Inmate Publishes Law Review Article
A Disappointing Win

Fox To Congress: Let Me Guard The Coop!

The importance of an indepedent judiciary cannot be overstated. But there is a difference between independence and a lack of accountability. Short of impeachment, what can be done to reign in a judge?

Congress is considering the creation of an Inspector General in the Judiciary. The inspector would report directly to the chief justice, thus mooting any concerns about separation of powers.

The federal bar is clubby, and complaints of misconduct against a District Court judge are often referred to the very Appellate Court on which the judge from time to time sits by designation. In other words, colleagues evaluate claims of misconduct. The results are often predictable, with inferences drawn in favor of the colleague so as not to offend.

Consider the case of United States District Court Judge Robert Chatigny, who was the subject of complains filed under the following docket numbers: 05-8512, 05-8513, 05-8514, 05-8515, 05-8516, 05-8517 and 05-8519. At issue was the judge's beahvior during the final stages of litigation involving Michael Ross's decision to forego habeas petitons and submit to death. Ross had lingered on death row for years and had decided finally to die. After the United States Supreme Court had rejected the last appeal by those seeking standing to fight Ross' decision to die, the judge intervened. In an extraordinary sua sponte teleconference, Chatigny hectored the Ross's attorney: "What you are doing is wrong.... terribly, terribly wrong." The judge told the lawyer he would "have [his] law license" if it turned out after the execution that there were serious questions about Ross' competency. The lawyer stopped the execution.

All this took place after hearings at which Ross was declared competent and not to be suffering from "death row syndrome."

Chatigny was grieved by members of the state's attorney's office. The claims asserted he acted improperly. The state Legislature wrote to the U.S. Senate Judiciary Committee requesting an inquiry.

The reviewing panel of the United States Court of Appeals for the Second Circuit spoke last month, exonerating the judge. Here's a link to the decision

I can't help but wonder whether an independent review would have drawn every reasonable inference in the judge's favor. Did the judge really forget that he once sought to file an amicus brief on Ross' behalf for the state's criminal lawyer's club? Did he not abandon his role to as neutral and detached magistrate by creating a case or controversty when there was really no case at all before his court?

Michael Ross was a former client of mine in a civil rights claim in which I attempted to assist him get reading material on death row. His decision to die struck me as a principled decision in the face of a hopeless situation. Lawyers opposing the death penalty, which I oppose as well, fought to keep him alive against his will. In the end, the trial court judge took sides, sides consistent with professional commitments taken before he took the bench. Chatigny's activism was deeply troubling.

Among the Second Circuit's conclusions in the Chatigny case is the boldest of calls for judicial activism. Judges aren't mere umpires. They are to ensure that justice is done. This Platonic gibberish forgets that ours is an adversarial system, not inquistorial, as in Europe, with a judge sitting atop the pyramid gazing at visions of the good and then translating them for mere mortals and their lawyers.

What would a truly idependent review of Chatogny revealed? What if he had not been evaluated by colleagues? We'll never know, apparently.

The Judicial Conference, representing the nation's judges, opposes the inspector general proposal. But we were appointed for life! Small wonder. What fox standing guard outside a chicken coop wants a stranger cooking his omelet?