On the second anniversary of their winning a historic $10-million verdict – the largest ever for a discrimination lawsuit against the Philadelphia Police Department – three men staged a protest outside the city’s federal court house criticizing an unusual roadblock keeping them from receiving the fruits of their justice.
The three protestors, all former policemen, had sued the City of Philadelphia for savage, career-ending retaliation they received from Police Department personnel, including top officials, for their reporting of racism, corruption and other misconduct in the department.
In an unusual twist for such a discrimination suit, all three men are white.
This trio suffered severe retaliation during the late 1990s for opposing the vile racism heaped upon black police officers and minority citizens in the precinct where they worked.
Additional retaliation resulted from their reporting misconduct such as officers fraudulently obtaining over-time-pay by falsely claiming involvement in arrests that enabled them to testify in court while off-duty.
Justice for all, or just some?
Fellow white officers harangued the trio as “rats” and snitches, failed to assist them and physically assaulted one trio member inside the precinct station.
Meanwhile, police commanders harshly disciplined the trio eventually discharging each on trumped-up charges, the jury determined.
The roadblock triggering that courthouse protest by Ray Carnation and twin brothers Michael and William McKenna is one of the most unusual elements in this legal saga that highlights deep deficiencies in America’s justice system.
While the trio’s lawsuit exposes the enormous rot of rampant lawlessness by law enforcers, the roadblock preventing them from collecting their jury award represents something more sinister: bias by judges bending rules requiring impartiality and doing so with seeming impunity.
The obstacle confronting this trio is a Philadelphia federal judge, Mary A. McLaughlin, whose years-long actions in this lawsuit evidences disturbing bias and unfairness against the trio.
Federal law – Section 455(a) of Title 28 – states that federal judges “shall disqualify [themselves] in any proceeding in which [their] impartiality might reasonably be questioned.”
Yet Judge McLaughlin has rejected repeated requests that she withdraw from presiding over the case.
“We have repeatedly asked [McLaughlin] to remove herself from our case because she’s obviously biased but she refuses to do that,” Ray Carnation said.
The 3rd Circuit Appeals Court in Philadelphia, which oversees the federal district court where McLaughlin serves, has stated with respect to recusal requests under Section 455(a) that “a party seeking recusal need not demonstrate that the judge is actually biased, but rather he would appear to be biased to a reasonable person with knowledge of all the facts.”
Facts in this case, for example, include McLaughlin permitting lawyers for the City of Philadelphia to file post-trial motions 15-months after the jury’s May 14, 2008 multi-million dollar verdict, despite court rules requiring such filing within ten days after a trial.
McLaughlin is not the only problem. Her supervisor, Chief Judge Harvey Bartle, apparently downplayed an August 2009 seven-page letter sent to him by the trio’s attorney listing a litany of misconduct allegations against McLaughlin.
The “Plaintiffs have presented several examples of events they believe demonstrate a bias by the Honorable Mary A. McLaughlin and I have observed it on my own,” attorney Brian M. Puricelli stated in that 8/31/09 letter to Judge Bartle.
Judge McLaughlin initially dismissed the trio’s lawsuit in 2003, contending whites cannot use federal discrimination laws to challenge racist job-related retaliation.
The 3rd Circuit Court faulted McLaughlin’s reasoning, ordering her to conduct a trial.
“Contrary to the conclusion [of McLaughlin] under governing law the fact that the plaintiffs are white is not a ‘threshold problem’ for their retaliation claims,” the 3rd Circuit stated in an August 2006 ruling.
During the May 2008 trial and immediately afterwards McLaughlin urged City of Philadelphia lawyers to request a mistrial based on McLaughlin’s contention that “smirks” on the trio’s faces during trial tainted the jury.
Although McLaughlin characterized the smirks as “astounding.” even claiming the facial expressions gave jurors the impression she was “doing something wrong.” the city’s lawyers initially denied observing such behavior, according to trial transcripts.
“A motion for a mistrial was not brought within 10 days of judgment, but now, some fifteen (15) months later, the City has filed this motion, along with other trial issues,” stated Puricelli’s letter to Chief Judge Bartle.
“Her Honor has consistently told the Plaintiffs they must conform to all aspects of the rules,” Puricelli wrote highlighting McLaughlin’s apparent favoritism to the City and racist/corrupt police by extending deadlines.
After trial, McLaughlin rightly noted that the jury’s award exceeded federal law limits for discrimination lawsuits and sought to reduce that award. She faulted the trio’s attorney for not including Pennsylvania state law claims that would permit a multi-million dollar award in the lawsuit.
This posture required attorney Puricelli to dig through legal papers filed earlier in the case to produce proof to McLaughlin that previous lawyers for the trio had in fact repeatedly included state law claims in the case, claims ironically added on directives from McLaughlin.
McLaughlin’s apparent failure to thoroughly know legal facts in the case, some experts contend, shows she is either not doing her job or suggest she is grasping at straws to deny the trio justice ordered by the jury.
Now McLaughlin seemingly resists relinquishing jurisdiction over the case, thus delaying appellate court review of her actions and challenges from the City.
“All we’re asking [McLaughlin] to do is finalize the case and send it up to the appeals court,” said a frustrated Mike McKenna during that protest.
Judge McLaughlin cannot comment on the trio’s allegations and/or her actions because federal law bars judges from publicly commenting on cases pending before them.
McLaughlin did issue a letter denying a charge in Puricelli’s letter to her boss that she improperly communicated with the city during the 2008 trial informing them of her concern that they were losing the trial.
While McLaughlin wrote she’d “seen most of the allegations of this letter before and will not respond to them,” she strenuously added, “I have never had any ex parte conversations with anyone from the city concerning this lawsuit.”
McLaughlin’s 9/11/09 letter stated she received a copy of Puricelli’s letter from Chief Judge Bartle.
The refusal by judges, whether federal or state, to accede to recusal requests when their impartiality is reasonably questioned is a scandal that courts and legislators cavalierly ignore, despite the impact such actions have on “public confidence in the judiciary.”
Impartiality standards are supposed to bolster confidence in the fairness of the judiciary.
A serial abuser of appearance-of-impartiality standards is ultra-conservative U.S. Supreme Court Justice Antonin Scalia.
Scalia’s transgressions while sitting on the highest court in the land include a highly publicized duck hunting trip with U.S. Vice-President Dick Cheney despite the Court’s then deliberating on a pivotal lawsuit against Cheney. Scalia voted to support Cheney in that lawsuit.
Self-described “law and order guy” Scalia has repeatedly participated in cases where his impartiality has been challenged because of his direct associations with litigants, like the involvement of one of his sons with the infamous 2000 appeal by George W. Bush, where Scalia voted to elevate Bush to the presidency.
Just a few weeks ago, the U.S. Supreme Court denied an appeal from a Texas death row inmate claiming violations of his fair trial rights because the judge and prosecutor during his 1990 murder trial were engaging in a secret, years-long extramarital affair.
Legal ethics experts contend that love affair created an appearance of impropriety mandating at least a new hearing for the inmate irrespective of guilt evidence against him.
The Texas Court of Criminal Appeals had rejected an appeal from that inmate in September 2009, faulting him for not raising the affair issue years ago, despite the fact that conclusive confirmation of that affair wasn’t available until 2008.
The majority of the Texas Court members rejecting that appeal worked with the fornicating judge during her tenure on that court…giving appearances of a friendship improperly influencing judicial decision making.
Last year the U.S. Supreme Court did fault a West Virginia State Supreme Court justice for accepting a coal company executive’s $3-million campaign contribution months before his backing that executive’s company in a key ruling.
Yet, last year, the U.S. Supreme Court rejected an appeal from Pennsylvania death-row journalist Mumia Abu-Jamal, who had a compelling-evidence appeal rejected by that state’s supreme court in a 1998 ruling where five of the seven justices had accepted campaign contributions from Philadelphia’s police union – the prime political entity pushing for Abu-Jamal’s execution.
Famed U.S. Supreme Court Justice Louis D. Brandeis once noted: “If we desire respect for the law, we must first make the law respectable.”
On the evidence, many judges entrusted with fairly upholding the law are guilty of disrespecting it.