BLACK DEEDS IN BLACK ROBES:
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.
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 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
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
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 (
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
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
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 (
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
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.
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
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:
P.O. Box 47
Dundas, MN 55019