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Critiques of the Judiciary
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Critiques of the Judiciary
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In 2009, the 111th Congress will consider, and likely approve, the impeachment of Fifth Circuit Judge Thomas Porteous, who was recommended for removal by the Judicial Council of the Fifth Circuit for misconduct that included receiving gifts from attorneys who came before him, filing false statements in his personal bankruptcy case, and engaging in fraudulent and deceptive conduct concerning his debts and gambling losses. Porteous' expulsion from the fraternity of judges is primarily based on his personal behavior. He has not been indicted for criminal misdeeds or misconduct while on the bench, nor have the attorneys who bribed him for years been subjected to any disciplinary action despite the fact that their conduct helped deprive others of the honest services of the court. As the judges, Congress and the media line up to stone a "rogue" judge, it should be recognized that this passion play is designed to convince the public that the judicial system is above reproach, an honored profession, and that only an isolated judge here and there would be caught taking a personal bribe, bending the law, or concealing an unlawful act. In reality, the doctrine of judicial immunity allows judges to engage in a wide variety of tactics to unfairly disadvantage a less-favored party and deprive them of their constitutional right to an impartial tribunal. Clearly, mechanisms of judicial accountability must be created that are independent of the judiciary and designed to enable citizens to hold judges accountable for their unlawful actions.
History on the side of accused judge; Only 7 have been removed from office RICHARD RAINEYSeptember 21, 2008U.S. District Judge Thomas Porteous admits he came to depend on alcohol to get through the day and that he was addicted to gambling. He does not deny that he submitted false statements in his personal bankruptcy, on his annual financial disclosure forms and on his application for a bank loan. He concedes that lawyer friends bailed him out of one financial jam after another over the years, even when they had cases pending in his court.
His own attorney said Porteous deserves the public reprimand he received this month from his superiors.
But Porteous now faces the prospect of the ultimate sanction, impeachment and possible removal from office, in an arena where the standard for conviction is high and the guidelines for booting a judge are open to considerable interpretation.
Federal judges are appointed for life, and the Constitution makes removal of one almost impossible. That's to keep one branch of government from unduly influencing another. Should the House of Representatives approve articles of impeachment against Porteous, he would advance to trial in the Senate, where
two-thirds of the members present must agree before he can be convicted and kicked off the bench.To reach that point, members of Congress will have determined that Porteous ran afoul of an
eight-word phrase in Article II of the Constitution, where removal from office is required for "treason, bribery or other high crimes and misdemeanors."It is a phrase that has long confounded scholars.
"Now, that's been a problem for more than 200 years, and I don't think it's one we can solve," said Carl Tobias, a law professor at the University of Richmond.
Porteous' professional future rests with a special
12-member task force appointed this past week by the House Judiciary Committee. The group has until Jan. 2 to investigate, after which the full committee and then the full House could consider the case.His superiors, on the Judicial Council of the 5th Circuit Court of Appeals in New Orleans [PDF] and the Judicial Conference of the United States [PDF], already have called for his impeachment. But Porteous, his defense team and four dissenting 5th Circuit judges say his caddish behavior is irrelevant when it comes to the Constitution. For the most part, they say, he gambled, drank and lied in his private affairs — not as a judge.
Removing him from office for what they consider private behavior could serve to tighten scrutiny of federal judges, legal analysts say. Only seven judges have been impeached and convicted in U.S. history, and only two of them for misconduct committed outside their official capacity on the bench, they said.
Porteous, 62, of Metairie, would be the third.
Wrinkled Robe scrutiny
President Clinton nominated Porteous to the federal court in 1994, after he spent 10 years as an elected judge of the state's 24th Judicial District Court in Gretna.
By 2002, when the FBI's Wrinkled Robe investigation of corruption at the Gretna courthouse became public knowledge, it was clear that Porteous, too, was under scrutiny. Two state judges and 12 other defendants were convicted of Wrinkled Robe crimes, but the U.S. Justice Department decided in 2007 not to charge Porteous with a crime.
Once the Justice Department backed off, the 5th Circuit's Judicial Council took up the case against him. The council accused him last fall of making false statements during his 2001 bankruptcy and violating the Bankruptcy Court's orders, lying on the annual disclosure statements that he filed as a judge, accepting cash and gifts from lawyers with cases in his court, lying on an application for a $5,000 bank loan and violating codes of conduct for judges.
Of those, the allegation most directly related to Porteous' work as a judge is that he asked for and accepted money from three attorneys who were litigating a dispute about ownership of a Kenner hospital, said Arthur Hellman, a law professor with the University of Pittsburgh who has followed the Porteous case closely. As presiding judge, Porteous never disclosed his financial connections during the trial.
Still, no one has demonstrated that Porteous tilted his rulings in exchange for cash, and Porteous has denied that notion. The attorneys were longtime friends of his.
"All of my dealings with the attorneys
... were as a friend to a friend," he wrote. "No gift was given as a lawyer to a judge."The rest of the Judicial Council's case against Porteous accuses him of lying on his bankruptcy forms, bank fraud, lying on his financial disclosure forms as a judge and violating the code of conduct for federal judges.
Dissenting opinions
Four judges on the 1
9-member Judicial Council deviated from the majority opinion. In a49-page dissent , they argued that his conduct, however reprehensible, does not warrant impeachment.Judges James Dennis of Monroe, James Brady of Baton Rouge, Thad Heartfield of Port Arthur, Texas, and Tucker Melancon of Marksville cautioned that Porteous had not abused his office, and that removing him would only ease the excisions of federal judges in the future.
Writing the dissent, Dennis accused the Judicial Council majority of overstepping the Constitution to create "an anomalous and eccentric definition of an impeachable offense."
The national Judicial Conference, led by Chief Justice John Roberts, reviewed the case against Porteous as well as the dissenting opinion and agreed that his actions warrant impeachment.
Only two federal judges have been removed from office for actions outside the job, the most recent being Walter Nixon of the Southern District of Mississippi in 1989 for lying to a federal grand jury. The first was Harry Claiborne of Nevada in 1986 for tax evasion and remaining on the bench after his criminal conviction for tax evasion.
"What the Claiborne case suggests is even if you don't have the evidence of soliciting and accepting the aid of lawyers, the other things add up to impeachable offenses," Hellman said.
"How can you trust a person who's willing to lie on official documents?" Hellman said.
Political intrigue
Adding to the intrigue are the political trappings of the case. Unlike a criminal trial, where a jury of citizens usually decides a case while being guided by specific law, impeachment is enacted by politicians in the House and tried by politicians in the Senate.
In addition, the four dissenting judges and Porteous were all nominated to the bench by President Clinton, a Democrat.
Of the 15 judges in the Judicial Council's majority, 11 were nominated by Republican presidents, including 5th Circuit Chief Judge Edith Jones of Houston, a Reagan appointee; the other four are Clinton appointees.
Porteous' case had stalled in the
Democratic-controlled House after the Judicial Conference recommended in June [PDF] that Congress consider impeachment. But the 5th Circuit's release [PDF] of previously confidential documents onSept. 11 , and the fact that Porteous is still collecting $169,300 a year in salary while he is stripped of hearing cases, likely prompted the House Judiciary Committee to form its task force, Hellman said."Releasing everything this time, one of their main purposes was to prod the House into taking action," he said. "That nothing was done in June must have been very troubling to the judges."
If the Judiciary Committee's task force finds evidence to go through with an impeachment, the House must first decide whether the 5th Circuit's public reprimand of Porteous and effective suspension, albeit while still collecting pay, suffices as punishment.
"That's one of the reasons I think the suspension is an argument that's not going to be taken very seriously at all," Hellman said of Porteous' continued salary. Lawmakers "don't want any future misbehaving judges thinking they might get away with a suspension."
Copyright 2008, The Times-Picayune Publishing Corporation
From: The Times-Picayune, New Orleans, September 21, 2008, National,p. 1 . Richard Rainey can be reached at rrainey@timespicayune.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
House Panel Moves Toward Impeaching Federal JudgeLAURIE KELLERMANSeptember 18, 2008The House Judiciary Committee voted Wednesday to open the first impeachment probe of a sitting judge in almost two decades.
With little discussion, the
Democratic-led panel voted unanimously to launch an investigation against U.S. District Judge Thomas Porteous, a Louisiana jurist, who is charged with presiding over a trial in which the lawyers involved had given him money. He's also accused of filing for bankruptcy under a false name.Porteous was appointed by President Clinton.
The Judicial Conference of the United States reported in June [PDF] that Porteous may deserve impeachment. If the full House impeaches Porteous, the case would advance to a Senate trial. A guilty verdict would remove him from the bench.
It would be the first impeachment of a federal judge since 1989, when the House impeached Walter Nixon of Mississippi and the Senate convicted Alcee L. Hastings, now a Democratic congressman from Florida, who had been impeached the year before.
Neither Porteous, his attorney Kyle Schonekas, nor Chief Judge Helen G. Berrigan of Louisiana's Eastern District was available for comment.
In its report, the Judicial Conference said Porteous may deserve impeachment over allegations that he filed a personal bankruptcy petition for himself and his wife under a false name in 2001 and filed many other false statements under oath during the bankruptcy proceedings. He also allegedly took "gifts and things of value" from lawyers with cases before him.
"We take it very seriously when the governing body of the Judiciary sends us a referral for impeachment," said Judiciary Committee Chairman John Conyers,
D-Mich . "Upon review, we believe this matter merits a full investigation."There was no dissent on the often highly polarized panel.
"I strongly believe that the committee is doing the right thing," said the panel's ranking Republican, Lamar Smith of Texas. "The alleged corruption of a federal judge, who is appointed for life, is especially egregious."
The U.S. House has impeached 13 judges; the Senate acquitted four, convicted seven and two resigned without trial, according to the Federal Judicial Center's Web site.
The last acquittal was of Harold Lauderback, a California district judge, in 1933. Four federal district judges have been convicted and removed from office since then: Halsted L. Ritter of Florida in 1936; Harry E. Claiborne of Nevada in 1986 and Hastings and Nixon in 1989.
The allegations against Porteous were uncovered during the FBI's Operation Wrinkled Robe, an investigation of the relationship between state judges in Jefferson Parish, where Porteous served until he was appointed a federal judge in 1994, and bail bondsman Louis Marcotte.
That
5-1/2-year investigation putcourt-ordered wiretaps and video cameras in the parish courthouse and brought 14 convictions, including those of two state judges who were sent to federal prison.In addition to making false statements under oath and taking gifts from attorneys, the charges against Porteous include hiding assets from the bankruptcy estate, leaving gambling losses off the list of debts and getting
short-term credit from casinos after the bankruptcy judge ordered him to get approval of the court before taking on any debt.The probe also uncovered evidence that Porteous rejected a request to step down from a case without revealing that he had a history of financial relationships with at least one attorney involved and leaving lawyers gifts off financial disclosure statements from 1994 to 2000.
Porteous stepped aside from all civil cases involving the federal government and all criminal cases in 2003, after a relative of Marcotte said the bondsman — sent to prison for racketeering — had paid for Porteous' car repairs and arranged another favor.
He was removed from bankruptcy cases after the 5th Circuit's judicial council's report.
Copyright 2008, ALM Properties, Inc.
From: New York Lawyer and The Associated Press, September 18, 2008, http://www.nylawyer.com/display.php/file=/news/08/09/091808k, accessed 09/21/08. Associated Press Writer Janet McConnaughey contributed to this report. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Additional Reading
- Richard Rainey, "Panel lays out case against judge; Pace of proceedings in U.S. House Lags," The Times-Picayune, New Orleans, September 12, 2008, National,
p. 1 .
- Richard Rainey, "Secretary helped pay off Porteous bills; Longtime worker granted Immunity," The Times-Picayune, New Orleans, October 5, 2008, Metro,
p. 1 .
- Bruce Alpert, "Counsel picked for Porteous probe; House panel trumpets lawyer's track record," The Times-Picayune, New Orleans, October 16, 2008, National,
p. 6 .
- Bruce Alpert, "Porteous probe renewed by House; Corruption allegations stem from Jeff scandal," The Times-Picayune, New Orleans, January 14, 2009, National,
p. 5 .
- "Continuing a needed inquiry," [Editorial], The Times-Picayune, New Orleans, January 16, 2009, Metro,
p. 6 .
JUDGE WALTER NIXON JUDGE ROBERT COLLINS JUDGE SAMUEL KENT JUDICIAL IMPEACHMENT JUDGES HELPING LAWYERS TILTING THE SCALES FIXING THE JUDICIARY LOUISIANA SUPREME COURT
Web site created November, 1998 This section last modified January, 2009
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