Sunday, February 17, 2013

New Mexico Judge Sues Her Own Court

One local judge has formally threatened a lawsuit against the others – or at least against New Mexico’s Third Judicial District Court.

Judge Lisa Schultz has served a rambling Tort Claim Notice headed “re: Whistleblower Retaliation / Hostile Work Environment.”  Such notice is a requirement for any lawsuit against a state entity.  This one makes for sad reading.

Her claims include that a “spy” was assigned to work for her, that an incorrectly placed sewage line hasn’t been fixed, and that someone wore too much perfume into her office despite her allergy.  (She says that after she complained about the perfume, the perfume-wearer sprayed perfume around Judge Schultz’s desk.)   Judge Schultz “also found out that the reason Judge Murphy moved out of his old chambers was the mold from so many leaks in the roof.”  She also claims that when she got assigned a lot of domestic relations cases, and asked Judge Driggers to mentor her, he assigned that task to Judge Riedel instead of doing it himself.

It was Judge Schultz who rather doggedly pushed for legal proceedings against then-Judge Michael Murphy.  There was no hard evidence Murphy had done anything remotely criminal.  Even Judge Schultz admitted she wasn’t sure whether or not he was joking in certain crucial comments he made.  Nevertheless, Murphy was ultimately charged with a bunch of felonies, possibly because it was politically convenient to the folks making the charges.  Murphy eventually resigned.  The felony charges have lingered.  Judges from outside this district have handled the case.

Judge Schultz says the Murphy case judge and Judge Driggers urged her to speak with Murphy’s defense attorney, and that Driggers “stated that he didn’t understand my reluctance to be interviewed unless there was a concern that the statement I had previously given was not accurate.”  She alleges that when she refused, the defense attorney accused her of being biased for the prosecution.  (Since she had run around taping Murphy and other judges, hoping in vain to record something incriminating, then wouldn’t discuss the facts with Murphy’s attorney, I can see how someone might infer that she favored the prosecution.)

IF Judge Schultz is right that all the other judges are against her, and retaliating against her, then of course that’s improper; but her Tort Claim Notice doesn’t tend  to inspire great confidence.  It’s disjointed, and it raises a host of grievances against folks other than the Third Judicial District Court.  An apparent attachment, a verbose Motion filed with the Supreme court, references other writs by her, and suggests she’s spent considerable time on such things.  It looks as if she sometimes acted more like a litigant than a witness.

On page 7 under “Caseload Harassment,” she raises an odd set of issues, including that the Chief Judge “reduced my new criminal caseload from 65% to 40%” and that

two months later “Defendant Murphy renewed his demand for five years of my prescription drugs.”

I don’t know whether her caseload was too heavy or too light, because Chief Judge Douglas Driggers courteously declined to answer my questions on the subject and Judge Schultz wouldn’t even call me back.

Ordering her to show a list of her prescription drugs seems an easier call, because it’s on the public record and because it’s common sense.

According to public documents, Judge Schultz wrote that in pre-op for surgery in Illinois,  having just taken an anesthetic, she saw a TV news item about Governor Blagojevich.  It mentioned “pay to play.”  This “had a powerful and clarifying effect on me.”  This was “the last thing I remember before going under for surgery.”     When asked in an interview whether she was on any other medications, she refused to answer.

If the accusing witness against my client had acted oddly, I might ask for some medical information.  Such discovery issues are fought out every day in lawsuits.  Witnesses give up the information or seek a protective order, which judges grant or deny.

Here, the judge (not from 3rd J.D.) ruled against Judge Schultz.  The judge ordered her to let him review the list of prescription drugs privately, so that he could show defense counsel only what appeared relevant.   The fight went all the way to the NM Supreme Court.  The Supreme Court ordered that she produce the list as ordered, so that the judge could give the defense what appeared relevant.  (Nothing did.)

As a trial lawyer I see little for her to complain about in this.  (Since she never called me back, I can’t evaluate her explanation if she has one.)  How drugs might have affected her actions was clearly in issue, based on her own journal.

When I mentioned the Notice  to two local lawyers, they wondered out loud about her health.  When I replied that the Notice mentioned allergies and medical problems, they shook their heads and added, almost in unison, “maybe some mental problems.”

At any rate, the Notice will go through whatever analysis and response the duly-constituted authorities deem fit, and maybe spark a lawsuit.  Another punch-line about Doña Ana County.

Meanwhile, this development won’t enhance judicial collegiality down at 201 Picacho.

[Most of the foregoing column appeared this morning, Sunday, February 17, in the Las Cruces Sun-News.

The foregoing is kind of a sad story.  Ms. Schultz appears to be a somewhat troubled person.  It may even turn out that rather than causing the difficulties she felt she had with her colleagues, the whole Judge Murphy saga resulted from those difficulties.  

It's hard not to feel sorry for Ms. Schultz -- even though she's living off the public.  (The newspaper compassionately omitted the paragraph noting that two lawyers had indicated their opinion that she had mental problems.  A third attorney made a similar comment to me this morning, and others have in the past.)  It's hard not to feel sorry for Mr. Murphy, too, although if he made the homophobic comments attributed to him he's probably well off the bench.)  I've never met either one, by the way, or even talked to either on the phone.  I have no dog in this fight.  The whole thing just makes me sad -- and I hope it doesn't cost too much administrative time for the state and the third judicial district to defend a lawsuit by Ms. Schultz if one ever results.]  


Sunday, February 3, 2013

Zero Dark Thirty Is Misleading about Torture

Seems like just yesterday we were rooting for Kathryn Bigelow’s excellent The Hurt Locker to upset Avatar for the Best Picture Oscar.   The flick was a taut drama.  She was the ex-wife of Avatar’s director, and beat him for Best Director too.

So it’s hard not to feel disappointed, maybe even betrayed, by Zero Dark Thirty.

Specifically, the film inaccurately portrays the capture of Osama bin Laden as a result of torture.

It wasn’t, so far as the evidence discloses.  In fact, torture apparently accomplished little or nothing in the “War on Terror,” except perhaps to strengthen a few suicide bombers’ resolve.  Repeatedly, intelligence operatives have testified to torture’s lack of efficacy.  FBI interrogators often opposed the use of torture at the time.  (In fact, torture may have delayed bin Laden’s capture.  Khalid Sheikh Mohammed, waterboarded  nearly 200 times by the CIA, repeatedly downplayed under torture the importance of Abu Ahmed al-Kuwaiti, the courier who ultimately led investigators to Bin Laden – and the torturers had such simplistic faith in torture that they felt sure he was telling the truth, and discounted the important lead!)

Since the film opened, a bipartisan cast of politicos, including Senators John McCain, Carl Levin, and Dianne Feinstein, has confirmed that view.  The letter from the three senators said the film’s misrepresentation was “perpetuating the myth that torture is effective.”

The mistake isn’t harmless error, either.  The efficacy of torture is a hotly-debated aspect of the nation’s overall opinion on the subject.  Torture is wrong.  But whether or not the U.S. tortures future suspects, under future presidents, may depend more on the national perception of its usefulness than on its morality or its legality.

Director Bigelow and writer Mark Boal could be contributing, in their small way, to the agony of some future torture victim.  He or she may be, as was the case with so many torture victims during the Bush Administration, just some poor sucker in the wrong place at the wrong time.  It’s well-documented that some “suspected terrorists” were turned in for money by people who knew they weren’t guilty but understood that all Moslems looked alike to the U.S., – and that they’d get paid long before someone sorted out guilt or innocence .  Others were turned in because the informant had a grudge or wanted the suspect’s house.  One suspect, Khaled el-Masri, was tortured and kept incarcerated, despite possession of a valid German passport, until someone figured out that they meant to torture some other guy named “al-Masri.”

My disappointment is compounded by the filmmakers’ reaction to reasonable criticism on this point.

Mr. Boal said he shouldn’t be held responsible for the content of the film because it was “a movie not a documentary.”  Horsefeathers!  The film was carefully shot to look like a documentary, and its makers were clearly proud of their careful research.  At the beginning of the film, a little notice doesn’t just state that the film is based on actual events but boasts with unusual strength: “Based on Firsthand Accounts of Actual Events.”

Boal also disingenuously argues that certain key information was obtained by the film’s protagonists “over the civilized setting of a lunch.” Has Mr. Boal forgotten that the lunch was preceded by brutal torture of the informant, who presumably remembered he’d just been tortured and could be again?  As another character reportedly says, “I have no wish to be tortured again. Ask me a question and I will answer it.”

Ms. Bigelow says that omitting torture would have “whitewashed” history; yet she felt no compunction about omitting the objections to it by FBI agents and other experienced interrogators.   Maybe the fact of torture’s inefficacy isn’t as vivid on the screen as the torture itself.

Bigelow also says we all know “depicting is not endorsing” or no one could make movies about serial killers and the like.  But that’s a willfully simplistic answer.  She’s done a lot more than depicting here.

Amy Pascal, co-chairman of Sony Pictures Entertainment, the distributor, says that, “To punish an artist’s right of expression is abhorrent.”  I certainly agree; but Bigelow isn’t being punished.  I have no obligation to see her movie.  Roger Ebert has no obligation to praise it, or to stifle his concern about its accuracy.  David Clennon has no obligation to vote for it as “Best Picture.”  No one is jailing or fining Ms. Bigelow or even picketing theaters that show the film.   People are expressing their views, as are the folks who made the movie.

I would agree with Ms. Pascal that no kind of censorship and no kind of official intimidation should be applied.  The filmmakers have a perfect right to misrepresent the facts on torture, or even advocate torture.   That’s what freedom of expression means.

I’m not normally one who avoids a film because I don’t like its message or its maker.   When friends said that Mel Gibson’s Apocalypto was ideologically dangerous in its portrayal of indigenous peoples, I wanted to see the film myself before making any such judgment.

But ZeroDarkThirty is a pleasure I may forego.  I’d rather judge it after seeing it – if Sony Pictures would send me a copy.  Paying money to see it in a theater feels too much like rewarding the film-makers for something that probably doesn’t warrant a reward.

[The foregoing column appeared in the Las Cruces Sun-News this morning, Sunday, 3 February.]