While significant attention in the criminal trial of W.R. Grace has been focused on yet-to-be-proven allegations of prosecutorial misconduct, an increasing number of readers of this blog and elsewhere are questioning whether Judge Donald Molloy’s actions should be scrutinized.
Good question. Judges have enormous latitude in what they can do in their courtrooms.
Having said that, in 1980, after months of contentious hearings and debate, Congress made its first meaningful attempt to hold federal judges accountable by passing the Judicial Conduct and Disability Act.
In 2002, the House Judiciary Committee amended the Act to add clarifying language, and four years later Chief Justice William Rehnquist tasked Justice Stephen Breyer to review the Act once again.
If you want to learn more about charging a judge with misconduct, you might be as surprised as I was to find all the information you need on the website of Molloy’s own court. Here’s the link.
On that page, just below the information on the Grace case, is a link labeled “Rules of Judicial Misconduct.”
The link goes to the Ninth U.S. Circuit Court of Appeals – coincidentally, the appellate court that has overruled many of the decisions that Molloy has made in the Grace case. The link will take you to a page where the rules and limitations for filing against a judge are explained. It even supplies the form required to file a complaint against a judge.
But before you gleefully race off to do so, you should know that the procedure created by Congress permits any person to file a complaint about the behavior of federal judges – but not about the decisions they make in deciding cases.
For example, some points of misconduct include:
– using the judge’s office to obtain special treatment for friends or relatives;
– accepting bribes, gifts, or other personal favors related to the judicial office;
– having improper discussions with parties or counsel for one side in a case;
– treating litigants or attorneys in a demonstrably egregious and hostile manner. (This is one that, perhaps, should be kept handy.)
But among the things that the law says are not misconduct are:
– an allegation that is directly related to the merits of a decision or procedural ruling.
– an allegation that calls into question the correctness of a judge’s ruling.
Many of Molloy’s dealings with the prosecution appear extreme and often unprofessional, not just to lay observers, like reporters and people of Libby, but to several who practice law for a living.
That doesn’t mean that filing a charge of judicial misconduct would be easy or even possible.
Molloy’s anger at lead prosecutor Kris McLean for appealing several of his decisions to a higher court had been long predicted. Additionally, the judge’s disdain for McLean’s boss, Montana’s U.S. Attorney Bill Mercer, is well known in the U.S. Department of Justice, on Capitol Hill and throughout Montana’s legal structure.
In 2005, Mercer was appointed the number three man in former Attorney General Alberto Gonzales’ Justice Department. The AG said he hoped that Mercer could bring much-needed stability at a time when, apparently with White House urging, several U.S. attorneys were fired for political reasons.
Molloy resented that Mercer did not relinquish the Montana position and, in a letter dated Oct. 20, 2005, urged Gonzales to dump him either in Helena or D.C. Molloy frequently charged Mercer with neglecting his duties in Montana while on dual assignment.
One thing that continues to puzzle some of my contacts in Justice and EPA headquarters is how and why Mercer and David Uhlmann, the then-chief of the Justice Department’s Environmental Crimes Section, got away with pursuing criminal indictments against Grace.
Regardless of how meritorious the indictment may have been, the Bush White House and the Office of Management and Budget wanted absolutely no publicity on any issues involving risk from asbestos exposure. The silence was desired because Bush was pushing extremely hard for tort reform to eliminate lawsuits for personal injury from asbestos – a promise that Republican managers had made to industry.
There are so many weird questions for this judicial exercise for which it would be great to have answers.
For other views on Molloy and his actions, I urge you to read Tristan Scott’s significant story in today’s Missoulian. Here’s a link.
Of particular interest is Uhlmann’s view on Molloy’s actions. Uhlmann is now director of the Environmental Law and Policy Program at the University of Michigan and one of the very few judicial experts willing to speak on the record about the shenanigans in the Montana courtroom.
For example, Scott quoted him as saying: “What’s disturbing, particularly in a case of this magnitude, is that a federal district court judge is using inflammatory language and making allegations of prosecutorial misconduct when there’s so little on the record to support his claims.
“It raises anew the question not only about whether the United States is receiving the fair trial that both sides deserve, but also whether the judge has lost sight of the fact that there is a town of victims in Libby, Montana.”