, the case principally relied on by the Court in Stump, used extensive discussion of English case law to show the authority of the rule and to support its continued application.  [P]  In this section, we demonstrate that these conclusions about English law simply are incorrect.  A careful analysis of English law shows that the basic rule was one of liability, that no simple rule of immunity ever existed, and that applications to American law of those instances in which immunity was granted have been inappropriate.  In sum, the English law provides little support for a rule of absolute judicial immunity."

[Continuing at 279:]  "… It is our belief that the decision in Stump should be rejected as too protective of judicial prerogative because it violates a basic tenet of the legal process - the right of review - when there would be little cost to the legal system from imposing liability. 
 
[P]  Thus, Justice Powell's emphasis on the importance is persuasive to us.  The majority's conclusion, whatever the strengths and weaknesses of the process that produced it, is simply undesirable. ..."

Note:  Absent from Mr. Feinman's and Mr. Cohen's paper, are the questions of whether the Court ever had the constitutional authority/power to give itself immunity and whether that would violate the doctrine of separation of powers.

In "FEDERAL JURISDICTION" (3rd Ed) Aspen Law & Business, Aspen Publishers, Professor Erwin Chemerinsky wrote at p.495:

"In numerous specific cases - ranging from the scope of judicial immunity (ftnt.6 omitted) to the availability of punitive damages (ftnt.7 omitted) - the Court has focused extensively on the common law of immunities as it existed when section 1983 was adopted.  This historical approach is subject to substantial criticism.  First, it assumes that the common law was clear about the nature of the immunity to be accorded to particular government officers.  Yet usually there was great divergence among the states and there was no firmly established rules.  For instance, the Court has emphasized the common law immunity to suits for damages under section 1983. (ftnt.8 omitted.)  However, in 1871 only thirteen of thirty-seven states accorded judges such immunities for suits. (ftnt.9 omitted.)  In fact, in adopting section 1983, many members of Congress were particularly concerned about unconstitutional conduct by judges. (ftnt.10 omitted.)

[Continuing at 496:]  "Additionally, even if common law principle were clear and discoverable, their relevance to modern doctrines is questionable.  The fundamental premises of tort law have changed dramatically over the past 130 years, as have views about the Constitution and individual rights.  Undoubtedly many officers occupy far different positions that they did in 1871.  Furthermore, there is strong argument that common law tort immunities have little relevance in determining the scope of responsibility for constitutional violations.  Some suggest that the Court should abandon the immunity inquiry and leave the entire matter of immunities to the legislature. (ftnt.14 omitted.)  Others would prefer a more functional approach to determining the nature of immunities. (ftnt.15 omitted.)  Nonetheless, for now, the starting point in the Court's analysis of immunity remains the common law of 1871."


Wrong! The starting point then, now, and always - is the Constitution!   Article III does not grant the judiciary immunity. Maybe that is why Justice Field did not mention the Constitution in Bradley. The Supreme Court has thereafter ignored that there is no Constitutional authority/basis for absolute judicial immunity. Judges giving judges absolute immunity - over and above the rights of the People - violates the sovereignty of the People, the Constitution and separation of powers.  Absolute immunity sets a dangerous precedent, laying the ground-work for further trampling of the rights of citizens, and further acts elevating government over the People.

Beyond the protection judges gave themselves with immunity, is the problem that judges protect themselves further regarding complaints to judicial agencies/commissions about judicial misconduct.  For example, an August 7, 2002 Associated Press article by Anne Gearan "Self-policing Federal Judges Rarely Impose Penalties," reports in pertinent part:

"Federal judges usually police one another's behavior, but they rarely meet out punishment.  Of 766 ethical complaints lodged last year, [2001] only 1 resulted in a penalty. … In the single case last year in which the judge was punished, the penalty was a private censure and no details, not even the judge's name were released.  The system encourages lenient treatment, American University law professor Paul Rice said Tuesday.  ‘They have an obligation to police themselves, and of course that is the problem,' he said.  Judges sit on the boards that review allegations of ethical misconduct and are loath to punish a colleague, Rice said."

More recent, a January 18, 2004 pg.B1 LA Times article "Judge May Face Sanctions - Federal Jurist Improperly took over case, Judicial Panel says" reported:

"A veteran federal judge faces disciplinary proceedings after he improperly seized control of a bankruptcy case in an effort to protect a woman whose probation he had decided to oversee personally. … Penalties for district Judge Manuel L. Real, 79 who has been a controversial member of the federal judiciary in Los Angeles since 1966, could range from a private reprimand to loss of the authority to hear cases. … The proceeding in the case have largely taken place out of the public eye.  The judicial council of the 9th Circuit … handed down its ruling on Real in mid-December, but the decision has never been formally published and has not been placed on the court website. … Legal experts say the council's ruling means that some sort of penalty against Real is highly likely.   That alone would make his case rare.  More than 99% of the complaints filed against federal judges around the county are dismissed out of hand.  The 9th Circuit council has reprimanded only two jurists in the last decade, while rejecting hundreds of complaints, according to official records.  Beyond that, Real's opponents say, the case provides a textbook example of the way a federal judge - holder of a lifetime appointment - can abuse his power on behalf of an individual he favors. … In 1984, Real fined [attorney Stephen] Yagman $250,000, a penalty that was later dismissed on appeal.  The judge said the lawyer had filed a libel suit in bad faith.  Yagman retorted by saying Real suffered from ‘mental disorders' and compared him to Tomas de Torquemada, leader of the Spanish Inquisition. … ‘Taking a case for the purpose of affecting the result is the antithesis of impartial judging,' said Stephen Gillers, vice dean of the New York University Law School and author of a legal ethics textbook.  ‘These alleged transgressions deserved serious attention,' he said.  USC law professor Erwin Chemerinsky agreed, ‘I think it is important for the 9th Circuit to say a judge should not behave this way.'"

More that 99% dismissed out of hand?  Textbook example of the way a federal judge can abuse his power?  A judge should not behave this way?  Why does the judiciary allow this to happen, Mr. Grey?  How can anyone have respect for this, Mr. Grey?

Finally, and even worse, is the failure of both the House and the Senate to see that bad federal judges are removed impeached and convicted.  As pointed out in U.S. v. Hastings,, 881 F.2d 706, 709 (11th Cir. 1982) there had only been 9 impeachments of federal judges up to that time, with only 3 convictions.  That is only 9 judges over 191 years.  Post Hastings, federal District Court judge (Nevada) Harry Claiborne was impeached and removed by the Senate in 1986 (while in prison, on his 1984 conviction for tax evasion).  Claiborne claimed he was the victim of a federal vendetta. 
 
The failure to impeach has not been because federal judges have been angels. A clear example, is the case of Judge Andrew Hauk, Central District California.  He "retired" (went on Senior Status) in 1982, due to numerous reversals "in scolding language" of his trial decisions because of bias and "intemperate and unpredictable behavior."  Rather than impeach or force Hauk to resign, areas of law were taken away from him.  How does that protect the people and create respect for the judiciary?  See "Circuit Slams Hauk, Takes Him Off Case," August 31, 1993 p.1 LA Daily Journal, "Panel to Probe Actions of Federal Judge," August 16, 1994 p.A4 LA Times, "'Penitent' Hauk Will Not Hear Certain Cases",  September 22, 1994 p.1 LA Daily Journal, and "Questions About a Judge," March 28, 1995, p.B12 LA Times editorial. The people will no longer have to fear Congress not doing its duty, or fear Judge Hauk.  He died on November 9, 2004 at the age of 91.

Another example is Judge James Ware, Northern District California.  He was a shoe-in for elevation to the 9th Circuit Court of Appeal, having already been confirmed by the Senate Judiciary Committee, when a tragic story - as to why he became an attorney, then a judge, that he had been telling in speeches and interviews for several years, beginning in 1973, was discovered to be a lie.  Although Ware withdrew his own nomination to the appellate bench, he was not impeached, nor forced to resign and remains a district court judge, and at times has even had special assignments sitting as a justice on the federal appellate court.

The story was about 13-year-old Virgil Ware being shot and killed while riding on the handlebars of his brother James Ware's bike in Birmingham, Alabama in 1963 by white racists.  The story was true - Virgil was in fact shot and killed.  The "lie" was that the Judge was not the brother, not that James Ware.  In telling the tragic tale, Ware would tell crowds the murder of his teen-age bother "made him hungry for justice."  See "Judge Lied About Civil Rights Death," November 7, 1997, pg. News-18 Daily News, "Embattled Judge Ware Cancels Calendar After Media Maelstrom," November 10, 1997, pg.4 LA Daily Journal, "A Judge Compromised," November 11, 1997, pg.6 LA Daily Journal editorial, "IF THE TRUTH BE TOLD - Judge James Ware's ‘Lack Of Honesty' Should cost Him the Bench," November 25, 1997, pg.6 LA Daily Journal commentary piece and "Judge Censured For Lying About Childhood Event - Ware Receives First Such Reprimand From 9th Circuit Council," August 19, 1998, pg.1 LA Daily Journal.  See also Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996) where Ware was the presiding USDC trial judge, reversed for dismissing a civil rights case against a judge (Stone) and attorneys accused of conspiring to steal an estate by manipulating court proceedings.  Ware determined Judge Stone had "absolute immunity" and that the attorneys conduct was "privileged".  The appellate court affirmed on judicial immunity, but reversed on "privilege."  Not mentioned was that before Ware became a federal judge, he was a colleague of Judge Stone on the Santa Clara
County Superior Court. Conflict?

Another example is the case of San Jose federal Judge Robert P. Aguilar, Northern District.  As reported in "U.S. Drops Case Against Judge Who Resigns - Tried Twice on Charges of Disclosing a Wiretap and Trying to Sway Fellow Jurists," June 25, 1996 pg.A3, LA Times, the federal government dropped its 7-year prosecution of Aguilar - the first federal judge ever indicted in California - in exchange for his immediate resignation.  A January federal appeals court decision "overturn[ed] Aguilar's sole remaining conviction, for disclosing wiretap information,"  In the agreement, Aguilar "...acknowledged disclosing wiretap information, but did not admit criminal wrongdoing."

One Court attempted to deal honestly with the problem.  In Lo v. Los Angeles County Superior Court, (1998) 67 Cal.App.4th 1045, a former criminal party sued the trial judge (George W. Trammell, III, who presided over her case, then later allegedly coerced sex from her) and the County and State on employer liability.  Reversing the trial court ruling that sustained a County/State demurrer, the Court stated:

"We decline to burden this opinion with the myriad other cases, in California and other jurisdictions, in the intervening 25 years chronicling sexual abuse by judges. We decline to find an abuse of judicial power for personal gratification so unusual and startling to shield defendants from respondeat superior liability."

" The cases are rife with judicial abuses of power motivated by arrogance as well as sexual abuse.  (See Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678.)  Abuse of power can be motivated by greed, arrogance, sexuality, or any other improper motive.  Our Constitutional system of checks and balances was designed to protect us against the Founder's expectations that unchecked power would lead to rampant abuse.  They considered abuse of power so common as to design an entire system of government to expressly check it."


On February 19, 1999, the California Supreme Court issued an order decertifying the above appellate opinion, directing it not be published in the Official Appellate Reports.  The LA County DA refused to bring criminal charges against Trammell.  (See "L.A. County's Dual Standard of Justice Marches On," by Charles L. Lindner, January 11, 1998, p.M6, LA Times.) The California Attorney General, in like fashion refused. Eventually the U.S. Attorney's Office brought charges against Trammell; he pled guilty to two counts of mail fraud on October 1, 2000.  (See "Judge Trammell Gets 27-Month Prison Sentence - Trading Leniency for Sexual Favors Was Abuse of Position," February 1, 2001, pg.1, LA Daily Journal.)

But the sad truth is that the "checks and balances" - "separation of power," despite the grand efforts of our Founding Fathers, simply have not worked well in holding the  judiciary accountable.  The case of Bracey v. Gramley, 420 U.S. 899 (1997) is a blatant testament to that. In Bracey, Chief Justice Rehnquist wrote:

"Petitioner William Bracey was tried, convicted and sentenced to death before then-judge Thomas J. Maloney for his role in an execution-style triple murder (ftnt. omitted.)  Maloney was later convicted of taking bribes from defendants in criminal cases.  Although he was not bribed in this case, he ‘fixed' other murder cases during and around the time of petitioner's trial.  Petitioner contends that Maloney therefore had an interest in a conviction here, to deflect suspicion that he was taking bribes in other cases, and that this interest violated the fair-trial guarantee of the Fourteenth Amendment's due Process Clause.  We hold that petitioner has made a sufficient factual showing to establish ‘good cause' … for discovery …"

"Maloney was one of many dishonest judges exposed and convicted through ‘Operation Greylord,' a labyrinthine federal investigation of judicial corruption in Chicago.  See United States v. Maloney, 71 F.3d 645 (CA7 1995), cert. Denied, 519 U.S. ___ (1996); see generally J. Tuohy & R. Warden, "Greylord - Justice, Chicago Style (1989).  Maloney served as a judge from 1977 until he retired in 1990, and it appears he has the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case. (ftnt. omitted.)  Before he was appointed to the bench, Maloney was a criminal defense attorney with close ties to organized crime, who often paid off judges in criminal cases.  App.54-66; 81F.3d 684 (CA7 1996) (Rovner J., dissenting)  (‘[B]y the time Maloney ascended to the bench in 1997, he was well groomed in the art of judicial corruption').  Once a judge, Maloney exploited many of the relationships and connections he had developed while bribing judges to solicit bribes for himself.  For example, Lucius Robinson, a bailiff through whom Maloney had bribed judges while in practice, and Robert McGee, one of Maloney's former associates, both served as ‘bag men,' or intermediaries, between Maloney and lawyers looking for a fix.  Two such lawyers, Robert J. Cooley and William A. Swano, were key witnesses against Maloney at this trial.  Maloney, supra, at 650-652."


I rest my case Mr. Grey.  There is good reason not to respect our Courts - the works of the judiciary itself.  The judiciary has placed  themselves above the People, above the Constitution, and above the law, instead of being the guardians of the Constitution and the guardians of our liberty. That is its fundamental duty! The purpose of the law is to be the vehicle to deliver justice.  The first purpose listed in the Preamble to our Constitution is to "Establish Justice."  The judicially created and judicially upheld doctrine of absolute judicial immunity - has been the vehicle of - injustice.

There is equally good reason not to respect the Congress and the Executive branches, as they have also not defended the Constitution and our liberty from the attacks by the judiciary.  Why have they sat idly by, or done worse, when the judiciary made its power-grab for absolute immunity in violation of separation of powers.  See "WITHOUT MERIT:  The Empty Promise of Judicial Discipline," (1997) Vol.4, No.1, Massachusetts School of Law, The Long Term View, p.90, at http://www.judgewatch.org/.

Mr. Grey, you and the ABA can continue to defend the indefensible.  The People will not, as recent books show:  "Men in Black:  How the Supreme Court is Destroying America," by Mark Levin, "The SUPREMACISTS:  The Tyranny of Judges and How to Stop It," by Phyllis Schlafly, "Constitutional Chaos:  What Happens When the Government Breaks Its Own Laws," by Judge (retired) Andrew Napolitano,  "Coercing Virtue:  The Worldwide Rule of Judges," by
Robert H. Bork, "Go Directly to Jail:  The Criminalization of Just About Everything," by Gene Healy, and "Against Leviathan:  Government Power and A Free Society," by Robert Higgs.

Mr. Grey, instead, one would wish that you and the ABA, would join in
combating the "Rule of Judges," and join in defending the Constitution.  But frankly, like the disrespect and distrust of the judiciary, that situation largely equally (and probably to a greater extent) afflicts the ABA and the attorney population in general.  To be a judge, one must almost always be an attorney, (thus the judiciary is exclusively lawyers); and the legislature and executive branches are inordinately held/staffed by lawyers.  Judges and lawyers are an oligarchy, and we now have a government - of the judges/lawyers, for the judges/lawyers and by the judges/lawyers.
 
There is a constant clamor about "threats" to the independence of the judiciary, from the judiciary, and the cheerleading ABA and state Bar Associations. Fact is, the threats are grossly exaggerated. Fact is, the judiciary is all powerful and plenty able to defend itself - against any threat. Fact is, the judiciary has never been that independent and has always been quite political - because being the third branch of government, by definition, is political by nature. We have been fooled long enough. More important, is that the judiciary has become too independent - independent from the dictates of the Constitution, and independent from, above, and beyond - the People, who duty it is to serve. Judicial independent is not the problem - judicial accountability is!

To conclude Mr. Grey, the abuse continues - it is manifest.  See the
following four (4) current/pending cases that clearly demonstrate blatant judicial/government corruption.

1.  Robert Schultz, et.al. v. IRS, et. al., Case No. 04CV01211, D.C.
Federal Distict Court - asking the question:  Is the right to petition dead? The lawsuit to restore Constitutional order.  See http://www.givemeliberty.org/.

2.   U.S. v. Sassower, DC Superior Court, Case No. M-411303 (appeal
pending), involving the wrongful arrest, prosecution, conviction and
incarceration of Ms. Sassower on a bogus charge of "Disruption of Congress."  She simply, politely and respectfully, attempted to testify in a public Senate Judiciary Committee Confirmation Hearing.  See http://www.whiteplainscnr.com/, article "Day 151 of the Elena Sassower Incarceration in Washington, D.C.," by reporter John F. Bailey, November 25, 2004, and, The Village Voice, February 1, 2005, article "The Scourge of Her Conviction - Activist Elena Sassower Annoyed Congress, Her Trial Judge, and Defenders of Free Speech - All the Way to Jail," at www.villagevoice.com/news/0505,lombardi,60660,6.html.

3.  Huminski v.Corsones, et. al., Docket Nos. 02-6201 (L), 02-6150 (XAP), 02-6199 (XAP), 03-6059 (CON), decided 10-7-04, (2nd Cir. 2004) and 386 F3d, 116, (2nd Cir 205), involving judicial retribution against Scott Huminski for protesting about improper treatment from Judge Corsones and other officials. Corsones and others, without any basis, issued a bogus order that barred Huminski from every courthouse and their grounds in Vermont. After the fact, Corsones fabricated that the basis for the order was that she "...thought Humiski may have had a bomb in his van." See www.firstamendmentcenter.org/news, "2nd Circuit:  Vermont Gadfly Wrongly Barred From Courthouse," October  8, 2004, A.P. article.

4.  Forte v. Albov, et. al., Case No. M 54914, Superior Court of California, County of Monterey - a legal malpractice case.  Below is a court reporter's transcript of a Motion to Quash the deposition subpoena Forte served on Ms. Stephanie Crabb (a realtor, involved in a prior case with Forte).  Forte desired to take Ms. Crabb's deposition, after a document previously requested, but not provided, or listed on privilege logs, was later inadvertently provided/discovered.  Forte believed the document was intentionally withheld, and during earlier testimony, Ms. Crabb perjured herself, at the direction of her attorney.

The attorney bringing the Motion, Dennis McCarthy, represented Ms. Crabb in the prior litigation and the Motion asked the court to sanction Forte.  Forte opposed the Motion, per California law giving him a clear right to take the depositon, and sought sanctions against Crabb/McCarthy.  Originally, the Motion was assigned to be heard by Judge Fields; just prior to the hearing Forte called Field's clerk and is advised the Motion is now assigned to Judge O'Farrell - Forte's nemesis, who had just been reversed by the appellate court for wrongly dismissing a prior case of Forte's.

DECEMBER 19, 2003 - TRANSCRIPT

*     *     *
THE COURT:  THE NEXT MATTER IS FORTE VERSUS ALBOV.

MR. MCCARTHY:  GOOD MORNING, DENNIS MCCARTHY APPEARING FOR STEPHANIE CRABB.

MR. FORTE:  GOOD MORNING, YOUR HONOR.

THE COURT:  GOOD MORNING.

MR. FORTE:
  GENE FORTE, PROPRIA PERSONA.  YOUR HONOR, PRIOR TO THIS - COMMENCEMENT OF THIS HEARING, I WOULD LIKE TO ASK A COUPLE OF QUESTIONS.  HOW WAS THIS CASE ASSIGNED TO YOUR HONOR?

THE COURT:  WE'RE NOT GOING TO GET INTO THAT.  IT'S MY CASE.  I'M TAKING IT. JUDGE FIELDS HAD THIS MATTER.  HE DISQUALIFIED HIMSELF.  I HAVE GOT THE
CASE.  THAT IS THE END OF IT.

MR. FORTE:  EXCUSE ME.

THE COURT:  NO, THAT'S IT.

MR. FORTE:  EXCUSE - -

THE COURT:  NO, EXCUSE ME.  WE'RE GOING IN THE ORDER THAT THIS MOTION WAS SET.

MR. FORTE:  NO, PARDON ME, YOUR HONOR.

THE COURT:  NO, IF - -

MR. FORTE:
  EXCUSE ME, YOUR HONOR.  YOU'RE INTERRUPTING ME.

THE COURT:  IF YOU KEEP INTERRUPTING ME, SIR, I'M GOING TO HAVE TO CITE YOU FOR CONTEMPT.  AND I'M TELLING YOU THAT NOW, WARNING YOU.  YOU SIT DOWN. 
YOU SIT DOWN.  WE'LL HEAR FROM THE MOVING PARTY FIRST, AND THEN WE'LL HEAR FROM YOU.

MR. FORTE:  YOU'RE ALLOWING ME - - YOU'RE NOT ALLOWING DUE PROCESS YOUR HONOR.

THE COURT:  TAKE A SEAT.

MR. FORTE:
  HERE'S A PEREMPTORY CHALLENGE.  YOU'RE OUT OF HERE.  TAKE IT, IT'S FILED.  PEREMPTORY CHALLENGE.  PEREMPTORY CHALLENGE, YOUR HONOR.

THE COURT:  TAKE HIM INTO CUSODY, PLEASE

*     *     *
The transcript continues, see http://www.attorneybusters.com/.  Forte was grabbed by the bailiff, handcuffed, taken from court and put in a holding cell.  He was later brought back into court for a direct contempt hearing (which are required to take place immediately - to restore the integrity of the court and its business).  However, Forte was left to sit handcuffed in the jury box, while Judge O'Farrell heard other matters.  The judge then took a break and left the bench, before taking up Forte's purported direct contempt.

Clearly any justification for "direct" contempt had long passed and
California law and due process now required Forte's purported contempt be assigned to another judge for hearing, as clearly Judge O'Farrell was "personally embroiled" - conflicted.  See Little v. Kern County Superior Court, 294 F.3d 1075  (9th Cir. 2002).   Further, California law mandates that a peremptory challenge (CCP section 170.6) must be filed before the hearing begins, and once filed, the judge immediately loses jurisdiction.  Nonetheless, the judge proceeded, found Forte in direct contempt, and sentenced him to the remainder of the day in jail (transferred from court to Salinas jail).

Forte later checked the court file; it was absent any documentation showing transfer of the case from Judge Fields, or that he had in fact had disqualified himself.  In initial litigation, Forte was represented by counsel, who told him the Monterey judges were a "Good Ole Boy's Club," that routinely "manipulated hearing and trial dates and fixed cases" for well connected law firms.  For further information, see http://www.attorneybusters.com/.

For Common Sense, Liberty, and Justice,
Gary L. Zerman, Atorney
Gzerman@hotmail.com

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