Judges, some are public abusers for life
Judge's Narrow Confirmation Reveals Flaws In Evaluation System
By MARK PAZNIOKAS, The Hartford Courant
January 18, 2009
The Senate's confirmation of a Superior Court judge by a single vote last week exposed old tensions over how Connecticut judges its judges.
The case renewed questions about the judiciary's ability to evaluate, monitor and counsel judges whose impartiality and temperament become suspect.
And it laid bare the ill-defined standards and uneven approach legislators employ in deciding when to exercise their authority to end a judge's career.
"What is the measure we will use to throw someone out?" Sen. John A. Kissel, R-Enfield, asked Wednesday night as the Senate debated the fate of Judge Patricia A. Swords.
To the consternation of the judges, who are subject to reappointment every eight years, it is a question the legislature has never fully answered.
As Swords learned this past week, politics, personalities and luck play a role. She survived when one senator — after a chance encounter with the judge — reconsidered her opposition, creating a tie.
After Lt. Gov. Michael C. Fedele broke the tie to confirm Swords for a second term, a question lingered:
Why couldn't the legislature have amassed enough evidence to tilt the scale decisively for or against the judge?
"Should we completely overhaul our process? Should we have a much more systematic evaluation?" asked Rep. Michael P. Lawlor, D-East Haven. "Maybe the time has come for that."
As separate and equal branches of government, a tension has existed between the legislature and judiciary in Connecticut since lawmakers began to increase scrutiny of judicial reappointments in the 1980s.
The relationship reached its nadir in 1989 with the suicide of Judge Richard C. Noren after his reappointment stalled during a contentious confirmation hearing. Noren was forced to withdraw after legislators concluded that he lied to them about the circumstances of a drunken-driving arrest.
Eighteen months ago, Superior Court Judge John R. Downey's nomination to the Appellate Court failed after lawmakers were dissatisfied with his explanation for comments he made about illegal immigrants. Suspicions that he had tried to deceive them lingered.
Gov. M. Jodi Rell declined to reappoint him this month to the Superior Court, convinced he could not be confirmed.
"I've heard judges say they dread coming back up for reappointment. I'm certain it's not comfortable for them," said Sen. Andrew McDonald, D-Stamford. "But by the same token, it's a position of extraordinary power and influence, and it can't go without review or evaluation."
But that review is spotty.
Other than a questionnaire, the legislature dedicates no staff or resources to the evaluation of judicial candidates unless a controversy arises.
"It's kind of the luck of the draw if you are going to get someone to complain about you," said Lawlor, the long-serving co-chairman of the judiciary committee, which conducts confirmation hearings.
A state-appointed legal panel, the Judicial Selection Commission, screens new candidates for the bench and incumbents up for reappointment. But their proceedings are secret.
The judiciary has fought previous efforts by Lawlor and McDonald, the other judiciary co-chairman, to get access to Judicial Selection files when considering judges for confirmation.
Jon L. Schoenhorn, a defense lawyer who testified against Swords at her confirmation hearing Tuesday, was surprised that legislators were unaware of objections to Swords that he made to Judicial Selection last spring.
The Swords Case
Swords, 58, a former Tolland County state's attorney, came before the legislature last week with no reason to suspect her career was in danger.
The limited evaluations the judiciary conducted were mediocre, but she faced no disciplinary proceedings, no allegations of misconduct and no assertion that she was physically or mentally incapable. There were grumblings among defense lawyers, mainly expressed anonymously, that she favored prosecutors.
Schoenhorn's on-the-record complaint involved a single case: In 2002, she refused to grant a continuance when he took over a case on the eve of trial for a critically ill attorney. Swords later acknowledged that probably was a mistake.
But she had been judged competent by Judicial Selection, although the panel took the unusual step of conducting two formal reviews of Swords before approving her.
To the judiciary committee, her record did not generate great confidence. But it did not did overcome the presumption in law that judges deserve confirmation.
By a 23-17 vote, the judiciary committee recommended her reappointment Tuesday night. Lawlor and McDonald each called their decision a close call. Lawlor supported her; McDonald opposed her.
On Wednesday, the House voted 100-41 to confirm her, heeding Lawlor's suggestion that the evidence against her was insufficient to overcome the presumption for reappointment.
But in the Senate, Swords faced another problem: Sen. Eric Coleman, D-Bloomfield, a soft-spoken lawyer not given to histrionics. In the Democratic caucus, he urged rejection based on her reputation for unfairness and on his own experience in her courtroom.
A Bad Experience
Swords had deferred to a prosecutor in 2003, jailing Coleman's client for violating the letter of a restraining order obtained by the mother of his child.
Rather than use an intermediary, the man dropped off the boy at the mother's house after a visit; another time, he stopped at the house and left a new lunch box for his son by the door.
Coleman argued that the man's behavior fell into a gray area: His client made no attempt to contact the mother, and instructions given to his client were unclear.
The Appellate Court agreed, though even that rebuke highlighted a positive for Swords: It was the only one of 25 appealed decisions on which she was reversed.
McDonald backed Coleman, although he expressed sympathy for Swords. He noted that she was a judge for more than four years before the Judicial Department gave her any "meaningful feedback" that attorneys complained of deficiencies in her demeanor.
The news prompted her to get greater supervision and monitoring. "In fact, she is to be commended for the fact she reached out for help," McDonald said.
Patrick Carroll, the deputy chief court administrator, said the new chief justice of the Supreme Court, Chase T. Rogers, has stepped up the monitoring and mentoring of new judges.
"It's not something we do cavalierly or take lightly," Carroll said.
Sen. Joan Hartley, D-Waterbury, the legislator who switched her vote to save Swords, said the scare of her close, contested confirmation may be constructive for the judge and judiciary without sacrificing a career.
McDonald said the case should prompt reflection at many levels.
"I think at all levels of the review and approval process we can do a better job of ensuring that candidates are properly prepared and vetted before being returned to the bench," he said. "They deserve it, and the public deserves it
* * * *
* * * *
[click here] for previous post on Judge Swords, Howard Scheinblum, Jonathan J. Kaplan, and questionable judges.
Public Corruption, Attorney and Judicial Misconduct are present because there is a lack of an effective Grand Jury System. The need for a strong Grand Jury system, and the process explained [click here]
* * * *
[click here] for:
* * * *
This blogger's email: email@example.com
To share this post, click on white envelope below