Quis custodiet Custodes Ipsos?

 Posted on July 05, 2008 in Uncategorized

This post, "about how Chicago police were noting that the 10% increase in homicide this year compared over last is possibly attributable to the lack of aggressive policing, due to increased police misconduct lawsuits", on Chicago criminal-defense lawyer Rob Deters's 26th St. Bar Association blog, brought to mind this Simple Justice post, about former DOJ lawyer John Yoo's contention that if government officials risk being liable in court for their misdeeds:

... we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

After flushing, without public action, the Harris County Criminal Lawyers Association's complaint against retired judge Woody Denson, the farcical Texas Commission on Judicial Conduct told the Houston Chronicle that "the public's right to know must be balanced with the judges' right not to be tried in a public arena before the agency has a chance to investigate the validity of the allegations made against them."

I once tried to have a friendly talk with one of our Harris County criminal district court (felony) judges about some unconstitutional act or other (they all blend together) that she had reportedly performed. She refused to discuss the matter, telling me, "I don't have to explain myself."

When a public servant like a judge is alleged to have committed public misconduct against a member of the public while acting publicly, he's got no "right not to be tried in a public arena"; When our public servants do wrong, they should be held accountable. Public servants should have to explain themselves. Like anyone else, a public servant should have to consider, before taking any questionable action (or writing any torture memo), whether the action is so far beyond the pale that it might result in liability.

This is not, however, the way things work. Public servants like John Yoo, the Chicago police, and the Harris County judiciary are, in most instances, shielded from lawsuit by sovereign immunity (this makes Yoo's and the CPD's whinges about being sued all the more ludicrous).

The idea that public servants should not be susceptible to public challenge has its roots in sovereign immunity: you can't sue the king because he can (by definition) do no wrong. In America, though, there is no sovereign but the people. The people formed the nation and they make the laws; they choose the servants.

The notion of sovereign immunity is quaint and outdated. The servants should have no expectation that their master will not discipline them for their misdeeds. We, the master, should demand that our servants explain themselves to us, and we should punish them when we learn that they've misbehaved.