A History Lesson, Retrospective

(This is a multi-part series I have written with help from our friend, Firefly. Part 1, Part 2, and Part 3, can be found below.)

I have always found one particular phrase particularly interesting in the Canons of Judicial Ethics. That is the one in Canon 1 to the effect that a judge must avoid even the "appearance of impropriety." In other words, not only does a judge have to act properly, but he or she also has to act in a way that does not even appear improper.

Why such a high standard? I think it is because the drafters of the Canons recognized a very basic reality about the judiciary. Judges, by definition, sit in judgment of others. They hold the ultimate power to declare what is right and wrong. Lacking the executive's power of the military and the legislature's power of the pocketbook, the judiciary's currency of choice is necessarily credibility.

And, if judges are held in public disrepute, their credibility is dashed. Who will respect that judgment of a flawed tribunal? Can a known thief sit in judgment of a theft trial? No. Respect for the decision flows from respect from the tribunal and the official. We all recognize that judges are human and possess human failings; there is no perfect human. To maintain the credibility of the judiciary, though, we must at least engage the fiction of absolute virtue.

Which is why Harris's accusations destroyed Mike Smartt. After the scorn and humiliation heaped upon him by Harris and others, he could no longer sit in judgment of others. Once it became public, it became over.

By no means do I intend to sit in judgment of my friend, Mike Smartt. While I do not advocate public officials using their computers to search pornography, and while I certainly recognize and appreciate that many religious and moral codes would hold his conduct reprehensible, I do not believe what he did points to some deep character flaw that would render him incapable of sitting on the bench. Clearly he did nothing illegal, and what he did was something personal and private. By itself, personal and private, it did not prevent him from acting as a judge.

I would submit that most, if not all of us, have our own personal demons hiding back in the dark somewhere. Most of us keep them there and lead happy and productive lives, perhaps tormented on the occasional sleepless night. Most of us are allowed to keep our skeletons in the closet because others, whether through basic human decency or because of their own shortcomings, are slow to judge and quick to forgive. Most of us, upon learning the failings of a friend, an acquaintence, or a colleague, at least try to react with compassion and understanding. There but for the grace of God go I, and all of that. But that's not the treatment Mike Smartt received.

No, what struck me (and many other lawyers I have talked to) about the whole affair was how unnecessary it all was. It was Judge Harris's public rendition of it all that destroyed Mike Smartt's ability to judge. Mike Smartt's credibility was systematically and purposefully destroyed.

Had this matter been handled between two, rational adult human beings, Mike Smartt could well be alive today. Imagine if, instead of creating a public furor from his own offense and righteousness, Judge Harris had instead confronted Smartt privately and, failing that, privately sought the admonishment of others to implore Smartt to take his problems home, away from his chambers. If Smartt had still insisted in engaging his desires at the Courthouse, couldn't we then at least credit Harris for trying to solve the problem in a way less damaging to the man and the office?

While I did not often agree with Justice Terry Trieweiler, I think the following excerpts from his dissent in Mike Smartt's case provides a suitable requiem for Mike and his case:

After all the pious outrage shown by everyone involved in this case, including Justice of the Peace Samuel Harris, the Judicial Standards Commission and the majority of this Court, the facts are that Michael S. Smartt is being removed from the position to which he was elected for conduct committed in private which had absolutely no effect on his job or anyone else. After all evidence which was illegally gathered is excluded, the incredible testimony of Troy Dye disregarded, and the Court's consideration limited to those allegations which were actually charged in the complaint filed against Smartt, Smartt has been removed from his position without pay because two co-workers discovered that he had viewed three sexually explicit photos on a county-owned computer, in the privacy of his office. The majority and concurring opinions demonstrate far greater concern for the majority's sense of good taste than for the constitutional right of privacy. The result in this case reflects more poorly on Smartt's accusers than on Smartt.

* * *

With all the complaining that has gone on in recent years about judicial case loads, I assumed that members of the judiciary had better things to do than repeatedly and illegally sneak into another judge's office, pry into the hard drive of his computer, and when something offensive to others is discovered, spend the resources we have spent investigating him, trying him, publicly humiliating him and his family and taking away the source of his livelihood. It would be different if Smartt was the one who had violated another co-worker's constitutional rights by invading his privacy, as Harris did, but Smartt 1) violated no laws; 2) violated no county policies; 3) did not intentionally impose his bad taste on anyone else; 4) was not found to have neglected his duties; and 5) was not shown to have cost his employer one extra cent because of his personal and private viewing habits. Nevertheless, Smartt has been
reported by Harris to the FBI, investigated by the Department of Justice, sexual harassment charges have been filed against him, he has had to defend himself before the Judicial Standards Commission, and he has now been suspended from his employment without pay. The resources that have been wasted following the inadvertent discovery of one sexually explicit computer screen is more befitting the Salem witch hunts than a busy judiciary with any sense of priorities. (The majority's protestations to the contrary notwithstanding),

Cascade County Commissioner, Tom Stelling, testified that there had been a history of poor relations between Harris and Smartt prior to the events which have led to Smartt's discipline. My impression from a review of the entire record is that because of that poor relationship, Harris embarked on a personal crusade to destroy Smartt after viewing the sexually explicit photos which were so upsetting to him that he printed them, took them home with him, and then snuck back into Smartt's office repeatedly with a digital camera to see what else he could find. Am I missing something or has the wrong justice of the peace been sanctioned? On a scale of disgusting and deplorable conduct, I would have to rank the gross and repeated invasion of Smartt's privacy by his co-worker far worse and, if unpunished, of greater consequence to society and the judiciary than anything that Smartt was actually found to have done. If the public confidence in the judiciary is the Court's concern, it will be interesting to see what discipline is imposed on Harris who is actually responsible for the negative public perception the Court is so concerned about by invading Smartt's right to privacy in violation of the law and then using the fruits of his illegal search to advise the public that a fellow justice spent his private time in a manner that Harris knew would be offensive to large numbers of people.

* * *

However, in this case, Smartt's conduct, until he was investigated and prosecuted, did not cost the taxpayers a cent. After thorough investigation, it was concluded that he had not violated any laws and had not sexually harassed anyone in the workplace. He did not knowingly expose anyone else to offensive material and there has been no evidence presented in this case that how he spent private time in his chambers in anyway compromised his performance of his job. This Opinion strikingly illustrates the blatant hypocrisy in government which is, after all, the greatest cause of public contempt for and distrust of government. Therefore, if the majority's purpose is to restore public confidence, this decision is a misguided effort. Smartt simply viewed material in the privacy of his office which most people consider offensive. For that, his job has been taken away. God protect us from the wrath of the righteous

Justice Trieweiler's words would ring especially true, wouldn't they, if we were to learn that the conduct of the accuser wasn't all that different from the conduct of the accused? If, perhaps, the self-righteous weren't so righteous?

More to come...