The Complicity of Judges In Wrongful Convictions

by Hans Sherrer


I. Introduction


Wrongful convictions do not occur in a vacuum of judicial indifference. Every wrongful conviction results from a deliberative process involving law enforcement investigators, prosecutors, and one or more trial level and appellate judges. Although prosecutors, police investigators, defense lawyers and lab technicians have all been lambasted in books and magazines for their contribution to wrongful convictions, judges have, by and large, been given a free pass. This hands-off attitude may be due to the fact that sitting in their elevated positions, judges are often thought of by lay people and portrayed by the news and other broadcast media, as impartial, apolitical men and women who possess great intelligence, wisdom, and compassion, and are concerned with ensuring that justice prevails in every case. Reality, however, is far different from that idealistic vision.


In Courts on Trial: Myth and Reality in American Justice, one of the few serious critiques of this country's judiciary by an insider, Federal Judge Jerome Frank wrote, "Our courts are an immensely important part of our government. In a democracy, no portion of government should be a mystery. But what may be called "court-house government" still is mysterious to most of the laity." Judge Frank's book was in stark contrast to what he referred to as "the traditional hush-policy concerning the courts." That unspoken policy continues to obscure the inner workings of the courts.


Peering beneath the public façade that has long protected judges from serious scrutiny, reveals that from their lofty perch they are the most crucial actor in the real-life drama of an innocent person's prosecution and conviction.


II. Judges Are Political Creatures


Contrary to their carefully cultivated public image of being independent and above the frays of everyday life, judges are influenced and even controlled by powerful and largely hidden political, financial, personal and ideological considerations. Renowned lawyer Gerry Spence clearly recognized in From Freedom To Slavery that judges are, first and foremost, servants of the political process:


"We are told that our judges, charged with constitutional obligations, insure equal justice for all. That, too, is a myth. The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power, in power. Judges, as Francis Bacon remarked, are `the lions under the throne'. . . . Our judges, with glaring exceptions loyally serve the . . . money and influence responsible for their office."


Despite never ending proclamations of their independence, members of the judiciary, all the way from a local judge in Small Town, USA to a U. S. Supreme Court justice, are inherently involved in political activities and are subject to a multitude of political and other pressures. The political nature of judges that affects their conduct and rulings is an extension of the fact that there is not a single judge in the United States, whether nominated or elected, whether state or federal, that is not a product of the political process as surely as every other political official whether a city mayor, a county commissioner, a state representative, a member of Congress or the President.


Vincent Bugliosi, the former Los Angeles deputy D.A. most well known for prosecuting Charles Manson, clearly understands that every judge in this country is only a thinly veiled politician in a black robe. He wrote in The Betrayal of America (2001):


"The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer, people would have an opinion of them lower than a grasshopper's belly. But on the contrary, the mere investiture of a twenty- five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. As an example, judges have, for the most part, remained off-limits to the creators of popular entertainment, being depicted on screens large and small as learned men and women of stature and solemnity as impartial as sunlight. This depiction ignores reality."


While a high level of knowledge, understanding, compassion and independence of thought is not a necessary prerequisite for a person to become a judge, Law Professor John Hasnas explains in The Myth of the Rule of Law that a person whose world-view is inconsistent with the prevailing political ideology will not knowingly be considered, nominated or otherwise endorsed to be a state or federal judge:


"Consider who the judges are in this country. Typically, they are people from a solid middle-to upper-class background who performed well at an appropriately prestigious undergraduate institution. . . .To have been appointed to the bench, it is virtually certain that they were both politically moderate and well-connected, and, until recently, white males of the correct ethnic and religious pedigree. It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values."


Although state judicial candidates are typically "merit" rated by a professional organization, such as a state bar, and federal judicial candidates by the American Bar Association, all so-called "merit" valuation processes are fraught with political considerations and an undercurrent of backroom wheeling and dealing by power brokers. Given that a judge's political leanings and societal position has a profound impact on his or her perspective and decision making process, it is to be expected that their rulings will be consistent with the multitude of factors making up his or her roots.


The existence of identifiable voting blocks among appellate judges from the Supreme Court on down that are definable by the political leanings of the judges belonging to them, is just one indicator that regardless of an issue or the relative merits of an appellant, the political inclinations of the judges is the most identifiable factor deciding how they vote.


Thus, the political nature of the state and federal judiciary significantly contributes to the immersement of innocent men and women ever deeper into the quicksand-like depths of the law enforcement system without their innocence being detected. Those people are at best only peripherally related to the attainment or retainment of a judge's position, so their welfare is not a political necessity for a judge to be concerned about. A prime example are the four politically impotent innocent men on Illinois' death row who had to be pardoned by Governor George Ryan on January 10, 2003, because state and federal judges had failed to release them.


Thus all too often, the influences on a judge's decision work to give short shrift to the men and women who appear before them, so that the guilty and the innocent are commingled and not distinguished.


A. Federal Judges


All federal judgeships are lifetime political appointments for as long as a person exhibits "good behavior." Men and women appointed to the federal bench attain their positions through political patronage, inside connections and behind the scenes maneuvering. Consequently, as a product of the political process, a federal judge is as political a person as any in this country. The lifetime tenure accorded them does not breed judicial independence because they are invisibly tethered to the pole of their roots and their peer group, as well as possible ruination by public harangues if they get too far out of line.


The largely overlooked truth that the best of federal judges are first and foremost political actors pretending to be above the political fray is clearly explained in Injustice For All, "The robe, in fact, is most usually an item of barter in the political swap-meet: either purchased openly with legal tender, awarded as payoff for personal or political debts, or acknowledged as an IOU toward future favors. `Political rewards, personal friendships, party service, and even prior judicial experience have been the major qualifications' for appointment to the United States Supreme Court."


A classic example of the political scheming involved in the seating of a federal judge that goes on undetected by the public's radar, is starkly revealed in the personal diaries of the late Supreme Court Justice Thurgood Marshall. He candidly recorded how before becoming a federal circuit court judge in 1961, he was an FBI mole inside the NAACP while employed as one of the organization's attorneys and publicly criticizing the agency. As a transparently duplicitous act, Justice Marshall continued to publicly criticize the FBI after his appointment to the federal judiciary. [Editor's Note: Despite his role as an FBI informant Marshall frequently voted in favor of the rights of prisoners and criminal defendants.]


There is every reason to think a story waits to be discovered and told about the behind the scenes political shenanigans every federal judge in the United States is involved in, both prior to and after they take office. Particularly since each federal judicial nominee must pass the scrutiny of an FBI investigation that compiles every known scrap of information about their life.


Former L.A. Deputy D.A. Vincent Bugliosi scratched the surface of several such stories about current Supreme Court Justices in The Betrayal of America. In that book, he analyzed some of the political considerations influencing the decision of the five members of the Supreme Court who voted in favor of George Bush's position in Bush v. Gore, 531 U.S. 98 (2000). The value of Mr. Bugliosi's analysis is to demonstrate that the decisions of Supreme Court justices are as likely to be the result of deep-rooted personal and political prejudices and influences as are those of every federal and state judge in this country. However, Mr. Bugliosi does not play favorites, since he recognizes appointing ideologically supportive judges is considered to be a political spoil for whoever holds the reigns of power at a given time:


"As to the political aspect of judges, the appointment of judgeships by governors (or the president in federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97 percent of President Reagan's appointments to the federal bench were Republicans. Thus, in the overwhelming majority of cases there is an umbilical cord between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards, or he is a favored friend of one who has (oftentimes a generous financial supporter of the party in power). As Roy Mersky, professor at the University of Texas Law School, says: "To be appointed a judge, to a great extent is a result of one's political activity."


Compounding that situation is the conditions and circumstances of becoming a federal judge that serves to filter out bright, ambitious, highly motivated lawyers with razor sharp minds whose services are most in demand, since becoming a federal judge would involve a dramatic reduction in their compensation and standard of living.


The near anonymity in which federal judges function tends to exacerbate their ability to rely on overtly political considerations when making decisions. A recent poll showed two-thirds of Americans cannot name a single Supreme Court justice, and Diogenes might have a hard time finding anyone other than someone in the legal profession who could name a single federal circuit court judge.


So the very process by which a person becomes ensconced as a judge ensures that he or she will be unlikely to rise above their own self-interest and make decisions that fundamentally conflict with their political, ideological and economic background or interests.


Thus, the men and women selected for federal judgeships are as politically partisan and biased in their attitudes as are state judges. However, unlike state judges, a federal judge is virtually assured of being in office until he or she either dies or retires. The one avenue for removing a federal judge is a purely political process: Impeachment by the House of Representatives and conviction after a trial by the Senate. It is so ineffective as a check on untoward conduct that since 1791, only seven federal judges have been convicted by the Senate, and only three since 1936.


Federal judges are only slightly more likely to be reprimanded for egregious conduct. In Judges Escape Ethical Punishment, reporter Anne Gearan revealed that out of 766 ethics complaints filed against a federal judge in 2001, only one resulted in any punishment. That judge suffered the mild punishment of a private censure, although neither the judge's name nor details of the conduct were released to the public. That is confirmation of law professor Paul Rice's observation that judges cover each other's back by ignoring everything possible because they never know when they might be on the hot seat, or as he put it, "We don't like burning brothers in the bond, because you don't know whose ox is going to be gored in the future."


Lord Acton's oft repeated admonition that "power tends to corrupt, and absolute power corrupts absolutely," needs no more proof that it is grounded in reality than the conduct of federal judges nationwide. The permanence of federal judgeships and the sort of person chosen a judge creates a perfect environment for enabling the basest attitudes of a person so empowered to be exercised.


B. State Judges


The pervasive influence of political considerations on the decisions of trial and appellate judges is not limited to the federal judiciary, but dominates the decisions of state judges as well. As would be expected, the same dynamics interact to corrupt the rulings of appointed state judges that affect federal judges. However, rather than short circuiting that process, the alternate methods of electing state judges are at best merely deceptive window dressing that conceals the power behind the judicial throne, and at worst, compounds the flaws inherent in appointing judges.


The corruption of state judges, whether appointed or elected, has been widely exposed in recent years. In a 1999 PBS Frontline program, Justice For Sale, it was reported how the favoritism of Pennsylvania, Louisiana and Texas judges is bought like cattle at an auction. The same is true of every other state's judicial elections. A judge's position on a case can reliably be predicted by an awareness of the nature and source of their campaign contributions, in conjunction with their political ideology. It was also suggested in a September 2, 2002 cover article in The Nation, State Judges For Sale, that the corruption rife in state judiciaries can be expected to worsen after a June 2002 decision by the Supreme Court opening the door for judicial candidates to publicly take politically partisan positions. In Republican Party of Minnesota v. White, the court ruled that it is an infringement of a judicial candidate's free speech rights for a State to restrict the candidate from announcing his or her views on disputed legal or political issues.


The open bazaar-like atmosphere of buying judicial favoritism is as much an element of a non-partisan as a partisan election, since a judge's preferences are as important to political and monied interests in the former form of election process as the latter. For example, the cost of winning a seat on the Oregon Court of Appeals in that state's non-partisan election process was estimated to be over $500,000 in 2002. That indicates how important it is for contributors to influence the selection of appellate judges who set precedents applicable to lower courts.


There is nothing new about the blatant politization of the judiciary. In the 1993 booklet, Justice For Sale, it was disclosed that business interests began a concerted effort in 1971 to gain and maintain control of the judicial system in the U.S. to serve their own ends. The manifesto of that effort was a memorandum written for the U.S. Chamber of Commerce by Virginia attorney and future Supreme Court Justice, Lewis Powell. Tactics such as those are indicative of how much effort is expended to ensure that state and federal judges do not function independently.


A general lack of public awareness, however, does not detract from the impact of judges representing those people and organizations to which they are politically, ideologically and financially beholden. A judge need only pay lip service to voters and other people in society that lack the muscle to curry special favor with the judge. Judge Samuel Rosenman observed with no hint of cynicism, but simply as a statement of the cold hard facts:


"The idea that the voters themselves select their judges is something of a farce. The real electors are a few political leaders who do the nominating. . . . Political leaders nominate practically anybody whom they choose . . . the voters, as a whole, know little more about the candidates than what their campaign pictures may reveal. For example . . . [a poll] showed that not more than one per cent of the voters in New York City could remember the name of the man they had just elected Chief Judge of the Court of Appeals _ our highest judicial post. In Buffalo, not a single voter could remember his name."


The fact that most state judges are elected in near anonymity by voters who do not know who they are, compounds the effects of the corrupting nature of the campaign process that ensures their lack of impartiality. Thus, the circumstances under which state judges are elected, or nominated and confirmed, creates a situation in which the people who become judges do not serve the interests of society at large.


An awareness of the sort of people that typically become judges can help one's understanding of the corruption pervading the judicial process. As noted in Injustice For All, "Let us face this sad fact: that in many _ far too many _ instances, the benches of our courts in the United States are occupied by mediocrities _ men of small talent, undistinguished in performance, technically deficient and inept." One astute observer of the situation in Oregon recognized, "Our system of judicial selection is nothing more than an `old boys network' of insiders and lawyers." The same could be said of judges and the judicial selection process in virtually every state in the country.


III. The Violence of Judges


An extreme danger inherent in the political nature of federal and state judges is the awesome violence available at their beck and call. In his essay, Violence and the Word, Yale Law Professor Robert Cover explained that every word a judge utters takes place on a field of pain, violence, and even death. Judges are, in fact, among the most violent of all federal and state government employees. The violence judges routinely engage in makes the carnage of serial killers seem insignificant in comparison. Attorney Gerry Spence echoed Professor Cover's observation when he wrote, "Courtrooms are frightening places. Nothing grows in a courtroom _ no pretty pansies, no little children laughing and playing. A courtroom is a deadly place. People die in courtrooms, killed by words."


The very position of being a judge is literally defined by their ability to engender violence by the utterance of words from their lofty perch. Furthermore, the more violence a judge can command, or the more people they can elicit obedience from in carrying out their orders, the more respected judges are considered to be. State Supreme Court justices can direct more people to carry out the violence implicit in their directives than a county judge can, and they are consequently accorded more deference and respect. Similarly, U.S. Supreme Court justices can direct and countenance the commission of more violence than a federal circuit court judge, a federal district court judge, or any state judge, and they also have a more exalted public persona.


Yet, in spite of the regularity with which the violence of judges is exercised, their "iron fist in the velvet glove" is effectively hidden by the shield of having others actually commit the violence embodied in their oral and written words. Judge Patricia Wald recognized this phenomena in Violence under the Law, in which she noted how the relationship between judges and the violence they are a part of is obscured by paperwork and procedures, "Often by the time the most controversial and violence-fraught disputes reach the courts, they have been sanitized into doctrinal debates, dry legal arguments, discussions of precedents and constitutional or statutory texts, arcane questions of whether the right procedural route has been followed so that we can get to the merits at all." Hence, the violence inflicted on a defendant by a judge is masked as just another detail amidst the legalese that dominates every aspect of a criminal case.


The public veneer of civility concealing the inner workings of the judicial process serves vital deceptive purposes. Diversion of the public's attention away from the violence carried out under the direction of a judge also provides a self-serving illusion of dignity for the judge's themselves, by presenting a façade of scholarliness that conceals the violent dirty work they are intimately involved in.


The aura of officialdom surrounding judicial proceedings is a primary reason why the attention of the general public has successfully been diverted for so long from the true nature of the horrific violence occurring every minute of every day in state and federal courthouses nationwide. There is no greater expression of that violence than when it is committed against an innocent person that has his/her life utterly destroyed by being wrongly branded as a criminal, and then is treated as such while imprisoned as well as after his/her release. The blood of that nearly incomprehensible wave of violence is on the hands of every judge that presides over the proceedings that falsely condemn any one of those innocent people, and it further stains the hands of every judge reviewing those proceedings who does not do everything in his or her power to rectify the wrong. [Editor's Note: It could also be that many judges view wrongfully convicted innocent people as the collateral damage of the "war on crime."]


IV. The Judicial Irrelevance of Innocence


Americans are taught to think that the awesome, latent physical violence at the beck-and-call of judges is restrained by strict controls that prevent their abusive use of it. This is particularly important for people to believe because one of the most heinous and tragic ways a judge's power can be used is to contribute to the prosecution, conviction, imprisonment, and possible execution of an innocent person.


However, the more than one million men and women estimated to be enmeshed at any given time in the law enforcement system that are not guilty provides ample proof that the internal checks restraining the exercise of judicially instigated violence against the innocent are inadequate. This is not an accidental or happenstantial occurrence. On the contrary, it is a predictable consequence of the manner in which judges preside over the law enforcement process. In Dead Wrong, lawyer and law professor Michael Mello pointed out to lay readers what is well known in legal circles: "In federal court, innocence is irrelevant. The Supreme Court says so, and the lower [courts] listen _ as they're required to do." Not only do lower federal courts listen to Supreme Court decisions such as Herrera v. Collins, 506 U.S. 390 (1993), in which the Court downplayed the relevance of a defendant's innocence, but state courts do as well.


Of course, the ultimate injustice that can be committed by a judge is to countenance the execution of an innocent person. Make no mistake about it, even though their role is protected from the glare of the spotlight, as surely as if they were doing it in person, the velvet-gloved fist of the trial and appellate judges involved is on the switch, lever, trigger, or syringe plunger used to snuff out the life of someone who is innocent. Considering the large number of judges involved in any given case, it is reasonable to think that cumulatively more than a thousand state and federal judges may have been involved in the dozens of known executions of innocent people in this country.


A person's innocence is discounted by judges for the simple reason that it is not a constitutional issue. The Constitution has been judicially interpreted to provide the innocent no more procedural protection than the guilty. This is consistent with the Supreme Court's holding in Herrera that "a claim of `actual innocence' is not itself a constitutional claim." The Constitution only guarantees that procedural formalities are to be followed, it does not guarantee that the outcome of those procedures will be correct or fair. As the Supreme Court has made crystal clear in Herrera and its progeny, neither does the Constitution assure that a defendant's innocence will be considered any more relevant to the outcome than his/her sex, age or city of birth.


The shock to a person who first learns of the irrelevance of his/her innocence after being wrongly convicted and then losing on appeal is compounded when he/she files a federal habeas corpus petition. Although it may be common for people to think that a federal judge will intervene to protect an apparently innocent person when no one else will _ such a thought is far more of a romantic fantasy than a belief grounded in reality. That fantasy is fed by movies such as The Hurricane, in which Federal District Court Judge Lee Sarokin is shown granting Rubin "Hurricane" Carter's habeas corpus petition in 1985, after he had been imprisoned for almost 20 years for a triple murder he did not commit. What is not revealed is that Judge Sarokin may have been the only federal judge in the country who would have granted that writ under the circumstances of Carter's case, and to this day he is castigated for having done so. So it is only by sheer luck that "Hurricane" Carter and his co-defendant John Artis are free men today instead of still caged in a New Jersey prison. But people see and believe the Hollywood myth instead of the reality facing innocent people squarely in the face.


Professors James S. Liebman and Randy Hertz, authors of the authoritative Federal Habeas Corpus Practice and Procedure, explain the legal predicament that hamstrings factually innocent people such as "Hurricane" Carter, "Habeas corpus is not a means of curing factually erroneous convictions." Yet, a habeas corpus petition is the only way a state prisoner can challenge his/her conviction in federal court and it is one of only two ways a federal prisoner can challenge his/her conviction.


V. Control of Defense Lawyers By Judges


There is one possible crink that can interfere with the smooth operation of the law enforcement process presided over by state and federal judges: defense lawyers. It is not unusual for a conscientious and knowledgeable defense lawyer to be in the position of having to choose whether to appear unruly and disrespectful in an effort to get a biased judge to observe the most meager standards of civilized fairness in conducting a trial. However, when that path is chosen it is rarely successful, because it is easy for a biased judge to cast a defendant in a bad light with the jury by reprimanding and rebuking a vigorous and conscientious defense lawyer.


Thus, for all practical purposes there is little a defense lawyer can do in the courtroom about the velvet black jack wielded by a judge. In The Appearance of Justice this dilemma was explained in the following way:


"What alternatives are open to counsel? He must know his judge and be sure that registering an objection will not put him or his client at a disadvantage in the case before His Honor - and the next case, and the case after that. On paper, each judge is subject to some higher court review, but as a practical matter, the judge who acquires an aversion to certain counsel can destroy the lawyer's effectiveness in countless unreviewable ways."


Consequently, a lawyer forced to settle for a judge known to be biased against his or her client is an integral part of the judicial process. This occurs even when a lawyer genuinely wants to help a defendant, but is precluded from doing so by settling for a judge who it is know will merely project the illusory appearance of being fair to the defendant.


Even in cases where there is overwhelming evidence of a blatant conflict of interest or egregious prejudicial behavior by a judge, his or her fellow judges will typically provide protection from removal to maintain the illusion of judicial impartiality and decorum.


Appeals courts also aid in the effective control of diligent defense lawyers. In United States v. Elder, 309 F.3d 519 (9th Cir. 2002), the Ninth Circuit Court of Appeals went so far as to rule that it is not reversible error for a judge to make inaccurate and insupportable vitriolic remarks about a defense attorney's competence and "patriotism" in front of a jury. The Ninth Circuit further held that it is not reversible error for a judge to order the same attorney handcuffed and removed from the courtroom by the U.S. Marshalls in front of the jury after the attorney persisted in trying to get the judge to correct what was, in fact, an erroneous ruling contradictory to a previous ruling by the judge.


The protection of a prejudicial trial judge by his or her brethren is encouraged by the legal doctrine of "the presumption of regularity," which presumes "that duly qualified officials always do right." This idea is similar to the monarchical doctrine that "The King can do no wrong." Thus, individually and collectively, judges can effectively function to control any defense lawyer who becomes too contentious in his or her efforts to defend a client _ and those vigorous efforts are most likely to occur when that client's innocence is apparent from the evidence.


IV. Appellate Courts cover Up the Errors of Trial Judges


There are two significant and complementary ways the political nature of appellate judges contributes to victimization of the innocent. The first method is the use of the harmless error rule to dismiss the grounds upon which a wrongful conviction or prosecution is challenged. The second method is the use of unpublished opinions to minimize attention given to an appeal and to conceal the details of the appeal's resolution.


A. The Harmless Error Rule


The harmless error rule is a relatively recent development in this country, having been adopted federally in 1919. It is codified in the Federal Rules of Criminal Procedure as Rule 52 and it states that a harmless error is, "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The states followed the federal government's lead and adopted a variation of the harmless error rule applicable in their courts.


Prior to adoption of the harmless error rule, structural omissions or errors in an indictment, search warrant or jury instructions, and a trial judge's judgmental errors in such matters as evidentiary rulings, limiting witness testimony, or motions for a judgment of acquittal that were related to essential facts of a case, were presumed to prejudice a defendant, and thus constituted grounds for automatic reversal of a conviction and a retrial or possible dismissal of the charges. That was consistent with the common law rule that review of a conviction did not involve any re-examination of the facts, which was the sole province of the jury, and that was the law applied to Americans at the time the Constitution was written and the federal judiciary was created.


The automatic reversal of a conviction acted as an important shield of protection for innocent defendants from the structural and judgmental errors of a judge, prosecutors and police. However the harmless error rule turned that common sense standard on its head by allowing a judge to determine if errors or omissions had no effect on the proceedings. In other words, the harmless error rule elevated the expression `good enough for government work,' which means conduct and work that is third-rate, shoddy, and not worthy of praise, to the sub-standard by which all legal pleadings in a criminal case affecting a person's life and liberty are judged.


The harmless error rule is defended in a criminal context as contributing to judicial economy by allowing a judge to avoid ruling in a defendant's favor when reasonable grounds can be stated that in the judge's opinion, an error by the police, prosecutors or a judge did not alter the outcome of the issue being considered. The Supreme Court has extended that rationale to encompass the most serious violations of a defendant's express protections under the Bill of Rights. The end result of that rationale was expressed in Arizona v. Fulminate, 499 U.S. 279, 309 (1991) a case involving a confession obtained in violation of the defendant's Fifth Amendment right against self-incrimination. The Court has not only continued to apply the rationale that a constitutional violation does not mandate a conviction's automatic reversal, but it has extended it in subsequent cases to encompass indictments and jury instructions that fail to include essential elements of a defendant's alleged offense. Thus, the assessment of a case's facts and deficient prosecution documents and pleadings by a judge who owes his position to the same political establishment to which the prosecutor belongs, has effectively replaced the jury that symbolically represents the community, as the final arbiter of the weight to be given to those facts that the judge cannot possibly view from a disinterested perspective.


The grave danger posed to the innocent by the Supreme Court's extension of the `harmless error' principle to an ever increasing panoply of prosecution related errors was conclusively proven by the aftermath of its ruling in Arizona v. Youngblood, 488 U.S. 51 (1988). Convicted of the 1983 kidnapping and sexual assault of a 10 year old boy based solely on the victims testimony, the Arizona Court of Appeals reversed Larry Youngblood's conviction in 1986 on the ground that the failure of the police to preserve semen samples from the victim's body and clothing that there was substantive reason to believe could have exonerated him, violated his Due Process right to a fair trial. In 1988 the Supreme Court reversed, holding that such destruction of material evidence by the prosecution must be done in "bad faith" to constitute a Due Process violation. The Court's majority acknowledged that although the actions of the police in Youngblood's case could be "described as negligent," they didn't act in "bad faith."


However, in 2000 a preserved rectal swab sample taken from the victim containing the attacker's semen was discovered. When subjected to state of the art DNA testing unavailable at the time of his trial, Mr. Youngblood was excluded as the assailant.


Yet in spite of Mr. Youngblood's actual innocence being later proven, the Court's 1988 decision continues to be the controlling authority insofar as whether the prosecution's destruction of material evidence violates Due Process or is merely "harmless." It is reasonable to surmise that the Court erred as egregiously in other applications of the harmless error principle to possible Constitutional violations as it did in its as yet uncorrected Youngblood ruling.


Thus, the adoption and liberal use of the `harmless error rule' is a largely unseen factor that has evolved into being one of the keys necessary to trigger and sustain the two pronged evil of a nationwide acceptance of wrongful convictions as the norm, and the failure of appellate courts to reverse convictions that it would have unhesitatingly declared as unsafe mere decades ago.


B. Unpublished Opinions and the Creation of an Unprecedential Body of Law


The replacement of a written opinion explaining the rationale underlying an appellate court decision, with an unpublished opinion, or one line or one word orders, has become a pervasive phenomenon in the last three decades. As recently as 1950, a written opinion was issued in all federal appeals as a right. Today, however, over 90% of all federal circuit court opinions are unpublished. The increased use of unpublished opinions since the late 1960's and early 1970's somewhat parallels the growth in the number of people imprisoned since then.


The authors of Elitism, Expediency, and the New Certiorari, recognize the negative consequences of the trend toward less public disclosure of the reasons underlying a judicial decision:


"The implications of these changes are enormous. Federal appellate courts are treating litigants differently, a difference that generally turns on a litigant's ability to mobilize substantial private legal assistance. As a result, judicial procedures no longer permit judges to fulfill their oath of office and `administer justice without respect to persons, and do equal right to the poor and to the rich.' In short, those without power receive less (and different) justice."


Given the political nature of the judiciary, it is to be expected that the expanded use of unpublished opinions is disproportionate in cases involving a politically and financially powerless defendant. Their deficient circumstances has a significant impact on the outcome of their case by putting them on a "different track" than more well-heeled and connected defendants.


Even less well known to all but legal insiders is the minimal amount of first hand knowledge an appellate judge has about the merits of the majority of the cases he or she makes a decision about. That lack of attention to the details of an appeal is disproportionately weighted towards cases involving powerless defendants. Although those are the cases that require the most intense scrutiny on appeal because they involve the greatest human cost and the greatest likelihood of an injustice, in an Alice in Wonderland type twist of reality, they receive the least personal attention by an appellate judge.


There are at least four significant ways the different judicial tracks of justice are manifested.


First, the issuance of an unpublished decision by a state or federal circuit court panel is the kiss of death to a defendant, because it effectively ends the appeal process in all but name. An unpublished decision sends a powerful signal to any further reviewing court that the issues involved are too insignificant to bother with explaining, and thus they are not important enough to warrant careful review by any other court. A one line or one word order sends the same message even more powerfully.


Second, an unpublished opinion typically goes hand-in-hand with non-citability of the decision. In Anastasoff v. U.S., 223 F.3d 895 (8th Cir. 2000), Circuit Judge Richard S. Arnold clearly explained that since the days of Blackstone over 200 years ago, the doctrine of precedent has been recognized as one of the few checks on the arbitrary exercise of judicial power, and that all judicial opinions are precedential, not just those that are published. Consequently, the ability of a court to ignore a previous court's opinion regarding a factually and legally similar case removes the only bar preventing judges from substituting their personal opinions for what the law has been declared to be in those circumstances. Thus, the non-citability of an opinion breeds and ensconces judicial lawlessness by allowing judges to avoid any accountability to abide by any precedents applicable to a case.


The Supreme Court recognized in Hutto v. Davis, 454 U.S. 370 (1982) that judicial anarchy is the result of lower courts choosing which precedents they want to follow. The Court stated, "Unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."


The danger posed to a defendant by an unpublished opinion's non-citability is compounded by the fact that few people other than lawyers have ready access to unpublished opinions. Whatever check on judicial lawlessness that may exist from the public notice of a precedentially contrary opinion is, therefore, effectively eliminated. The injustice embodied in the non-published opinion is not buried in legal books sitting on dusty shelves _ it is as if the opinion never existed in the first place _ other than its effect on the hapless appellant victimized by it.


Third, a case resolved by an unpublished decision typically receives little or no personal attention from the judges involved. The judges only invest the minimal amount of time and energy necessary to process the final order or decision that is prepared, and that may in fact have been determined to be the appropriate resolution by the judge's support staff. In such cases the judge functions as more of an administrative bureaucrat removed from dealing with a case's details. That is in sharp contrast to what is traditionally thought of as a judge's hands-on role in all aspects of deciding a case. This routine hands-off role by judges raises serious Constitutional issues about the administration of justice in this country, because unseen and unknown bureaucratic functionaries are surreptitiously making judicial decisions that affect litigants and the public without any constitutional authority to do so, and without the litigants or the public being informed of their shadow participation as de facto judges.


Fourth, the quality of unpublished decisions is of significantly lower quality than published decisions. As Professors Richman and Reynolds noted, "The primary cause lies in the absence of accountability and responsibility; their absence breeds sloth and indifference." There has been fifteen additional years for the quality of unpublished decisions to deteriorate since Fourth Circuit Chief Judge Markey described them in 1989 as "junk" opinions.


The serious deficiencies inherent in unpublished decisions are indicative of the presumption that exists in every case resolved by an unpublished opinion: Consideration of the defendant's issues was given short shrift. Implicit in that presumption is that the decision may have, in fact, been incorrectly decided. In a criminal case it means the possibility that an innocent person was victimized by a wrongful affirmation and forced to suffer an unjust punishment.


VII. Why The Judiciary Is Dangerous For Innocent People


The pervasiveness of outside influences dominates and even controls the decisions of judges at all levels from the lowliest city traffic court magistrate to the justices of the U.S. Supreme Court. The infection of politics throughout the judicial process helps one to understand how it can be that the U.S. Supreme Court found that it is constitutionally permissible for a person to be denied the opportunity to have proof of their actual innocence duly considered before they are carted off to be executed like an abandoned dog or cat in an animal shelter. In Herrera v. Collins, supra, Leonel Herrera's four affidavits attesting to his innocence, including one from a person who attested to knowing who the real killer was, were dismissed as constitutionally insufficient to prevent his execution for a murder that he evidently did not commit. In his dissent, Justice Blackmun valiantly rallied against the virtual lawlessness the Court's majority was endorsing: "Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder."


Mr. Herrera's case is symbolic in that the foremost duty of a judge is to ensure the conveyor belt of the law enforcement system is kept moving, and if the receipt of justice by innocent men and women is sacrificed, that is just too bad for them. As one lawyer put it, "judges are conductors whose job is to ensure trainfulls of defendants continue to be processed in a timely and uninterrupted manner."


One need look no further for confirmation than the overwhelming percentage of rulings that a trial judge makes in favor of the government during a prosecution. All things being equal, the law of averages would dictate that the defense and the government would be expected to be considered "right" on a roughly equal number of issues during the course of a case. In reality that is a Polyanna pipedream. It is inconceivable that a single judge in this country rules in favor of the defense on average anywhere close to half the time.


That emphasizes the great danger posed to defendants by how amazingly easy it is for a judge to fix the outcome of a trial. Judges do this by such methods as: manipulating the jury selection process; deciding which witnesses can testify and what testimony they are allowed to be give; determining the physical and documentary items that can be introduced as evidence; deciding which objections are sustained or overruled; conveying to the jurors how the judge perceives the defendant by the tone and inflections in his voice and his body language toward the defendant and his or her lawyer(s); and by the instructions that are given to the jury as to the law and how it should be applied to the facts the judge permitted the jurors to see and hear.


The entire process makes it remarkably easy for the outcome to be rigged against a defendant disfavored by the judge, who all the while can make the proceedings have the superficial appearance of being fair towards the defendant being judicially sandbagged. As sociologist and legal commentator Abraham Blumberg noted, "A resourceful judge can, through his subtle domination of the proceedings, impose his will on the final outcome of a trial." Thus, in a very real sense, any criminal trial in the U.S. is potentially what is called a show trial in other countries, since the defendant's actual innocence or guilt is virtually irrelevant to its outcome.


That misjustice is compounded by the fact that once a conviction is obtained, it is difficult with even the most solid of appealable issues, for it to be reversed by a higher court.


It is also important to consider that even when a judge does not have a pre-judgment about a defendant, his/her typical prosecutorial bias can express itself in the form of a conscious or unconscious leaning toward the defendant's guilt.


VIII. Unaccountability of Judges


The judiciary has a central role in the conviction of enormous numbers of innocent men and women. However, all manners of protection cloak the judges involved in these cases from accountability for the egregious harm they inflict. The most fundamental of these is the blanket of absolute immunity protecting judges from being sued by anyone for anything they do in their capacity as a judge. In Pierson v. Ray, 386 U.S. 547, 554-55 (1967).the U. S. Supreme Court stated:


"This immunity applies even when the judge is accused of acting maliciously and corruptly, and it `is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'"


In other words, an innocent man or woman convicted as a result of a judge "acting maliciously and corruptly" - even when it is known the judge knew the defendant was innocent _ has no civil recourse against that judge for the harm he/she caused. This emphasizes that there is simply no cost to a judge for presiding over the deliberate wrongful conviction of an actually innocent person.


The shield of immunity judges have granted to themselves from being civilly responsible for the damage they inflict on people who appear before them highlights that, for all intents and purposes, judges have no real accountability to the general population in the United States. This is true whether they are a political appointee or elected to their position. For an elected state judge to be voted out of office for outrageous conduct is no punishment when that judge then gets to retire and take life easy on a comfortable pension paid by the very people that voted the judge out of office. Appointed federal judges do not even have the check of being removable when "the people" get upset with them, since they cannot be removed for anything less than conviction of committing a serious crime. [Editor's Note: Or not being convicted. Florida federal district court judge Alcee Hastings was acquitted on bribery charges by a federal jury but later impeached and removed from judicial office by the Senate in 1989, his acquittal not withstanding. In 1992 Florida voters elected Hastings to the U.S. congress. In 1979 Hastings was also the first Black federal judge in Florida history.]


The disturbing reality of total judicial unaccountability was recognized by former U. S. Supreme Court Chief Justice Harlan Fiske Stone when he wrote, "While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint." In a similar vein, lawyer and social commentator Gerry Spence wrote in From Freedom To Slavery:


"Judges can commit nearly every variety of injustice that satisfies their whim of the moment. ... Worse is the intellectual and moral lethargy judges demonstrate year after year with empty droning opinions _ opinions without meat or bone that leave the people starving for justice. Judges can go crazy _ indeed many seem mad _ but unless they are foaming at the mouth and tearing their robes into small pieces, they are permitted to send men to prison, to deny the helpless their just dues, and to interpret the laws of the land."


Operating under conditions of personal non-accountability that effectively make them independent from censure by the people, judges are safe to perform their role as the conductors who keep the assembly-line of the law enforcement system humming smoothly along. The huge numbers of innocent men and women who are thrown on the conveyor belt and crushed as the gears grind away are treated as if their sole value as a human being is use as fuel to keep the law enforcement machine running. If a judge ever has a pang of conscience about his or her complicity in this process for which they have no accountability, they can console themselves by engaging in the same flight of fantasy that Federal Judge Learned Hand did when he wrote: "Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream."


IX. Conclusion


In 1804 Judge William Cranch wrote: "In a government which is emphatically styled a government of laws, the least possible range ought to be left for the discretion of the judge." Based on that standard it is reasonable to conclude that insofar as the criminal law is concerned, there is no longer any such thing as the "rule of law" in the United States. In criminal cases there is the rule of the subjective personal opinions of the trial judge and the judges considering the appeal of a conviction. Although rulings reflect the subjective opinion of the judge(s) involved and any outside influences on them, a veneer of objectivity must be maintained. The necessity of this front was noted in The Judgment Intuitive: The Function of the `Hunch' in Judicial Decisions:


"Of course, the motives of a judge's opinion may be almost anything _ a bribe, a woman's blandishments, the desire to favor the administration or his party, or to gain popular favor or influence; but those are not sources which jurisprudence can recognize as legitimate."


The overtly subjective evaluation inherent in the "harmless error rule" is symbolic of the degree to which a judge's personal assessment of a case is the primary factor determining its outcome at the trial level, and then on appeal. Another indicator of that subjectivity is the prevalence of one or two vote majority decisions in appellate courts that reflect the political/ideological alignment of the judges. These subjective evaluations are most freely expressed in unpublished decisions in which precedents interfering with a desired resolution can be casually disregarded.


Far from condemning the blatant judicial disregard for the rule of law, the Supreme Court majority is driving it. In his last Supreme Court dissent, Justice Thurgood Marshall recognized in Payne v. Tennessee, 501 U.S. 808 (1991), "Power, not reason, is the new currency of this Court's decision making." That condition can have particularly far reaching consequences for the politically powerless, one of which is the de facto third-world treatment of those people by state and federal judges. As the gatekeeper of the law enforcement system, the conduct and attitude of judges is at the forefront of the reasons contributing to the entrapment of unconscionable numbers of innocent, but powerless, people within that system, up to and including strapping them to gurneys carried into death chambers.


The many widely publicized cases of innocent men being released after years on death row represent only a minute fraction of the innocent men and women entrenched at any given time within the state and federal law enforcement system. The ongoing generation of wrongful convictions indicates that they are not an aberration, but result from the system functioning as it is intended to. As the overseers of that system, judges perform an essential role in the assembly line production of those illegitimate convictions. Furthermore, the complicity of judges in the generation of those wrongful convictions underscores how out of touch they are with the human cost of the violence they participate in.


The reality of today is that the law enforcement process presided over by judges has blurred its distinguishment of the guilty from the innocent to the point that they routinely appear to those in that system to be one and the same.


It can confidently be said that until state and federal judgeships are depoliticized and judges are held personally, directly and openly accountable for the violence they initiate with the words they speak and write, they will continue to inflict egregious harm on multitudes of innocent people with scant regard for the human consequences of their actions.


Hans Sherrer is PLN's circulation manager and an authority on wrongful convictions in the state and federal court systems. This is a heavily edited version of the 27,000 word law review article that includes over 300 footnotes. The complete, footnoted version of this article is also available on PLN's website at: www.prisonlegalnews.org. The full article can be ordered by sending $10 (check or money order) with a request for Vol. 30, No. 4, Symposium Issue to: Northern Kentucky Law Review; Salmon P. Chase College of Law; Nunn Hall - Room 402; Highland Heights, KY 41099.

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