As I predicted at the time, many readers became upset at the spectacle of judges declaring other, clearly unethical judges immune from civil suit as a result of the judicial immunity doctrine. They will be cheered, then, by this unusual decision by the Third Circuit in a decidedly odd case out of New Jersey.

The Third U.S. Circuit Court of Appeals ruled that a civil rights suit could process against Municipal Judge Louis DiLeo of Linden, New Jersey, who was not reappointed to his post after the incident sparking the action. The lower court judge had denied DiLeo’s motions to dismiss on the grounds of absolute judicial immunity  the 3rd Circuit agreed, saying that the plaintiff had made  a plausible claim that DiLeo’s actions “went beyond legal error, such that he was no longer functioning in his judicial capacity,” the appeals court said in the its opinion .

Judge DiLeo tried and convicted Wendell and Anthony Kirkland on charges of theft, possession of burglary tools and marijuana possession all by himself: no prosecutor, no jury, no defense attorney, and did it in less than an hour. A one man justice system!  DiLeo told the defendants on a prior occasion that they had waived their right to a public defender after they earlier said they would retain private counsel. (A criminal defendant has an absolute right to a defense attorney under the 6th Amendment, and it is the judge’s job to protect that right, not find reasons to remove it.)

Judge DiLeo questioned the arresting officer and allowed cross-examination by the defendants themselves. After the officer’s testimony, DiLeo asked the Kirklands if they had evidence, and they said they had witnesses but they were not present. The judge then advised the Kirklands of their Fifth Amendment right against self-incrimination and allowed them to testify. (A competent defense attorney would have a duty to try to explain why they might not want to testify.)  Both did so, and they were cross-examined by the arresting officer….and Judge DiLeo then questioned Anthony Kirkland. At the conclusion of the trial, or as it would be more accurately termed, “trial,” DiLeo found both defendants guilty.

The theory of the defendants, which the lower court and the Third Circuit at least concede is plausible, is that the judge so completely discarded proper trial procedure, the defendants’ rights, due process, fairness, and standards of justice that he wasn’t being a judge at all, so judicial immunity isn’t applicable. I wouldn’t disagree. The problem is that there don’t seem to be any real damages. The conviction was vacated; double jeopardy presumably attaches. In the end, the main value of the decision is to help define the limits of “absolute judicial immunity.”

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Pointer: Instapundit

Sources: ABA Journal