Disciplining the Judge - by Cara Tabachnick

Excellent post by Cara Tabachnik at the Crime Report

http://thecrimereport.org/2010/07/05/disciplining-the-judge/#more-43517

Disciplining the Judge
By Cara Tabachnick

Monday, July 5th, 2010 8:45 am

The Crime Report in May told the story of a nine-month old infant murdered in the midst of a bitter California custody battle. Last month, the presiding judge in the case lost his battle for re-election.

Could the death of little Wyatt Garcia have been prevented? Supporters of the boy’s mother, Katie Tagle, have charged that a San Bernardino, CA family court judge who refused to accept her plea for custody was indirectly responsible for the chain of events that ended when her estranged husband shot the boy and then turned the gun on himself last year. (See “Failure to Protect“, The Crime Report, May 26, 2010)

California Superior Court Judge Robert Lemkau vehemently defended his actions. But last month, local voters came to their own conclusions about his judgment on the bench.

He lost his position after an election swept him out of office with just 35 percent of the vote, in favor of his opponent, a local deputy assistant district attorney named James Hosking.

Lemkau had refused to sign a protective order against the boy’s father, 25-year-old Stephen Garcia, even though his ex-girlfriend supplied evidence of Garcia’s threats to harm the boy and herself, including e-mails, text messages and voice messages. Although no extenuating circumstances were raised in court transcripts of the case, Lemkau simply accused Tagle of lying, and ordered that she turn Wyatt over to his father—with fatal results. “I was treated like a criminal, like a complaining woman,” Tagle told The Crime Report.

Following the tragedy, the judge expressed some remorse for Wyatt’s death, but refused to acknowledge that he had made a wrong decision instead saying on his re-election Web site, “ I ruled the way I did because there wasn’t enough substantiated evidence to support the request.”
While it’s unclear whether the election results had any specific relationship to the Wyatt Garcia case, Lemkau’s defeat underscores one of the most difficult issues in U.S. jurisprudence: the difficulty of calling judges to account for their actions While in theory, elected judges are held accountable to voters, narrowly contested elections are rare in most jurisdictions around the U.S. Few local voters pay attention to such races, and even fewer feel competent to decide on a candidate’s judicial qualifications. .

At the same time, as an investigation by The Crime Report shows, censuring or recusing a judge through official channels is extremely rare, if not impossible.

Both Sides Need Judicial Safeguards

It’s one reason court experts argue that having powerful safeguards in place for judicial protection is extremely important. Such safeguards are needed not just for the injured parties in a case― but for the judges themselves.

Disgruntled litigants can file complaints over and over again tying up the judge in an endless process. Furthermore, judges can be unfairly targeted in acrimonious cases when so much is at stake.

That was the case, for example, in the 2006 shooting of Nevada Family Court Judge Chuck Weller by a man he decided against in a divorce case. The suspect, Darren Mack, shot Weller because he was unhappy with the judge’s rulings, and he later stabbed his wife, Charla Mack, to death.

“In terms of checks and balances there is (only) the appeal process and the right to ask for a recusal,” said Bill Raftery, Knowledge and Information Services Office Research and Communications Specialist at National Center for State Courts, a national not-for profit that seeks to improve the administration of justice.

Litigants have few options. They can try to reverse a decision on appeal, have the judge removed from an ongoing trial with a disqualification motion, move to impeach a judge through the legislative body or file an ethics complaint. However since 1991, only one state judge has been removed through the impeachment process, the American Judicature Society found in 2006. In that year, the latest in which numbers are available, 12 judges were removed from office as a result of state judicial proceedings.

But while appeals are public record, in many states ethics complaints and recusals for individual judges rates are not available, making it hard for litigants to track a judge’s record.

And in the murky and chaotic world of family court, where parents can remain locked for years in volatile custody battles over their children, a judge can sometimes mean the difference between life and death.

If Lemkau had not been up for election in June, it is quite possible he could have remained a sitting judge in family court―leaving the family of baby Wyatt without any recourse―and continuing to render decisions on other custody cases.

And though it may seem that this case is highly unusual, in the U.S. family court system, sadly, it is not.

Kids Are The Victims

Previous articles by The Crime Report found that children are the victims in the contested custody cases that fill the family court dockets. Not only can they be killed, more often than not the children are left in the custody of an abuser who can continue to sexually or physically assault them.

Another article looked at the systemic issues behind the chaotic and overburdened courtrooms that manage these emotional cases. The contributing factors include: a dearth of judges caused by budget constraints; parents that represent themselves, thus backlogging the system with procedural mistakes; the explosion of custody disputes in cases with adoptive gay parents; and the high percentage of children born to single parents who are requesting child support. Together these have narrowed the average time a judge spends on a family court case to 3.5 minutes, according to a report by the New York State Senate Committee on the Judiciary.

The National Council of Juvenile and Family Court Judges with the Office on Violence Against Women started the National Judicial Institute on Domestic Violence over a decade ago to address these problems and train judges to recognize and handle domestic violence. Together these non-profit organizations provided recommendations to judges who hear family court cases on how to recognize high-risk abuse situations.

Advocates contend that many family court judges are not properly trained or ignore abuse guidelines. And such judges tend to view protective mothers as not trustworthy and overwrought, making biased decisions on which they have no true recourse, according to Darby Mangen , chapter president of the San Bernardino National Organization of Women (NOW). “No matter how exiguous the case there is no help for the victim,” added Mangen, who was active in the campaign to remove Judge Lemkau.

Furthermore, since so much of the decision making in custody cases relies on the judge’s discretion, litigants are fearful of bringing any motions against the judge.

“Family judges have so much power over cases that you can not afford to challenge the judge,” says Tony Tanke, a former senior judicial staff attorney for the Chief Justice of the California Supreme Court, who advises on family court cases pro-bono.

Moreover, the often tight relationships between local bar associations and judges make it difficult to find an attorney who wants to take on a complaint against a powerful judge, according to Tanke. Indeed, in the Lemkau v. Hoskings election, Lemkau received endorsements from the local Family Law Bar association and other area attorneys, who supported his decision in baby Wyatt’s case

The result: parties who feel victimized by a judge’s biased decision are left with nowhere to turn.

Appeals Get Nowhere

Things are further complicated by the appeals process,. A main point of contention in contested custody cases is the judge’s discretion on deciding whether abuse exists and whether it will be allowed into the legal record. If a mother makes an accusation of abuse in a lower court, but the judge dismisses it under their discretion, as happened in the Garcia case, the judgment will not be overturned at the appellate level. Technically, the judges are not doing anything wrong, they are just making a decision based on their evidence. But that, advocates say, strikes at the heart of the issue.

In fact, almost always the higher court will defer to lower courts on the question of whether or not an abuse claim is unfounded, leaving an enormous amount of power in the hands of the family court judge.

These claims are buttressed by a 2008 report, “Fair Courts: Setting Recusal Standards,” issued by Brennan Center for Justice at New York University School of Law, a national think tank focusing on justice matters. The authors found, “On appeal, odds of success are even worse. Nearly every appellate court, state and federal, will overturn a lower court’s disqualification or recusal decision only for an “abuse of discretion.”

Sometimes advocates try to apply some unsubtle pressure, such as attending family court hearings wearing NOW stickers, said Magen. But there have been more formal attempts to establish a watchdog presence in the courtoom.

A national court watch project has established pilot programs in five states that involves sending a team of students and volunteers to sit in on family court cases and report any abuses. So far this year, observers sat in on 560 family court rooms, according to Renee Beeker, Executive Director of National Family Court Watch Project. Although they are still evaluating the watchers’ results, volunteers have found that courtrooms take note of the outside set of eyes on them.

“The court can change their behavior just because they know people are there,” reports Beeker. “And that is a win for us.”

Cara Tabachnick is News Editor of The Crime Report