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Does The Public Really Have Any Recourse When a Judge Behaves Badly?

By February 11, 2020 No Comments

mark tranquilli, Pittsburgh

By Charlie Deitch
Pittsburgh Current Editor
charlie@pittsburghcurrent.com

A lot of people were shocked last week when a complaint surfaced that Allegheny County Common Pleas Court Judge Mark Tranquilli referred to a black woman on one of his juries as “Aunt Jemimah.” 

For me, though, I wasn’t surprised about what the judge said. Rather, I was shocked that someone reported it to the state Judicial Conduct Board and then, dare I say, pleasantly surprised that Tranquilli was suspended pending the board’s investigation. 

Why was I shocked? Because Allegheny County has had its share of not only questionable professional conduct by some judges, but also some, at times, baffling rulings in cases. And in these situations, little if anything is usually done to the jurist in question.

In the aftermath of these episodes, I find myself frustrated with what appears to be the lack of accountability that judges face. To be clear, I am not a lawyer but I have covered the courts quite a bit in my career and I sought out the opinions of some pretty good ones for this story. 

As a quick primer, Common Pleas Court Judges in Pennsylvania are elected to open seats on the bench. They run campaigns like other candidates but these aren’t political positions, at least they’re not supposed to be. But, as we’ve seen many times, politics has a tendency to creep in a lot of places where it really shouldn’t be.

Once elected, however, judges then serve a 10-year term. At the end of the 10 years, they don’t face a standard election. Instead, they go through a retention election where their name appears on the ballot and voters decide “yes,” the judge gets another 10 years or “no,” and they must leave the bench. The problem is, that doesn’t happen very often.

According to a spokesperson for the Allegheny County Bar Association, just one time since 1991has a sitting judge not been retained. And anecdotally, he says, there aren’t many from across the state who’ve ever lost their retention votes.

So what does that mean? Does it mean that Pennsylvania has the finest, fairest judges in all the lands? Of course not. The courthouse is full of people everyday who would take umbrage with that assertion. There are also many, many people who have had horrible interactions with the court system and not necessarily by their own doing. One citizen activist once told me that most people don’t even realize that a judge faces a retention vote. And if a judge happens to make a ruling that you don’t agree with or makes you question their fitness to serve, are you going to even remember that ruling when they come up for retention.

Here’s an example.

Last summer Judge Alex Bicket was presiding over a sexual assault case. A former Carnegie Mellon student, Joon Woo (Jason) Baik, was accused of raping a woman at his home. Following a trial, a jury found him guilty of sexual assault. When he returned for sentencing, however, Bicket overturned the jury’s verdict verdict and acquitted Baik because he said the evidence  was “so unreliable and contradictory that it is incapable of supporting a verdict of guilty and thus insufficient as a matter of law.”

The Post-Gazette reported at the time that a member of that jury said she was “appalled” at the ruling. A victim’s advocate said it seemed like an “abuse of power.” But if you’re upset that a judge would make a ruling like that, what’s your recourse? Bicket’s retention vote is next year. What are the chances that the average voter will remember, even if they were upset at the time?

I have long thought that the retention system wasn’t the proper way to hold judges accountable. Writer Paul Muschick of the Allentown Morning Call encapsulated my feelings in 2018 when he wrote of retention votes, “That’s not right. That’s not an election.” His research turned up about five judges who’d ever lost a retention vote since 1989. That doesn’t seem like accountability.

Maida Milone, the president and CEO of Pennsylvanians for Modern Courts, a non-partisan group that seeks a legal system where judges are fair, impartial and of good “judicial temperament.” (Something Tranquilli is not, but more on that in a minute.) I brought her my thoughts and concerns about retention votes and judicial accountability. She looks at the issue from a different perspective. She, too, wants competent, fair-minded jurists on the bench, but doesn’t see elections as a way to necessarily do that, particularly in the case of retention or re-election. Worrying about their job could cause a judge to make a ruling in the best interest of their electability, and not in the best interest of the rule of law.

“Generally, we don’t support partisan elections in judicial races,” Milone says. She said judges “are not representative legislators” and therefore shouldn’t be appointed as such. The judge’s allegiance should only be to the “rule of law.”

That’s why PMC supports Pa. House bill 111, which would seat judges based on merit and not their ability to fundraise during a campaign. According to the proposed bill, candidates would be selected by “a bipartisan citizens’ nominating commission of lawyers and non-lawyers.” Those names would go onto the governor, who would select a nominee to go before the senate for confirmation. The judge would then serve for four years before facing a retention vote for a 10-year vote.”

Milone says “there are some very fine judges who made it through the gauntlet” of partisan elections, but others who would serve well on the bench are discouraged by a partisan election. Most importantly, she says, it’s essential to hold on to “judicial independence in partisan times.”

But 10 years is a long time. Currently, Pennsylvania is one of 20 states who holds some form of retention elections at some level of the judiciary. Of those states, Pennsylvania’s 10-year term is the longest with most settling somewhere between four and six years. Milone says she’s not married to the 10-year term, which she was ot aware was the longest in the nation. Although she says, it should be long enough that judges don’t “face the frenzy” of campaigning every two years.

There does seem to be a lot  of sense in the system that Milone’s group and some legislators are advocating. It should also be mentioned, though, that while this plan does make some sense, there is a current movement by conservative legislators to elect state-wide  judges by district, which would serve to stock the court with more conservative jurists and is actually more partisan than actual partisan elections.

I asked Duquesne Law Professor Bruce Ledewitz his thoughts on retention votes and the Tranquilli situation. He told me via email, “Retention votes do not generally hold judges accountable, but there are exceptions.” He said the Tranquillli situation would be one of those cases if it bears out to be true. Well, if he makes it to his 2023 retention. Many groups called for Tranquilli’s suspension, a complete investigation and/or resignation. Tranquilli’s remarks came following a trial in which the suspect was acquitted by the jury. Tranquilli, a 20-year prosecutor under DA Stephen Zappala, was livid that the prosecutor put the African American woman on the jury.

You weren’t out of strikes when you decided to put Aunt Jemima on the jury,” he said, according to a complaint filed by the defendant’s attorney. According to the Post-Gazette’s reporting of the case, Tranquilli “indicated he knows that the woman’s “baby daddy” probably sells heroin and that her “presumed bias in favor of heroin dealers had caused or contributed to the not guilty verdict.”

Tranquilli’s words are disgusting and clearly do not show a good “judicial temperament.”  But as both Milone and Ledewitz point out, there is a complaint/investigative procedure in place through the Judicial Conduct Board and if the facts prove true it should be the one holding Tranquilli responsible.

I, like others, are hopeful. But if yet another judge isn’t held accountable for their egregious actions. I, sadly, won’t be shocked.

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