373. Oh, well, thats okay, then

In New Mexico Territory, an Army colonel faced a court of inquiry – the equivalent of a grand jury or preliminary hearing – looking into his conduct. It seems that he marched his troops into town where they laid siege to the private residence of a person against whom the colonel had taken a personal dislike. The house was set on fire and the inhabitants shot at as they fled, causing several deaths although one man, known as Bill Bonney, escaped.

Even before the inevitable result of the court of inquiry was announced, a lawyer pursuing the matter in civilian court blogged about it, 19th century style, by commenting to the press. Military courts of inquiry, this lawyer said,

are an expensive and stupendous farce, and are conducted on mutual admiration principles, and if there is the least possible excuse for applying the white-wash to a military man, it will be done, without regard to the beauty and symmetry of the job, and this is especially so when the complaint comes from a civilian.

I was reminded of that quotation when I learned how swiftly the New Jersey Supreme Court dealt with the prosecutors complaint against “the bad boy of the N.J. Supremes,” Justice Rivera-Soto. (See post 371.) As blogger Bob Ingle observed in a post about the white-wash – which was, indeed, neither beautiful nor symmetrical – “Supremes take care of each other.”

In a letter explaining the courts decision that its not improper for a supreme court justice to violate a sealing order,

[t]he chief justice explained that Rivera-Soto said he was not aware of the sealing order when he named the officer and that it was entered administratively without any involvement by the justices. Rabner also wrote that one partys legal briefs identified the superior officer by name.

So the orders of the New Jersey Supreme Court arent actually entered by members of the court, but by the drones in the clerks office, and dont have to be obeyed.  That will save a whole heap o compliance costs, wont it?

And then, if one partys legal brief violates the sealing order, then everyone else can join in for free. Thats nice to know, too, isnt it?

And, yeah, right, he didnt know about the order. Thats why he reacted by saying: “I just violated that sealing order. Let’s talk about Captain Hunt.” Isnt that how you respond when you discover youve just committed a faux pas? “So I just made a raucous joke about STDs at a crowded party in front of a person whose divorce was precipitated by her husband giving her one. Lets talk about it.”

If Rivera-Soto didnt know about the sealing order, he hadnt read the case file before solemnly waddling into court for the oral argument. Not only that, but he apparently hadnt read the Appellate Division opinion, either, which contains passages like this one:

When the court has completed its analysis, it shall enter an appropriate protective order to secure the materials released to defense counsel, as well as any materials that may be released in future discovery. In particular, the protective order should include very substantial sanctions to truly deter intentional or even inadvertent release of the documents to the press or anyone else. The protective order must limit possession of the documents to defense counsel with an absolute prohibition against copying or distributing the documents to anyone, including defendant. Moreover, since defense counsel has acknowledged that defendants wife has frequently released information to the press that defendant and his counsel were prohibited from releasing, the protective order should contain a specific prohibition against defendant and his counsel allowing Mrs. Williams to have any access whatsoever to the documents or discussing their contents with her. This prohibition extends to anyone with whom defendant or his counsel may have contact. The sanctions should be sufficient to dissuade defendant, his counsel, his wife or anyone else from disclosing the contents of the discovery to anyone, including the press.

Admittedly, thats a pretty dense block of prose.  But if you glanced over it, would you maybe take away the impression that maybe there was some concern about leaking the information to the press?

So Rivera-Sotos defense, in essence, was that he was too lazy to prepare for the argument: “I didnt violate the order out of an arrogant belief that Im above the law.  Im just a bad judge, thats all.”  Its s reminiscent of the defense tendered by Floridas Judge Sloop, who thought he should be allowed to keep his job because his attention deficit disorder made him unfit for it. (See post 87.)

Can you make yourself believe that any of the other members of the New Jersey Supreme Court believe Rivera-Soto?  Me, neither.  But still, I have to agree its not unreasonable for them to take care of themselves, when you view the matter from their point of view.  After all, whats better, being subject to the law or immune from it? If sacrificing self-respect is the price that has to be paid for immunity, then so be it.

One last source of amusement about Rivera-Soto, who has already, most appropriately, become a campaign issue.  Rivera-Soto was vetted by the then-governors “one-man search committee, former Justice Alan B. Handler.” Ex-Justice Handler has made this blog before. He served as the head of the “ethical” committee convened to determine if Judge Bill Mathesius violated the canons of judicial conduct when he wrote an opinion critical of … Justice Handler. (See post 287.)

Handler, in short, is a person without any ethics at all, and he was the sole adviser to a rotten governor. Put em together and you get someone “not fit for even this national laughing stock of a court.”

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