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BLACK DEEDS IN BLACK ROBES:

JUDICIAL MISCHIEF

This website is intended to pursue three goals.  They are goals which, if we make some progress toward them by working together, can make a difference for many citizens.
 

Judges

The first goal is to make available social scientific research relevant to the role and conduct of judges and prosecutors.  Scientific research has the potential to dispel confusion, correct unfounded myths, and reduce the errors in what passes for common sense.  Whether or not careful and credible research can do this depends upon the degree to which it becomes known and understood by both policy makers and more and more citizens.  Therefore, we want to make the relevant research available on this website.  There is not much, but enough to make it of interest and to have corrective impact.  This is important because judges and prosecutors are the most powerful persons in the justice system.  We need to know all the factual information about these authorities we can get.

We will list research articles that can be looked up and obtained locally in libraries or anyplace archiving printed material.  For those research articles that we find to be good methodologically and acceptable scientifically, we will put up abstracts of the articles as we can.  We encourage anybody who finds an article or research report that we do not have listed to inform us about them.

The second goal is to offer an opportunity for any person to have their say, tell their side of the story, and have their voice heard.  We want to give this opportunity to persons whose experience with judges and prosecutors in our justice system has been problematic.  We know that our justice system makes mistakes.  We know that it is people who determine what actually happens in the pursuit of justice.  We may like to think that we are a nation of laws, not people, and that guarantees fairness and justice.  But we know that it really does not work that way.  A given individual can markedly affect what goes on.  The positions of judge and prosecutor are the persons who can make it deliver whatever outcomes they decide they want.

The third goal is to increase the accountability of judges and prosecutors who are, by and large, not held accountable in the present justice structure.  The appellate system seldom overturns errors in the lower courts.  Judges seldom do anything to prosecutors who commit flagrant acts of mischief and act unethically or even illegally.  Efforts to introduce some rational way to understand what may be going wrong are likely to be met with resistance and hostility.  A recent study of what judges are doing to carry out the changes mandated by the U. S. Supreme Court rulings in Daubert and Kumho Tire on what is admissible as scientific evidence illustrates this fact.

The rulings give judges the responsibility to be the gatekeepers for what is science and thus admissible.  To do this, it is, of course, necessary that judges understand at least a little bit about science and what is science and what is not.  Yet when the researchers tried to get some information about the level of judicial understanding of science in a pretest, the judges objected to being “tested” about their knowledge of science.  They felt it was demeaning to have any questions raised about their ability to do what is required of them to do.  It is difficult to comprehend the arrogance and foolishness of this position, but there it is.  The researchers redid the survey instrument and developed indirect measures of the level of judicial understanding of science.  The results are that only 4 to 5% of judges likely know enough about science to do what is expected of them.  (Gatowski, Dobbins, Richardson, Ginsburg, Merlino, & Dahir, 2001. Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World. Law and Human Behavior, 23, (3) 433-458).

This ruling empowering judges to determine what is science and thus admissible offers an opportunity for the bias, ignorance, and arrogance of judges to warp and distort any litigation to produce the outcome the judge intends.  Increasingly judges are ruling there is no scientific support for concepts and testimony for which there is indisputable scientific research establishing a sound basis for the testimony.  All a judge has to do is assert there is no scientific support, produce no evidence whatsoever to show it, and testimony the judge does not want is never heard.  On the other hand totally absurd pseudoscience can be ruled admissible and heard as testimony.  The appellate courts are unlikely to overturn such a mistaken ruling and instead hold that it is within the discretionary authority of the trial judge.  Thus great mischief can be done by an incompetent or biased judge.
 

Prosecutors

Prosecutors have a good media image.  They are portrayed as fearless, courageous, and working hard to put criminals away and protect the public.  However, beginning with a 1985 task force report by the American Bar Association, it is evident that prosecutors as a group pursue winning cases, not the pursuit of justice for all citizens.  In many instances, winning at all costs and by any means begets injustice, chicanery, and unfairness.  It is all too easy for a prosecutor to win at any cost, commit injustice, and still go home wearing the white hat and justified by the subjective belief of righteousness and virtue.  The result is that there is no awareness of any wrongdoing or unethical behavior.  There is no reason to change.

If we can succeed in getting the accounts of individual citizens who have been wronged by a judge or prosecutor out for all the world to see on internet, there may be some incentive to change the behavior.   The internet is supposed to be a free exchange of information.   Many believe the free exchange of information will assist in strengthening freedom and liberty around the world.   It is our hope that this website and putting the voice of individual citizens out to be heard by the world will also foster liberty and freedom.

A Minneapolis Star Tribune editorial commenting on the treatment of mentally retarded citizens, (11/06/01), states “... people who can’t speak must be spoken for.  That principle is a keystone of civilization — so beyond question as to be beyond betrayal ... Minnesota has a habit of betraying its vulnerable and voiceless citizens.  It typically disregards mistreatment of mentally retarded people — and hardly bats an eye even when mistreatment leads to death.”  Citizens who are mistreated by the justice system are voiceless.  They are subjected to mistreatment, and, as will be mentioned later, may suffer death.  Yet they are not heard.  This website is a way we want to give voice to the voiceless.

How corrections may be made

In twenty-five years of seeking to improve the accuracy of the justice system in the decisions it makes, we have observed that when public attention is focused on a specific example of injustice, it is often corrected.  An example is the Kelly Michaels case in New Jersey in which Dr. Underwager was a defense expert in the trial.  The ordinary appeal procedures got nowhere.  When Dorothy Rabinowitz, writer on the Wall Street Journal, got an article published in Harper’s on the trial and the wrongful conviction of Ms. Michaels, then things began to change.  After several years, the conviction was reversed because of the contamination of the children by the interrogation process, exactly what Dr. Underwager had testified to in the trial.  When publicity makes a wrongful conviction visible, there is a greater chance for justice to prevail.  The key is to get it visible and known to more than the victim of the injustice.

Making injustice more visible does not guarantee righting of wrongs.  The Innocence Project and the recent history of DNA testing uncovered many cases where innocent people had been convicted and sentenced to death.  When it was made plain that DNA testing could establish innocence, the response of the justice system was not to rejoice and be glad to find a way that accuracy could be increased.  Rather, judges and prosecutors fought against DNA testing, made it take years to get it done, and resisted the incorporation of the procedure into the system.

When it became evident to everyone that the Amirault family in Massachusetts had been wrongly convicted of sexual abuse, two members of the family were released.  But the Massachusetts Supreme Court ruled that the son’s conviction was to be upheld because the state needed to have closure.  So let an innocent man spend the rest of his life in a cell because the judges believed it was better than going through another trial and disturbing the citizenry.  It would not do good to let the citizens know that prosecutors and judges had made mistakes.  It took until last week, 11/01, for the Massachusetts legislature, after over 300 years, finally to exonerate the last woman who had been convicted of witchcraft and executed in Salem in 1697.  That is closure.

For over twenty years we have observed an alarming number of wrongful convictions, especially in child sexual abuse accusations.  A research article examined fifteen cases where convictions in day care center sexual abuse accusations resulted in convictions but were then reversed on appeal.  The authors attribute this to a moral panic which gripped the country in the decade of the 1980s.  Of the fifteen cases, we were involved as expert witnesses in eleven of them.  These were all cases that gained rather high visibility and attracted considerable media attention.

We have also observed hundreds of instances of wrongful convictions that have attracted no media attention.  For the most part the wrongfully convicted are average people with few or no resources.  Many are functionally illiterate.  Their families are limited in money, social status, and have little influence.  They can do nothing but go off to prison where they languish alone, abandoned, and with little hope.  In prison, they are brutalized and despised by other prisoners and guards alike.  They are attacked, raped, beaten, and punished severely for minor infractions of foolish rules.  Nobody cares.  They are “round eyes” or “baby f------ ,“ and deserve death.  We have known three men whom we believe were wrongly convicted of child sexual abuse and who were murdered by other prisoners.

Every day we get at least one and often two or three letters from prisoners who claim they are innocent.  They give us a synopsis of their experience or send us documents.  Based on our experience and knowledge, we think many them are in fact innocent.  They ask for any help we can give them.  They tell us they have no attorney, no money, no friends; often their family, their children, their wives have stopped seeing them or writing to them.  Many describe being ordered to go to sex offender treatment where they are then required to admit their guilt in order either to get into treatment or to finish treatment.  If they are innocent and refuse to admit guilt, they cannot get in or cannot get out of treatment.  If they are not in treatment or have not finished treatment they cannot be paroled.  They will serve hard time for their full sentence.  There is tremendous pressure to conform, give the authorities what they want and admit to something they have not done.  The cost is their own personal integrity.  Not surprisingly, some are suicidal.

We do what we can.  We provide information.  Sometimes we have helped groups of prisoners with affidavits supporting a legal attempt to get something to work better for them.  We send articles that may be useful.  At Christmas we send a Christmas card to many.  Prisoners appreciate that.  But we have been criticized while in the witness stand by prosecutors who try to persuade the jury we are bad and soft on sex abusers because we send them a Christmas card.  The stance is they deserve nothing and it is wicked of us to send a Christmas card.  Now we hope this website may be of some assistance to the plight of wrongfully convicted persons as well.

We will get set up and produce the section on judicial mischief first, and then, begin to identify and demonstrate instances of prosecutorial misconduct.
 

The American Justice System

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.”  (Holmes, Jr. O. W. (1965).  M. Howe, Ed. The Common Law (Paperback Paperback Audio Cassette Audio Download), p. 36).  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 a specific law.  (Tyler, T. R. (1990). Why People Obey The Law (Paperback).  New Haven: Yale University Press.)  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. (Arce, R., Fariña, F., ViIa, C., & Real, S. (1996). Empirical assessment of the escabinato jury system. Psychology, Crime & Law, 2(3), 175-183.)  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. (Huff, C. R., Rattner, A., & Sagarin, E. (1996). Convicted But Innocent: Wrongful Conviction and Public Policy (Hardcover Paperback). Thousand Oaks, CA: Sage Publications.)

Against the above reality is the expectation of people to be treated fairly.  There has been much research on what is termed “procedural justice." (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.  APS Observer (1997, September). Misconceptions about why people obey laws and accept judicial decisions. Author, pp. 12-13, 46.)  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.  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.

Anyone who believes a judge has treated them unfairly, disrespected them, not given a fair trial, shown bias against them, or demonstrated incompetence or stupidity, and that their side was not heard can have their say on this website.  It is necessary to document the claims you wish to make about a judge’s behavior.  This can be by trial transcripts, motions, rulings by a judge, and an attorney’s evaluation, or other information supporting the claims made.

To assure that this website has the impact we wish for it to have, we need to be able to establish that the claims made about judicial mischief are solid and clear.  We cannot allow personal pique, anger, or highly individual perceptions that cannot be clearly shown to others to be accurate and valid.  If this web page were to be seen simply as a rant, as irresponsible vilification, or as idiosyncratic thinking, it would be quickly dismissed and ignored.  Therefore, we also require payment of a minimal fee, both to prevent any dilution of the seriousness and to cover the costs of review, maintenance of the site, and preparation of the entry.

 

About Fees

We will review the documentation submitted to a review process involving relevant experts, attorney’s, and scholars.  Where it is more probable than not that the claims have merit and are not an ill tempered or ill founded attack, we will then put the claims and at least a summary of the documentation on this website.  The documentation must include the judge’s name, the court, the case number, and the outcome.  If necessary, we will make a follow up inquiry to those submitting a claim for any clarification or additional information.

If you want to tell your side of the story and have your voice heard by using this web page, please write to Black Deeds, P.O. Box 47, Dundas, MN 55019.  You will receive the instructions, forms, and information on how to go about it and get your “voice” out there.  All the world will have the opportunity to understand your case, see what your judge did that is unfair, biased, stupid, incompetent, or dishonest and that damaged you and your interests.  It is also crucial to improving our system of justice that alternative perceptions and negative experiences be made available to all.  A lack of critical feedback decreases the likelihood of any changes to correct those problems that exist.

This website will have three parts.  First, research relevant to judicial and prosecutorial performance will be cited and brief abstracts of selected articles.  You may then search out the cited articles in your local libraries or write to us for assistance in locating them. This section is titled Research on Judicial and Prosecutorial Behaviors.

Second is a description of the kinds of judicial and prosecutorial behaviors that are troublesome and harm individuals and the system of justice.  This is to assist you in understanding what may have been wrong in your case and to locate in your documents or experience what you choose to emphasize in your entry. Initially this is based on our own perceptions of judicial and prosecutorial behavior and our experience as expert witnesses in hundreds of trials.  As we get further information, if any new categories of judicial and prosecutorial mischief become apparent, they will be added.

Third will be the section where a specific judge or prosecutor is named, the case identified, the relevant documentation noted, and the specific judicial or prosecutorial behaviors that are wrong and should not have happened will be presented.  If we get multiple entries for an individual judge or prosecutor, they will be assembled in a single place under that judge’s or prosecutor’s name.  When we get multiple entries from an individual district or jurisdiction, they, too, will be assembled in a separate category for that jurisdiction.  This should make it possible for jurisdictions with a systemic problem to be identified as well.  We will keep a running tab on the frequency of those judicial and prosecutorial behaviors that are perceived as wrong and harmful.  This should make it possible for scholars and students of jurisprudence to begin to develop strategies and policies to address some of more frequently occurring judicial errors.

We will also include a book review section where we will review any books we think are relevant or may be helpful for what we want to work for on this website, It will be set up so that if you want to order a book that is reviewed, you can order it directly from Amazon.com by clicking on an appropriate link or graphic icon.

If you wish to make any comments on this website, our goals, what we hope to accomplish, or to seek further information about us, write. If you have suggestions about how we may improve it, please write to us also. For further information, to tell us suggestions, or give us responses, write to:

Black Deeds
P.O. Box 47
Dundas, MN 55019

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This website last reviewed on March 25, 2014.