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It could not be risky for public policy thought leaders, accomplished legal professionals, and/or well-regarded academics to join grassroots legal reform activists in exploring prospects of unchecked judicial impropriety in America; that is, should we presume such a thing rarely exists.  Of course, in my view, these Establishment proxies properly require critiques of America’s judiciary to be as objective and scholarly as possible.  Otherwise, their shunning aggressive judicial oversight seems to me like parents quivering in fear of shadows while assuring their children that the boogie man is not real.  Such timidity is illogical ― remember, unchecked judicial impropriety hardly exists in America, right?  Why be paralyzed by inexplicable apprehension, leaving average Americans, including embattled attorneys, unduly subject to judicial and prosecutorial discretion?
 

Attorney Zena Crenshaw-Logal, Executive Director of National Judicial Conduct and Disability Law Project, Inc. (NJCDLP).
I am a civil trial lawyer turned full-time, grassroots legal reform activist.  Those astute at reading between lines and following trends of the upwardly mobile realize that with this opening sentence I share a lot about myself.  Many of the details are even obvious to the insightful.  They undoubtedly perceive that my legal career ran aground something troubling, at least to me, in my profession.  Why else would anyone ― except perhaps a direct descendant of Don Quixote ― leave the legal profession to embark on changing it, on a grassroots basis no less?

So I may be a contemporary change-maker, cut from the cloth of Dr. Martin Luther, King, Jr., Mahatma Gandhi, and similar social pioneers.  Or I may be an old fashioned fool, keen on the heels of that most famous "Man of La Mancha".  And it may be that the paths of both change-makers and fools must be straddled to accomplish the fundamental reforms of America's legal system that I espouse.  In any event, this diary is not about me per se.  It does reflect the perspective I bring to legal reform advocacy as a civil litigator.

Meeting burdens of proof and similar demands is par for the course among trial attorneys, especially those who, like me, regularly prosecute complex civil claims.  So we are particularly attuned to the difference between allegations, probative evidence, a prima facie case, rebuttable presumptions, and conclusive proof.  Plus, veteran trial attorneys are acutely aware that a seemingly strong legal case can be eviscerated once subjected to cross examination.  I accordingly shared this post with National Forum On Judicial Accountability (NFOJA), a group that I help administer:

NFOJA member Daar Fisher asked: "Is every US court case somehow rigged? Are lawyers making money they should not be if the system wasn't so corrupt? Are judges more like organized crime figures than public servants paid with tax dollars? Are the courts the tool used for international corporations, banks, and organized crime taking over America?"

We thank him for asking these questions. They are not terribly different than the central question of "The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America".  Yet beware of answers based on any determination that a person or group is "corrupt" if it's made without the benefit of a fair and impartial trial including opportunities for discovery, cross-examination, and all that due process entails. No matter how compelling any evidence of corruption may be, it should not replace adversarial proceedings as America's truth finding process; particularly when the corruption alleged amounts to a crime. As long as alleged criminals are deemed innocent until proven guilty upon trial, such as they are in America, everything untested by trial but offered as proof of a crime or criminality, is no more than evidence.

Multiple, serious malfunctions and dysfunctions of America's legal / judicial system can be proven through sound social science research, empirical data, and analysis. Some of those malfunctions and dysfunctions are in our anti- legal / judicial corruption mechanisms. So we can reasonably presume there is unchecked legal and judicial corruption in our country. In fact, compelling evidence of it abounds. But "proving" that corruption in specific instances and / or pinpointing its exact scope without trial, is beyond our jurisprudence.

The title of this 2012 post is "Beyond Our Jurisprudence".

It would be interesting to catalogue all the civil and criminal trials premised on some form of judicial corruption in America since  . . . pick a year . . . 1933, and isolate those attributable to political vendettas or largely focused on garden variety crime(s) such as bribery.  I doubt that many others would be left.

At least as of this decade, surviving the gauntlet of court-imposed obstacles to trial based on unlawful judicial bias or similarly abstract concepts is plain ‘ole unlikely in America if political scores are not settled in the process.  Outing, for example, an equal-protection-denying, but not clearly bribe-taking U.S. state or federal judge is no easy feat for even the most zealous.  So absent a major incentive (like a political vendetta) to discredit the judge based on nothing but circumstantial evidence, America’s legal system will likely overlook his or her offense.  

This “overlook” phenomenon I describe may account for more unchecked devastation heaped on average Americans than blatant judicial misconduct cover-ups.  As a result, distinguishing between the two ― “overlooks” and “cover-ups” ― does little to appease anyone disenfranchised by abuse of America’s legal system.  Scores of them call for personal relief and broader reforms as if the underlying misconduct is indisputable given their sincere, often well-documented account of events.  I know the rigors of proof demand more, but wonder why these sometimes compelling allegations are so often treated like Pandora’s Box, better left untouched.

Clearly judges and prosecutors are unreceptive to the overwhelming majority of Americans who contend they were deliberately denied fair and impartial consideration of legal claims.  Perhaps the insensitivity is generally well founded.  But average Americans deserve a direct voice in the ethics review process, at least when it seems astray on public policy and/or legal grounds.

It could not be risky for public policy thought leaders, accomplished legal professionals, and/or well-regarded academics to join grassroots legal reform activists in exploring prospects of unchecked judicial impropriety in America; that is, should we presume such a thing rarely exists.  Of course, in my view, these Establishment proxies properly require critiques of America’s judiciary to be as objective and scholarly as possible.  Otherwise, their shunning aggressive judicial oversight seems to me like parents quivering in fear of shadows while assuring their children that the boogie man is not real.  Such timidity is illogical ― remember, unchecked judicial impropriety hardly exists in America, right?  Why be paralyzed by inexplicable apprehension, leaving average Americans, including embattled attorneys, unduly subject to judicial and prosecutorial discretion?  

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Comment Preferences

  •  Tip Jar (6+ / 0-)

    Zena D. Crenshaw-Logal, Executive Director - The Law Project - njcdlp.org

    by The Law Project on Wed Jan 30, 2013 at 12:16:38 PM PST

  •  The law itself has been and continues to be (3+ / 0-)
    Recommended by:
    a2nite, Kevskos, Jim Tietz

    used as an instrument of subjugation and intimidation. Human rights are routinely trumped by property rights, perhaps because the latter are easier to identify and quantify while a violation of human rights may well be subjective.

    But, just as slavery was the total deprivation of human rights to a certain population, considering children to be the property of their parents is also a violation of human rights. And then there is the male's obligation to register for the military draft as soon as he's emancipated from the rule of his parents. Not too long ago, members of the military were denied their rights to speak, to associate, to reproduce at will. No doubt, the justification for DADT rested on the assumption that having consented to surrender their lives, if necessary, in the service of the nation, they'd implicitly consented to the abrogation of all other rights, as well.

    Indeed, consent is central.  Consent is what renders abuse legal and consent, even when coerced by lies, renders the restraints of interrogators unnecessary. The "right to remain silent" evaporates when an individual hazards a word.

    So, the law is unjust and an instrument of abuse. It isn't necessary for individual judges and prosecutors to be intentionally corrupt. Indeed, prosecutors operate with absolute immunity and personal ambitions is not considered motivation for over-reaching and unjust interference.

    And finally, there are the scofflaw lawmakers who have discovered that they can do favors by not doing their job. They don't have to take bribes. They can coerce support by threatening adverse legislation and then not bothering to deliver. How do we prosecute people for not doing anything?

    We organize governments to deliver services and prevent abuse.

    by hannah on Wed Jan 30, 2013 at 12:55:38 PM PST

  •  hmm. (0+ / 0-)

       There is a lesson to be learned and sadly not taught to citizen's.   It usually doesn't help to cooperate with your prosecutor.
          Several years back, I read:  Innocent Until Interrogated by Gary L. Stuart.  

           I would recommend that adults make their children read it, if only because our educational system appears to be going backwards.

           I look forward to future articles.  
     

  •  the boogeyman does exist (2+ / 0-)
    Recommended by:
    Kevskos, Jim Tietz

    What people don't understand about him is that he thrives on disbelief.  It shields his activities and intentions from our view and makes us dismiss their rotten fruits as natural and inevitable and something we have to simply live with.

    It always seems to me that the people who insist most passionately that a problem does not exist and who attack any discussion of the problem and its possible solutions are invariably the people who perpetrate the problem and either benefit from its existence or would be harmed by its resolution.

    Something's wrong when the bad guys are the utopian ones.

    by Visceral on Wed Jan 30, 2013 at 02:40:15 PM PST

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