03 July 2006

Judicial Inquiry & Review Commission

Y'know, not a lot of people I know have a lot of confidence that a complaint against a judge ("JIRCing" them) will accomplish much, especially after the case where both the prosecutor (who appears daily in the judge's court) and the public defender (who appears daily in the judge's court) filed complaints, the JIRC punished the judge, and the Virginia Supreme Court overruled it all. In fact, I've heard it opined that the only way the JIRC actually works is if there are multiple complaints and it sits on them until the judge is up for reappointment and dumps 500 complaints on the General Assembly before the vote.

I'm not so certain. There may be all sorts of JIRC activity we don't see. I think that if a well respected attorney (who was not dependent upon the judge's good will for any number of clients) filed a complaint, a well placed word by someone from the Committee could lead to a judge changing behavior rather dramatically - particularly if the judge is fairly new. And there is evidence that the JIRC tries to handle things behind closed doors. A recent case started out that way.

The judge was in trouble because:
1. On June 14, 2004, upon being advised that he was not elected as chief judge, Judge Elliott reacted in such an extremely angry manner that his two fellow judges reasonably believed that he might commit a physical assault.

2. On June 16, 2004, Judge Elliott confronted a fellow judge in a loud and angry manner and verbally threatened him.

3. On July 6, 2004, Judge Elliott sent letters with attachments to all of the district court judges in Tidewater, with copies to the Chief Justice and the Executive Secretary. The content and tenor of the material so distributed were calculated to embarrass and personally attack the two other judges of his court.

4. On July 14, 2004, Judge Elliott inappropriately directed a loud and angry outburst at a member of his court staff.

5. Judge Elliott has had a longstanding practice of telling defendants that he had a "DEA" light above the bench in his courtroom that detected whether they were using drugs. This tactic, that involved an intentional falsehood, often resulted in incriminating statements by defendants. Judge Elliott routinely would determine the defendants' sentences based upon whether the defendants were willing to take a drug test or would admit drug use without the necessity of a test.

6. In a letter to the Chief Justice dated August 26, 2004, Judge Elliott falsely stated that he did not have a practice of reviewing defendants' criminal records prior to adjudicating the issue of guilt. Judge Elliott habitually considered such records prior to announcing a decision on the issue of guilt.

7. In the same letter to the Chief Justice, Judge Elliott falsely stated that he had not prohibited the Commonwealth's Attorney's office from prosecuting cases in his courtroom. In February of 2002, Judge Elliott informed the Commonwealth's Attorney that he did not want a prosecutor in his courtroom for drunk driving cases and that, if a prosecutor were present, the conviction rate in such cases would be reduced.
That's a trifecta. He's alleged to have done things to anger defense attorneys (minor offense), prosecutors (offense of concern), and fellow judges (major offense). BTW, I've seen judges do a drug test on a defendant as part of sentencing a number of times; that's not terribly unusual.

Anyway, the JIRC was just going to handle it all quietly and let the judge tender his resignation. Then came bumps in the road. There was argument about whether the judge had told people he'd be coming back. Apparently, the JIRC decided he had. It threatened a formal complaint if the judge didn't agree to resign 6 months sooner than had previously been offered. The judge did not accept the new deal. The JIRC took the complaint to the Virginia Supreme Court.

The Virginia Supreme Courts punts. It doesn't decide the merits of any of the complaints. Instead, it goes back and does a contractual analysis and determines that the JIRC and the judge were bound by the first agreement they reached. Consequently, the judge returned to the bench for a very short time and retired.

The whole rigmarole brings me to one question. How many judges "get the word" and retire gracefully?

1 comment:

Patrick said...

I have no idea how often that happens, but I bet it does a fair amount.

It shouldn't though. A profession that worries so much about public perception of integrity of the courts needs public discipline for blatant acts of misconduct.