How to investigate corruption in the courts 1Posted: June 1, 2012
This week, scandals involving high court judges in the Philipppines and Brazil were in the international spotlight. On Tuesday, Renato Corona, the chief justice of the Philippine Supreme Court, was removed from office after having been found guilty by the Senate of failure to disclose millions of dollars in his bank accounts.
On Wednesday, The New York Times reported that high court judges in Brazil were alleged to have taken overseas trips on private planes arranged by opposition senator Demostenes Torres. The senator is said to be a “gopher” for Carlinhos Cachoeira, a powerful businessman and illegal gambling operator who is known as Brazil’s Michael Corleone.
As anyone who has dealt with Philippine – or for that matter, Brazilian – courts knows, these charges are just the tip of the iceberg. Corruption has weakened the foundations of the judiciary in many countries, and the investigation of a few high-ranking judges will not necessarily clean up the courts. But scandals provide an opportunity to focus the public’s gaze on the justice system and to give it far more scrutiny than it’s getting now.
In many countries, lawyers and litigants talk openly about corruption in the courts. Proving it, however, is difficult. Piercing the veil of secrecy in the courts and finding evidence of wrongdoing are real challenges. Here are some ways in which corruption, malfeasance and other forms of wrongdoing in the judiciary have been investigated.
✔ Linking court decisions to the judges’ families, friends, and in many states in the U.S., campaign contributors. The same techniques used for probing political corruption work for the courts as well. In U.S. states where judges are elected, journalists have linked campaign contributions to judges’ decisions. In a 1987 Pulitzer-Prize-winning investigation, the Philadelphia Inquirer built a database that showed that defense lawyers who funded the campaigns of judges in municipal courts won 71 percent of their cases in those judges’ courts. In contrast, only 35 percent of all defendants in municipal courts won their cases. Since then, a number of news articles and academic studies have linked campaign contributions to judges’ decisions. A recent Yale study, for example, found that the larger a party’s contribution to a judge, the more likely the judge would vote in that party’s favor.
In countries where judges are not elected, journalists have made the connection between favorable decisions and judges’ links to winning litigants in a lawsuit. These can be family, business, political or professional ties. Judges are supposed to recuse themselves whenever a potential conflict of interest arises, but that doesn’t always happen. For example, among the charges against the recently removed Philippine chief justice was that his decisions had unduly favored the former president, who had not only appointed him presidential legal counsel and then chief justice but also made his wife chair of a government-owned company, for which she got paid millions.
In 1994, the Philippine Center for Investigative Journalism investigated a trial court judge who had issued several rulings in favor of Hoechst, a German multinational; these rulings overturned a government ban on harmful pesticides. The investigation found that the judge was once a lawyer for a Hoehcst affiliate while his wife owned substantial shares in another Hoechst subsidiary. [Disclosure: I was director of the Center at that time.]
In Kenya, an appeals court judge was found to have been a legal consultant to a litigant in his court. The judge didn’t recuse himself and decided in the litigant’s favor. There are many similar examples in other countries.
✔ Getting evidence of bribery from losing litigants and lawyers. In a lawsuit, one party wins and another loses. Where corruption in the courts is rife, there is no shortage of losing lawyers and litigants who will claim that they had been cheated because their opponent bribed, pressured or somehow influenced the judge. Losers are a mine of information. For sure, what they say may be baseless or exaggerated, but some of it can also be verified and corroborated.
Complaints or cases against supposedly erring judges filed by litigants or lawyers are a great resource, not just for getting information on actual instances of bribery, but also for finding patterns in the manner in which judges are approached, the bribes and inducements that are offered, and the ways in which the course of justice is perverted.
For example, a recent case in Pennsylvania showed how two judges received $2.6 million in bribes not from the parties in a lawsuit but from two privately run youth detention centers. In what eventually became known as the “kids for cash” scandal, the judges pleaded guilty to making arrangements to get kickbacks from those facilities for the youth offenders they sentenced to detention.
In Ghana, cases filed against judges showed payments of bribes through intermediaries. In Italy, 16 tax judges were arrested in Naples in March, for allegedly receiving bribes and gifts for issuing favorable tax rulings to businesses owned by the Camorra clan network. One of the judges allegedly worked as an accountant for the crime family.
✔ Finding out whom judges are meeting, playing golf and going on vacations with. Most courts have rules against meeting with just one, instead of both, parties in a lawsuit. This is known as ex-parte communication and it happens with frightening frequency in many countries. The circumstances of some of those meetings can be scandalous, such as a that of a Malaysian chief justice and his wife who were found vacationing in a swanky New Zealand ski resort with a prominent lawyer who had lawsuits pending in the judge’s court, a clear violation of judicial ethics. Evidence of the vacation – including air tickets and photographs – were obtained by a private investigative firm and published by the independent news site Malaysiakini in 1994. At that time, the lawyer was representing a Malaysian tycoon who had filed a libel suit against a journalist. That case was being heard by a panel headed by the chief justice.
In the late 1990s, the Philippine Center for Investigative Journalism got photographs of the chief justice in a golf course with lawyers who had pending suits in the high court. They also obtained travel records that showed the chief justice and a lawyer-friend took several trips together to Hong Kong, where they (again)played golf. That lawyer was then litigating cases in the Supreme Court and was widely known in the legal community as someone who had the chief justice’s ear. As that story reported, inappropriate approaches to jurists are often made indirectly, through well-connected intermediaries like the chief justice’s golfing buddy.
Ex-parte meetings happen in the U.S. as well, though not in the Supreme Court. The Philadelphia Inquirer story mentioned above examined court records and found numerous cases in which crucial decisions on cases in municipal courts were made after private conversations with lawyers of just one party.
(More tips in the next post)