In Spite of New Rule, California’s ‘Epidemic of Judicial Misconduct’ Will Continue Unabated

The repetition of the word tzedek implies a balance. For example, the strict letter of the law is balanced against mercy. Laws must be balanced by procedures which are just in and of themselves. Some rabbis said the repetition means one must balance one’s own self-interest against the needs of others – a rejection of the winning at all costs philosophy. 

As Plato demonstrated in The Republicand as Aristotle taught in the Nicomachean Ethics,Chapter 2, the balance of the Golden Mean is required for just governance of the polis.  

Why Does Western Tradition Find Balance to Be Essential to Justice?  

We had to wait until 1887 for Lord Acton to succinctly state the proposition, “Power tends to corrupt and absolute power corrupts absolutely.” This truth rests in the hearts of both the Declaration of Independence and the U.S. Constitution. When the government’s power becomes so unbalanced that it destroys the people’s inalienable rights, the people may alter or abolish the government. Corruption destroys the political bands which have connected people with one and another. The U.S. Constitution fashioned a system of checks and balances on power. The framers knew that unbridled power turned into tyranny -- hence, the revolution and the Continental Congress’ efforts to avoid another war. 

Although the Founding Fathers knew the need to keep the power of government separate from the power of religion, they had learned the lessons of our religious-political history. Sodom and Gomorrah established the moral imperative that the unchecked power of unjust judges destroys an entire society. 

Thus, the U.S. Constitution incorporated the British common law of Due Process, which had entered English law in 1215 with the Magna Carta, but the concept had its antecedent in Tzedek, tzedek tirdof. Due Process balances Substantive Law using fair procedures by which the law is imposed.  Judges are supposed to follow established rules to make certain that just laws are implemented by a just process. Judges are not supposed to railroad people into prison or steal their property because the judge keeps the judicial seal in his desk drawer. 

America Has Lost That Balance Which Creates a Just Society 

When Colin Kaepernick silently reminded us of our moral heritage, he was exiled from football due to the owners’ fear that his reminder of “Justice, Justice You Shall Pursue” would so alienate football fans that they would stop attending NFL games.  

Where Did We Go So Wrong?  

When did we become a nation so wedded to injustice that we find it intolerable to be reminded of our shortcomings? Is it any wonder that Los Angeles finds nothing wrong with tearing down the homes of thousands of poor people, throwing single mothers and children onto the streets so that billionaire developers can build luxury condos? People, however, become irate at proposals that would allow the dispossessed to live in encampments near the homes “of good decent people.”  

Are these the same “good decent people” Trump referred to after their Tiki torch march in Charlottesville shouting, “Jews shall not replace us?”  

Are these the same people who tolerate separating young children from their parents as they flee murderous oppression – which our absurd War on Drugs has created south of our border. (Seeking asylum is not a crime.)  

Why Do Californians Shun Justice?  

When the city council operates according to a criminal vote trading agreement whereby tens of thousands of poor people’s homes are destroyed, billions of tax dollars go to the developers who demolished the homes, and Judge Richard Fruin rules that the city is above the law and that their behavior is “non-justiciable.” Judge Fruin sounds more like Sodom than like Solomon. 

California’s War on Due Process  

A California prosecutor was caught suborning perjury from a lying jailhouse informant and the prosecutor himself committed perjury by denying he had promised favors to the informant. The state appellate court gave its approval to multiple perjuries. Finally, the Ninth Circuit (i.e. the Feds) stepped in and took blistering action, threatening personal exposure of the California officials who condoned such behavior. 

After the Feds revealed that the California system had been infected by an “epidemic of misconduct,” the California Supreme Court Chief Justice put on a fancy, ersatz display of revamping the rules of ethics. New Rule 5-110 requires prosecutors to voluntarily disclose to the court exculpatory evidence.  Exculpatory means evidence showing that the defendant is innocent. Yes, California needs a special rule to tell prosecutors to stop framing innocent people. 

Did New Rule 5-110 Restore Balance?  

The prosecutorial office which has the widest impact on California prosecutors is the State Bar’s Office of the Chief Trial (OCTC). Because the OCTC sets the standard for all other prosecutors in the state, its attitude towards Rule 5-110 is of paramount importance.  

Its position on new Rule 5-110 is that it may lie to the court, conceal exculpatory evidence and suborn perjury. In rejecting the rule, one prosecutor explained that it isn’t her function to do the defense’s job for him. For State Bar prosecutors, lying to the court and hiding documents is A-OK because the burden rests on the victim to expose the wrongdoing. The OCTC’s attitude guarantees that the epidemic of misconduct will continue unabated. 

Governor Rewards Judicial Corruption 

In the wake of the Commission on Judicial Performance’s (CJP) insistence that it may keep secret its deals allowing predatory judges to escape punishment, the Legislature had proposed cutting the CJP’s $5.2 million budget by $500,000. On June 11, 2018, the Governor rewarded the CJP for behind-the-scenes perfidy by restoring the half million dollars.   

What’s Next? 

When the predation of the powerful goes unchecked, a few souls remain faithful to Tzedek, tzedek, tirdof. Daniel Ellsberg was the response to the Johnson Administration’s secrecy about the Viet Nam War. Richard Nixon’s secrecy was destroyed by Deep Throat (Mark Felt). California’s judicial predators forget that not all their victims are signatories to the non-disclosure agreement about the finances of the Chief Justices and their cronies.

(Richard Lee Abrams is a Los Angeles attorney and a CityWatch contributor. He can be reached at: [email protected]. Abrams’ views are his own and do not necessarily reflect the views of CityWatch.) Edited for CityWatch by Linda Abrams.