Thursday, August 30, 2018

Epstein: 'We live in a country where the judiciary is under attack'

Jules Epstein a professor of Law and Director of Advocacy Programs at Temple Beasley School of Law wrote the following piece on judicial independence for the Philadelphia Inquirer:

Last week, Gov. Wolf asked Pa.'s Judicial Conduct Board to review decisions by the Bucks County judge who let the father of Kayden Mancuso have unsupervised visits with the 7-year-old girl in the weeks before he fatally beat her and killed himself. Additionally, Mancuso's relative is calling for the judge's removal, an outcry supported by 37,000 petition signers.
Two words shout out against such responses: judicial independence.
We live in a country where the judiciary is under attack, with cries from the President that "our legal system is broken" and judicial decisions put our country "in peril."  But Americans want and need judges to make tough decisions without looking over their shoulders.  And we want lawyers to be able to go into court on new cases without fearing that the judge will make a harsh decision to look tough and appease critics.
Judicial misconduct warrants sanctions.  That includes lying, stealing, doing favors; not showing up for work; or being racist, sexist or otherwise hostile to discrete populations.  Such actions warrant punishment and some may require removal.  But an unwise decision – if this indeed was one – is not misconduct.
Can we know that the judge's decision was wrong, except using hindsight?
In the case of Kayden Mancuso's tragic death, evidence was offered that her father had committed abusive acts toward adults in his past, and suffered from depression.  Data do support the assertion that these behaviors indicate that children in the home may be at risk, but that is just one of 16 factors the law requires a judge to weigh.  Is a judge wrong if the risk is 1 percent versus 15 percent, or if the father has been with this child without violence, or if the spousal abuse occurred years earlier?  Unless the science is clear, the numbers are compelling, and the law makes this the main factor, the judge's decision is not misconduct.
What is needed here?  From the worlds of airplane accidents and medical errors, the judiciary needs what are termed "just culture" reviews and "root-cause analysis."  In plain English, that means studying whether and why the judge's decision was clearly wrong and unjustified, all without punishment; assessing what information should have been considered and how it should have been weighed; and learning how to ensure that the risk of such harm is reduced if not eliminated in future cases.
That may mean more judicial education, both generally and using cases like this as studies; more resources to educate and periodically update judges on reliable social science; and/or a recalibration of the law that weighs more heavily the history of intimate partner violence when determining custody and visitation.
We must protect our children, but not in a way that fails to protect the institution of an independent judiciary.
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