Juvenal Justice:

A colloquy quoted in Judge Kozinski's powerful dissent in In re Complaint of Judicial Misconduct reminded me of a line from one of Juvenal's Satires:

MR. KATZ: And the motion to lift the stay is denied?
THE COURT: Denied; that's right.
MR. KATZ: May I ask the reasons, your Honor?
THE COURT: Just because I said it, Counsel.
I wish it, I command it. Let my will take the place of a reason.

Juvenal had his own axe to grind, and a rather different sort of decisionmaker that he was condemning; likewise Martin Luther, who liked to use the line to condemn the Pope. But it seems to me the line is more broadly applicable, including apparently to some federal courtrooms.

Kent Scheidegger (mail) (www):
The opinion in question omits the judge's name, even to the point of altering quotes, as if he were a rape victim. I find that very strange. All one need do is look up the published opinion in In re Canter, 299 F.3d 1150 (9th Cir. 2002) to find that it was Judge Manuel Real of the CD Cal (L.A.).

This would be an appropriate occasion for Congress to consider what is "good Behaviour" within the meaning of Article III, section 1. Is its converse, "bad behavior," limited to the impeachable offenses for "civil officers" in Article II, section 4? Or does a higher standard apply to the otherwise life-tenured judiciary who, unlike the Article II officers, can neither be fired by superiors nor voted out by the people?
10.7.2005 3:10pm
I am reminded of this one...

Judge Chamberlain Haller: Mr. Gambini?
Vinny Gambini: Yes, sir?
Judge Chamberlain Haller: Mr. Gambini, that is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you.
Judge Chamberlain Haller: Overruled.
10.7.2005 3:15pm
Guest2 (mail):
Quotations from My Cousin Vinnie are always in order.

I'm also reminded of a CLE I once attended where a USDJ said that counsel appearing before him should always remember that he keeps a little cannon under his desk, and whenever he wants to, he can take it out and "blow you away."

Although it's nice to appear before a courteous judge who listens carefully to what every party wants to say and provides rational support for his or her decisions, I can still sympathize with judges' desire sometimes to just get the damn thing decided and get the litigants and their lawyers out the door.
10.7.2005 3:54pm
There is a charming quote from Judge Kozinski's dissent: "Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions - not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."
10.7.2005 3:57pm
Kent Scheidegger (mail) (www):
Just for context, the misconduct in this case goes far beyond the arrogance of the colloquy quoted above. You have to read it to believe it.
10.7.2005 3:59pm
Anderson (mail) (www):
Happy to see Judge Kozinski's favorable citation of a Miss. Supreme Court judicial discipline opinion.

Remind me again why Harriet Miers is a Supreme Court nominee and Judge Kozinski is on the 9th Circuit?

(Oh, wait, he might actually take the Bill of Rights seriously. Not a risk the White House can afford to take.)
10.7.2005 4:01pm
guest44 (mail):
Thank you for the link. Koz layeth the smacketh downeth. Any word on Real and Canter's ongoing relationship?
10.7.2005 4:03pm
Speaking of Kozinski, suppose you wanted to read more of his opinions, especially recent ones. Other than the notabug website, is there a place online where, free of charge, you can practicably sift through his writings?

Opinions are posted at the Ninth Circuit's website, but it seems as though you can't use its search engine to simultaneously filter out old opinions and non-Kozinski ones.
10.7.2005 4:09pm
akiva eisenberg (mail):
And the ABA is surprised at the low esteem in which the public holds judges?!
10.7.2005 4:11pm
akiva eisenberg (mail):
BTW, judge Real is about 80 years old, and has been considered controversial by some for nearly forty years.
10.7.2005 4:17pm
Roscoe (mail) (www):
I don't know what happened in this case, but the same judge did something similar to me once.

About 15 years ago I was prosecuting a counterfeiting case before this judge. One of the defendants owned a print shop, he was a family guy with a wife and kids, no prior criminal record, who was apparently drawn into the scheme by financial pressures. Under the guidelines, the judge was supposed put the guy in jail. Nobody was more surprised than me when the judge, with no explanation, departed from the guidelines and gave the guy straight probation.

I found out later from the probation officer that this was common with this judge, he would take a defendant that he believed had some hope of rehabilitation, and appoint himself as the defendant's probation officer. The judge would assign a lot of additional duties and requirements to the probation, and warn the defendant that if he slipped up once, he would get a maximum sentence.

It worked out in this case. The only time I heard this guy's name again was a couple of years later, when the judge apparently wanted him to volunteer as an oversees election monitor, and the probation officer called me to ask if I had any objection to the defendant leaving the country for this purpose.

Did the judge break the rules in my case? Of course he did, there was absolutely no legal basis to depart from the guidelines and sentence the defendant to probation. But in doing so, I think the judge likely turned the guy's life around, saved his relationship with his family, and accomplished all the things that we like to hope that the criminal justice system does (but we all know it really doesn't).

BTW, my recollection of the defendant was that he was not the slightest bit "comely," so I would tend to reject that particularly vicious little implication that Judge Kozinski appears to be buying into.
10.7.2005 4:24pm
This case isn't the worst of what happens in the trial courts, either in general or in the Central District of California.

Judge Hauck, another LBJ appointee, threw counsel in jail for the hell of it, without bothering to justify himself, when he disliked them or the kind of case they were bringing.

This is just the tip of the iceberg.
10.7.2005 4:26pm
What's most unfortunate isn't that abuses occur (they are inevitable), but that the legal system sometimes shows a troubling disinclination to police itself. It's troubling that Judge Kozinski had to be the lone dissenter in this egregious case.
10.7.2005 4:54pm
akiva eisenberg (mail):
Feel a little less troubled. If you actually read the decision (the link is in the article) there were two other justices who felt that at the very least, the facts at issue should be examined. By contrast, the majority felt that that was not their duty.
I didn't bother tracking down the info, but it might be an edifying exercise to correlate each judge's opinion with who appointed that judge.
10.7.2005 5:07pm
NickM (mail) (www):
Manuel Real was Andrew Hauk's close ally - Hauk even timed his resignation of his Presiding Judgeship to permit Real to be grandfathered in from the time limit imposed on Presiding Judgeships.

There have been multiple published cases where Judge Real was removed by the Ninth Circuit for bias. He doesn't quite rise to the level of Hauk, who eventually was prohibited by order of the Ninth Circuit from being assigned any more cases under 42 USC § 1983 alleging police misconduct due to his pervasive bias against those plaintiffs, but it's fairly close.

In my opinion, this is the sort of deviance from the role of a judge as to fail the "good behavior" test and constitute grounds for impeachment.

10.7.2005 5:11pm
Been There, Done That:
I love Kazinski as much as the next right wing maniac, but he did let the Yag-Man get away with some controversial behavior a few years back.

And what do you know, it involves the same District Judge!

55 F.3d 1430 (9th Cir. 1995)

Oh yes, Yagman has a history of discipline apart from this case.
10.7.2005 5:26pm
If you actually read the decision

I love this kind of condescension. Fact is, I just don't feel like the judges who requested more factfinding took any kind of principled stand against what seems like an outrageous cover-up by the majority. If Kozinski hadn't written his dissent, we would have no idea what these people were even talking about.
10.7.2005 5:55pm
Ex-Fed (mail) (www):
I tried some cases in front of Judge Real as a prosecutor (just after Roscoe, above). As the clerks on the Ninth Circuit are known for saying, "you don't want Judge Real, you want a Real Judge."

The problem with being a prosecutor in front of Judge Real was that, if he didn't take a strange liking to the defendant, he was likely to treat the defendant and defense lawyer outrageously badly. That led to a number of acquittals and hung juries, with jurors afterwards saying that they thought the poor defendant was being railroaded because the judge was always yelling at the defense lawyer.

In my one trial in front of him, this started to happen. He was yelling at the poor DFPD, a perfectly affable attorney. The jury started to give him the stink-eye and look sympathetically at the PD. There was only one thing to to do salvage the case -- get Judge Real to yell more at me than he did at the PD. Which is remarkably easy, if you know his pet peeves.

This was working quite well and I was getting some sympathetic looks from the jury until the PD came over to me and hissed "I know what you are doing!" and started to try to one-up me in getting Real to yell at her.

Things went rather downhill from there.
10.7.2005 5:56pm
akiva eisenberg (mail):
Sorry. I typed read in the present tense, not in the past. I simply assumed you were responding the original article. I did not mean to be condescending in the least, and I stand corrected.
10.7.2005 6:19pm
Shelby (mail):
Aw, Ex-Fed, you stopped just when it was getting interesting! Thanks for the anecdote, though. Interesting how an anti-defense judge can hurt the prosecution.
10.7.2005 6:22pm
Ted F (www):
I've practiced and argued in front of Judge Real. The colloquy and the behavior in Kozinski's dissent (covered on Point of Law) and Ex-Fed's anecdote doesn't surprise me one bit. The other nifty tactic that noone's mentioned was Real's habit of scheduling five cases for trial on the same day, and postponing four of them a couple of days before trial — again to the same day, two weeks in the future, along with some new cases. A marvelous way to have to deal with the logistics of scheduling twenty witnesses.
10.7.2005 6:35pm
erp (mail):
A favorite of mine is Yul Brynner in "The King and I" saying, So shall I say it, so shall it be.
10.7.2005 7:45pm
Paul McKaskle (mail):
I think Kozinski's dissent was right on point and I think the judiciary is far to willing to overlook serious judicial misbehavior. I litigated in Los Angeles over thirty years ago, and even then Manny Real was a bit of a stinker, but as others commenters have noted, A. Andrew Hauk was over the top. Hauk is known to more recent lawyers since he remained on the bench (well into his 80s as I recall) until his recent death but his contemporary (a JFK appointee) Charles Carr was, if one can believe it, even worse. A more bigoted and arbitrary judge would be hard to imagine. There were other cantankerous judges on the L.A. federal bench then, but Hauk and Carr were in a class by themselves.
10.7.2005 7:56pm
Anon2 (mail):
Almost-great dissent by Judge Kozinski, with whom I often disagree but who is superb here. The one flaw is his willingness to indulge the innuedo that there was a meretricious liaison or intention between the judge and the debtor. A review of the opinion reveals zero evidence of such a relationship; even the lawyer who commented on the debtor's "comely" appearance merely noted that she was manipulative, and did not suggest an improper relationship. Moreover, given Judge Real's apparant reputation, Kozinski should realize that the judge is capable of arbitrary action on the facts of this case regardless of whether the debtor is an attractive woman, an unattractive woman, or a man. Kozinski's innuedo is a dark spot on an otherwise excellent opinion.
10.7.2005 9:01pm
My reading of Kozinski's opinion is not that he bought into the insinuation of sexual impropriety, but that the judge's actions besmirch the appearance of nustice, that one is bound to ask why the judge did what he did, that one possibility bound to occur to members of the public is sexual involvement, that that possibility cannot be dismissed out of hand without inquiry. The judge's own egregious judicial misconduct prompts this kind of speculation, and Kozinski, concerned for the appearance of justice, is right to say the record does not discount the possibility.

Judicial misconduct gives rise to all sorts of speculation, whether or not based on evidence. The inevitability of such speculation when judges commit misconduct is precisely why we safeguard the appearance of justice as well as its substance.

This whole episode--Judge Real's misconduct, his contempt for the inquiry into it, his refusal to apologize, the majority's failure to bring him to account--is an extreme example of the arrogance that abounds among nearly all judgss, state and federal, in our country. (It illustrates, among other things, that occupying judicial office means never having to say you're sorry.) And nearly all lawyers cater to and encourage this judicial arrogance. What I see in court every time I appear is not the courtesy to which all judges are entitled by virtue of their office, but groveling obeisance to lord and master. Even lawyers repelled by it are compelled to join in for fear of harming their clients' (and their own) interests. Judges are public servants and they need to be reminded of that. It's plain that the reminder is not going to come from within the judiciary itself.

By the way, Manny Real apparently once had hopes of appointment to the Supreme Court. I remember an L.A. Times feature from decades ago that talked about how innovative and hard-working he was as chief district court judge, all framed in terms of his aspirations for higher office.
10.7.2005 11:04pm