Talk about books

A fortnightly newsletter by Art Kavanagh about things I’ve read

No. 16; 23 June 2021

Judicial misconduct

Scott Turow’s judges, prosecutors and defence lawyers

In the last few pages of Scott Turow’s 2010 novel, Innocent, when the central character has finally, and with great reluctance, explained to his son the full circumstances of the death of the woman closest to both of them, he adds a comment on his own behaviour:

My testimony at the trial was not a model of candor. There was a lot I didn’t say I should have said if I was telling the whole truth. But I don’t think I committed perjury. I certainly didn’t want to — it would have rendered my whole professional life a joke. But the day your mother died? I destroyed evidence. I misled the police. I committed obstruction of justice. (Innocent, Pan paperback, 2010, pp. 484–5)

The speaker is Rusty Sabich, who had recently won election to the state Supreme Court following several years as chief judge of the Court of Appeals for Kindle County. Immediately after the Supreme Court election, he was arrested for murder and subsequently put on trial. This was the second time in his life that Rusty Sabich had been tried for murder. The first time, more than 20 years earlier, he was exonerated when the trial judge unexpectedly granted a routine motion to dismiss at the end of the prosecution case. The second trial ended with his plea of guilty to obstruction of justice. (His obstruction conviction was set aside some months later because the Prosecuting Attorney found out that his deputy had been messing about with the evidence.) Remarkably, the number of times he’d been tried for murder corresponded exactly with the number of women with whom he’d been unfaithful to his wife.

Rusty Sabich’s earlier murder trial was the subject of Turow’s first novel, Presumed Innocent (1987). In granting the defence motion to dismiss, the judge delivered an uplifting accolade to the presumption of innocence, and to the doctrine that the onus is on the prosecution to prove every element of the offence. I remember, not long after the book appeared, reading a newspaper article by a lawyer (I’ve long forgotten the details) suggesting that the speech could be used as a model by actual judges in real cases. However, inspiring and admirable as Judge Lyttle’s speech might have been, there was an inescapable irony as to the circumstances in which it was delivered.

Though generally a highly regarded and honest judge, when he was younger and suffering from depression, Larren Lyttle had accepted bribes. The victim of the murder with which Rusty was charged, an assistant in the Prosecuting Attorney’s office named Carolyn Polhemus, had also been involved in the corrupt scheme. Rusty’s lawyer, Sandy Stern, was aware of Larren Lyttle’s dubious past, and repeatedly suggested in court that he’d need to delve into the victim’s involvement in the former corruption. In doing so, he was subtly pressuring the judge to end the trial as early as possible, to avoid the likelihood that his own dishonourable secrets might come to light. Rusty, up to that point a somewhat inflexible and self-righteous prosecutor, was inclined to disapprove of his lawyer’s tactics, even as he benefited from them.

In a further irony, however, after Rusty’s acquittal the reader learns that he has known from a very early stage who committed the murder and has kept his mouth shut about it. It might even be argued that he helped to cover up the killer’s guilt. In a sense, his unwillingness to take any steps against the murderer has contributed (among other factors, certainly) to his later difficulties.

Corruption of judges is a recurring theme in Turow’s novels. Personal Injuries (1999), approximately the centrepiece of his oeuvre (though that can be expected to change as he writes more), features a very elaborate and complicated scheme by the US Attorney and the FBI to bring to justice several of the judges in the Common Law Claims Division and the plaintiffs’ personal injury lawyers who have been paying them off. The feds’ main target is Brendan Tuohey, a former cop who is now the presiding judge of that division.

A scheme involving fake claims, a dummy law firm, a charismatic plaintiff’s lawyer who is prepared to wear a wire but turns out never to have been admitted to the bar, evidence being given before unsuspecting judges about incidents that never happened. It’s a high-risk strategy. As US Attorney Stan Sennett says at the outset:

“You know the saying, ‘If you shoot at the king, you better kill the king’?”
A paraphrase, I told him, of Machiavelli. Stan tossed that around a second, not certain he liked the comparison.
“Well, if I shoot at Tuohey and miss — if I miss, George — I’ll have to leave town when I step down from this job. I know that. No law firm in its right mind will go near me. Because neither I nor they will be able to set foot in state court.” (Personal Injuries, Penguin paperback, 2000, p. 15)

In the end, Tuohey is not indicted. He keeps his seat on the bench, despite being recorded making an apparent death threat against a witness. When we next hear of Stan, in Ordinary Heroes, he’s in Congress. So, the reader comes away from Personal Injuries with the impression that Project Petros was a failure. From references in later books, however, it becomes clear that the FBI was pleased with the outcome:

Petros, the undercover project, was a far-reaching success — six judges, nine lawyers and a dozen court clerks and deputies were convicted … (Identical, Pan Macmillan paperback, 2013, p. 54)

One could argue that a compromised judge, like Larren Lyttle in Presumed Innocent, can come to the correct decision for reasons which are at best mixed. It was certainly a good thing that Rusty Sabich was acquitted in his first trial, since he was in fact not guilty. One could equally argue (though I don’t think I would) that he indeed deserved to be acquitted but that that verdict should have been left to the jury.

Whether a judge whose own behaviour is less than impeccable has the moral authority to stand in judgment is a question that Turow deals with head-on in Limitations (2006). Its main character, George Mason (a descendant of George Mason IV, one of the founding fathers) is a judge of the Court of Appeals. He and the other two judges have to decide whether the Statute of Limitations prevents the prosecution of three former members of a high school boys’ ice hockey team who had raped a 15-year-old fellow student while she was very drunk. The next day, she thought she might have been raped but could remember nothing of the incident and had no idea who her attackers were. Four years later, outside the normal limitation period, a video recording made by one of the rapists turned up, revealing the full horror of the attack. Can the rapists now be prosecuted, notwithstanding the statute?

It’s clear to George that the young men ought to be punished, but he is not happy that he should be the one making the decision. Decades earlier, as a lonely and immature college student, he joined a group of young men who were lining up to have sex with a woman who was too drunk to be acting voluntarily. In the end, he resolves his qualms and reaches the objectively correct decision.

Of course, not all the judges in Kindle County have something to be ashamed of, and not all the characters in these novels who have something to be ashamed of are judges. One judge who behaves admirably is Sonia (“Sonny”) Klonsky, who presides over a bench trial for murder in The Laws of Our Fathers (1996) and over Sandy Stern’s last trial, is an admirable and principled judge. In The Last Trial (2020) Stern, now well into his 80s, thinks he may have taken on more than he can handle in the defence of an old friend whose relationship with his son is even worse than Stern’s with his own. Stern’s son, Peter, cooperated with the US Attorney (Stan Sennett) to undermine the defence of Stern’s client (and Peter’s uncle) in The Burden of Proof (1990).

If biased, self-interested and dishonest judges can defeat justice, the other group who can do most to distort the system are the prosecutors. As US Attorney, Stan Sennett is driven and determined. He is also unscrupulous, manipulative and unfair. Sandy, who thinks of him as humourless and not very smart, comes to detest him after he tries to use Peter — as George Mason notes in Personal Injuries, though he doesn’t know the reason for Sandy’s hatred. Jim Brand, the deputy Prosecuting Attorney in Innocent, tampers with evidence, with the result that Rusty’s conviction for obstruction ultimately has to be thrown out, and Rusty recovers both his liberty and his licence to practice law, though not his judicial career. But on balance there are more good prosecutors than bad. Sonny Klonsky features here too: in The Burden of Proof, she defies Stan’s instructions when she thinks he’s being “shitty” to Sandy and his family.

Then there’s Tommy Molto who oversaw both of Rusty’s trials. The first time around, he was vilified as the overzealous minion of the new Prosecuting Attorney, pursuing a vendetta against Rusty for his alignment with the old régime. (Rusty, of course, knew that this was nonsense, merely Sandy’s defence tactic, so when Rusty was appointed interim Prosecuting Attorney he gave Tommy his job back.)

Correction, 5-Jun-2023It’s stated in Reversible Errors (2002) that Tommy Molto got his job back as the result of a civil suit he brought: p. 44.

Much later, in Innocent, we get a fairer picture of Molto. He’s prepared to listen to Rusty’s offer of a plea, to consider the possibility that his old rival might be innocent, and of course he doesn’t hesitate to get the obstruction conviction set aside when he sees what Jim has done.

Maybe Turow’s point is that, in the criminal courts, good prosecutors are more important than good judges. (In the civil courts it’s different because the damages are often large and it’s relatively easy to find something “extra” for the judge.) When Sonny asks him if he’s never consider being a prosecutor, Sandy answers:

“I have thoughts. But my view — purely an idiosyncratic one, I stress — is that I would only be doing further damage to what is already smashed and broken. Understand, I truly believe yours is a job that must be done — but better not by me.” (The Burden of Proof, Penguin paperback, 1990, p. 370)

Prosecuting, defending, judging: these are all necessary functions within the legal system and not everybody is equally suited to perform any of them. Later, when Sonny complains that her boss is motivated by personal grudges and “macho crap”, not “disembodied principles”, Sandy replies:

“Sonny, there are no disembodied principles in the practice of law.” He spoke with some weight. “There are human beings in every role, in every case. Personalities will always matter.” (The Burden of Proof, p. 559)

Originally posted on Substack (Talk about books), 23–Jun-2021.