Many legal experts agree that one of the biggest threats to our nation’s system of justice are judges, who, through a lack of proficiency, bias or corruption, prevent a litigant from getting a fair hearing in our courts. Judges in local, state, and federal courts across the country oftentimes hide their connections to litigants and their lawyers. These links can be social, political, financial, or ideological. In some instances the judge may have mutual investment interests with a litigant or lawyer. The judge might be related somehow to one of the parties. Although such situations cannot always be avoided, when they do create a perception of bias, a judge has the duty to at least disclose that information. If the situation creates an actual bias, the judge should allow a different judge to take over.
However, the reality is that the conflicted judge frequently says nothing and proceeds to rule in favor of the connected party, while the losing party has no idea that an undisclosed bias doomed her case from the start. Every litigant should have the right to ensure the sitting judge on his or her case does not have a conflict. If people do not have full faith and confidence in the judicial process, and more and more people seem to be falling into this category, the judicial process will not work. A plethora of judicial wrongdoings have been uncovered during the last decade alone, with consequences that cost some defeated litigants their homes, businesses, child custody, health, or worse yet, their freedom or their lives.
Court critics say that one reason judicial violations are commonplace is because they frequently go unpunished. When litigants ask a judge to bow out because of a conflict, they risk being told "no", and then face possible retaliation, so many do not bother. If a litigant or an attorney files a complaint with an oversight body, there is only about a ten percent chance that state court authorities will properly investigate the allegation, according to a Contently.org analysis of data from twelve states. However, the consumer advocate organization Help Abolish Legal Tyranny (HALT) and other sources indicate that the actual number of judges who face disciplinary action as a result of any investigation is closer to two percent.
California, which created the first judicial disciplinary body in the country in 1960, has a dismissal rate of 98%, falling in line with the latter above estimate. It did not suspend or remove a single judge in 2013 or 2014 and acted just once over the last five years, removing a sitting judge in 2012. Colorado’s single judicial action since 2010 was a suspension in 2013. Texas has not removed a judge in five years, though it has suspended twenty-three for varying lengths of time.
Failure to recuse when conditions warrant often leads to judicial complaints. However, the overseeing panels that evaluate the complaints, both on the state and federal level, are not part of the courts and therefore lack the authority to review the merits of a litigant’s case. Even a substantiated charge of misconduct, as rare as it may be, will not change the outcome of a ruling or verdict; it merely opens the door for a new appeal to be filed, which for litigants can be costly, time-consuming, and often not worth it.
Increasing criticism led to a major development last year. The chief justices of each state court gathered and declared that something had to be done. They asked lawmakers to enact legislation that might restore their courts’ battered integrity by forcing more transparency on their systems and holding judges accountable when they engage in unethical behavior. Whether or not this comes to fruition and since eliminating judicial bias altogether is all but impossible, we point out ways to address it in our newly released book, Stack the Legal Odds in Your Favor: Understand America's Corrupt Judicial System—Protect Yourself Now and Boost Chances of Winning Cases Later.