We recently received a comment regarding an earlier post on perdaily and my own rather continuing tenuous situation at LAUSD:
"Gloria Allread's firm took a hit in the Adams vs. LAUSD case where it went to trial, the jury came back unanimously in her favor, they polled the jury on each count, they were unanimous in her favor, and then the judge did non obstante verdicto- he vacated the jury verdict which forced the case up on appeal. By that time Allread's firm was out of it and had out of pocket losses on the case of $70,000." --Leonard Isenberg
In response Michael wrote:
I believe that the amount of corruption in the courts is unbelievable in this country. I think that there are a lot of back-room deals that get made, which make it virtually impossible to get a fair shake if you are a small person going up against a big corporation, or in particular a government agency.
Small fish vs. small fish, you are probably OK. Small fish vs. big govt or big business and you are screwed from the beginning.
Take the case I mentioned (I believe in Texas.) A guy was tried and convicted of murder and sentenced to death. It was discovered after the fact that the judge on the case and the prosecutor were having a sexual affair during the trial. The accused appealed to have the trial overturned and a new trial ordered owing to what was clearly a conflict of interest, and yet the higher court ruled that, notwithstanding the affair, the evidence would have been sufficient to convict, and they denied his appeal. To the best of my knowledge, the judge and prosecutor were not disciplined. That's our system in a nutshell.
There are only a few examples where this doesn't seem to apply.
In cases where there is sufficient public outrage against the accused, such as the case against big tobacco. Even then, the higher courts significantly reduced the punitive damages against the tobacco companies, but they couldn't throw out the judgments altogether for fear of a very negative public reaction.
If you can get the court of public opinion heavily on your side, and make it a high-visibility issue, then you make judges too nervous to completely fix the outcomes of the trials. You need to be able to keep the spotlight of public scrutiny on the courts.
In a big money case, it would almost be worth hiring an investigator to quietly probe the background of the judge to determine if there is any provable conflict of interest. Of course, you run the risk of severely pissing of the judge if he finds out.
Government encourages the courts to protect big business and its interests out of a sense of being "too vital" to our economic welfare to be screwed with. It is another application of the "too big to fail" policy. You see this played out in the appointment of judges such as John Roberts to the Supreme Court. His loyalty to corporations was the ultimate litmus test to his appointment, even more so than abortion. The government wanted a head justice that would be friendly to the corporations that were supplying millions of dollars to their election campaigns, and that was the principle reason behind his appointment.
In the end, it will be almost impossible to change the system at this point. Your best strategy is to negotiate a settlement for the most favorable terms possible, then take the deal. You can't get caught up in how strong your case is, you just need to have any control you can over the outcome. Taking the judge out of the outcome is, ironically, the only way you can apparently get a fair hearing.
As for as 1997 Adams vs LAUSD, the judge setting aside the jury verdict; this is an important power that judges need to have to prevent a gross miscarriage of justice. However, the jury is in place to assure a fair trial, as it won't have the same possible conflicts and biases that an individual judge may have. Each side gets to interview jurors during selection, which allow them to be satisfied that the jurors selected will be able to render a fair and impartial verdict. A jury verdict should only be set aside of the judge believes that something has gone horribly wrong during the process. The vast majority of judges should never have to use this power during their career on the bench.
Take, for example, the English monarchy. The Queen of England has the power to veto legislation and even to dissolve government. This is, essentially, the same power the judge uses to set aside a jury verdict. And yet, in the centuries that the English monarchy has had this power, it has not been used one single time. The reason is that its use would undermine the faith the people have in government to govern. My understanding is that, in extreme cases, the crown has threatened to use this power on a couple of occasions to force government to compromise when, in the opinion of the Queen, the very welfare of the country was at stake. An example of this was when the government was trying to implement the poll taxes, which lead to rioting in the streets. After several days of violence, the Queen summoned the Prime Minister to her residence and informed him that she was prepared to dissolve government and call an election if the government persisted with what was obviously a wildly unpopular tax. It was her belief that this extreme step was necessary to restore peace and order to the country in the wake of widespread rioting and violence. The Prime Minister relented, and the taxation measure was dropped. In this case, the situation was viewed as extreme and demanded an extreme action to act as a check and balance for the good order of society - and even then the act was only threatened and never carried out - such being the caution against the use of this extraordinary power.
All of this comes down to the problem of "who polices the police?" Who keeps judges accountable in our society? Who monitors their performance and makes sure that safeguards are in place to protect the fairness of our judicial system? How, as an ordinary citizen, can I be reasonably assured that I will receive a fair hearing, when judges receive a paycheck from government, who is responsive to the lobbyists from big corporations - or in the case of LAUSD from government itself? How can this important power be kept by the judiciary without some reasonable check against its misuse.
The easy thing would be if any judge setting aside a jury verdict had to have his decision upheld by an open court of review. In essence, instant replay to make sure the judge got the call right. The judge sets aside the verdict, which automatically results in a review of the judges decision. If the review panel, set up in the structure of a grand jury, upholds the judge's decision, then it stands. If the panel overturns the judge, then the original jury verdict is reinstated. This would at least give some protection.
-- Michael, Los Angeles