EDITORIAL

A Threat to Judicial Independence is a Threat to Fundamental Freedoms

by William F. Gallagher

As trial lawyers we should meet head on those who would control the judiciary by intimidation

 

Our system of justice is premised on an independent judiciary. This distinguishes us from most other nations in the world, even other democratic nations. In fact, an independent judiciary enjoying the confidence of the citizenry is the very foundation of our social order and essential to our fundamental freedoms. Imagine what would happen if the refereeing at the Super Bowl was suspect. If the referees were in the pay of the wealthiest team, or influenced by the most partisan fans in attendance, the public would ignore or laugh at the event. Public interest would also diminish greatly if these allegations were made by public officials or respected newspapers, even if the allegations later proved to be untrue. Similarly, who would trust a judge who was not independent from the litigants, other branches of government, and public whims? If our judicial independence is essential to our fundamental freedoms, the public must have confidence in the independence and impartiality of the judiciary. This public confidence itself in turn reinforces and feeds back into judicial independence. As Justice Stephen Breyer pointed out, we should not underestimate the relationship between society’s "culture" of compliance with judicial orders and the independence of the judiciary; an independent judiciary fosters public confidence, which encourages public compliance, which in turn gives judges the fortitude to make independent decisions. Generally stated, judicial independence embraces two ideas: individual judges should not face the fear of reprisal from the public when deciding cases, and the judiciary as an institution should remain free from excessive executive and legislative control.

We have complained in the past about the Governor’s interference with the judiciary budget, and supported the Chief Court Administrator’s efforts to rectify it. 15 Forum 158 (1997). We have also complained of inadequate funding by the legislature, pointing out that chronic underfunding has threatened essential functions of the Judicial Branch, especially the progress of civil jury trials and the handling of juvenile cases. 15 Forum 217 (1997).

It is also clear that judicial independence is the best way to protect the rule of law. When judges apply the law according to the Constitution and statutes, rather than the latest public opinion poll, the rule of law triumphs over the rule of men. The federal and state Constitutions guarantee fundamental principles that distinguish the rule of law from the rule of the mob. Although judges are human, and from time to time make mistakes, the judiciary contains a built-in process that, while minimizing the ability of judges to misapply the law, does not threaten judicial independence. The right of appeal neutralizes any argument that individual judges can and do frustrate the purpose of a constitutional provision, statute or other rule of law. While the effectiveness of judicial independence and the administration of justice depends in large measure on public confidence, the reporting of inaccurate or unjust criticism of judges, courts, or our system of justice by the news media erodes public confidence and weakens the administration of justice and judicial independence. It is vital that the public, litigants as well as non-litigants, believe that the courts, and their procedures and decisions, are fair and impartial.

As a vibrant and active bar association, CTLA has the duty as an association, and our members as individual trial lawyers have the duty, to come to the aid of the system, or of individual judges, when there is inaccurate or unjust criticism. Sometimes circumstances prevent the bar from assisting, as with the inaccurate and unfair criticism of Judge Leander Gray before the Judiciary Committee and the legislature in late February and early March of 1998. Judge Gray followed the recommendation of the Department of Adult Probation, imposed a sentence recommended by that professional office, over the objection of the prosecution and the Connecticut Post, and has paid the ultimate price. Although the bar may not have been able to stop a legislative process that took on a life of its own, recommendations for reform to avoid a repeat of this scenario were published in an editorial in the Connecticut Law Tribune (29 CLT 15, 4/6/98) and reprinted in the Forum (16 Forum 72 (1998)).

There is now brewing another similar controversy involving Judge John Ronan, our new Deputy Court Administrator, and an experienced and highly-regarded Superior Court judge. An eight-year old witness in a murder case was murdered by an unknown assailant. The judge has been criticized for making available to the defense the witness’s identity, and his statement. A review of the transcript of the proceedings before Judge Ronan demonstrates that the criticism of him in that case has been unfair and unwarranted. On October 6, 1998 the transcript of proceedings indicates that the judge was aware of the extraordinary nature of the case and the importance of not disclosing names and addresses of witnesses prematurely to the defense. It was recognized at that proceeding that under current rules of criminal practice disclosure of the identity of the witness and statements was only a question of when it occurs, not whether the defendant was entitled to disclosure in the first place. Defense counsel in that proceeding stated:

We’ve been aware ... from the very beginning and if the Court’s concern is the protection of minors, whatever, we’re already aware of that and so – I mean, I don’t know if that’s the – if that is part of the concern but if it is – THE COURT: You’re aware of who they are? DEFENSE COUNSEL: Yes. Absolutely, your Honor. We are aware of who they are. The reason defense counsel was aware of the identities of both of the children (there were two) appeared in the affidavit in support of the arrest warrant in the first case against the alleged murderer. The earlier case involved an attempt by the same defendant to murder the same victim. In that case the affidavit in support of the arrest warrant, dated September 11, 1997, paragraph 6, specifically identified the two seven-year old children who were in the back seat of the car when the shots in the attempted murder case were fired. The trial court could not refuse to turn over to the defense the affidavit in support of the arrest warrant application. Of course defense counsel knew the identities of the children. On December 9, 1998 the court ordered the statement in question turned over to defense counsel, but restricted counsel’s use by ordering that he not disclose the name of the witness to his client. It is the rule of court that requires advance disclosure of witnesses’ statements in a murder case that the press is upset with, not the ruling of the court. Nevertheless, the press went on the attack. The importance of participation by our association and its members in rebutting unfair criticism of our judges and our system of justice cannot be over emphasized. Even the President and the Senate Majority Leader in 1997 publicly stated that a particular judge should be impeached or should resign because of a decision to suppress evidence in a criminal drug prosecution. There have been innumerable similar criticisms by politicians of "judicial activism," threats of impeachment and calls for judicial term limits of federal judges. Indeed, the federal district court judge in San Francisco who blocked implementation of Proposition 209, the measure passed by California voters to end all race and sex based preferences in state hiring and college admissions, was threatened with impeachment because of his ruling. We urge all of our members, and indeed all of the bar, to be vigilant for unfair criticism of our system of justice and our judges, and to come to their defense publicly and quickly. Judges are constrained in defending their decisions, not only by rules of judicial conduct, but by the perception that any statement by the judge is "self-serving" or perceived to be defensive. Moreover, if a judge’s public comments reflect on pending litigation there may be an undesirable effect on litigants. It is our responsibility. We should meet head on those who would control the judiciary by intimidation and thus weaken the independence of the judiciary.