Judicial Independence and Accountability

originally published September 8, 2008

In 1994 the city comptroller, Jacqueline F. McLean, went to court on charges of stealing city funds. The case quickly became a circus, with the aggressive defense attorneys, M. Cristina Gutierrez and William H. “Billy” Murphy, Jr. egging on Judge Elsbeth L. Bothe. Judge Bothe, who had a volatile temperament on the bench, allowed herself to be drawn into shouting matches with Gutierrez and Murphy, who did not want her on the case.

Enter the Baltimore City Council. Five members, including then-Councilwoman Sheila Dixon, attended a meeting with the administrative judge at the time, Judge Joseph H. H. Kaplan, to express their concerns. Following this meeting, Judge Kaplan postponed the case and then removed it altogether from Judge Bothe.

I was shocked. A judge removed from a case after a meeting with politicians? Whatever Judge Kaplan’s reasons—and he said they had nothing to do with the meeting--his action carried the stink of political interference, that “appearance of impropriety” that public officials should avoid (but so often don’t.)

Then I encountered another surprise. I went into the voting booth a few months later and saw Judge Kaplan running for judicial election unopposed. Unopposed? After removing a judge from a case following a meeting with politicians? The idea entered my head that someday I would challenge the “sitting judges” who were up for election, not for the purpose of becoming a judge myself, but just so that they did not get a free pass on their behavior. In 1998 I felt sufficiently motivated by the conduct of some of the sitting judges to do this. What an enlightening experience, running against the legal establishment that is behind the sitting judges, but that’s a story for another time.

My purpose here is to make clear my view on judicial independence and accountability. Judges should not be removed from their duties for how they exercise their discretion unless they have some corrupt motive (such as making decisions for profit or for personal connections) or unless they no longer possess their mental faculties. They must be protected from political interference and from emotional passion when they interpret and apply the law. The call of Delegate Donald H. Dwyer, Jr. to impeach Baltimore Circuit Judge M. Brooke Murdock in 2006 because he disliked her ruling on gay marriage was an egregious example of both politics and passion attempting to infect the judiciary.

However, independence does not give judges immunity from criticism, lest we yield our laws, even our Constitution to those who prove unequal to the task of applying them. When, according to conservative and liberal scholars alike, the Supreme Court ignored their prior precedent to reach a poorly reasoned decision in the Florida presidential vote recount case of 2000, should those scholars have refrained from educating the public about their highest court? When local judges fail to follow the rules and laws that have been put in place by the people of Maryland, can they do so in anonymity, without scrutiny?

Unlike federal judges who are appointed for life, Maryland judges at the trial level serve for fixed terms. District Court judges are appointed by the governor for 10 years and Circuit Court judges are elected (usually after first being appointed) for 15 years. These terms are long enough to give them independence from being fired for unpopular decisions, but allow the legal community and citizens to evaluate their actions as judges over a period of time. Judges don’t have a right to be reappointed. And every one of them will receive a generous pension from the citizens of Maryland if they aren’t.

So I could be angry at what appeared to be political interference with one judge’s handling of a case, yet at the same time want to hold another judge accountable for the interference when he stood for election. Judges are independent during their terms, but accountable when it is time for appointment or election.

Baltimore’s Fraternal Order of Police (FOP) has called for Baltimore District Judge Nathan Braverman to be removed from conducting bail reviews for allowing Demetrius Smith, charged with an execution-style murder, to post bail. Smith then allegedly shot someone else in a robbery while on bail.

Even before the second shooting I was disturbed by Judge Braverman’s bail ruling. See Judge Nathan Braverman. He failed to follow the law and the rules, imperiling public safety. I criticized him to get him—and other judges who are like-minded—to examine their actions. I brought other examples of Judge Braverman’s bail decisions to light so that citizens—and the governor—can evaluate whether the Smith case was an isolated example or a pattern that they want continued when Judge Braverman’s comes up for reappointment in two years. And I support the right of the FOP to criticize the judge.

But I don’t support his removal from bail reviews. He must remain free during his term to exercise his discretion. He is not free from criticism, which may encourage him to reevaluate his approach. But if he doesn’t—if he thinks I am wrong and he is right--that is the very essence of judicial independence, which is fundamental to the U.S. legal system. It is why the careful selection of judges in the first place is so very important. Unfortunately, it is also so very political. (See my earlier article, The Politics of Picking Judges.)

Frankly, I have seen too much of the legal community in action to anticipate that Judge Braverman will not be reappointed. Only when lawyers—not including prosecutors—get mad is there even any noise about reappointments, and that is rare. Defense lawyers have got to love Braverman. Almost any argument, however serious the case, will get him to lower bails and allow dangerous clients to go free.

But I put this information out there so that the public and the governor can evaluate whether another 10-year term for Judge Braverman is in the interest of Baltimore, an evaluation that is the governor’s duty--and the people’s right--to make.