People Perish for Lack of Knowledge

By Charles Moncrief

These words from Hosea 4:6 were originally addressed to a people in a religious context. Taken in a vacuum, these words are applicable in our time -- especially when the result of ignorance has tragic consequences.

For an example, here is the opening paragraph of Susan Murphy-Milano’s journal entry.

It was two days after Christmas and 18 days after the ink barely dry on the divorce papers when, Matthew Schneider stormed into the home of his ex-wife [Brandy] as their 8year-old watched when "daddy" shot Mom and her new boyfriend multiple times before turning the gun on himself.

Brandy had filed for divorce from Matthew in April, even though Matthew had threatened to kill her. Her pleas for protection either went unheeded or resulted in tragically inadequate criminal action.

What can we learn from Brandy’s tragedy? Where did the legal system fail? Realistically, we should ask a different question: Where did the legal system fail this time?

Matthew Schneider spent the first year of their son’s life in prison because he had beaten Brandy severely, at least once while she was pregnant. Matthew was a juvenile sex offender, a convicted felon, and under house arrest at the time of the incident. He had made threats to kill Brandy if she divorced him. He had made harassing, and perhaps threatening, phone calls to Brandy following the divorce. And he possessed at least one firearm.

While this tragedy may have been preventable, my purpose is not to complain about the system’s failure. I’d rather address some misconceptions we may have about our nation’s legal system.

First, however, let me give a disclaimer. Please seek competent legal advice for any action you take after reading this. Nothing here is intended for any purpose other than to disclose facts, though they may betray a certain cynicism on my part.

Divorce cases are civil matters. The specifics of civil cases, such as details of the outcome and the proceedings themselves, are often placed under a gag order. So the evidence, rulings on admissibility, and testimony, remains unknown. To speak later about the case is to risk a contempt citation. This gives us two important clues that more can be done.

First, the operative word is "later." Critical documents and other materials gathered for presentation should be recorded privately as soon as the decision is made to proceed in the civil courts. In Brandy’s case hospital records, the prior criminal proceedings against Mathew, as much detail as possible describing the path to be taken (photographs, diagrams, grounds, names of parties, witness information, evidence to be presented, relief sought, etc.), and any other material should be made safe and a chain of possession established. One way to do this is to mail the documents, with a clear date-dime stamp from the Post Office, to a trusted friend or other person not involved in the case. This person must keep the container sealed until needed. These materials are exempt from any court ruling against disclosure, since the judge’s contempt power cannot reach the recipient of US Mail who has no standing in the case. The judge’s contempt power cannot reach backward in time either, making a readable date-time stamp absolutely imperative.

The next operative word is "gag." Not everything about a civil case can be gagged, and the gag can usually be lifted in a criminal case or by a civil appeals court. Examples of items not gagged are case ID (number and name), court, judge, and counsel. All of these are public record and subject to open disclosure.

Disclosure is the key to this article. Most people know very little of the recourse available following an unjust outcome or inappropriate proceedings in a court case. If a judge misbehaves or issues an inappropriate ruling, including a contempt citation, a person can file a complaint with the state’s commission on judicial conduct. Whatever the official name of the commission from one state to another, the purpose is the same: to allow a private citizen a measure of recourse against a defective judge. Any citizen can file a complaint with this commission for little or no cost, and that person need not have any standing in the case involved. Immediately the non-gagged items become useful. The citizen has the right to demand that the commission assign a case number to the complaint and to proceed with an official investigation. The least that occurs following such a complaint is that the judge must make an official response to the commission, and the complainant is exempt from any retaliation by the judge. And depending on the findings of the commission, action against the judge may be of benefit to all of society.

This should go without saying, but apparently it is not obvious so I’ll include some warnings.

• DO NOT approach the commission on judicial conduct until the case is closed. An angry judge is not a good thing to trust.
• DO NOT let your emotions direct your actions. Be at least strongly convinced that the judge did act inappropriately and not just in a manner that offended you. To proceed in good faith will protect you from legal action if your complaint seems frivolous.
• DO NOT write anything containing slander or libel about the judge. And while you cannot write about the detailed proceedings, you can mention in your call for investigation that a gagged item bears scrutiny.
• DOCUMENT your actions outside of the system. The judge cannot legal recourse, but social and unofficial retaliation can occur. This is not about secret police or midnight fire-bombings; it’s more like casual comments to your employer, to HR when you apply for a job, or a blackball if you run for office in the Rotary Club.
• Depending on the level of fear you may have about retaliation, you may want to notify the attorney general and local news media. Then if anything does happen, records are on file.
  

Note that if you file a complaint with the commission, it may have no apparent effect as far as you are concerned. But you establish a history for that judge. When the next person issues a complaint, the presence of previous action will be considered at least subjectively. The judge must then respond not only to the complaint itself, but to the repetitive nature as well.

The same sort of recourse is available against an attorney, though it’s more likely that the complainant must have standing in the case. Every attorney is a member of a local and perhaps a state bar association, and any person directly affected by an attorney’s misbehavior has the right to complain to the bar and request an investigatory hearing. Again, please avoid frivolity and emotion. And recognize that the course of any investigation will include an attempt to make you look and feel like the slime of the earth. It’s merely procedural, and it should not be taken personally. The slime is the system, not you.

I want to add one more caution, which is also not immediately obvious. Your attorney is not your friend. He or she is an officer of the court, and your case is not important enough for your attorney to risk being blackballed against practicing in a particular court. So any discussions about taking recourse, or sending materials to a friend ahead of time, should not take place with the attorney you have hired. Rather, you should consider an attorney in another jurisdiction, and another state if possible. The attorney then is not able to give you legal advice, but you can learn of general processes and acquire some resources to increase your chances of successful recourse when the system fails.

If you asked why a person with no standing in a case should proceed against a judge who misbehaves, I’ll refer back to the original theme. Notice the words were "People Perish for Lack of Knowledge" and not "A Person Perishes for Lack of Knowledge." The societal impact of court proceedings, and of the behavior of all court officers, is far greater than the outcome of a single case. Therefore, while you may think a judge who misbehaves is none of your business, a misbehaving judge is EVERYBODY’S business. If a defective judge knows he or she no longer enjoys the protection of anonymity or intimidation, the quality of our court system may be restored to a level resembling the original intention of our nation’s founders.

Brandy Schneider’s case was not isolated. Change a few details and you have thousands of other incidents that occurred in just the last ten years. The breakdown is not only serious; it is progressive. But the good news is that it is reversible, if only we will take the measures that are available to us.