ABA rules for ghostwritten judicial opinions
After my first trial as a young lawyer a million years ago, the judge called, said we had won and asked me to draft an opinion to send to him. Ghostwriting for judges is as old as ... well, ghostwriting.
Such a practice is contrary to the American Bar Association's Model Code of Judicial Conduct, Canon 3B(7) Commentary:
A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.
Actually, that's no good either, because (1) only one side would get a chance to answer the other side's "proposed findings of fact and conclusions of law" (PFFCL) brief and (2) asking one side to submit a PFFCL brief and the other side to submit a rebuttal to that brief would suggest that the judge has already made up his mind even before seeing these briefs. The Supreme Court said in Anderson v. Bessemer City, 470 U.S. 564, 572 (1985):
We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial -- Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962).
The proper way to do it is to first have both sides submit a PFFCL brief and then have both sides submit answers to the opposing side's PFFCL brief. This is the way it was done in the Kitzmiller v. Dover case (Judge Jones did at least one thing right).
BTW, there are different local federal district court rules about these PFFCL briefs.
The ABA rules do not say that it is wrong for a judge to simply adopt the winning side's PFFCL verbatim -- or nearly verbatim -- as the opinion. That is where an article by the Discovery Institute's Casey Luskin comes in -- this article and his associated articles show that one-sided copying is frowned upon in the courts. In the ID-as-science section of the Kitrzmiller v. Dover opinion, there is no evidence that Judge Jones read any of the post-trial briefs other than the one that he copied from, the ACLU's initial PFFCL. Judge Jones showed extreme prejudice against the Dover defendants by saying in his Dickinson College commencement speech that his Kitzmiller decision was influenced by his notion that the Founders' believed that Christianity (and, by extension, organized religions in general) is not a "true" religion, and so I strongly suspect that he did not even bother to read any post-trial brief other than the plaintiffs' PFFCL. Here is an excerpt from Judge Jones' commencement speech:
. . . we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."
Incredibly, a lot of jerks have claimed that I was wrong in interpreting Jones' above statement as showing hostility towards organized religions. I assert that my interpretation is at least a reasonable one, and judges are supposed to avoid giving even a mere appearance of bias.
Also, Jones showed prejudice in a statement that was made in the Dover opinion itself (page 63):
We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis.
The analysis of the ID-as-science question was supposed to be independent of the analysis of the community's perceptions of whether ID is religion, but here Jones is saying that the answer to the ID-as-science question "can likely be predicted" by his analysis of those perceptions.
The argument that the defendants' arguments were so bad that there was no need for Judge Jones to address them does not hold water. If the defendants' arguments were that bad, all the more reason to address them in order to refute them. The Darwinists are chagrined that the DI report of Jones' copying has succeeded in putting a big dent in the credibility of the Dover decision and so they have come up with all sorts of phony arguments in a futile effort to counter the report.
As I have said many times, my big objection is to one-sided judicial copying -- not just judicial copying per se.
Also, as for the objections to my use of the term "ghostwritten" to describe opinions that are essentially written by the attorneys, this term was used in Bright v. Westmoreland County (page 2):
Therefore, Bright asserts that he is appealing an order supported by an opinion that were ghostwritten by appellees' counsel.
As usual, no reason was given for objecting to my use of the term. Those who object but can't state a reason have no credibility.
Labels: Judicial independence