Judges: Faithful and Impartial….?

Every federal judge takes the following oath of office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

Consistent with this oath, judges have issued 69 decisions, as of mid-2020, in favor of accused students in which a biased, “victim-centered” investigation was an important cause of action. These are examples of some of their opinions:

    • Judge Brenda K. Sannes: The university trained its investigators that “inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma….Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful.” — Doe v. Syracuse University
    • Judge F. Dennis Saylor: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts.” — John Doe v. Brandeis
    • Judge T.S. Ellis: “The undisputed record facts reflect that, as of the time plaintiff was allowed to present his defense before [university investigator] Ericson, Ericson admits that he had ‘prejudged the case and decided to find [plaintiff] responsible’ for sexual assault.” — John Doe v. George Mason University
    • Judge John Padova: The university’s training document “warns against victim blaming; advises of the potential for profound, long-lasting, psychological injury to victims; explains that major trauma to victims may result in fragmented recall, which may result in victims ‘recount[ing] a sexual assault somewhat differently from one retelling to the next’; warns that a victim’s ‘flat affect [at a hearing] does not, by itself, show that no assault occurred’; and cites studies suggesting that false accusations of rape are not common….In light of these same allegations, we also conclude that the Complaint plausibly alleges that the investigators were not ‘appropriately trained as investigators in handling sexual violence cases.’” — Doe v. University of Pennsylvania
    • Judge William Smith: Investigator “Perkins’ assessment that there was insufficient evidence to support Doe’s fabrication claim was particularly problematic given that she had refused to ask for evidence that might have proven it so and been exculpatory to Doe.” — Doe v. Brown University
    • Judge Daniel P. Jordan: “Taken as a whole, the Court concludes that Doe has stated a plausible claim. This is a consent-based case in which the victim did not appear before the hearing panel, yet there seems to have been an assumption under [Title IX Coordinator] Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered.” — Doe v. University of Mississippi

Unfortunately, several judicial organizations have gone in the opposite direction by their endorsement of “victim-centered” and “trauma-informed” concepts:

National Council of Juvenile and Family Court Judges

The NCJFCJ is an educational, research, and policy organization. Its membership consists of 1,815 judges, judicial officers, social workers, and others. The NCJFCJ has a web page devoted to “Trauma-Informed Courts.”  The page contains six major flaws:

    1. Does not define or explain the meaning of “trauma-informed.” This omission is problematic because the interpretation of “trauma-informed” has evolved significantly over the past decade.
    2. Asserts, “The NCJFCJ’s work with courts is informed by a focus on trauma using a universal precautions approach that assumes children and families involved in the court system have experienced some form of trauma that may be mitigated through court-based interventions.” [emphasis added]. In a child abuse or domestic violence case, this statement could serve to remove the presumption of innocence for the accused and impair judicial impartiality.
    3. States that “Our Policy” is, “All judges should appropriately engage families, professionals, organizations, and communities to support effectively child safety, permanency, well-being, victim safety, offender accountability, healthy family functioning, and community protection.” But a review of the NCJFCJ website does not reveal any officially approved “policy” to this effect.
    4. Makes vague and unsupported assertions, for example, “Courts often lack a complete understanding of the effects of trauma on the populations before them and may not have the capacity to modify environments, policies, and practices to keep from compounding the trauma experienced.”
    5. Offers a statement that is confusing and grammatically incoherent: “Trauma assessment tools currently provide observationally and survey analysis of the current environment…”
    6. Make a claim for the findings of a 2009 study, but does not provide the citation or link.

National Center for State Courts

The NCSC offers an array of “trauma-informed” programs.  Here’s a sample:

Association of Family and Conciliation Courts

The AFCC offers an extensive array of “trauma-informed” programs.  Indeed, they devoted an entire annual conference to it:

Defense lawyers making discovery requests should consider asking if judges have received “trauma-informed” or “victim-centered” training in order to assess the potential for actual bias and/or the need for recusal.