Judge refuses to continue trial so defendant can visit his dying son

Defendant Garth Kloehn was on trial for tax evasion when he received the news from doctors that his son was dying and only had a few days to live.

Mr. Kloehn asked for a 2-day continuance of trial, and the judge denied it, stating that the trial had already been delayed for more than a month because of his ill son, and that he would not stop it again.  Mr. Kloehn finished his testimony and went immediately to see his son, who died an hour after he arrived (full story here).

The federal appeals court overturned the ruling and granted him a new trial, but Mr. Kloehn has obviously forever lost the last days he could have had with his son.

Most commenters on the San Francisco Chronicle article (linked above) were appalled by the trial court judge. Some less sensitive commenters said Mr. Kloehn deserved this because he was a criminal (ignoring the fact that forbidding him from seeing his dying son also unfairly punishes the innocent son) but the majority of commenters were reasonably infuriated or disturbed.

One commenter said, “That judge deserves to be sued or dis-barred. ”

Another even angrier commenter said, “The judge who refused to close shop so that a father could visit his dying son should be horse whipped. And not allowed to do more judging.”

These comments certainly demonstrate a sense of justice people feel about judges who abuse their power. Unfortunately, this sense of justice is not reflected by our justice system (ironically).

Judges have absolute civil immunity. They can’t be sued for anything they do in their capacity of a judge, in matters over which they have jurisdiction.

Meaning, if a judge ordered you to be secretly sterilized against your will and against your knowledge by colluding with your parents, you could not sue him years later when you found out you were sterile due to his overreaching decree over your reproductive system (real case, Stump v. Sparkman).

Meaning, a judge can explicitly order a cop to use excessive force to drag an attorney to the courtroom, and the judge will be immune from civil suit for battery (real case, Mireles v. Waco).

Martinez v. Winner held that a judge who plots strategy with a prosecutor during a trial is immune from civil suit.  Not only are judges immune, other ill-intentioned officials can “piggyback” off of their immunity as well.  Martin v. Hendren held that a cop who was ordered by a judge to use excessive force in removing a person from a court is effectively cloaked by the the judge’s absolute immunity.

Of course this all seems dreadfully unfair, but it’s really not surprising, given the way the justice system is set up. Is it really a shocker that the Supreme Court, composed of 9 judges, held that judges should get a lot of leeway in doing their job? Is it really a surprise that judges, who are the final word on these decisions, decide that they shouldn’t be sued?

No, of course not. The people who constitute the legal system are all terribly flawed human beings like the rest of us. It really is no shocker that they repeatedly uphold immunities for themselves.

The Court stated explicitly, in Stump v. Sparkman,

As early as 1872, the Court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, supra, at 347.

The language cannot be clearer, especially if you remove all the useless words and clauses in between employed to soften the blow of the words, and to confuse and muddle the truth. A judicial officer…should be free to act…without apprehension of personal consequence to himself. The system simply does not require that judges be held personally responsible, no matter how reprehensible the act.

The glaring implication is that the rest of us lowly peons are lesser human beings.  While we all certainly have to act with “apprehension of personal consequence,” these elites, who consistently interpret the law in their favor, are exempt from personal responsibility.

A Target employee will not only likely be fired, but will very likely be sued if he assaults a customer in the course of his employment. A bank employee who defrauds a customer will similarly be fired and sued for his fraud. A teacher who molests a student will go to jail and can be sued.

But judges who wrongly ordered police to assault and humiliate a defendant, and to covertly sterilize a young girl, face absolutely no personal recourse. This is the nature of government. It protects its own, while masquerading as a protector of the people. Judges shamelessly manipulate language of why immunities are important and are to the public’s benefit, declaring glibly that such immunities serve justice or are  “based on the policy of protecting the judicial process” (Justice White, explaining in Imbler v. Pachtman, why absolute immunity of prosecutors is necessary).

Judges have also held that their buddies, the prosecutors, are absolutely immune from civil suit from using fabricated evidence.  So if you go to jail for life because a prosecutor intentionally used false evidence against you, tough luck.

No matter how the system tries to paint immunity as a service to the public, at the end of the day, it is difficult to see how the victims of forced sterilization, battery by police, and wrongful imprisonment, who are all members of the public, were better served by judicial or prosecutorial immunity.  In fact, it is quite clear that the only people who benefited were members of the sacred government, who were allowed to act as they pleased without punishment.

Of course, it’s not just judges, police and prosecutors. Public school administrators who force a 13 year old girl to strip down, almost naked, based on an unsupported accusation of harboring ibuprofen, are also immune from suit.

When you strip away the label of government, “for the public good” and unsupported claims of “protecting the judicial process,” what remains is unmistakable: a group of unaccountable people the system has decided does not need to take personal responsibility for their actions like everybody else.


Georgia Sand

Georgia (George) Sand is an attorney located in sunny California. She enjoys beer, jogging, the beach, music, and chatting with her cats in her spare time.