Friday, February 29, 2008

How to save our courts – and us as well.

In an extraordinary article for Parade magazine, February 24, 2008, once Supreme Court Justice Sandra Day O'Connor spoke out about the danger of politicizing our judges. In her work she was required by the Constitution to fairly and impartially apply the law -- not the law as she wanted it to be, but the law as it was. How many present Federal or Supreme Court Justices share that view?

Obviously she was also required to be free of personal prejudice toward those who stood before her. It should not matter what the race, religion, or personal appearance of those who argued their cases was. That's a powerful demand to make of oneself. Every one of us is influenced by those things. But her work was based on the notion that a judge must be above that.

I have a friend who works as a judge in arbitration cases. He is one of those obsessively fair and impartial people we are fortunate to have in that position. He once described to me that the portion of his training that affected him the most was that having to do with impartiality. A judge is taught, and this may be the most important part of his training, that he must subvert ego and his personal prejudice.

Justice O'Connor wrote that she is concerned about the manner in which politically motivated interest groups are attempting to interfere with justice. We have barely survived a period in which the Executive branch has systematically subverted the rule of law and attempted to load the federal bench with severely right wing judges. The Supreme Court has been affected it in a way that we will have to live with for at least a generation.

For the past seven years lobbyists have run amok in Washington, doing all sorts of mischief. The baseline of influencing corporate malfeasance, including interference by a Congressman with our environmental laws, has been raised to such a level that it takes an act of massive corruption to wake us up. The past four years in Iraq, as we tried ineptly to administer a country we have no business being in, have been illustrative of how corrupt we have become. Billions have been mislaid and lucrative contracts were given to inefficient but connected companies.

The American public must accept the importance of having our next president be free from crushing corporate ties and obligations to lobbyists. John Roberts is on the right track, and Senator Obama is not far behind.

The rule of law includes statutes and provisions. It involves precedent. Justice O'Connor says good judging requires taking ingredients and procedures used successfully in the past and adjusting them to the case at hand. Any lawyer will tell you it's what they teach you in law school.

If a judge comes up with a new way to apply the law, or obviously is personally prejudiced, that opinion may be reviewed by appellate courts to ensure that it is correct. Would that were the case. Lawyers tell me, and I have painfully observed that consistent decisions by appellate courts support and uphold decisions made by lower court judges. No matter how cockeyed, prejudiced and irrelevant -- their first inclination is to affirm the lower court judge. He or she has to be totally around the bend to be reversed. This leads to a certain cynicism in the public, which is deadly to justice.

I have been living through a striking example which is the subject of my first nonfiction book. The case, involving striking injustice to a single mother, is in progress, so it's too soon to write publicly about it, but it is a microcosm of everything wrong with courts all across America. Justice is threatened when judges ignore settled law and make decisions according to personal or public preferences. It is further threatened when appellate courts uphold them because of a form of cronyism. The notion that there is a Supreme Court in California is misleading. They are so overwhelmed that only life and death matters will be considered. Read the book when it comes out.

Justice O'Connor writes that the judiciary currently is experiencing unprecedented pressure from interest groups to make decisions based on politics. She says that the majority of law is state law. 95% of litigation takes place in state courts. Unsung, local judges have the greatest responsibility to bring justice to cases about divorce, property rights, employment, product liability and medical malpractice.

Perhaps many of them are just, but more than 89% of state judges are elected. Many of those elections become full-fledged political battles fueled by growing sums of money spent by candidates and special interests groups to attack, defend and counterattack. Where is the poor citizen left in all of this? Standing in court with an often inept lawyer, bewildered at American justice.

Justice O'Connor wrote that Sue Bell Cobb spoke to a reporter the day after she won election to become the chief justice of the Alabama Supreme Court. The first question she was asked was: "How does it feel to be the victor of the second most expensive judicial race in US history? How will you convince the people of Alabama that the campaign's contribution to your election will not impact how you rule?"

In every locality, so long as lawyers contribute to the reelection campaigns of judges there will be questions. Justice O'Connor wrote that Illinois Supreme Court Justice Lloyd Karmeir won the most expensive judicial election in American history in 2004. That race cost the candidates $9.3 million. How can people have faith in such a system?

At 28 years old, by mutual agreement, I separated from my first wife. We had had two small children, who I was able to see frequently. At first, other than missing my children, and them missing me, everything went fine. We created a simple separation agreement with the help of two lawyers, who never met. Everything was done on the telephone. My lawyer, who didn't even charge me, was a friend impressed by my rising film career. Before signing, I noted in the paperwork there was no provision preventing my wife from taking my children out of state.

I had been enormously affected when my uncle, Mende, lost his children to an ex-wife who took them to California. A fall down alcoholic, she was the sister of a prominent show biz celebrity. My nieces were brought up by their grandmother and I am certain abused by their uncle or others in that fleshy California household. For most of their childhood Mende saw his daughters only for two months in the summer, when he took them to Fire Island. I only became aware of the abuse when I got to know them as adults.

But even before that, seeing my uncle’s profound distress and disappointment, I determined that would never happen to me. One day my wife told me she was taking the children to California with her new, younger boyfriend. In hindsight I realize this would never have happened, but at the time it panicked me.

Then my older daughter, who was around six called to tell me that the witless boyfriend had shown her and her sister his genitals. That's not the word she used or how she put it, but I drove in a panic to see them and chased the guy out of the house. It was actually sort of funny; we danced around pretending we had achieved a great victory. I then waited with them for hours until their mother came home.

My older daughter had developed asthma and my wife seemed unable to keep the house dust free. My younger daughter broke her arm and I received another panicky phone cal,l because apparently their mother was unable to take her to the hospital. I rushed over and even though it wasn't my visitation time, I picked both children up. We had the arm x-rayed and placed in a cast. I asked my daughter what she wanted to do. She said she wanted to come back to my apartment and rest. Late that evening their mother showed up with her brother and took the children back.

I had been seeing a highly trained and recommended psychiatrist, discussed in a previous blog. After these experiences this guy, who had no children, convinced me that I must, as a good father seek custody of my children. No matter how bad things were, it soon became clear that involving children in the court system of New York City was unconscionable.

It did have some good results. Child Protective Services entered the equation. Their mother had to be a lot more careful. The downside was it drove her into a panic -- she might lose her children. My psychiatrist recommended quite possibly the worst lawyer in New York City. Here is the danger -- a young man under the influence of an ignorant therapist, no matter how fine his training or intention, can make terrible mistakes. Though I thought I had good reason, the trial put terrible stress on the children and their mother.

I had by that time placed both children with superb child therapists, but since their mother would not take them, we only went on my weekend. Later on, as I remember, she relented. This is a long-winded way around to tell you about two amazingly incompetent judges in the Supreme Court of New York City.

Our first judge was named Telesford. My lawyer didn't tell me we could bypass the guy. His reputation was that the Adam Clayton Powell machine in Harlem had cruelly arranged for him to be a judge because of his race. The poor man literally did not understand a single thing said to him. Perhaps at one time he had been sort of a lawyer, but by the time he became a judge his mind had completely failed. Trial days were partially taken up by sycophantic lawyers parading through showering the dim witted judge with flowery praises. He ate it up.

The judge made our lives a nightmare. His insane decision -- almost as if he was responding to another case entirely, and perhaps he was -- was reversed, after months, in the Appellate Court. The many cases Telesford had reversed cost the citizens of New York a fortune. Again I took someone's bad advice about hiring an appellate lawyer, and got two lunatics in the middle of dissolving their partnership. Somehow we prevailed. In those pre-Internet high-speed copying machine days, one had to literally publish a book of the transcript of our trial.

Our next judge, Irving Saypol, had been the United States Attorney for the Southern District of New York and the Chief Prosecutor of the Rosenbergs. Saypol graduated from Brooklyn Law School and quickly rose through the ranks of the United States Attorney's office. He was an experienced prosecutor of Communists, as he had convicted Alger Hiss, William Remington, Abraham Brothman and others. Our judge arrived on the bench a celebrity.

Part of his success was attributable to a sincere belief that he was punishing evil. His success in the Rosenberg trial accelerated his career, and he was appointed to the New York Supreme Court just months after the trial. He was proudly part of the government team that fabricated evidence against the Rosentbergs so they could be murdered by our government. That exemplar of honesty, Roy Cohn, was a junior member. I was to later encounter Roy Cohn face-to-face. That's a story for my book.

Sorry to digress, but this is irresistible. In my early twenties, before I got the courage to go out on my own, I worked for my father as a dramatically underpaid cameraman/director/editor, shooting little documentaries. When my parents divorced, more than ten years later, I learned the already wealthy man had made a substantial profit on my labor.

One day I was called upon to shoot with a Judge Irving Kaufman. When I got to his office with my father – that was our crew, my father and I – I learned from a plaque on the wall, Judge Kaufman had presided over the trial and sentenced the Rosenbergs to death.

The seemingly wise and gentle judge observed my useless father’s bullying, as I set up. He saw what was happening -- I worked, my father badgered. Finally he told my father to shut up and leave me alone. I was stunned. That was the first time anyone had protected me against the man. But in another life, Kaufman, Saypol and Cohen, was a team made in hell.

People said Saypol had at least one homosexual son and lived in a nightmare marriage. While I was painfully testifying, he interrupted and asked if I loved my children so much, why I was getting a divorce? I stuttered too badly to tell him that our divorce was not unilateral. It wasn’t a whim or that we were in love with others. With a Judge like that the case could not turn out well, and the result was that I and my children were worse off after than if had done nothing. Regrettably my children had been damaged.

Toward the end of his career Saypol behaved so badly that he was indicted for taking bribes and removed from the bench. Years later when my leg was badly broken in motorcycle accident, my visiting nurse was also attending to Saypol in his last months. She thought he was a great man.

This country can only remain great if the principle which sets it apart from the world remains intact. We must keep religion completely separated from government and we must choose our judges based upon their capacity to be fair and impartial. This is a matter for each individual state. In Colorado and Nebraska an independent commission of knowledgeable citizens recommends candidates to the governor who appoints one of them as judge.

After several years the judge's name is submitted to the electorate who vote on whether he should keep his position. This method decreases the importance of money and politics. We must also educate our citizens about what makes a good judge. We must come to value their ability to be fair, impartial and competent. We must not choose the judges based upon race to fulfill some notion of equal opportunity. We must we weed out the obvious egomaniacs who once they don the black robe lose their humanity.

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