Dear Ms. Cardona:

What you missed in this story could fill a room.

The most intriguing part of this story only surfaced on Colorado Law Week: "Appeals Court Judge Robert D. Hawthorne 'appeared to be reaching for specific results,' the statewide performance commission wrote. And Judge Gilbert M. Román’s written opinions 'sometimes fail to adequately and clearly address the parties' legal arguments.'”

Let me translate for you: Many judges -- both state and federal -- engage in what is commonly referred to as "outcome-based judging." In short, judges decide who they want to win (which often means friends) and then, fabricate facts and fracture the law to justify their decisions. And this happens at every level in our courts. Laurence Silberman of the D.C. Court of Appeals confessed that he was “in despair” about the United States Supreme Court, lamenting that every one of the Justices “is guilty, to one degree or another, of violating the two most basic rules of restrained judicial behavior: ruling only on questions presented by the case at hand, and interpreting precedents honestly.” Benjamin Wittes, Without Precedent, Atlantic Monthly, Sept. 2005. Judge William Fletcher of the Ninth Circuit adds:

"Politicians are politicians," he said. "We are accustomed to their half-truths and their untruths … But we are here dealing with a court. If a court will systematically change the meaning of words so as to distort what are the actual facts of the case, our judicial system is in trouble."

Id.

For a Colorado attorney to complain about this is a little like Captain Renaud in Casablanca declaring that he was "shocked" to find that there was gambling going on in Rick's Cafe Americain ("Your winnings, sir."). Judges only follow precedent when it takes them exactly where they wanted to go in the first place, and frankly, it's gotten to the point where judges in Colorado have become so openly disdainful of our law that a hidebound pronouncement of the United States Supreme Court is scarcely more than a polite suggestion. Attorneys like Dan Caplis and Craig Silverman are 'in the know', but would never complain about it in public ... but to their credit, they are at least honest about it:

First and foremost, I'm a trial lawyer, and my obligation is to my clients. And that's why there are going to be times when a judge -- a local judge -- deserves criticism and I won't offer it on-air, because I don't want to compromise my clients' interests.

Dan Caplis, Caplis and Silverman (KHOW radio broadcast Mar. 10, 2008) (mp3 on file).

His radio partner, former Democrat district attorney Craig Silverman, concurred:

[B]ut we're also attorneys, and we don't know when a case bars, or one of our partners is going to be in front of Judge Nottingham, so if you perceive a little hesitancy on my part, that it accurate. ... For me personally, it is sort of dicey for me to be talking about Judge Nottingham -- it's a delicate situation for Denver lawyers.

Craig Silverman, id.

Practicing attorneys know that publicly criticizing a member of our homegrown band of Ba'athists in black robes -- even when the criticism is absolutely justified -- is like making jokes about Saddam in pre-war Iraq: Bad things will happen to you if you do.

Where else but in Colorado would you find the spectacle of a judge deciding a case in which she is a defendant in tort, even though there are sixteen other judges available and authorized by statute to hear the case? And where else but in Colorado would you find so little outrage over it?

Every judge in this state whom we've been able to check out has indulged in outcome-based judging. Problem is, no one knows how widespread the problem is in Colorado's appellate courts, because almost 90% of their decisions are unpublished -- they literally are "secret law," which the public has no effective way to audit -- and practicing attorneys like Caplis and Silverman, addicted to cash, have had their spines surgically removed by our judiciary. For any judge of the Colorado Court of Appeals to be singled out and called on the carpet for this practice is manifestly unfair, because they basically all do it.

The Colorado Commission on Judicial Performance, Commission for the Abolition of Judicial Discipline, and Attorney Deregulation Counsel are about as credible as the old World Wrestling Federation, and even they pale in comparison to their federal counterparts. These agencies are Potemkin villages, existing solely to create the illusion that our courts and legal profession are being regulated. It's a story that will take a while to wrap your mind around, but it can be summarized in one simple equation: Power minus accountability equals tyranny.

Regards, Ken Smith, J.D., M.S., C.P.A.
(regular contributor to KnowYourCOurts)