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 Judicial Performance Commission Must Act In Diaz Case

      July 25th, a rich and influential Mississippi lawyer, Paul S. Minor, two former state judges, a state Supreme Court justice and his former wife were indicted by a federal grand jury on federal felony charges.  Without meaning to minimize the significance of the other indictments, I choose to direct my attention to the charges against state Supreme Court Justice Oliver Diaz, Jr., because the position he occupies, even though he is now on a leave of absence with pay, is far and away the most important among those of the five principals.  Nine persons have final word on all state legal proceedings in Mississippi; Diaz is one of them.  That is great power for anyone to have; one among nine with ultimate authority. The grand jury has charged, among other things, that Minor guaranteed a loan for approximately $75,000 and provided checks and money to Diaz in order to influence the judge in his official, public duties, thus depriving Mississippi's citizens of the "right to the honest services of OLIVER DIAZ, JR., performed free from deceit, bias, self-dealing and concealment."  Diaz is further charged with (1) using "his position as judge to take official actions and use his official authority and position to provide MINOR with an unfair advantage over litigants opposed to MINOR or his clients"; (2) covering up and concealing the scheme and its objectives; and (3) "failing to disclose his financial relationship with PAUL S. MINOR on reports required under the laws of . Mississippi and from counsel and parties opposite MINOR in cases pending before OLIVER E. DIAZ, JR."  The indictment specifically charges that "OLIVER E. DIAZ, JR., received cash and checks from PAUL S. MINOR intending to be influenced and rewarded in connection with Mississippi Supreme Court cases of interest to MINOR."

      Whether any of the five persons indicted will ultimately be convicted of a crime can only be a matter of speculation at this time.  We take pride in saying that under our American system of justice a person is "innocent until proven guilty."  That is not exactly correct; a person isn't guilty as a matter of law until proven guilty.  Innocent in a factual sense is not the same as not guilty in the legal sense.  Just as innocent people can be convicted of crimes, so can guilty people be acquitted of crimes. 

      Fortunately for the people of Mississippi, the U.S. District Court is not the only forum for an official consideration of Diaz's conduct.  The other forum for evaluating the charges against him is the Mississippi Commission on Judicial Performance, which consists of seven members, including four judges, one practicing lawyer, and two lay persons.    Among the duties and responsibilities of the Commission are the receipt, investigation and processing of allegations of judicial misconduct.  Either upon receipt of proper information regarding a judge's conduct or on its own motion, the Commission may conduct an inquiry and file a formal complaint.

      In other words, the Commission does not need an outside complaint in order to conduct an official investigation concerning a judge's conduct; it may initiate its own proceedings.  Furthermore, the official actions of the Commission are in no way dependent upon or related to any pending court proceedings or the results of any such proceedings unless the Judge has been actually convicted of a felony.  The Commission may recommend to the Supreme Court, among other things, the removal from office of any Justice or Judge of this state for one or more of several reasons, among which is "conduct prejudicial to the administration of justice which brings the judicial office into disrepute."   It is important to note that a judge can be found not guilty as a matter of law and still be removed from office for unethical judicial conduct.  In fact, he need not even be charged with or prosecuted for a crime in order to be removed from office.  Pursuant to our Code of Judicial Conduct, a judge is required to observe those high standards which preserve the integrity and independence of the judiciary, even in the absence of civil liability or criminal prosecution.  To fail to do so may not be a crime, but it can be the basis for removal from the bench.

      We've become so hardened and so cynical about politics and elections that we fail to give serious attention to them.  Who really takes campaign promises seriously?  We think the candidates don't, so why should we?  So if once again we elect the wrong alderman or supervisor or mayor, so what?  That's just business as usual.  But judges!  That's a far more serious matter.  There is no more important state public office than a judgeship, and no more important judgeships than those of the Supreme Court.  Only a lawyer can fully understand the good a good judge can do and the harm a bad judge can do.  Both results are impressive.  By good I mean fair and impartial justice in accordance with law.  By harm I mean the exact opposite.  According to Daniel Webster, justice is "the great interest of man on earth.  It is the ligament which holds civilized beings and civilized nations together."

      Quite often, our state judges hold office because of political connections and campaign contributions and not because they are honorable, learned, experienced and impartial.  Almost everyone knows that getting elected to public office is about MONEY, of, for and by the dollars.  And how many people do you think are willing to contribute money strictly for the cause of good, clean, effective government?  Fewer still are willing to pay for impartial justice.  Even many lawyers vote their own selfish financial interests or those of their clients.  The question becomes "Who will do the most for me?" and not who will do the most for the cause of impartial justice.  How likely is it, Judge, that I will give you money to rule against me if I'm wrong?  Raw politics and raw money make for raw and unqualified judges.  And those are essentially the charges against Justice Diaz.  We may be unclear about what we want in a judge, but rest assured that the boys who put up the money knew what they want.  The only question is "Do they get it?" 

      There are long term solutions to the question of how judges should be selected, but that subject needs to be considered separate and apart from either Justice Diaz's criminal indictment or his possible removal from office.               

      Regardless of what the federal jury ultimately decides about the charges against Justice Diaz, the more important question is what the Mississippi Commission on Judicial Performance decides.  If Diaz did the things he's charged with, whether or not he's convicted of criminal conduct is not as important as his being removed from office. That's the critical value of the other forum, the Commission on Judicial Performance.   It is not and cannot be left to juries to determine the fitness of persons to serve as independent, fair and competent judges.

Ben C Toledano
Pass Christian