J.L. Edmondson

c/o Thomas K. Kahn, Clerk

U.S. Court of Appeals for the 11th Circuit

56 Forsyth St. N.W.

Atlanta, Georgia 30303

  RE: Reconsideration & Response to Order to Show Cause & Request for Investigation, Complaint Nos. 01-0054, 02.0052, 05-0008, 05-0011, 05-0012, 05-0013, 05-0020, 05-0021

 

Judge Edmondson:

In your “Order to Show Cause” of May 2, 2005, you stated:

Of the eight complaints not specifically naming Judge Graham as the complained--of judge, five name judges of this Court who served on panels reviewing Mr. Mason's appeals -- panels that affirmed decisions and rulings by Judge Graham.

The truth and material facts that you have omitted either inadvertently or otherwise is that your colleagues at the Eleventh Circuit have had multiple opportunities to test allegations of misconduct, abuse, mismanagement for veracity, but have declined to so:

The appellate review system is dependent upon the diligence and integrity of the individual judges, without which, as in this matter, meaningful appellate review is an illusion.  Some could argue that the system has been mocked by the very people charged with maintaining its integrity.  The fact that your colleagues ignore an allegation of misconduct on appeal does not support the idea that the judge has not committed these acts.  In fact, the contrary is true, applying Rule 8, Fed.R.Civ.P. “An allegation…is admitted if a responsive pleading is required and the allegation is not denied.’ It is not my fault because you and your colleagues ignore inconvenient truths simply because you disagree with reality.  This is the very reason, I have chosen to derisively refer to Judge Graham as “Teflon Don” because he like John Gotti, the mafia boss, managed to escape the consequences of his bad behavior. 

A fact that I have found to be true is that when judges think they are correct they can be quite verbose in their opinions.  For example, in your ORDER TO SHOW CAUSE of May 2, 2005 you use three whole pages to support your position, the facts of which I dispute.  In complaint No. 05-0008, you stated:

In this complaint, the single (unsupported) allegation that has not already been determined in previous complaints filed by Mr. Mason against Judge Graham is that Judge Graham intentionally falsified his March 31, 2001, …

This statement certainly suggests that you have failed to consider the pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards to be punishable under the Judicial Misconduct and Disability Act.  On January 8, 2008, the Committee On Judicial Conduct And Disability disagrees with your standards:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement.  The fact these matters have been presented before is not an impediment to a “new investigation” as the Judicial Conference has expressly rejected this notion and stated that:  “there cannot be public confidence in a  self-regulatory misconduct procedure that, after the discovery of new evidence or a failure to investigate properly or completely serious allegations of misconduct, allows misconduct to go unremedied in the name of preserving the “finality” of an earlier, perhaps misfired, proceeding.’

Legal Standards of Misconduct

Judicial Misconduct has been defined by U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit (citing Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini, President and Dean, South Texas College of Law, Judicial Conduct and Ethics, § 2.07, at 50 (3d ed. 2000)) , in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.  See http://mmason.freeshell.org/372c/0389037.pdf.

"[A] judge is guilty of "oppression in office" when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority."  State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.  

"Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct."  In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989); http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

"Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful.  See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

Specific Allegations of Misconduct that have been previously raised. 

In your investigation, in the unlikely event that you cannot find proof of an allegation, I would appreciate it if you would notify me and ask for factual support of allegation.  It is difficult to imagine how a fair investigation that does not have a pre-determined outcome would not do such a thing. 

One of my objectives in pursuing this matter is to define what is judicial misconduct under the Act.  This can be of benefit to other complainants and to other judges who must live under the Act. In pursuit of these goals, it would be quite helpful if you list each allegation separately and state whether they are true or not.  Another goal of mine is to prove with documentation that judges cannot be trusted to discipline other judges.  Miscreant behavior must have consequences!

Sincerely,

 

Marcellus Mason