It all started a few years ago, in January of 2020. After a migraine-inducing procedural history that involved multiple judges, multiple lawyers, and one hung jury, my client was found not guilty on retrial. The judge did not agree with the jury’s verdict. His displeasure became immediately apparent when he tossed the verdict slip back at his minute clerk. It was intemperate, but things got much worse after the prosecutor and I were called into chambers.
When the judge initially referred to Juror #4 as “Aunt Jemima” and suggested that the prosecutor should have used a peremptory strike on her, I thought there was a chance for a quick apology and clarification. I knew better, but dammit, I want people to succeed.
Then it happened again. And then he suggested that maybe “her baby daddy” is in the business of “slinging dope.” Hearing the judge use this language to describe a juror who did nothing but carry out her duties sickened me. But there was something else that you’ve undoubtedly already inferred. Juror #4 was black. But why didn’t I have to tell you that?
I didn’t have to tell you for the same reasons that the judge resigned prior to his disciplinary trial. It was obvious to anyone remotely familiar with our shared American history. It was ugly. It was undignified. But most importantly, it called into question whether he could perform his duties without racial bias or prejudice.
The rules of ethics aren’t just fun suggestions, and everyone with a lick of sense agrees that there is a dire need to remove as much racial prejudice and bias from the legal system as possible. I’m not writing this to kick a man while he is down, but this context is necessary to explain what worked.
After sharing a sigh of relief with the prosecutor and then leaving the courthouse, I spoke to five criminal defense attorneys. All five came to the same conclusion that I was in the process of confirming. This was a matter that needed to be investigated by the Judicial Conduct Board. Thankfully, I knew that the other person in the room is not a shirker. The prosecutor, Ted Dutkowski, is a good man. I knew he would tell the truth if questioned and I called him that night to inform him of my intention.
So, I filed my complaint the following morning. The prosecutor memorialized his recollection and submitted it to his supervisors. Court Administration and the Judicial Conduct Board investigated the matter. The judge was removed from his duties and eventually the Judicial Conduct Board brought charges against the judge in the Court of Judicial Discipline. The process concluded with the judge’s resignation prior to trial.
My friend Andy once said, “You know Joe is serious when he says something is ‘bonkers.’” Andy is correct. I don’t casually invoke “bonkers.” What happened that afternoon was bonkers. However, the aftermath quickly gave way to the Judicial Conduct Board’s process, and process is delightfully boring. It’s also what sustains the rule of law. We should love it.
Ed. Note: In a post about mob attacks on lawyers, the point was raised about the use of bar discipline to rein in unethical lawyers.
Not only that, but we had high-profile people and moneyed interests launching a campaign to get the state bar disciplinary committees to “do something” about the attorneys on the case, ideally disbarring them. I guess we now consider taking on very unpopular cases, causes, or clients to be an ethical violation?
While discipline can be used as a weapon against enemies rather than the unethical, I replied that part of the problem stems from the reluctance of the bar to police ourselves.
To be fair, bar discipline has been a shoddy substitute at best, and a lot of bad legal actors have either gotten away with it or gotten a slap on the wrist for conduct that should preclude their being entrusted with clients’ lives or fortunes. That doesn’t justify leaving it to the whims of the mob at all, but we could do a whole lot better policing ourselves.
Joe’s post today provides two critical pieces of this “puzzle.” The first is that Joe didn’t just complain about what this racist judge said to his buddies at the Wigle bar, but took the next, more concrete, more serious and, by far, more risky step of filing a complaint against a sitting judge. Lose this and invoke not only the judge’s wrath, but all his friends as well. Judges don’t like snitches anymore than anyone else.
Not only did Joe put his butt on the line, but he was backed up by Ted Dutkowski, the prosecutor, who did the same. No, not all prosecutors are evil racist scum.
But then, how did Mark V. Tranquilli become a judge in the first place? We’re obsessed with implicit bias, but this was explicit, and apparently this was an ongoing thing with this guy. Nobody noticed? Nobody cared? Nobody had the guts to file the complaint. Until Joe did.
And finally, the complaint made was taken seriously, investigated and pursued. On the eve of trial, Tranquilli resigned from the bench.
“It has been an honor to serve the citizens of our Commonwealth for the past seven years as a judge of the Court of Common Pleas of Allegheny County,” Tranquilli wrote.
“My decision to resign is unequivocal, and I will not seek nor will I accept any judicial office or senior judge status in the future.”
This time, the system worked. But it only works when someone like Joe, Ted and disciplinary authorities make it work.