Secrecy may help protect misbehaving judges

Judging the judges
Does secret process let errant jurists get away with breaking the law?


 Published 6:30 am CST, Monday, December 14, 2009

One federal judge got arrested for driving drunk while dressed in drag. Others stood accused of frequenting prostitutes, a strip club and a shady escort service; sexually assaulting female court employees; sucker-punching a stranger; or slapping a spouse.

Federal judges have made illegal campaign contributions, falsified court records, and illegally concealed cash gifts and gambling debts. Many more have engaged in unethical or irresponsible acts, according to an investigation by the Houston Chronicle of more than 3,000 judicial misconduct matters nationwide and analysis of related records over 10 years.

Most get away with it.

Only seven judges in the last decade have faced formal disciplinary action as a result of the nation’s secretive misconduct review process. In that same period, citizens filed more than 6,000 formal misconduct complaints, the Chronicle found.

One judge was punished anonymously — shielded from shame by the same peers who voted for discipline.

Just two judges who admitted to breaking laws were recommended for the maximum punishment: impeachment and removal from office.

Most disciplinary reviews remain forever shrouded in secrecy to protect federal judges’ privacy and ensure their reputations remain unsullied by scurrilous or absurd allegations from prisoners or disgruntled litigants.

“The federal judiciary takes its ethical responsibilities with the utmost seriousness,” said Chief Judge Anthony Scirica, a spokesman for the Judicial Conference of the United States in a statement to the Chronicle. “Every misconduct complaint is carefully reviewed and results in a public written order by a judge. Years of experience has shown that the overwhelming majority of misconduct complaints are from (unhappy) litigants. … Yet, when circumstances warrant, Circuit Judicial Councils have not been hesitant to impose a variety of public and private sanctions, as history has demonstrated.”

Other experts argue that disciplinary probes of high-profile or even criminal allegations should be more open for the sake of the public and the judges.

“Any type of misconduct impacts upon the integrity of judges and erodes public confidence in the federal judiciary,” said U.S. Rep. James Sensenbrenner, R-Wis., who has fought for years to improve judicial accountability.

Appointed for life

The nation’s 1,700 full-time federal judges constitute a caste of elite jurists hand-picked for the difficult and sometimes dangerous job of enforcing our nation’s laws and protecting our rights.

Appointed for life by U.S. presidents, district and circuit judges can be removed only by acts of Congress. Bankruptcy and magistrate judges serve limited terms but enjoy formidable power over life, liberty and the assets of others.

Yet, when it comes to misconduct reviews, federal judges privately judge themselves. At the pinnacle of the power structure stand chief circuit judges — a dozen men and women who quietly dismiss about 98 percent of the 700 complaints that arrive annually at regional U.S. courthouses scattered from San Francisco to New Orleans to Washington, D.C., the Chronicle found.

In 2006, a Supreme Court-appointed committee, formed in response to congressional complaints, released a report on the secret disciplinary system. The committee, led by U.S. Supreme Court Justice Stephen Breyer, found supervising judges handled run-of-the-mill matters well, but committed embarrassing errors in controversial cases.

Judges botched five of 17 high-profile reviews, the committee said, describing that “error rate” as “too high” and recommending standardized rules for disciplinary matters. In the aftermath, the Judicial Conference adopted the first national rules on handling complaints against federal judges and, for the first time, all circuit courts made complaint forms available on Web sites, Scirica noted.

Chief judges alone generally decide whether to conduct even a “limited review” — which usually involves reading case documents or sometimes asking a judge to respond. Rarely, those judges form committees to formally investigate — but findings are almost never revealed.

Russell Wheeler, a fellow at the Brookings Institution who helped research the Breyer committee report, told the Chronicle: “If there are credible public allegations that a judge has done something wrong, you ought to show the public you’re dealing with it, either to establish the wrongdoing or to clear the name of the judge.”

Former U.S. District Judge Samuel Kent, of Galveston, was convicted of obstruction of justice this year after admitting he lied to judges who in 2007 secretly investigated allegations that he had molested female court employees. In March 2007, his former case manager, Cathy McBroom, filed a formal complaint accusing Kent of repeatedly trying to sexually assault her. But the 5th Circuit’s judicial council first described the matter only as “sexual harassment” in a September 2007 reprimand.

The 5th Circuit has never released its investigative records. Ultimately, a criminal probe was launched, but only after the Chronicle documented McBroom’s allegations and only after McBroom went to the FBI. Kent was subsequently impeached and imprisoned.

Other documents show Kent had drawn complaints about bias and bursts of temper that were quietly and anonymously handled years before his admitted alcohol, emotional and judgment problems landed him behind bars.

Even when criminal behavior is uncovered, some investigating judges have decided not to share it with the public or police.

In fact, the Department of Justice‘s Public Integrity Section, whose prosecutors specialize in rare criminal allegations involving federal judges, has no public record to show whether any case has ever been referred to them as a result of a judicial disciplinary review, DOJ spokeswoman Laura Sweeney told the Chronicle.

A case in point

Few cases better illustrate the judges’ insistence on secrecy than that of former Colorado Chief District Judge Edward Nottingham.

Records show that Nottingham faced at least seven formal complaints over the years, initially for abuse of power and bias, and later for potential criminal allegations. None resulted in formal disciplinary action or prosecution.

Yet in 2007 and 2008, enough had surfaced about Nottingham to prompt creation of two investigating committees, documents released by the Denver-based 10th Circuit show.

First, he was reported to have run up a $3,000 bar tab at a strip club and claimed he drank too much to remember doing it. A disabled woman alleged he’d threatened her over a handicapped parking spot. Later he was accused of frequenting prostitutes and an escort service, using his government-issued cell phone to make dates with call girls, and cruising porn sites on courthouse computers.

“This conduct, whether alleged or admitted, has brought disrepute to the judiciary. To contend otherwise is to declare that, ‘The King Can do No Wrong,’ ” one of four complaints said.

The two committees submitted a secret report to the 10th Circuit judicial council on Oct. 8, 2008.

Two days later, a self-described prostitute filed another complaint, claiming Nottingham coached her “to lie to federal investigators” about having paid her “in exchange for sex.”

Abruptly, Nottingham resigned. He said his decision was “in the public interest and the interest of the federal judiciary.”

The misconduct complaints were dismissed as moot. The disciplinary system does not apply to ex-judges, and its findings and recommendations were never released to the public.

Nottingham, now an attorney in Colorado, did not respond to a request for comment.

“This is a democracy. People ought to know what public officials are doing — even those who have life tenure,” said Steven Lubet, a law professor at Northwestern University. “The public would be better served if the circuit councils and the chief judges provided more and better information.”

Most federal judicial misconduct complaints deserve dismissal. Unreadable rants regularly arrive from litigants or prisoners who misuse the process or fling outrageous claims.

Some involve alleged or perceived criminal behavior outside the courtroom — matters supervising judges are often reluctant to investigate.

In one complaint, U.S. Magistrate Judge Lisa M. Smith, assigned to the Southern District of New York, stood accused of encouraging her nephew to cover up knowledge of a summer night’s attack on teenage skinny-dipping girls — and hitting a distraught mother who questioned Smith about it, records show.

Smith was approached at a beach campfire by the woman, who swore at the judge and her family, and claimed they were lying to protect others who assaulted her daughters and stole their clothes.

Smith struck the woman and screamed: “You can’t call me a (expletive) liar — I’m a U.S. magistrate judge,” a related civil lawsuit alleged.

The judge later denied she’d intentionally hit anyone, records show. “The plaintiff was screaming and yelling obscenities in front of the judge’s children … and there was contact between the plaintiff and the judge, whether intentional or not, we’ll never know,” Smith’s attorney, Kevin Hulslander, told the Chronicle.

A ‘private dispute’

Judicial misconduct rules say that when facts are reasonably in dispute, a chief circuit judge can form an investigating committee. The chief circuit judge for the New York-based 2nd Circuit alone reviewed the complaint and dismissed it in 2007 as a “private dispute between private citizens, one of whom happens to be a judge.” He did not name the judge.

His order concluded that alleged illegal behavior should not automatically be classified as judicial misconduct, even if it involved a crime: “Categorization of an offense under state law is not a sufficient basis for a finding of misconduct,” wrote Dennis Jacobs, chief judge of the 2nd Circuit Court of Appeals.

In December 2008, a civil jury found Smith had committed battery, but awarded no damages.

In February 2009, a New York City bankruptcy judge, known for presiding over the breakup of Lehman Brothers, allegedly slapped his wife, who phoned 911, records show. U.S. Bankruptcy Judge James M. Peck was arrested, and his wife was taken to a hospital. But charges were dropped after she decided not to cooperate. The judge’s attorney described it as a “private matter” and got the record sealed. Peck’s attorney did not respond to requests for comment.

The New York 2nd Circuit’s chief judge did no public review of the matter.

In February 2008, Boston-based U.S. Bankruptcy Judge Robert Somma, wearing a cocktail dress, was arrested after crashing his Mercedes-Benz into a pickup in New Hampshire. Somma later was convicted of drunken driving and, after taking six weeks of paid leave, resigned.

The judge did not respond to requests for comment.

It’s unknown whether there was any formal disciplinary review.

Susan Goldberg, deputy circuit executive, told the Chronicle: “Information pertaining to the referenced matter is confidential.”

Sarah Hinman Ryan of the Albany Times Union contributed to this report.