Mischief

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BLACK DEEDS IN BLACK ROBES:
JUDICIAL MISCHIEF

Ralph Underwager & Hollida Wakefield

Institute for Psychological Therapies
13200 Cannon City Blvd.
Northfield, Minnesota 55057
507-645-8881; (fax) 5007-645-8883
under006@tc.umn.edu
www.ipt-forensics.com

 

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more
Law is the Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times.
Law is the clothes we wear
Anytime, anywhere,
Law is Good morning and Good night1

 

Our justice system has evolved from the second half of the eighteenth century, when there was no notion of a generalized theory of law, to the belief today that every social problem can be solved by passing an ever more clear and specific law.  Through this process, the role and responsibility of the judge has grown and changed.  We have moved away from the view of Chief Justice Holmes that "The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong."2  Now the law is understood to be a true, closed logical system determined by the application of precedent.

We claim to be a nation of laws and not people.  This seems to make everything more fair and less subject to personal whims of those with power.  We trust the law to assure that all of us are treated fairly.  We rely on the judge to tell us what the law is and to make sure that there is a level playing field for all.  We believe that the judge is a wise, sagacious person who is objective and impartial.  Therefore we grant judges great deference and respect.  The judge is the only person in our society who immediately and without any discussion can put a citizen in jail for disrespecting the judge.

Americans tend to obey the law when they feel they have been treated fairly by the justice system, even if they have been found guilty of breaking some specific law.3  Fairness of the application of the law is the most crucial dimension.  But when fairness disappears, the law works less and less well and across time may cease to promote cooperative acts.

So long as the written rules and laws produce positive outcomes, we may continue to experience an overall sense of community and an effective society.  We believe that if we just write the laws in precise and clear enough language and in enough detail, we will eliminate human error and corruption.  However, at some point there may be unintended consequences to some of the rules we make.  More and more problems emerge to which we answer with more and more laws and rules.  After all, problem solving, we think, is best done by making rules.

Legislatures pass laws, often with vague and ambiguous language.  Then agencies and bureaucrats write the rules and regulations that will ensure their enforcement.  Because the rule makers are bureaucrats, the regulations may bear little relationship to the intent of the original law.  The end result is a glut of burdensome and costly requirements, procedures, rules and regulations that open the door to being charged with endless violations, mistakes, getting citation after citation, and penalties that are wildly irrational.

We rely on judges to administer this process fairly and keep us all in a stable, secure, and progressing society.  The judge is a central, dominant figure in the courtroom.4  Many judges are competent, hard working, and strive for fairness and equity while honestly applying the law.  But the reality is that, far from being a cadre of wise, honest, fair, and impartial arbiters, some judges are arrogant, self-serving, incompetent, and biased and dispense injustice rather than justice, oppression rather than fairness, and stupidity rather than wisdom.  This reality is made all the more frightening by the lack of any procedure by which judges can be held accountable.  There is little, if any, self correction by the judicial system except in the most egregious instances where a public or media outcry forces some action.  Research shows there is a systemic error in the justice system in that higher courts seldom correct the mistakes of lower courts.5

Against the above reality is the expectation of people to be treated fairly.  There has been much research on what is termed "procedural justice."6  Procedural justice refers to the fairness of the methods, mechanisms, and processes used to determine outcomes.  Research in procedural justice indicates that people's concerns with fair procedure is powerful and is independent of their concern with outcomes.  The most basic right people expect has been termed "voice."  This concept means that people believe they have the right to have a say in how their case is presented and to be listened to in their relationships with others and with the institutions of the society.

There are several expectations that derive from this.7  The first is interpersonal sensitivity, that is, polite and respectful treatment.  The second is accountability, the expectation that people will be given explanations and accounts for any actions that have personal consequences for them.  There also is the expectation that the authority will be neutral, unbiased, honest and principled as well as benevolent, caring, and trustworthy.
 

Wrongful Convictions

For over 25 years we have related to the contemporary system responding to allegations of child abuse.  Admittedly this may be a distinct area of the law and not typical of the rest of the system.  Nevertheless, once a week someone tells us that they never knew our justice system could be so unfair and unjust as it is in their case or in the case of a friend or family member accused of child abuse.  The anger and rage generated is illustrated by a man who spoke to us in private at a conference.  He claimed that the child abuse system had taken away his children, destroyed his marriage, and bankrupted him because of a false accusation, and he said that he could not wait to get to a country with a guerrilla war so that he could kill Americans.

Recent developments in the use of DNA evidence to show the innocence of many on death row facing execution as a result of a wrongful conviction8 make it impossible to believe that our justice system is as accurate in decision making as it needs to be.  If there can be as many errors in death penalty cases where it is reasonable to expect the justice system will do the best it can, how many more errors may there be in non-death penalty felony cases and misdemeanor trials?  At least one estimate from 1989 is that 10% of all felony convictions are wrongful convictions.9  With the rapid growth of the prison population and the societal choice to get tough on crime, it is likely that proportion has increased.

We get many letters from persons in prison convicted of child abuse who assert they are innocent.  Based on our experience and knowledge of relevant science, we find many of them credible in their claim of innocence.  We have asked some of them to give us their personal judgment as to how many of the persons in their prison convicted of child abuse are innocent.  We base asking them this question on the famous study by Rosenhan10 in which patients in the mental wards very quickly understood that Rosenhan's subjects were not mentally disturbed but were normal.  The mental health professionals never tumbled to this fact.  Prisoners may also be able to make this judgment about others with sexual offense convictions.  Responses from prisons throughout the country have produced estimates from 25% to 90%.

The jury in the O. J. Simpson trial appears to have based its verdict primarily on their belief that the justice system had not behaved honestly and fairly.  Recently, Timothy McVeigh said that he had bombed the federal building in Oklahoma City to get revenge for the actions of the justice system in Waco and Ruby Ridge.  At what point the perception of an unfair justice system may reach critical mass and explode is not yet evident.  But an examination of the justice system and an effort to strengthen its commitment to fairness and accountability is necessary.  If this is to be done, judges are the central and pivotal participants to bring about a more reasonable and fair system of justice.
 

Judicial Mischief

There is research on judges, their behaviors, and the variables affecting them.  We will briefly summarize only a few of the studies relevant to the performance of the judiciary.  A series of American studies in the '70s and '80s examined the effect of personal characteristics of judges on the decision-making process.  The personal factors which impact on the decision making of judges include judicial attitudes, role orientations, social background, and personality, especially self-esteem.  These variables were investigated by a simulation study using Dutch judges.  The outcome is that decisional dimensions correlated moderately with personal characteristics, especially role orientation.  At least part of the variance is consistently due to the influence of personal characteristics.11

An example is Judge Easterbrook who serves on the Seventh Circuit appellate court.  He was recently mentioned in a national news magazine as a possible Bush appointee to the U.S. Supreme Court should a vacancy occur.  In an analysis of a murder case which Judge Easterbrook ruled on at the appellate level, D'Amato12 maintains that Judge Easterbrook deconstructed facts and "displayed a curiously casual attitude an attitude that even demonstrably false things can be stated as factually accurate in a judicial opinion because the reader typically would not question the accuracy of what a judge reports as the facts" (p. 1344).

D'Amato observed that "if a judge desires a case to come out a certain way, and the judge is adept at legal reasoning and rationalization, the rules of law do not and cannot force him to decide the case against his own desire" (pp.1346-1347).  He noted that attorneys routinely find judicial misrepresentation of the facts of cases to make the case come out the way the judge desires.

He quoted a law professor who stated:

"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.  I am talking about judicial opinions that falsify the facts of cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules"13

In a series of studies involving appellate court judges from several states, state trial court judges, and law students, the outcomes suggest that judicial decisions are affected by priming, defined as a change in antecedent conditions which is specifically designed to increase the probability of a particular response being given to a particular stimulus.14  This finding suggests that manipulating a judicial response may be accomplished by some relatively simple procedures.  The effect of gender bias on judicial conduct is documented and has a negative effect on women working in the courtroom.15  One judge ascribes the frequent presence of "junk science" in the courtroom to judicial ignorance of science and misunderstanding the nature and utility of scientific data and concludes, "The judges have been the center of the problem."16  This issue is also discussed by Chief Justice Rehnquist in his dissent to the Daubert Supreme Court ruling setting up judges as gatekeepers of scientific testimony.17

The general rule in the justice system is that nothing a trial judge sees or hears during the proceedings in a case can generate a bias or prejudice sufficiently serious to warrant removal.  Jurors, however, are regarded as vulnerable to all sorts of influence and the rules make efforts to shield them from all risks.  This assumption is falsified by a study by Landsman and Rakos showing that in civil litigation judges are affected and biased by material that may subsequently be held inadmissible.  Landsman and Rakos conclude, "What can safely be said is that the civil justice system has come to rely on a behavioral assumption about judges that deserves far closer scrutiny than it has, as yet, received."18

In addition to susceptibility to bias, judicial lack of knowledge and ill-founded subjective beliefs may influence judicial actions and decisions.  Litigation involving sexual offenses imposes upon judges extraordinary pressure by constituents.  In addition, judges are not accurately informed about sexual offenses and sexual offenders.  Bumby and Maddos note that "These deficits in knowledge, coupled with community misperceptions and influential and often misleading media portrayals, may adversely influence opinions regarding sentencing, treatment, and release, thus resulting in reactionary and perhaps ineffectual determinations."19  Sentencing decisions are also affected by community values and subjective beliefs and attitudes of judges. One study reported that overall, for violent crime, aggravated assault and robbery, sentence length increased with a circuit's level of political conservatism.20

Judges may be subject to the confirmatory bias.  Meker, Jesilow and Aranda21 observe:

When the evidence conflicts with with judges' attitudes about the social issue in question, they are likely to give less weight to such evidence.  Conversely, when the evidence is consistent with their attitudes, they are likely to give it greater weight.  The bias effects found support the notion put forth in 1620 by the 17th-century philosopher-scientist Frances Bacon. ... "The human understanding when it has once adopted an opinion draws all things else to support and agree with it.  And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects and despises, or else by some distinction sets aside and rejects, in order that by this great and pernicious predetermination the authority of its former conclusion may remain inviolate."

The ability of judges to influence and guide the procedures of the justice system are demonstrated in a study by Lynch designed to understand and describe the effect of judicial hostility to trials.22  Lynch notes that judges put great pressure on attorneys, mainly defense attorneys, to engage in plea bargaining.  Most Americans would be surprised to learn that only 5% to 10% of criminal cases are resolved by way of a jury trial.  The rest are plea bargains, often coerced by the judge.  If a plea bargain is refused, judges routinely punish those who go to trial.  The maximum legal penalty is given to anyone who goes to trial and loses.  A system that compels defense attorneys to pressure clients to accept a guilty plea, especially when they may, in fact, be innocent, breeds cynicism, learned helplessness, and a conviction of inequity.  Ebbesen and Konnecni also note that judges tend to be biased in favor of prosecution.23

This research does not permit any easy, comfortable acceptance of the notion that we are a nation of laws and not people and so have a fair and accurate justice system.  The subjective, personal, individual factors affecting the behaviors of judges cannot be ignored.  Here are some problematical judicial behaviors which we have directly observed.

In a bench trial in California, while Dr. Underwager was in the witness box testifying, the judge leaned over toward the witness box, picked up a phone from under the bench, and proceeded to make a lengthy phone call to set up a liaison that evening with his lover.  It was somewhat disconcerting to be overhearing one side of a rather sprightly conversation three feet away while responding to questions under those circumstances.  In a criminal trial in Indiana, again while Dr. Underwager was in the witness box, the judge was reading a photography magazine and making out an order blank.  He automatically sustained all objections of the prosecutor and overruled all objections from the defense attorney while doing this.  In a bench trial in Chicago, the judge was knitting a sweater the entire time evidence was being given, including when Dr. Underwager was testifying.  In a Wisconsin hearing on admissibility of psychological science the judge slept through the entire afternoon of testimony and subsequently ruled that testimony regarding the scientific research on suggestibility and interrogation was inadmissible because it was not generally accepted in the scientific community.

In Kelly Michael's trial in New Jersey, Judge Harth regularly took over the questioning of defense witnesses and effectively acted as a third prosecutor during the presentation of the defense case in chief.  This was partially responsible for the cross examination of Dr. Underwager taking 13 days.  The appellate court observed:

The judge, in the televised-view of the jury, played ball with the children, held them on his lap and knee at times, whispered in their ears and had them do the same, and encouraged and complimented them. ...  The judge also unduly interfered with defense counsels' cross-examination of the children and often took charge of the questioning, which in many instances was overly suggestive.  For all appearances, the State's witnesses became the judge's witnesses.  The atmosphere became such, after this manner of presentation of testimony from 19 children, that a jury considering a verdict in favor of the defendant might feel that it was personally offending the judge.  The required atmosphere of the bench's impartiality was lost in this trial. 24

We have seen judicial rulings and findings of fact, including appellate court rulings, in which there are what must be deliberate choices to ignore contrary testimony, misrepresentations of fact, false factual statements, or findings of fact that are incomprehensible.  Following a hearing on admissibility of expert testimony, a Florida judge ruled as a finding of fact that Dr. Underwager could not testify because his 1972 Ph.D. in clinical psychology from the University of Minnesota was a theological degree and not a scientific degree.  The Ninth Circuit Court of Appeals held that Jim Peters, a prosecutor, lied about Dr. Underwager in a TV program but it was hyperbole which everyone recognized and so there was no damage.  A psychologist conducted an evaluation of a juvenile court system in Florida.  One of his conclusions was that a judge showed the symptoms of an adult attention disorder deficit.  He also observed that a newly appointed judge ruled on cases where she had no experience and no knowledge of the relevant and applicable law.25

In a sexually violent persons commitment hearing, the state's psychologist falsely testified that the VRAG (Violence Risk Assessment Guide) had been withdrawn by its developers from use for assessment of sexual offenders.  In a subsequent hearing Dr. Marnie Rice, one of the developers of the VRAG, testified that this was not true.  The judge ruled that the psychologist's testimony had been false, but it was harmless error.26  Research, however, indicates that illegal statements by a prosecutor, admission of inadmissible evidence, and other trial errors that appellate court rule to be harmless error may actually not be harmless in terms of the trial outcome.27

Cox28 gives examples of judicial misconduct that have attracted public attention and triggered the involvement of judicial review mechanisms.  However, the judicial review process does not document any official action if a quiet exit can be engineered.  When asked, the director of the Texas Commission on Judicial Conduct said, "I know we are criticized for letting them off but what we are supposed to do is minimize the damage."  A Nebraska judge, Richard "Deacon" Jones, gained notoriety for signing court orders "Snow White" and urinating on the rug in a colleague's office.  Judge Bernard Avelino, in Pennsylvania, protested an unwanted assignment by disappearing.  Florida Judge Steven Shea dealt with attorneys who disagreed with him by unlocking the desk drawer in which he kept a gun, and according to some brandishing it at them.  Michigan judge James Scandarito promised to facilitate legal matters for women in exchange for sexual favors.  Judge John Clark, Missouri, had teenage probationers work on his yard, paint his fence at rental property, and embezzled money from a youth facility. A  New York Judge, Charles D. Assini, assigned traffic offenders to a driving school he owned and told no one when his partner, attorney Lawrence Long, had cases before him.
 

What Psychologists Can Do

One of the aims of science is to correct erroneous assumptions thought to be common sense.  Ill-founded dogmas and myths can be questioned by factual information and faulty assumptions can be corrected through the dissemination of scientific knowledge.  However, this means relevant scientific research needs to be done.  Sound research-based techniques can then be developed.  There must then be an active effort to inform those who set policies and determine actions.

We have developed an approach to analyzing a trial transcript that provides a basis for suspecting that a judge was biased.  The research upon which we base the evaluation of the testimony in examining a trial transcript meets both the requirements of the earlier Frye test and the more recent U.S. Supreme Court Daubert/Kumho Tire rulings.

The most salient pattern of behavior that emerges from the trial transcripts is the judge's response to objections raised by the attorneys for each side.  Objections and the judge's response to them are readily quantifiable.  When an objection is made, the judge either sustains it or overrules it.  If the legal skill of both attorneys is similar, other things being equal, a normal distribution of judicial responses can be expected.  A disproportionate, skewed distribution may reflect bias either toward either side.  Here is an example:

We were supplied with a trial transcript from a Michigan case where a father had been convicted of sexual abuse of his daughters.  He was appealing his conviction and one of the grounds for the appeal was an assertion of judicial bias in favor of the prosecution.

Objections raised by the prosecution and the defense were tabulated into a 2 x 2 table where the four cells were prosecution objections sustained and overruled and defense objections sustained and overruled.  The tabulation showed that 185 prosecution objections were sustained and 14 were overruled.  Defense objections were sustained 4 times and overruled 58 times.  These results were submitted to a Chi-square statistical analysis.  The Chi-square makes it possible to determine whether an observed frequency is within or departs from theoretical or empirical expectations.  The Chi-square compares the frequency of occurrence actually observed with the frequency expected by chance.

Judge's Rulings

Objections (N = 261)

  State Defense
Sustain 185 4
Overrule 14 58
X2 = 172, p < .001

The probability of <.001 is that assigned by the tables in our statistics book for a Chi-square of 10.83 which is the lowest probability contained in the statistical tables.  The Chi-square in this case was 172.  This is an outcome that cannot be a chance result.  Unless other factors can be found to account for it, the results of the analysis suggest an extreme bias by the trial judge in favor of the state.  This same type of data is recognized in the justice system as determinative in showing racial and/or sexual discrimination, potential bias in juror pools, and police profiling of minority groups.

The justice system has repeatedly recognized the importance of judicial behaviors in affecting the fairness of a trial.  An example is the ruling of the Court of Special Appeals of Maryland in Runge v. State which includes this paragraph:

Notwithstanding the State's arguments to the contrary, we agree with appellant.  We must answer the same question that was presented in Spencer, i.e., "whether under the totality of the circumstances the judge's behavior was 'so prejudicial as to deprive defendant ... of a fair as opposed to a perfect trial.'" "...  In answering this question, we necessarily take account of the fact that a trial judge, by virtue of his position, has tremendous influence over the jury. ...  In this case the trial judge did much more than rule on the State's objection to the pertinent comment in appellant's opening statement; rather he instructed the jury that "the State has an obligation to be fair and impartial."  This had the effect of enhancing the position of the State and its role in the trial.  And not only did he not balance that instruction with one concerning the obligation of defense counsel, but when defense counsel asked to approach the bench, he stated in what can only be described as a sarcastic manner, "so what is new?".  This statement was made in front of the jury.  Considering the judge's position in the trial and the fact that just as surely as is appellant's counsel, the State is undoubtedly an advocate in criminal proceedings, there is little doubt that both remarks by the court were "likely to be devastating to the defense and, thus, should not have been made in front of the jury."  While, unlike in Spencer, the court did not directly attack the defense counsel as having committed misconduct in the conduct of the defense, his explanation of the state's role, coupled with his sarcastic remark to defense counsel, a remark which we agree suggested that appellant's counsel was an obstructionist, was at least as devastating to the defense as were the remarks in Spencer.  We hold therefore, that, under the totality of the circumstances, appellant was denied a fair trial.  His convictions must be reversed."29

In a formal adjudicative proceeding, the judge's main role is to be the finder of law and thus to be in charge of the courtroom procedure.  The judge determines when sessions begin and end, rules on motions, points of order, objections, and admissibility of evidence.  The judge gives instructions to the jury and informs them on points of law and their responsibilities and conduct, what testimony to use and not use, and how to apply the law to the facts of the case.  These actions, plus the use of robes, elevated benches, icons and symbols of the authority of the state, and the ability to jail anyone who shows disrespect endow the judge with high status and authority.  Research demonstrates that high-status individuals are more influential and elicit increased conformity and compliance.  Therefore, judges are powerful influences in the decisions made by juries and a biased judge can affect the outcome of a trial.

In our 1988 book, we discussed the concept of "Cheat Elite."  This is corruption in the name of a higher justice, the conviction of guilty people.  A biased and results-oriented judge may "distort records, pretend to believe lying government witnesses, pervert the meaning of cases, and ignore arguments made in their courtroom."30  We gave the example of Chief Justice Amdahl of the Minnesota Supreme Court.  He was reprimanded for using his office to extort money from law firms for his favorite projects.  Yet he remained in office.  Currently the New Hampshire Supreme Court is racked by accusations of undue influence, dishonest assignment of cases, and collusion to achieve desired outcomes.  The key to understanding this behavior by the best and brightest of judges is the belief that the protection of society is being served by dishonesty, cheating, and practicing injustice.  Here is the most pernicious and insidious form of judicial mischief.


What the Psychologist Can Do

The first thing that the psychologist can do to address judicial mischief is to aim at being the best scientist and doing the best science possible.  This is the strength of the Boulder Model for clinical psychology.  Though the Boulder Model may be honored more in the breach of it than the fulfillment of it, it remains the aspirational goal for the clinician.  To pursue it is the beginning of the psychologist's capacity to reduce the harm done by biased or incompetent judges.

Well-designed research needs to be done on the role and performance of judges.  This will include research dealing with various other aspects of the justice system in relation to the behaviors of judges.  The analysis of trial transcripts suggested above may illustrate one process that can contribute to the goal of reducing judicial bias and increasing the accuracy of the justice system.

There are a number of assumptions embedded in jurisprudence that have been falsified by the science of psychology.  Yet the justice system continues to base many of its policies, decisions, and actions on these falsified concepts.  An example of this is the mistaken assumption that demeanor can be reliably understood and accurately interpreted by judges, attorneys, and juries.  Hence the reliance upon direct and cross examination of witnesses as a procedure to ascertain truth.  But research indicates that demeanor cannot be used to determine whether a witness is telling the truth.31

An illustration of a simplified legal concept is that a person is a reasoning, rule-following being, whose legally relevant behavior can be understood in terms of beliefs, desires, intentions, and rational processes.32  Policies and decisions based on this assumption may be wrong if there is no awareness of the limits of this simplistic assumption.  Psychology has established that causes of human behavior are more complex, multifaceted, and diverse than a unitary post hoc explanation is likely to encompass.  Decision theory research demonstrates that the cognitive process in reaching decisions is filled with heuristics, that is, shortcuts that are a rough way to make minimal sense out of human experience.  The law must be more fully informed about the scientific facts that are known.

The U.S. Supreme Court Daubert/Kumho Tire rulings have established the judge as the gatekeeper for the admissibility of scientific evidence.  This responsibility puts the judge in a powerful position to determine the outcomes of trials.  But judges sometimes use this power to keep out evidence that does, in fact, meet the Daubert requirements.  In United States v. Rouse, et al., the federal judge ruled that testimony on the suggestibility of children did not meet the Daubert requirements.  He read from the 1993 Ceci and Bruck Psychological Bulletin article33 which was intended to demonstrate what was admissible as science portions of the literature review in the article to support his claim there was not general acceptance in the scientific community concerning the suggestibility of child witnesses.  The result was the conviction of five Native Americans charged with sexually abusing several children in their family.

This conviction was originally overturned on appeal by the Eighth Circuit, who ruled that the trial court improperly applied Daubert to exclude the proposed testimony.  But, following the state's petition for a rehearing, the Eighth Circuit reversed their earlier ruling and upheld the convictions in a split decision.34  They now stated that the exclusion of expert testimony on suggestive interviewing practices was harmless error.  (In his dissent, Circuit Judge McMillian stated, "Depriving the jury of the questioned evidence eroded the strength of the defense and, therefore, did not constitute harmless error.")

The children are now older and are saying that the FBI coerced them, the prosecutor threatened them, and their uncles never abused them.  Further appeals have been refused and the men, whom we believe are most likely innocent, remain in federal prisons after seven years.  This kind of judicial mischief is what psychologists must attend to in helping the judiciary to understand what science is and what the gatekeeping power is.35

The selection of judges by political elections has been aggressively criticized with appointment of judges being touted as a better way to decide who gets to be a judge.  Yet research suggests that popular elections may be the best way to control the feared arbitrariness and bias of judges.36  But, either way, judges may not know enough to properly determine what is science and what is not.  This has been understood for many years.  Proposals to remedy the lack of judicial competency have been made but none have been implemented or even tested.37

Simplistic and erroneous assumptions need to be operationalized and described and studied by psychologists.  Then the courts, scholars of jurisprudence, and attorneys can learn they cannot properly be used as a basis for determinations.  Psychologists appear to have been reticent in addressing the justice system and the legal profession.  But it is our responsibility to become more assertive in integrating the outcomes of our science and the body of jurisprudence.  The research suggests two possible avenues.

Since judges and attorneys read law journals, psychologists could seek publication in journals indexed in the Index of Legal Periodicals.38  The difficulty is that publication even in prestigious legal periodicals is unlikely to be rewarded in a research-oriented graduate psychology program.  Psychologists could also pursue workshops and continuing legal education presentations, where they also have the opportunity to meet and talk with judges and attorneys.  It may well be, based on what is known about how professionals acquire new knowledge, that talking to a judge during the social hour or over dinner will do more to disseminate information from our science than the formal presentations and publications.  It may be that associations such as the American College of Forensic Psychology ought to prepare and put on workshops and seminars for judges.


Accountability

There is little accountability for judges.  The only institutional structure that provides minimal accountability for judges is the jurisdictional judicial review board or committee.  The actual structure and process for review of judicial behaviors varies from state to state.  Psychologists ought be familiar with the relevant procedures and encourage and assist persons who can show that a problematical judicial behavior has affected them.  Expert witnesses also may make complaints to a judicial review panel if they have been affected by questionable judicial behaviors.  Perhaps complaints made in ambiguous situations will result in greater clarity and more understanding of unacceptable behaviors, even if a complaint is not upheld.

An expert who pursues complaints against judges may believe there is some danger in evoking the ire of judges.  If so, that may be a price to be paid for pursuit of justice and civic responsibility.  It is no different than the risk any clinician takes when they sit down in the witness stand or close the door to the therapy setting.39  Steven Ceci notes that, as a scientist, there is no virtue in staying in the middle of the road when the data are on one side or the other.40

We have decided to address accountability for judges by producing a website titled Black Deeds.  The address will be www.blackdeeds.com.  Our plan is to make it possible for any person who can document an instance of judicial behavior that they believe is unfair and improper to put their side on the internet for anyone in the world to see.  We will have a review process to assure there is sufficient supporting documentation to avoid irresponsible or ill-founded attacks on judges by disgruntled litigants.  The judges will be named and a summary description of their problematical behavior given.  The documentation will be maintained in a separate physical file.

We hope that this will accomplish two things.  First, it will give an opportunity for those who believe they have been victimized by judicial mischief to have their say.  This can be the voice that the research shows is basic to American citizens' sense of fairness and justice.  Second, it will identify judges with a pattern of mischievous behavior and may permit some, at least, to improve their judicial performance.

Endnotes

1 Auden, W. H. (1966), Law Like Love, Collected Shorter Poems, 1927-1957. New York: Random House [Back]
2 Holmes, Jr. O. W. (1965). M. Howe, Ed. The Common Law, p. 36.  [Back]
3 Tyler, T. R. (1990). Why People Obey The Law (Out of Print). New Haven: Yale University Press [Back]
4 Arce, R., Farina, F., Vila, C., & Real, S. (1996). Empirical assessment of the escabinato jury system. Psychology, Crime & Law, 2(3), 175-183.  [Back]
5 Huff, C. R., Rattner, A., & Sagarin, E. (1996). Convicted But Innocent: Wrongful Conviction and Public Policy (Hardcover)(Paperback). Thousand Oaks, CA: Sage Publications [Back]
6 Miller, D. T. (2001). Disrespect and the experience of injustice. In Fiske, Schachter, & Zahn-Walker, (2001) Annual Review of Psychology, 52. Palo Alto, CA: Annual Reviews. pp.527-554.  [Back]
APS Observer (1997, September). Misconceptions about why people obey laws and accept judicial decisions. Author, pp.12-13, 46.
7 Ibid.  [Back]
8 Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted (Hardcover)(Audio Cassette (Abridged)). New York: Doubleday [Back]
9 McCloskey, J. (1989, December). Convicting the innocent. Voice For The Defense, pp. 20-25.  [Back]
10 Rosenhan, D. L. (1973). On being sane in insane places. Science, 179, 250-258.  [Back]
11 Van Koppen, P. J. ,& Kate, J. T. (1984). Individual differences in judicial behavior: Personal characteristics and private law decision-making. Law & Society Review, 18(2), 225-247.  [Back]
12 D'Amato, A. (1990). The ultimate injustice: When a court misstates the facts. Cardozo Law Review, 11, 1313-1347.  [Back]
13 Ibid, p. 1345, quoting Professor Monroe Feedman, Speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit on 5/24/89.  [Back]
14 Heuer, L., Penrod, S., & Saks, M. (Undated). Judicial decisionmaking in cases regarding the prediction of criminality: A test of a priming approach to procedural fairness. Unpublished manuscript.  [Back]
15 Riger, S., Foster-Fishman, P., Nelson-Kuna, J., & Curran, B. (1995). Gender bias in courtroom dynamics. Law and Human Behavior, 19(5), 465-480.  [Back]
Hedderman, C. (1994). Decision-making in court: Observing the sentencing of men and women. Psychology, Crime & Law, 1(2), 165-173.
16 Gless, A. G. (1995). Some Post-Daubert trial tribulations of a simple country judge: Behavioral science evidence in trial courts. Behavioral Sciences and the Law, 13(2), 261-291, on p.260.  [Back]
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