Probate Bias

"Justice" for sale "Justice" for sale

We often hear families and victims of probate, divorce or family court actions complain that the system is corrupt or the judge is corrupt or the Guardian is corrupt. These complaints are usually spawned by actions taken against families of victims that make no sense, seem illegal or are based on something other than the facts of the case. The natural reaction to these events is to suspect that corruption is involved.

Corruption is defined as dishonest or fraudulent conduct by those in power, typically involving bribery.

Now, only in rare cases is there actual evidence of officials taking overt monetary bribes. This is not to say that it doesn’t happen, but proving it is extremely difficult. There have been cases in which judges in particular appear to have accepted loans that are paid back by others, leases that are paid for by others, real estate or business deals that include a judge for no apparent reason and the like. These types of egregious behaviors are crimes and it is no secret that judges and others almost never pay for these crimes unless they are exposed in some kind of investigation. But the average litigant in probate has no possibility of performing such an investigation. Law enforcement is, to say the least, reluctant to accuse high-profile judges of any crimes or misdemeanors. The regulatory mechanisms in place over judges are essentially window-dressing and almost never call judges to task for the dicey decisions they make in their courtrooms.

But there is a much subtler form of corruption and bribery that takes place on a regular basis in courtrooms across the country. It has its roots in human psychology and is expressed in the form of judicial bias in favor of the individuals that judges interact with on a regular basis in their chambers. The people who appear on a routine even daily basis in front of the judge, whether purposefully or unintentionally become part of the judge’s world. Many of us have heard an attorney say that a judge likes a particular lawyer or dislikes a particular lawyer or guardian. At first blush this peculiar type of statement makes one wonder why it’s important whether a judge likes or dislikes your lawyer or someone else’s lawyer, but in fact experience tells us that in probate cases in which judges have such unchecked and extreme latitude, judges will typically believe those people whom they view favorably and be biased towards ruling in their favor. This may explain why probate judges seems so eager to declare incapacities, to choose certain guardians, to choose certain court-appointed attorneys, and to adamantly rule against the people that their favorite lawyer friends are referring to as criminals and evildoers and abusers.

There certainly may be situations in which a judge’s bias is influenced by leverage from outside sources like lawyers very familiar with the judge. It may be that the judge has a drinking problem or a sexual problem. It may be that the judge has serious gambling debts or marital issues. The judge or his spouse may have been hiding their secrets to avoid scrutiny from regulating agencies or the public. But those close to the judge might have knowledge of the secrets and overtly or covertly threaten to expose the judge if he rules against them.

But it’s my belief that these cases are the minority. It is much more likely that continuous familiarity with the day-to-day actors in his courtroom leads to social interaction with and bias toward the positions of these actors. That can explain why it’s always the same lawyers defending the same guardians in front of the same judges for years and years. That would explain how abusive guardianships that exploit the assets of vulnerable individuals occur with such regularity. It would explain why a particular “charitable” guardianship company/organization so frequently is associated with exploitation of its hundreds of wards when the judge is affiliated with that religion organization and looks upon it in a biased favorable light while refusing to even hear about charges of its abusive behavior.

Judges have been known to be concerned about the ability of the lawyers who practice in front of them to make an adequate income. After all in Florida alone there are 102,000 attorneys and each judge in Florida has been an attorney. So it is not difficult to understand why judges are sympathetic to their fellow lawyers and their ability to make money. The way lawyers make money is to litigate and that may explain why there is an enormous amount of staged litigation in these courts.

There is also the issue of business as usual. When these judges have been on the bench for many years and are used to doing things a certain way particularly with certain of their lawyer friends and Guardian buddies, that is their norm and that is what they consider proper.

While there are a host of other nonfactual issues that impact judicial behavior, the question for litigants in these courts is whether they are wasting their time in front of the court because no matter what they say, no matter what their case, no matter what the facts, the judge will be inclined to believe those he is most familiar with or most threatened by over anything else. The facts are not as important as the judge’s comfort with the impact to himself of his decisions.

We expect our judges to be unbiased, faithful to the statutes, beyond reproach and meticulously dedicated to truth and justice. But since they are human beings and subject to the same regular pressures as the rest of us, some judges fail to live up to those expectations. Though elected and untouchable. such judges tend not to be stellar jurists and are not promoted to more prestigious court assignments. They tend to be relegated into less visible positions like probate. Enormous amounts of money pass through these courts every day and by virtue of that money judges in probate court, they wield enormous power including the ability to steer much of that money to their friends and cronies. The temptation for a judge to gain some kind of personal advantage over those close to him by ruling in a certain manner must be irresistible. The fact that ruling in this way unnecessarily destroys families and fortunes is assuaged by the power and authority the judge gains over those who might have the same against him.

Bias in the court of any kind is lethal to the American system of justice. Among other factors, it is such bias that creates horrific stories of abuse in guardianship that fill the pages of countless websites and blogs while it fills the pockets of unscrupulous guardians and lawyers who take full advantage of this subtle form of judicial corruption.

Only by holding Judges fully accountable for their actions with meaningful oversight and supervision can we even hope to remove bias from the probate courts and treat victims and their families with integrity.  Without that integrity and the faith of the public in the justice system, that system is illegitimate.