Veil of Secrecy

6 thoughts on “Veil of Secrecy”

1. I certainly hope the fact that I invited Ivan Moreno to visit KnowYourCOURTS.com‘s pages on the Commission for the Abolition of Judicial Discipline had something to do with this story.¹ We did recently rec’d a message from a representative of H.A.L.T. stating:

   Thank you for contacting HALT, and for informing us about this Web site that offers a critical perspective on the system of judicial disability in Colorado.  HALT is in the process of conducting a comprehensive review of each state’s system of judicial oversight, for our upcoming Judicial Accountability Report Card, and this Web site will certainly be an important resource as we carry out our research and evaluation.

   I recently wrote about Wehmhoefer’s illusory commission in a recent diary (click here).  Wehmhoefer claims in his treatise The Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law 6, 1043 (1988) that “The Commission provides a forum for the expeditious and fair disposition of all complaints of judicial misconduct against state judges.” However, in my aforementioned diary & responses to comments, among other things, I explained how Wehmhoefer, as the gatekeeper to complaints, is acting like a goalie, rather than a facilitator of complaints in keeping with the Colorado constitutional mandate.²

   Yet, while we already have the evidence of how Wehmhoefer round-files all complaints (those, which haven’t become media stories or are pressed by other judges or officials for political reasons), he lies to us by telling the RMN that, “the fact that cases rarely rise to the level of a public reprimand is a good reflection on Colorado judges.”  No, it’s a good reflection on Wehmhoefer’s ability to browbeat all complainants into secrecy (until KnowYourCOURTS.com came along) and to suppress their complaints.

   Additionally, as Wehmhoefer notes in his treatise, the creation of the Commission in 1966 was complimentary to Colorado’s adoption of the judicial merit selection system, known as the Missouri Plan.  I explained that Missouri, the state that introduced the model is reconsidering it. See my June 1st diary, Judicial Retention Elections Under Fire in State That Originated the Concept. One reason it’s under consideration there is because only two judges in sixty-seven years have been unseated and several critics of the system aren’t buying that it’s merely a positive reflection on Missouri’s judiciary.  Likewise, the RMN article reports that, “in 41 years, the commission has never recommended to the state Supreme Court that a judge be removed because of misconduct. Instead, judges often choose to retire or resign when there’s an investigation pending against them. Once judges leave, the commission loses its power to discipline them, and the record of their misconduct remains private.” (emphasis supplied). Wehmhoefer explains, “The nice thing about Colorado is that the judges choose to go away if they misbehave.”

   Excuse me?  That’s “nice.”  What ever happened to accountability?  Punishment? Setting an example?  You know –all those things that judges do all day, every day in the course of their jobs, while they’re sending people to prison, taking away their homes, taking away their children, etc., etc.?  Is the office not so sacred that it isn’t worth setting a meaningful example over?

   Wehmhoefer also is quoted in the RMN article (and also in the recently released 2006 Commission on Judicial Discipline Misreport) as explaining that another reason almost all complaints are dismissed is because they are appellate in nature.  While “Dr.” Rick’s explanation is questionable (in light of his established lack of respect for the truth), the explanation is certainly predictable:  Elana Sassower explained in her treatise Without Merit: The Empty Promise of Judicial Discipline, 4 Massachusetts School of Law, The Long Term View 1, 90:

   These [judicial discipline commissions] frequently dismiss, out-of-hand, complaints of on-the-bench misconduct, including abusive courtroom behavior and fabricated judicial decisions. They do this on the pretense that they have no authority to review “the merits of matters within a judge’s discretion, such as the rulings and decisions in a particular case,” which they assert can only be reviewed by an appeal to an appellate court.

   Id. at 92.

   You know, something occurred to me, recently:  Whenever we hear about someone, like the now-disbarred prosecutor in the Duke lacrosse team scandal, we hear something like, “He was generally viewed as an honest lawyer” (click here) or Laptoptop larry (“Wednesday’s announcement of charges punctuated a five- month period that left friends, colleges and seemingly Manzanares himself in disbelief.  . . Denver Mayor John Hickenlooper,  accepting Manzanares’ resignation, said, “His whole life, he has lectured on ethics . . . I don’t know what was going through his head.” –click here)

   Why is that?  It’s because the agencies that we entrust legal ethics to in this state aren’t doing their friggin’ job.  It’s lawyers protecting lawyers and no one’s protecting the public.  We don’t hear about these things because these guys are allowed to get away with who-knows-what until, one day, it just gets out of control.

   Yet, Wehmhoefer’s got the audacity to say that the reason complaints remain confidential in Colorado is that the majority of them are unfounded: “Far and away, most of the complaints I get are from people sitting in jail,” he said.

     What a smug, pampass asshole.

   _______________
   ¹Shortly after emailing him, the site rec’d hits DenverNewsPaperAgency.com.
   ²The Commission is created pursuant an amendment to the Colorado constitution.

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   1. It would seem that our Riggs/Murtaugh act is paying dividends; now, you’re the “respectable” one.

      That was a brutal article!  The CourtWhores can’t be happy….

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2. Dear Mr. Moreno:

   As one who has filed a complaint with the Commission, I can speak from experience when I say that Commission director Rick Wehmhoefer was unduly parsimonious with the truth in the interview he gave you.  While “Dr. Rick” routinely round-files complaints on the basis that they were “from people who disagreed with a judge’s ruling,” that is not a legally valid basis for dismissing such claims. The Colorado Constitution clearly states that any judge “may be removed or disciplined for willful misconduct in office,”Colo. Const. art. VI, В§ 23(3)(d) (emphasis added), and as Judge Alex Kozinski of the Ninth Circuit Court of Appeals recently noted in a similar federal disciplinary proceeding, “[w]hile legal error alone will not amount to misconduct, the converse is not necessarily true: Misconduct can cause legal error.” Specifically, he writes:

   Judicial action taken without any arguable legal basis … is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. В§ 351 (a); Shaman,6 В§ 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights.”); In re Quirk, 705 So. 2d 172, 178 (La. 1997) (“A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct.” (citing Jeffrey M. Shaman, Judicial Ethics, 2 Geo. J. Legal Ethics 1, 9 (1988))).

   In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185, 1199 (9th Cir. 2005) (Kozinski, J, dissenting).

   Think about it: In states with functional systems of judicial discipline like Michigan, the judicial blotters read like something right out of Mad magazine.  One alcoholic judge recently insisted that he hadn’t been drinking when he managed to plow his SUV into a convenience store. Another got busted for lighting up a doobie at a Rolling Stones concert. Others include a judge who reportedly referred to himself as God, another caught fixing traffic tickets in exchange for sexual favors, and another suspended for lying to investigators about her love affair with an attorney now serving life in prison for murdering his wife. And then, there was the one about the married judge who exposed himself in an airport men’s room, apparently while soliciting anonymous gay sex (he ‘got off’ … because district attorneys try hard not to prosecute judges).  Which is more likely: that we pick far better people as judges, or that the system is covering up their crimes?

   The unavoidable reality is that our system of judicial discipline, once promoted as a model for the world, is completely, utterly, and irrevocably broken. It has evolved into a Potemkin village, the sole purpose of which is to provide the illusion of meaningful enforcement of ethics rules when in fact, it does quite the opposite. This problem is now rampant in jurisdictions across the nation: United States District Judge Judge Kane correctly referred to the “sorry record” as valid proof. One website alleges that in Kansas, 679 complaints — including 28 alleging bribery or corruption! — were filed in a given year, but the state judicial qualifications commission did not act on a single one. Colorado’s commission on judicial discipline reveals an equally sterling record, not acting on a single complaint in two years. Nationally, Anne Gearan of the Associated Press reports that out of 766 complaints lodged against federal judges, only one resulted in a penalty: a private censure, which means that no one knows who the judge was.

   Judge Kane told a remarkable story to the Washington Post about a complaint against a judge who was reportedly “trying to coerce counsel into establishing a library on product liability cases in honor of the judge.” The article is shocking enough to quote at length:

   Judge Kane’s e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, “and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, ‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ “

   Kane added, “I’ve recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a ‘kiss your sister’ operation that hasn’t worked and won’t as long as judges are covering one another’s butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record.”

   The upshot of this story, of course, is that at least four judges in the Tenth Circuit didn’t even think it inappropriate for a judge to solicit a bribe. This is the prevailing attitude among judges: that they (you) are above the law, and you (we) are utterly beyond its protection.

   This sad state of affairs is further evidenced by the revelation by the F.B.I. that Justice Rehnquist was not merely addicted to painkillers but suffered paranoid delusions, and the inadvertent publication of the disposition of Judge Manuel Real’s judicial misconduct proceeding. These two incidents further underscore the deplorable fact that our courts are so effective at concealing their scandals that citizens have no reasonable assurance that their judge isn’t medicated into a stupor, masturbating into a penis pump on the bench, receiving sexual favors, or soliciting a bribe from an opponent until long after irreparable damage is done. Moreover, the regimes punishing judicial misconduct are so flaccid that our judges have no fear in committing even the most shocking abuses of office: by way of example, a Texas judge was merely reprimanded “for telephon[ing] juvenile girls who were on probation in his court for truancy and engag[ing] in explicit sexual conversations.”

   The corruption in our state’s courts — both local and federal — truly boggles the imagination.  There’s a Juice v. Justice-class (see the L.A. Times piece here: http://www.nonpublic…) story here, if you’re game.  We’re talking about the potential disbarment of the entire Colorado Supreme Court, and the husband of a former lieutenant governor … that is, if the system worked as intended. [And yes, to the CourtWhores out there, all of my claims are properly footnoted, as these are excerpts from a letter to a judge who was publicly defending the system.]

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3. I received an anymous tip today from someone, who claims to have left a voice-message for Wehmhoefer, telling him about this forum (and others) and inviting him to not only view the forum discussions (there have been several, in addition to this one) but, also to create an account and contribute.  If the story is true, let’s see if Wehmhoefer does poke in to say hello.

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4. here is an odd question rick said to me, “what do the blogs say about you?”, what that had to do with his ‘investigation’ i don’t know, but i guess a blog has been started about him now.

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   1. Your post wasn’t entirely clear — can you elaborate? Did you file a complaint or something?  And what was the context in which he asked you, “What do the blogs say about you?”

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