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R.I. judges accused of 'punishing critics'

Judges Seat08:33 AM EDT on Wednesday, June 30, 2004   BY TRACY BRETON  Journal Staff Writer.  Read the full text of the "Culture of Quiescence" by Carl T. Bogus, professor of law at Roger Williams University School of Law. A Roger Williams University law school professor has written an article harshly critical of Rhode Island judges and lawyers, prompting the university's top administrators, in an extraordinary move, to write letters trying to distance themselves from the piece. The article by Prof. Carl T. Bogus, published June 22 in the university's Law Review, paints an unflattering portrait of the legal culture in Rhode Island.

He asserts that many Rhode Island judges are thin-skinned, overreact to criticism and sometimes overuse their power by punishing lawyers who dare to rock the boat. He also asserts that Rhode Island lawyers kiss up to judges to curry favor and avoid their wrath.  Bogus, a tenured professor at the Ralph R. Papitto School of Law at Roger Williams University, in Bristol, has studied the Rhode Island legal system for the last eight years. He says the "culture of quiescence" that exists on both the federal and state levels in Rhode Island stands in marked contrast to the culture of hard-ball advocacy that exists in many other jurisdictions -- and operates to the detriment of those whose cases are decided here in the U.S. District and state court system.  The Rhode Island Bar Association president calls Bogus' comments inaccurate and irresponsible. The chairman of the board of trustees at Roger Williams and the university's president say in letters mailed to the bench and bar that faculty members should be allowed to express their viewpoints, but they don't share those opinions.

In the law review article, Bogus rails against federal judges Ronald R. Lagueux, Mary M. Lisi, U.S. Magistrate Judge Jacob Hagopian, retired U.S. District Chief Judge Francis Boyle and Rhode Island Supreme Court Chief Justice Frank Williams.  These judges, he asserts, seem to have "an unhealthy engrossment with punishing critics" and have engaged in "judicial retribution for criticism." None of the individual judges "is a bad judge," he says. And Bogus does not suggest -- as Harvard Law School Prof. Alan M. Dershowitz did in his book, Reversal of Fortune, nearly 20 years ago -- that the Rhode Island system of justice is clubby and corrupt, dominated by an old-boy network of backroom dealers.

But in his 46-page article, Bogus agrees with Dershowitz's assessment that ethical lawyers in Rhode Island are afraid to level criticism for fear of retribution from the judiciary. And he asserts that Rhode Island's system of justice has suffered because there are too many judges who have a mentality that "equates disagreement with confrontation, institutional criticism with ad hominem attack, and anything that even smacks of personal criticism with contemptuousness."   "There's a taboo against criticism" in Rhode Island courts, Bogus writes, and "this is an institutional problem" that permeates the way that lawyers and judges interact every day in the nation's smallest state, he asserts. As a result, he says, "I fear that Rhode Island lawyers practice law within a culture that chills their advocacy all of the time."  Bogus, who tried cases for 18 years in the Philadelphia courts before leaving for academia, says he wrote his article -- published in the 10th anniversary issue of the law review -- "to try to improve the Rhode Island legal system by calling attention to a serious flaw, namely, its strongly enforced taboo against criticism.

"I don't believe a taboo of this kind can be acknowledged and survive," says Bogus, who taught at Rutgers (N.J.) University School of Law before coming to Roger Williams in 1996. "It may be a lot to ask, for this taboo is strongly entrenched, but if Rhode Island lawyers and judges can openly discuss whether this taboo exists, that process itself will weaken the taboo and strength justice in Rhode Island."  ASKED FOR COMMENT last week, Ernest C. Torres, the chief judge of the U.S. District Court in Rhode Island -- where Bogus has leveled most of his criticism -- said he'd been given a copy of the Bogus article, but with the press of court business, he does not have the time to read it.  None of the federal judges that Bogus criticized cared to comment either.

Chief Justice Williams issued a statement saying that ''members of the Roger Williams law school community, members of the bench and bar, the General Assembly, members of the executive branch as well as the citizens we serve know that this administration has been completely open to suggestions and constructive criticism. Our judiciary has benefited from such openness. My commitment to accessibility to justice has been, in part, manifested by this openness."  John Roney, president of the Rhode Island Bar Association, said in an interview yesterday that Bogus' treatise was poorly researched, irresponsible, inaccurate and "light."   "He just doesn't make his case," said Roney. "We need a law school in Rhode Island because, as Carl Bogus points out, law professors and students have a unique vantage point, and they don't have the same interests as practicing lawyers and judges do. But this type of criticism doesn't strike me as being responsible or helpful. It reads like an inflated op-ed piece with footnotes," said Roney, "and I don't think he makes his case either against the lawyers or the judges. . . He sees conspiracies and ignores plausible explanations for the same events."

"Do we have thin-skinned judges in Rhode Island? Of course we do," said Roney, "just like every other place. But the judges don't use their power to silence critics." And, he said, "He's missed examples where the organized bar has spoken out" against judges.  In one of the half-dozen cases that Bogus writes about in his article -- the Leisa Young civil-rights case where three lawyers were found by Judge Lisi to have violated a court rule by making false statements in a filing -- "we filed amicus briefs in support of the lawyers," Roney said. "And 20 years ago, we filed an amicus brief challenging some practices of the federal court here."  "We're a small bar. We're a civil bar," says Roney. "But I think Bogus mistakes civility for docility."
The top brass at Roger Williams University are taking pains to smooth the waters.   Ralph R. Papitto, chairman of the board -- and the person for whom the university's law school is named -- says in a letter sent last week to the bench and bar that "while individual faculty members, including those who write articles for the law review, are entitled to their perspectives, those views do not reflect the opinions of the administration or Board of Trustees of Roger Williams University." In the same letter, he lauds Williams, former Chief Justice Joseph R. Weisberger and the late Supreme Court Justice Victoria S. Lederberg for their contributions to the growth of the law school. 

Roy J. Nirschel, president of Roger Williams, also issued a similar "disclaimer."  "There are those who, at times, use a university or one of its outlets and good offices to advance a partisan or ideological agenda. As citizens they have that right to expression. But it should also be made abundantly clear that those who use the university as a forum are doing so as individual authors and advocates and do not reflect the views of the university, its administration or board of trustees. . ." Nerschel also notes that at the law school's recent commencement, Providence lawyer and trustee John Tarantino said that while some celebrity lawyers talk about how they stand up to judges, "creating a stronger and more responsive legal system also means 'standing up for judges.' " In a preface to the law review, David A. Logan, the dean of the law school, lauds academic freedom and notes that the law school was founded in part "because of the need to 'improve the quality of justice in our courts.' " Publication of the current edition, says Logan, "contains convincing evidence that there is now an independent academic voice for law reform that has its roots in Rhode Island and its sights in the nation and, indeed, the world," Logan says.  But, he also takes pain to note that the law school's students "control every aspect of the law review, including article selection and publication," and that "to publish a piece is not to endorse its content or conclusions."

MOST OF THE incidents that Bogus refers to in his article have already been widely reported in the media -- and deal in large part with a handful of out-of-state lawyers who have run into trouble with federal judges in Rhode Island, dating back to Dershowitz's legal fight with Lagueux over the accusations he made about the Rhode Island legal system. But there's also something new: correspondence between Williams and Bogus regarding the separation-of-powers issue that has been a hot potato.  In an op-ed piece published in The Providence Journal last year, Bogus's comment that there was "an unholy alliance between the legislature and the judiciary to preserve their own status and diminish the executive's . . ." sparked a sharp rebuke from Williams.  In a reply to Bogus, Williams wrote that his comments "suggesting sinister intent lack civility and contribute to needless distrust and cynicism among citizens of our judiciary. . ."  According to Bogus, Williams sent copies of his letter rebuking him to all his colleagues on the court and to the then-dean of the Roger Williams law school, Bruce Kogan.  Bogus then wrote back to the chief justice, defending his positions. "You may well disagree," Bogus wrote. "But with all due respect, is it appropriate for the chief justice of the state's supreme court to write a letter excoriating a citizen who criticizes the court and send a copy of that letter to the citizen's employer -- as you have done in sending a copy of that letter to Dean Kogan? What would be the purpose of doing that beyond attempting to intimidate or punish that citizen?"

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