A Nation of Judges, Not of Laws

There is no greater threat to the rule of law in this country than unaccountable trial judges. Although appellate judges and Supreme Court justices (both State and Federal) get more press and more publicity, the simple fact is that they actually hear an infinitesimal number of cases compared to the workload of trial judges, and even when they do, they usually only make one or two decisions per case, whereas trial judges make scores of them. No one knows this fact better than unscrupulous trial judges, who frankly count on the fact that (in some systems) less than one per cent of their decisions will ever be reviewed by any appellate level court. Any trial lawyer will tell you that the cost and delay of appeal essentially make the trial judge God within his own courtroom – but he won’t tell you this out loud for fear that a trial judge somewhere might overhear him.

Take for example the case of Judge Dean Worcester. Judge Worcester apparently believes, contrary to the law, that illegal immigrants who are convicted of crimes should not be deported back to their country of origin. He has therefore, on four separate occasions, used an obscure procedure called the writ of coram vobis to reopen the cases of illegal immigrants who were scheduled for deportation. The only problem is that the writ of coram vobis is only available to correct clerical errors and omissions of fact. Judge Worcester was using the writ to examine whether the illegal immigrants in question were denied their constitutional right to effective assistance of counsel – the allegation in this case being that the defendants’ lawyers had failed to advise them that pleading guilty to a crime would result in their deportation.

The Supreme Court of Virginia unanimously ruled that the procedure employed by Judge Worcester to reopen these cases was improper and that the writ of coram vobis could not be used to relitigate these cases. Unanimously. This is of course supposed to be the end of the inquiry for all lower courts in the state, especially trial courts. Judge Worcester disagrees:

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren’t told that a criminal conviction could lead to their deportation.

Worcester strongly disagreed and reopened his fifth closed case. It was filed by an immigrant who said he wouldn’t have pleaded guilty in 2005 if he had known the conviction would result in his deportation.

In any normal line of work, such blatant disregard for a direct order from a superior would lead to some fairly serious consequences – most likely, immediate termination. In the military, it would lead to an instant Court Martial. What will happen to Judge Worcester? Probably nothing. Although the judicial canons of ethics require judges to follow the law, it is extremely rare for a sitting judge to face discipline under the judicial canons for explicitlyignoring directly controlling precedent. Although Virginia has a method for reviewing and rebuking judges by independent commission, the only practical remedy here is for judicial impeachment, which requires the concurrence of a majority of the Virginia House of Representatives and two-thirds of the Senate. But the fact is that even a judge like Judge Worcester who blatantly and publicly flouts the law knows good and well that it is a very rare case indeed where both chambers of the legislature can be moved to impeach a judge for any reason other than corruption, especially on a politically-charged issue such as immigration.

“Justice” marches on. The real hope out of this case is that it will shed light on the state of judging in this country and the abuses of power trial judges get away with on a daily basis.