23 October 2014

Wearied by Pennsylvania courts


Joseph A. Slobodzian has an article in The Philadelphia Inquirer about the doings on the Pennsylvania Supreme Court:
For a profession that burnishes an image of dispassion and decorum, what's happening with the Pennsylvania Supreme Court is like a food fight at a very public banquet.
Lawyers, academics, and bar association officials sit dumbstruck, embarrassed to watch, afraid to look away, even more afraid of what might be coming next.
"My hope is that I never have to hear one more word about this again, but I'm afraid that I'm going to," said Richard B. Klein, a retired judge. Klein, now a mediator with the Dispute Resolution Institute in Philadelphia, said that "when you know everybody, this is sort of like watching a family fight."
"Sad and disappointing," said retired state Supreme Court Justice Sandra Schultz Newman, who was on the court from 1996 to 2006. "I think it's an affront to me as a woman, as a citizen, a lawyer, and a former justice," added Newman, who now heads her own mediation-arbitration service in Conshohocken.
To recap: Chief Justice Ronald D. Castille, supported by Justices Thomas G. Saylor, Max Baer, and Correale F. Stevens, suspended Justice Seamus P. McCaffery (photo) with pay, citing, among other concerns, his admission that he had sent and received sexually explicit e-mails.
In the same order, the justices directed the Judicial Conduct Board to conduct an emergency investigation and within thirty days recommend whether official misconduct charges should be filed against McCaffery.
As striking as the action taken against a sitting justice by his colleagues was, the evidence of the history of antagonism between Castille, the former Philadelphia prosecutor who must retire at year's end after reaching the mandatory retirement age of seventy, and McCaffery, a colorful former Philadelphia police officer and Municipal Court judge. McCaffery has apologized for the emails, but accused Castille of a personal vendetta to get him off the court before he retires.
In a concurring opinion to the order suspending McCaffery, Castille called him a "sociopath" who blamed everyone but himself for his ethical and professional problems.
The vitriol has affected others among the seven justices. Justice J. Michael Eakin filed his own report with the conduct board, alleging McCaffery had threatened to leak to reporters pornographic and racially tinged emails that Eakin had received, allegedly telling Eakin he "was not going down alone".
Eakin all but accused McCaffery of trying to blackmail him into swaying Castille against the suspension. McCaffery has denied the allegations.
Neither Eakin nor McCaffery took part in the suspension decision and one justice, Debra McCloskey Todd, dissented, writing that McCaffery should not have been suspended before the conduct board investigated and ruled on the merits of the allegations.
The cascading events of the last week have left many lawyers and legal experts worried about the long-term impact on the high court's reputation, effectiveness, and future.
The court's reputation has been periodically battered since the 1980s and 1990s, when Justice Rolf Larsen waged a bitter internal war against several colleagues. Larsen was suspended in 1994 after he was convicted of conspiring to accept prescription psychiatric drugs in the names of his employees to hide a history of mental illness. Later that year, Larsen became the first Supreme Court justice impeached and convicted by the legislature.
In 2012, Justice Joan Orie Melvin was suspended after she was charged with illegally using state employees for political work. She resigned from the court a year later, after her conviction and shortly before her sentencing.
For a court, and especially an appellate court, appearances and reputation are not inconsequential. "On an appellate court, the justices are supposed to work together as a body, the give-and-take should be respectful," said Lynn A. Marks, executive director of Pennsylvanians for Modern Courts, which has worked for judicial reforms for a quarter-century. "It shouldn't even be in the deal that personal animosity could play a role in the decision," Marks said.
Samuel C. Stretton, a veteran Pennsylvania lawyer who has specialized in defending judges facing ethical and disciplinary problems, said that: "it makes me sick to think of the impact this is having on young lawyers. You want to have some awe in looking up at the court. Where is the awe?" Stretton said he also worries that if the dysfunction on the high court continues, there could be legislative remedies attempted that could seriously weaken the Supreme Court's supervisory role over lawyers, judges, and the court system.
"I don't think there's any question about that," said Bruce Ledewitz, a professor at the Duquesne University law school in Pittsburgh, Pennsylvania.
As recently as this fall, the court, with McCaffery concurring, upheld its own King's Bnch" authority to intervene in judicial ethics cases. Ledewitz says that ruling went too far, and contends an "abuse of power" occurred when the court suspended McCaffery, accused him of improprieties, and ordered the conduct board to investigate within thirty days. "They should have stepped away," Ledewitz said, noting that the legislature and Pennsylvania voters had amended the state constitution to create an independent agency, the conduct board, to investigate allegations and bring charges, and a Court of Judicial Discipline to try the cases.
The legislative reaction could be removing the Supreme Court's King's Bench power to intervene and take control of cases not before it. Or this crisis could be the one that brings about appointed rather than elected judges in Pennsylvania.
Ledewitz said that he has never supported switching to appointed judges, but that the current situation has moved him to the tipping point. "How many more judges have to go to jail," Ledewitz asked, "how many more do we have suspended, before something has to be done by the legislature?"
Rico says if they're wearied, we're all totally tired of this shit...

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