Judging the Judges
October 18, 2015—30 minute read
An investigation into judicial misconduct reveals disturbing questions about just how fair our court system is — and that authorities are doing little to address the problem.
By Peter Green, with Scott Simone
This article was co-published with the Guardian.
When Margaret Besen, a 51-year-old nurse from East Northport, Long Island, filed for divorce from her husband in March of 2010, she had every reason to believe that justice was on her side.
Judge William Kent’s preliminary ruling seemed like a first step toward reasonable compromise. Margaret and Stuart Besen, who agreed their marriage was beyond repair, would remain in the house, a tan four-bedroom Craftsman in suburban Suffolk County, living in separate rooms — and keeping away from each other — while sharing custody until a resolution could be reached.
But within weeks, the situation deteriorated. Stuart Besen, a politically connected attorney for the town of Huntington, had an anger problem, Margaret told authorities. The couple’s screaming matches left Margaret feeling intimidated and their children — a daughter, 11, and son, 7 — terrified, she said. So in August of that year she obtained an order of protection prohibiting Stuart from harassing her. Three weeks later, Stuart entered Margaret’s bedroom and hovered over her as she slept, she told police. They arrested him for violating the order, reporting that Stuart had stared down at Margaret with his arms folded on three consecutive nights. She got temporary possession of the family home.
But in the years that followed, Margaret Besen’s hopes for an equitable settlement dwindled as she battled a series of harsh and hard-to-explain decisions against her. Though she could never prove anything, she suspected that the scales had tipped for reasons unrelated to the evidence in her case. If true, she faced what experts say is one of the most troubling threats to our nation’s system of justice: judges, who, through incompetence, bias or outright corruption, prevent the wronged from getting a fair hearing in our courts.
“The decorum and bias and the perfectly unethical behavior of the judges is really rampant,” said Amanda Lundergan, a defense attorney in Royal Palm Beach, Florida, who confronted a nest of judicial conflicts in her state’s rapid-fire foreclosure rulings — dubbed the “rocket-docket” — following the housing market collapse. “It’s judicial bullying.”
Judges in local, state and federal courts across the country routinely maintain connections to litigants and their lawyers that they do not disclose. These links can be social — they may have been law-school classmates or share common friends — political, financial or ideological. In some instances the two have mutual investment interests. They might be in-laws. Occasionally they are literally in bed together. While it’s unavoidable that such relationships will occur, when they do, a judge is duty-bound to let both sides know and, if either litigant objects, allow a different judge to take over.
All too often, however, the conflicted jurist says nothing and proceeds to rule in favor of the connected party, while the loser goes off without realizing an undisclosed bias doomed their case.
“Everybody should have the right to ensure the judge sitting on their case doesn’t have a conflict,” said Mary McQueen, executive director of the National Council on State Courts. “It’s absolutely imperative that people have full faith and confidence in the judicial process.”
In the Besen divorce, Judge Kent’s initial decisions were fairly typical for a couple in their situation. He imposed financial obligations on Stuart, the moneyed spouse, including $200 in weekly child support and $500 in monthly car payments for the family’s Honda Odyssey minivan. But when Stuart didn’t make the payments and the vehicle was repossessed, the judge did nothing. Nor did he act when Stuart honored only part of the support he owed, leaving Margaret, who was then unemployed, struggling to provide for her kids.
“Occasionally he paid $200 a week, sometimes $175, sometimes $120,” she recalled. “The church had given me vouchers for gas, and I was getting food from the food pantry. I couldn’t cash checks. One year I found on his tax returns he had made $528,000, and I am getting food stamps and trying to get groceries home on a bicycle. It was extremely humiliating.”
Margaret Besen filed for divorce from her husband, Stuart, in 2010. In the bottom-left photo, Margaret stands outside the home she shared with her husband on Long Island. (Photos by Alan Chin)
Margaret and Stuart accused one another of mistreating their children. Police and child protection service workers became involved. She complained to judge Kent about his actions with the kids and his support obligations. Kent ordered her to undergo a psychological evaluation, which slammed Margaret for allegedly alienating the children from their father. No abuse by either parent was substantiated. Even so, Margaret won a court order of protection in February 2013, barring Stuart from any contact with the children for a full year.
But when Kent issued his final divorce decree on March 25, less than six weeks later, it was devastating to Margaret. He awarded Stuart full custody, while Margaret was allowed only supervised visits, each monitored by a court-appointed psychologist.
The judge also ordered Margaret to pay back half the cost of her nursing degree and to sell her diamond engagement ring and split the proceeds with Stuart. And he reversed the support arrangements. While Stuart would pay $1,500 a month in maintenance to Margaret, she now owed Stuart $153.90 a week for the children, though at that time she earned only about $13,000 a year as a part-time aide in an assisted-living facility.
The judge, who did not address Stuart’s bad-parenting allegations against Margaret, cited her complaints about him in his decision: “It was readily apparent that over the course of these two actions that she has lost sight of what is in the best interest of their children. Instead she appears bent on ruining the plaintiff both publicly and privately.”
Margaret began to look into her husband’s dealings and discovered, through searching public records, that he and Judge Kent had possible connections. In 2010, Stuart was appointed as the Suffolk County representative on a statewide commission for vetting local judicial candidates, who in New York State must be nominated by a political party before facing election. The post put him in contact with Kent’s colleagues on the bench, from supervisors to aspiring judges and their donors. That same year, an organization based at Stuart Besen’s Garden City law office, the Long Island Coalition for Responsible Government, donated $7,500 to the campaign of judicial candidate Richard Ambro, who got elected and became one of Kent’s fellow Supreme Court judges in Suffolk’s 10th district. Ambro previously had been clerk to Kent’s boss, administrative judge Randall Hinrich, the county’s top jurist. Besen, in his role as Huntington’s town lawyer, would argue cases before these very judges. He’d entered a circle of judicial insiders.
Stuart also had ties to Gary Melius, a Long Island real estate developer and political power broker who gave $10,000 over four years to Stuart’s campaign for Huntington Town Council member. In January, “Newsday” published a multi-part investigative report alleging that two Suffolk Supreme Court judges linked to Melius — one a close friend; the other a local town board member whose biggest donor was Melius — had awarded him $200,000 worth of work managing foreclosed office complexes without disclosing the appointments, as court rules require. The story spurred a federal investigation.
Margaret knew that her husband and Melius were acquainted — he’d send the Besens Godiva chocolates every year and offered them free nights at his Oheka Castle hotel, she says. So she understood that in divorcing Stuart Besen, she’d taken on a man with substantial clout in Suffolk County.
“I’m in the middle of a large group of people who’ve got money and influence and who are all connected,” said Margaret Besen. “I’m not being afforded an opportunity to get a fair shake.”
Still, Margaret had no way of knowing whether the connections she uncovered played any role in how Kent ruled in her case. But her concern deepened when she made an additional discovery about her house. Kent had ordered the Besen home, the most valuable marital asset, to be sold and the proceeds divided, putting Margaret in line to receive possibly hundreds of thousands of dollars. Then she found an online listing offering the property for sale — with the judge’s wife, Patricia Kent, as broker. The home, which was listed for $749,999 with Patricia Kent’s photo and contact information on Realty Connect USA , is currently more than $15,000 in arrears on its property taxes and no longer appears to be actively offered. Margaret was evicted from the house in 2013 and lives in a modest apartment a few miles away. She has yet to receive a penny for her interest in the property.
Patricia Kent claimed she never represented any of the properties her husband had ordered sold in divorce or other cases. “I have never been a broker for any of his houses; we’re very clear about that,” Patricia said in a telephone interview.
A reporter informed her of the listing with her information attached to the Besen property. She said her photo could have appeared because she was a broker with the same firm as the agent who did have the listing. “The only person who gets the commission is the listing agent that listed the property,” she said.
Judge Kent did not reply to messages left by a reporter at the Suffolk County courthouse and with his wife. Patricia said William Kent was unlikely to comment. “I’m not so sure that he’d want to speak with you,” she said, adding: “When I see him, I’ll let him know, and if he’s interested he’ll give you a call.”
He did not call.
Stuart Besen did not respond to messages left at his office.
This was not the first time a litigant raised questions about Kent’s integrity.
Donna Schuler, also a divorcing mother in Suffolk County, asked that Judge Kent recuse himself from her case in 2011 after claiming his unwarranted delays and stalling had drained her financially. What she discovered was that Kent, who had denied her child support and maintenance payments, was hostile to Schuler’s lawyer, Mildred Michalczyk. In a separate case, the judge called Michalczyk names from the bench and threatened to “ruin” her, according to Michalczyk’s filings. Kent eventually agreed to avoid all cases involving Michalczyk, but sealed his recusal and never mentioned it to Schuler, whose case he kept.
Critics of the Suffolk Supreme Court claim a culture of rule-breaking exists, pointing to a red-faced moment in 2007 when Marion McNulty, then the county’s top matrimonial judge, was admonished by the state’s disciplinary panel for aggressively fund-raising for her favorite charity, a women’s nonprofit, while on the job. McNulty went so far as to hit up attorneys for checks in the courthouse, a blatant violation of ethical rules.
Margaret Besen protested but found no relief. When she asked Kent to recuse himself in an affidavit in July, 2012, he refused. When she complained to the state watchdog responsible for investigating judicial wrongdoing, writing two heartfelt letters, they blew her off. In a terse response this June, the New York State Commission for Judicial Conduct reiterated its original decision from last December, stating that “there was insufficient indication of judicial misconduct to justify discipline.”
Donna Schuler was also rebuffed when she asked the commission to step in and remove Judge Kent from her case.
When a panel such as the CJC declines to get involved, the plaintiff has little recourse, even though New York State’s judicial code of ethics makes it clear that judges aren’t merely prohibited from letting friends or colleagues sway them. The law says they “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Margaret has no such confidence. “I don’t think this should have been heard in Suffolk County,” she said. “How are you not going to have a conflict?”
Hundreds of judicial transgressions have been uncovered during the last decade, with results that cost the defeated litigant dearly — the loss of a home, business, custody, health or freedom. These include:
* Nevada Family Court judge Steven Jones’s dealings, which read like an episode of “The Young and the Restless.” Jones and his secret lover, prosecutor Lisa Willardson, kept mum about their ongoing affair while Willardson argued custody cases before the judge. On four occasions when Willardson lobbied to terminate a defendant’s parental rights, Jones approved her motion. But after a photographer snapped a gotcha shot of the judge with his hand on Willardson’s thigh at a party, the Clark County District Attorney re-assigned Willardson to another court. Jones retaliated by banning two of the DA’s prosecutors from his courtroom. He subsequently received a ban of his own — a lifetime prohibition from the bench by the state’s oversight commission, which investigated the conflict and other improprieties. Donnita Durham, a mother who lost her parental rights before Jones when opposed by Willardson, had the verdict vacated on appeal. Willardson, despondent over events, died of an apparent accidental drug overdose at her rented home in Henderson, Nevada, in December 2013. Jones was sentenced to 26 months in federal prison in February for a separate abuse: using his judicial clout to help his brother-in-law steal $3 million through a fraudulent scheme to invest in water rights.
* Texas judge Christopher Dupuy’s bullying of four lawyers who dared to file conflict-of-interest recusal motions between 2011 and 2013. Attorney Lori Laird asked that Dupuy bow out in 2013 because she’d represented Dupuy’s ex-wife in the couple’s custody battle in Galveston. The judge responded by slapping her with 37 counts of contempt, demanding that she “explain, defend or apologize” for her motion. He later sentenced her to 120 days in jail, although she didn’t serve any time. “It was the most ridiculous thing you’ve ever seen,” Laird told Contently.org. “It also caused great damage to both of my clients.”
* Louisiana judge Robin Free’s no-expense vacation. Free oversaw a personal injury claim in 2010 by a man and his wife, Israel and Leslie Robles, who were hurt in an oil field run by Houston-based fracking contractor Integration Production Services, Inc. The trial had begun when the two sides agreed to a $1.2 million settlement. As he mulled signing off on the deal, Free arranged for some post-trial R&R at Casa Bonita, a hunting and fishing ranch in George West, Texas, owned by the victims’ lawyer, David Rumley. He flew there aboard a private jet owned by Rumley’s firm. It wasn’t Free’s first ethical blunder. In 2001 he presided over a fouled-water case against Dow Chemical, trying to resolve the matter even as his mother was a member of the plaintiff’s class.
In each of those situations, officials reprimanded the judge, though Jones, serving his time in federal prison in California and not due to be released until April of 2017, is fighting to be allowed to return to judicial duties when he gets out. Free is free to continue serving on the bench after being docked 30 days pay in December and forking over a $6,723.64 fine. Dupuy was admonished in November — after he’d already retired and was sentenced to two years’ probation for pleading guilty to misdemeanor counts of perjury and misuse of government property. He was arrested again in July and charged with harassment; authorities said he’d placed online ads suggesting two former girlfriends were available for sex-for-hire.
Contently.org reached out to legal scholars about the Besen case, asking for input on the ethical issues at play and how the matter might have been handled differently.
Scott L. Cummings, a professor of legal ethics at UCLA Law School, said the case raised “significant ethical red flags,” because of the judge’s wife’s alleged involvement in offering the Besen family home for sale. “Not knowing the details of how his spouse might have been assigned as broker, the idea that a judge might benefit financially from the sale of a property in dispute in a pending matter seems to raise a serious question of impartiality.”
Ronald Rotunda, a professor at Chapman University Law School in Orange, California, said, “What Judge Kent did here seems odd. The husband makes over a half million a year, she makes $13,000 a year, and the judge orders her to pay child support (which is tax free to him and not deductible for her).”
Margaret Besen hoped Kent would send her case to a neighboring county or have a judge from a different jurisdiction rule on it in Suffolk. That’s what happened when when Congressman Steve Israel, a New York Democrat, filed for divorce from Suffolk Supreme Court justice Marlene Budd in 2014. That case was heard by a judge from Westchester County, Linda Christopher, who drove 60 miles each way while presiding.
Court critics say that one reason judicial violations are common is because they frequently go unpunished. When litigants ask a judge to back away because of a conflict, they risk being told no, then face possible retaliation — so many don’t bother. If a litigant or an attorney files a complaint with an oversight body, there’s only about a 10 percent chance that authorities will properly investigate the allegation, according to a Contently.org analysis of data from 12 state disciplinary commissions.
The analysis shows that these panels collectively dismissed out of hand 90 percent of the complaints filed during the last five years, tossing 33,613 of 37,216 grievances without conducting any substantive inquiry. When they did take a look — 3,693 times between 2010 and 2014 — investigators found wrongdoing almost half the time, issuing disciplinary actions in 1,751 cases, about 47 percent.
The actions taken ranged from a letter of warning to censure, a formal sanction that indicates a judge is guilty of misconduct but does not merit suspension or removal. Actually removing a judge was a rarity. Just 19 jurists in 12 states were ordered off the bench for malfeasance between 2010 and 2014, which is about three per decade for each state. And even that result is becoming less common, with only one removal in 2014 and three in 2013 among all 12 states.
The states examined — California, Texas, New York, Pennsylvania, Connecticut, Wisconsin, Indiana, Minnesota, Colorado, Washington, Georgia and South Carolina — were chosen because they comprise a representative sample from different populations and areas of the country and because they had matching data for the years 2010 through 2014.
California, which created the first judicial disciplinary body in the country in 1960, had a dismissal rate of 98 percent. It did not suspend or remove a single judge in 2013 or 2014 and acted just once over the last five years, removing a sitting judge in 2012. Colorado’s lone judicial action since 2010 was a suspension in 2013. Texas has not removed a judge in five years, though it has suspended 23 for varying lengths of time.
One discouraging factor is the secrecy under which these commissions operate. Allegations against a judge are commonly kept confidential unless a sanction of some kind is imposed. New York’s CJC, for example, is prevented by law from disclosing whether anyone has complained about a judge, discussing specific allegations, revealing what evidence might have been presented or what steps, if any, it took to investigative. Its public statements are limited to any disciplinary action it may take. When conduct boards do act, the sanctions usually amount to an admonishment that may be embarrassing but costs the judge little.
Raoul Felder, the well-known New York divorce attorney, served as a CJC board member between 2004 and 2008, helping the commission sift through thousands of complaints. He came away from the experience perplexed by its decision-making.
“I wouldn’t say [the CJC] is toothless, but it’s arbitrary,” Felder said. “It can be unreasonably tough on judges who commit trivial offenses while going easy on judges who are really bizarrely out of the mainstream, doing things they shouldn’t be doing.”
Judicial discipline at the federal level is almost non-existent. A Contently.org examination of the most recent five years of complaint data shows that 5,228 grievances were lodged against federal jurists between 2010 and 2014, including 2,561 that specifically alleged bias or conflict of interest. But only three judges were disciplined during those years and each got the mildest rebuke on the books: censure or reprimand. None was suspended or removed.
The numbers suggest that at least some of these judge’s rulings did not pass the smell test: 4,168 of the dismissed complaints were tossed due to a lack of sufficient evidence, bringing up the possibility that some litigants raised valid concerns but failed to find definitive proof.
Indeed, a number of tainted judicial rulings have been reported in the federal district and appellate courts during the last 10 years, including a variety of instances of financial and personal ties between justices and litigants. Even the Supreme Court has been tarnished on this issue.
Justice Steven Breyer owned $215,000 in health-care stocks when deciding on the legality of the Affordable Care Act in 2012. Justice Samuel Alito’s portfolio included $2,000 in stock in The Walt Disney Co. in 2008, the year the court heard Disney, FCC versus Fox Television Stations. But perhaps most concerning is Justice Antonin Scalia’s cozy relationship with the prestigious white-shoe firm Gibson, Dunn & Crutcher, a well-known presence before the justices and where his son Eugene is a partner.
Gibson Dunn played a role in the controversy that erupted when Scalia refused to recuse himself after taking a duck hunting trip with former Vice President Dick Cheney in 2003 while Cheney was being sued to reveal the details of secret meetings he held with oil company executives in the run-up to the 2003 invasion of Iraq. Scalia, who was appointed by President Ronald Reagan, had famously sided with the majority in the 2000 Florida recount, when the Supreme Court voted 5–4 to reject Al Gore’s challenge alleging ballot-rigging in Florida, handing the presidential election to George W. Bush. Theodore Olson, an ace litigator with Gibson Dunn, represented Bush against Gore in that case.
After his vacation with Cheney was revealed, Scalia scoffed at the suggestion he was compromised and defended his decision to remain on the case. “I do not believe my impartiality can reasonably be questioned,” he said in a 21-page memo. “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” But Sen. Patrick Leahy, the Vermont Democrat, implored Scalia to withdraw. “Instead of strengthening public confidence in our court system, Justice Scalia’s decision risks undermining it,” he stated.
Eugene Scalia’s position at Gibson Dunn means that any win for the firm puts money in the son’s pocket, argues Herman Schwartz, a law professor at American University and leading expert on judicial ethics, who believes the elder Scalia should beg off any matter involving the firm.
“The Supreme Court says it respects the federal rules, but in reality, they are loath to recuse themselves, because there’s no one to replace a Supreme Court justice. And the last thing they want is a 4–4 decision,” Schwartz said.
Another conflict allegation came in 2011, when Common Cause asked that the Supreme Court’s landmark ruling on political financing be vacated because Scalia and Justice Clarence Thomas allegedly attended a retreat paid for by conservative activists David and Charles Koch, who funded the plaintiffs, while the court was hearing their case.
Breyer and Alito did not recuse and actually voted against their own interests. But even if they hadn’t, they would not have faced discipline. Supreme Court justices enjoy a special privilege: they are the only judges exempt from the federal Code of Conduct, which demands judicial impartiality and prohibits a jurist from presiding when he or she has “a personal bias concerning a party to the case.”
One of the nation’s highest-profile federal judges is Manhattan’s Kimba Wood, an alluring grande dame in New York’s Southern District. She’s both a former Playboy Bunny and a graduate of Harvard Law School, and is married to Wall Street tycoon Frank Richardson. Her career includes having sentenced junk bond king Michael Milken to 10 years in jail and seeing her nomination to become U.S. Attorney General end ignominiously when it was discovered that she’d employed an illegal immigrant as her nanny.
She also made headlines in 2005 because of alleged conflicts while presiding over a copyright claim against best-selling author James Patterson.
Off-Broadway performer Patsy Maharam charged that Patterson had stolen from her one-woman show and hit single, “Kid Santa Claus,” for his first children’s book, “santaKid,” and she sought damages. Wood found “numerous parallels” between the two works in that both stories dealt with the daughter of Santa Claus helping deliver Christmas gifts. She denied Patterson’s motion to dismiss. The author conceded he had had access to Maharam’s creation, and his illustrator admitted to copying some of the drawings in her promotional material. The matter appeared headed for trial. Maharam’s tale is “sufficiently concrete to warrant protection,” Wood wrote, as “the same themes and plot are developed in [Patterson’s] works.”
But three months into the case, Patterson’s lawyer brought up an inconvenient fact, one that could have been used against the author, post-trial, were he to prevail: the judge and Patterson knew each other, having lived for years on the same floor of a luxury Central Park condo. Wood revealed that she’d considered mentioning this relationship but decided against it because, she claimed, the two were barely acquainted.
Maharam then learned that the fund where Judge Wood’s husband, Richardson, served as managing director had $50 million invested in Time Warner, the parent company of Patterson’s publisher, Little Brown, both of which were defendants in the suit. And she objected to friendships and business ties the judge had with prominent people at Time Warner, some of whom she met while married to her second husband, Michael Kramer, Time magazine’s chief political columnist. The two were together from 1982 to 1996.
She noted that Wood attended social events with a close friend, Lesley Stahl, the “60 Minutes” correspondent, and Stahl’s agent, Bob Barnett, who also happened to represent Patterson. Additionally, Patterson was represented by Joanie Evans of William Morris, who left the agency during the Maharam case and formed an online venture with Stahl. Their backer was MTV founder Bob Pittman, who was CEO of Time Warner Enterprises. Wood’s adult son from her first marriage purchased, then sold, $3,670 in Time Warner Cable stock while the case slogged along.
Maharam twice asked Wood to step aside, once in 2005 after learning that the judge and author lived in the same building between 1992 and 1995, and again three years later. But by that time, she had lost her chance to have a jury hear her complaint. In 2007, Wood granted Patterson’s motion for summary judgment, tossing out the suit based on his claim that “santaKid” was created and developed independently of Maharam’s work.
Wood’s ruling discounted Maharam’s assertion that Patterson’s evidence — notes he said he made while working on his book — appeared to have been created long after the fact and that he’d given conflicting testimony during deposition when he claimed he alone had written each of his novels. (Patterson, who could have been forced to pay Maharam millions in damages had he lost the case, has since conceded to relying on ghost writers to co-author many of his best-sellers.)
Wood’s alleged conflicts could have been interpreted as a violation of federal rules, which state that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The law — Section 455 of Title 28 of the United States Code — also clearly dictates that judges must step aside for having even a minor financial connection to a party before them, with the stake being defined as “ownership of a legal or equitable interest, however small.”
That didn’t stop Wood from issuing a stinging rebuke of Maharam’s recusal demand, claiming she didn’t know anything about her husband’s investments or her son’s stock holding. She did not address the issue of her social ties to Time Warner honchos. Maharam filed an appeal, arguing that she was entitled to a new judge in part because of Wood’s conflicts, but a two-judge appellate panel rejected that claim, upholding the judge’s rulings and discounting her alleged conflicts.
“Neither the fact that [Wood] and a defendant once lived on the same floor of an apartment building nor Maharam’s general and unsubstantiated allegations about [her] social connections to the defendants would cause a reasonable person to question the court’s impartiality,” it stated.
“It was a total travesty,” said Maharam.
Experts weighing in on the case for Contently.org highlighted problems and pointed out that Wood could have withdrawn and allowed another judge to take over.
Russell Carparelli, a former appeals court judge from Colorado and a former executive director of the American Judicature Society, addressed the issue of Wood and Patterson being residents of the same building:
“One judge might see a former neighbor in the courtroom and recuse so Maharam could be 100 percent assured that she was getting a fair hearing. Another judge might see the former neighbor there, and, having no social relationship with him, conclude that she can be fair and impartial and that there is no need to bring in a new judge.”
But he said, “The most conservative approach would be to disclose an acquaintanceship: ‘Counsel, it is appropriate that I tell you that defendant and I lived in the same apartment building. We saw each other passing in and out of the apartment building several times a year. I knew his name; he knew mine. We exchanged polite greetings. We never socialized. I never visited his apartment; he never visited mine. Does either counsel have any questions or objection to my presiding in this case?’”
UCLA’s Cummings said the Maharam case “seems likely to raise reasonable questions about bias, even if it is quite attenuated. Living on the same hall as Patterson by itself would be less likely to trigger recusal without a showing of personal friendship; but this fact combined with the financial interest should probably have made Wood disclose the relevant facts. Unfortunately, these decisions about judicial recusal are typically placed in the judge’s discretion without strong independent oversight.”
Recusal issues often spur judicial complaints. But the watchdog panels that evaluate them, both on the state and federal level, are not courts and therefore lack the authority to review the merits of a litigant’s case. Their job is limited to examining a judge’s behavior, not the rationale behind a decision. Even a substantiated charge of misconduct won’t change the outcome of a ruling or verdict; it merely opens the door for a new appeal to be filed, which for beleaguered litigants can be costly, time-consuming and often not worth it. Many do continue to fight. Others simply vent.
The online vitriol directed at unscrupulous judges, which began in the mid- 2000s, has built to a howling digital crescendo. Web sites including The Robe Probe, The Judiciary Report and The Robing Room, which rate judges the way Yelp rates restaurants, are rife with railing as embittered, mostly anonymous plaintiffs rip into judicial decisions they feel were biased or corrupt.
The sites comprise a kind of populist, modern version of late investigative reporter Jack Newfield’s renowned newspaper series on New York’s “10 Worst Judges.” Newfield’s in-depth, semi-annual slamming of corrupt or incompetent jurists began at the “Village Voice” in the 1980s and continued as he took jobs with the city’s two tabloid papers, the “New York Daily News” and “New York Post.” His work inspired other publications to probe judicial transgressions.
Mounting criticism led to a remarkable development last year. The chief justices of each state gathered and declared that something had to be done. They implored lawmakers to enact legislation that might restore their courts’ battered integrity by forcing more transparency on their systems and holding judges accountable when they engaged in unethical behavior.
“Fair and impartial justice requires that judges act without regard to the identity of parties or their attorneys, the judge’s own interests or likely criticism,” said the resolution of the Conference of Chief Justices in January 2014. A judge should step away when there is “actual conflict or bias or other impropriety…or when a reasonable disinterested person would conclude that an appearance of impropriety exists.”
The decree was set in motion by a precedent-setting 2009 Supreme Court decision involving a dispute between two West Virginia coal companies that had done business with each other for years — until one went bankrupt — leading to a judicial scandal that inspired a John Grisham novel.
While fighting a $50 million judgment against him in a West Virginia appeals court, A.T. Massey Coal Co. CEO Don Blankenship spent $3 million to elect appellate judge Brent Benjamin, who ultimately provided the swing vote that overturned the verdict against his company. Benjamin had rebuffed repeated demands that the newly elected justice recuse himself because of his obvious conflict.
The U.S. Supreme Court ruled that Benjamin’s bias was so extreme that his failure to back away violated the plaintiff’s right to due process under the Constitution’s Fourteenth Amendment. The case, which spawned Grisham’s 2008 best-seller, “The Appeal,” underscored the kind of underhanded dealing that has stained the judiciary.
A further nudge for reform came last year when the Center for Public Integrity published a report on financial conflicts of interest. Among its findings: on 26 occasions in the preceding three years, federal appellate judges ruled on cases involving companies in which they owned stock or where they had a financial tie to an attorney appearing before them.
It also created a grading system to gauge how diligent each state was in collecting personal financial information from its judges, including stock ownership and outside sources of income, and how accessible that data was to the public. The center said that 42 states and the District of Columbia failed its test. Six others earned a D grade, while two — California and Maryland — got Cs. California’s score, 77, the highest of any state, was seven points below the federal government’s grade of 84.
The report highlighted the type of conflict that can be most readily identified and that doing so requires full disclosure from the judges. Stock ownership, even if minimal, should automatically disqualify a judge from hearing a case, many experts believe. “If a judge owns a single share in a company involved in a case, he should recuse himself instantly,” says Rotunda, a leading law scholar.
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Other allegedly corrupting ties are less easily proven.
That was abundantly clear in the FBI’s investigation of former New York judge Marylin Diamond, who in 2003 became the focus of a three-year corruption probe of Manhattan Supreme Court.
Diamond was in an unusual position of power. Independently wealthy and married to a former state Supreme Court judge, she oversaw high-stakes corporate litigation as well as celebrity divorce cases. But according to complaints filed by more than 30 litigants who came before her, Diamond had no problem using her position to help out friends, associates and political supporters.
They claimed she swindled the family of a wealthy art heiress; engaged in insider trading; favored clients of the law firm where her husband worked; oversaw multiple cases involving companies in which she owned stock; ruled for the clients of a lawyer friend who gave to her election campaign; even awarded child custody to an allegedly abusive mother who worked for judge Diamond securing tenants for a rental building the judge owned.
State and local agencies assisted in the investigation, which also looked at two colleagues of Diamond’s, judges Judith Gische and Shirley Kornreich, all three of whom were accused of doling out favors from the bench for their friends or associates. Privately, even state court officials were appalled and told reporters that they wanted Diamond gone. Yet New York’s judicial conduct commission dismissed all complaints against Diamond, Gische and Kornreich. The FBI wrapped up its investigation without filing any charges, and the U.S. Securities and Exchange Commission’s examination of Diamond’s alleged insider trading — which accused her and her husband of purchasing both sides of a corporate merger prior to its announcement — went nowhere. None of the judges was charged with a crime or disciplined.
More scandal followed in New York’s courts, including revelations that Surrogate judges looted estates they were sworn to protect, and a probe by then-Brooklyn District Attorney Charles Hynes into the actions of matrimonial judge Gerald Garson, who was convicted of throwing divorce cases in exchange for gifts including a $275 box of cigars. Hynes tried — and failed — to prove what had long been alleged: that judgeships in New York could be bought for campaign contributions and political favors.
The state responded in curious fashion. Then-administrative judge Jonathan Lippman loosened financial disclosure requirements. Lippman, now chief judge, is currently under fire because of his political alliance with disgraced state lawmaker Sheldon Silver, his lifelong friend whom the feds have indicted on corruption charges.
Margaret Besen feels she might never recover from judge Kent’s punishing divorce stipulation. It’s been more than two years since she’s seen her children, who are now 12 and 16. There’s no money to pay the court supervisor, so they can’t visit. Nor does Besen have the funds to continue fighting. Kent retired shortly after making his decision.
“The hardest thing in my life is that I can’t be with my children and I can’t have an impact on my children’s upbringing,” Besen said over coffee at a Long Island diner. “A lot of people do not have any idea how the judicial system works or doesn’t work until you’re in it. We think we’re in a democratic society. We think we’re run by rules. But they are not being upheld by the court at all.”
Peter S. Green,
Scott Simone contributed reporting to this article.