DO COAST GUARD JUDGES HAVE JUDICIAL IDEPENDENCE?
ARE COAST GUARD JUDGES NOT FREE TO DECIDE CASES ON THE MERITS?
The chairman of the House subcommittee responsible for oversight of the U.S. Coast Guard intends to convene a special hearing to explore allegations that the Coast Guard's administrative law system is biased against merchant seamen. It has been alleged that Coast Guard judges are forced to rule in favor of the Coast Guard.
Wow! Can you imagine that? The Coast Guard wouldn’t do anything like that, would they? Not the Coast Guard! One would have thought that the Coast Guard wins 98 percent of its cases because its prosecutors are good, and the merchant seamen are so guilty, and the cases brought by the Coast Guard are so airtight. Who would have thought that the Coast Guard would stoop to fix the merchant seamen cases? We thought that they only did that in Court-martials against Coast Guard Academy cadets.
So far, we have only heard allegations that the Coast Guard’s military justice was biased against cadets. The Webster Smith court-martial and the Civil Rights Complaint are both still under appeal; so, we do not know yet whether there is any justice in the Coast Guard’s military justice system. The equivalents of smoking gun evidence and latent DNA evidence have been presented to the Coast Guard appellate court and the Civil Rights officers, but to no avail. The Coast Guard has simply asked for more and more time to try to twist the facts to fit the Official preconceived version of the events.
Things might be different this time. We have inside information. A Coast Guard Administrative Law Judge has given irrefutable evidence of wrongdoing.
However, on the other hand, it would not be very difficult to achieve a conviction rate of 98 percent, or charges found proved rate of 98 percent, if 95 percent of all of your cases were plea bargained. That is exactly what we did in New York when I was the Chief of the Marine Investigation Department at Marine Inspection Office (MIO), Battery Park, New York.
From 1982 to 1986 I was a Coast Guard Law Specialist on a rotational tour out of specialty, as the Senior Investigating Officer (IO), with 10 junior officers as IOs on my staff. The IOs would investigate incidents of alleged misconduct by merchant seamen, and I would review the incident reports. If I thought there was adequate probable cause, I would draft charges against the merchant seaman.
The charges were drafted multiplicious. A single incident would give rise to 10 or more charges and specifications. Before a Hearing in front of the Administrative Law Judge, we would meet with the accused and/or his attorney representative. A merchant seaman facing 10 or more specifications would usually be more than willing to plead guilty to a single specification in order to make all of the other specifications go away. That is what usually happened 9 times out of 10.
With or without attorneys, the seamen were happy to cop a plea in exchange for leniency. The attorneys were veterans. They knew what was happening. They were fully complicit in what was happening.
We had neither the time nor the resources to try all of those cases on the merits in a full blown adversarial hearing.
Moreover, the IOs who prosecuted the cases were not lawyers. They were junior grade officers. None of them had been within a mile of a law school. In an adversarial system, both sides should be equally matched. Or, they should be as close to equally matched as possible. The IOs, with no formal legal training at all, were going up against some of the finest admiralty and trial defense attorneys in New York, that is to say in the entire world. They were out-matched and sometimes out-gunned. In order to hold their own, sometimes they may have needed some coaching, or a lucky break. At the most, some of the judges may have attempted to balance the equities.
The only law or legal procedure that they knew was what I had taught them in a week or two of intense indoctrination. They were good and they were courageous. After having been briefed on the charge or charges, and given the correct legal terminology they faced Judges Frances X J Coughlin and Judge Albert Frevola at the World Trade Center (WTC) court room. They won their cases with a guilty plea and a little help from the judges.
The judges were both retired Coast Guard officers. Judge Albert Frevola retired as a captain after 25 years of active duty and went to work as a Coast Guard judge. He worked as a judge for 30 years and died on the job at his desk in the WTC one Friday afternoon.
Rep. Elijah E. Cummings, D-Md., said he also plans to look into allegations that the system is stacked against merchant mariners, and he plans to speak with Coast Guard Commandant Thad W. Allen. Cummings wants to take immediate action to protect the rights of defendants whose cases are now before the Coast Guard's courts.
Rep. Cummings is chairman of the Subcommittee on Coast Guard and Maritime Transportation. He said “Even the appearance of injustice or impropriety cannot be tolerated.”
The Coast Guard’s administrative court system handles hundreds of cases each year brought by the Coast Guard against civilian mariners accused of negligence, misconduct or other infractions. Its judges have the authority to suspend or revoke the credentials mariners need to work.
A former Coast Guard Administrative Law Judge Jeffie J. Massey, who left the Coast Guard service in March and 10 days later gave a sworn statement detailing her experience, said she was told by Chief Judge Joseph N. Ingolia that she was not a judge but rather a tool for the Coast Guard to achieve rulings it wants.
“I was specifically told (by Ingolia) that I should always rule for the Coast Guard,” she said in the statement.
According to Judge Massey, Chief Judge Ingolia told other judges how to rule in cases and dictated policy through private memos that were never shared with defendants or their lawyers, a practice that could violate federal laws requiring agency judicial procedures to be published and subject to challenge. And staff attorneys for the chief judge and the Commandant's office discussed cases with Coast Guard investigators, possibly violating the mariners' rights to an impartial hearing. Judge Massey’s accusations have been verified in court records, and internal memos obtained by an independent source.
Judge Massey appeared to have more empathy for the accused than for the victims. She probably was an ACLU kind of judge. She would be satisfied that an accused got off on a technicality and more people died, than for the accused to lose his license for a few months and more people avoid injury or death. Judge Massey’s perspective was different from that of judges and lawyers more familiar with the mission of the US Coast Guard.
In these type of cases the benefit of the doubt must go to the prosecution rather than to the accused, since it is the negligence of the accused that is the basis of the enforcement action.
Resume of ALJ Jeffie Janette Massey
The Federal Energy Regulatory Commission Chairman, Pat Wood, III appointed Jeffie Janette Massey as an Administrative Law Judge for the Commission on 1 Oct 2001.
Judge Massey had previously served as a judge with the Social Security Administration in San Antonio, Texas. Before that, she was a public defender with the Public Defender's Office of Colorado County in Columbus, Texas, where she represented defendants in the County and District Courts. She also represented juvenile offenders charged with delinquent conduct. Before that Judge Massey was in private practice in Columbus, Texas where she litigated criminal and civil proceedings at the state and federal levels. She also served as Assistant Criminal District Attorney in Canton, Texas. Before that, she held several positions with the U.S. Department Of Energy's Economic Regulatory Administration in Dallas, Texas, including Supervisory Attorney, Deputy Chief Counsel, and Senior Attorney Advisor. Judge Massey received her J.D. and B.A. degrees from Southern Methodist University in Dallas, Texas. She is a 1977 graduate of Southern Methodist University with a Juris Doctorate in Law. A member of the Texas BAR Association. She retired in 2007.
Out of more than 6,300 charges brought over the last eight years, mariners prevailed in just 14, according to the agency's records. When dismissals are included, records show the Coast Guard wins or reaches a settlement in more than 97 percent of its cases.
“I practiced law for 20 years and I can't imagine some of this stuff happening,” said Representative Cummings. “I mean, you don't have investigators and judges' staff talking to each other — not if what you're looking for is fairness.
“If these things that are being said are accurate, then anyone in the mariner's position would be hard-pressed to believe that they're going to have their case heard in a fair and impartial manner. And we need to address that.”
Committee Chairman Cummings said he hopes to have Judge Massey testify before members of Congress, and Judge Massey said she would agree to do so if asked.
“I am willing to tell the truth about what happened at the Coast Guard with anyone who will listen,” said Massey, reached at her home in Texas. “What they are doing is wrong and people need to know about it.”Representative Cummings said he and U.S. Rep. James L. Oberstar, D-Minn., will decide in the next few days whether to convene a hearing before the Coast Guard subcommittee or the full House Transportation Committee, which Oberstar chairs. He said he hopes to hold the hearing soon after Congress returns from its July 4th recess.
Coast Guard officials have declined to discuss the issue, but the boating safety regulations save lives. These regulations are literally written in blood. Every section of the regulations probably represents someone who has died as the result of someone committing an act prohibited by the regulations. Enforcing these regulations is beneficial to society. It saves lives. Those charged with enforcing the regulations have more empathy for the boating public, and innocent victims than for the accused.
The Coast Guard is charged with enforcement of the nation’s federal boating safety regulations and making sure that licensed merchant mariners are competent to operate safely at sea. It can suspend or revoke mariner licenses. Mariners have the right to be represented and to respond to charges before an administrative law judge. They can appeal an adverse ruling to the Commandant, US Coast Guard and to the National Transportation Safety Board (NTSB).
The chairman of the House subcommittee responsible for oversight of the U.S. Coast Guard intends to convene a special hearing to explore allegations that the Coast Guard's administrative law system is biased against merchant seamen. It has been alleged that Coast Guard judges are forced to rule in favor of the Coast Guard.
Wow! Can you imagine that? The Coast Guard wouldn’t do anything like that, would they? Not the Coast Guard! One would have thought that the Coast Guard wins 98 percent of its cases because its prosecutors are good, and the merchant seamen are so guilty, and the cases brought by the Coast Guard are so airtight. Who would have thought that the Coast Guard would stoop to fix the merchant seamen cases? We thought that they only did that in Court-martials against Coast Guard Academy cadets.
So far, we have only heard allegations that the Coast Guard’s military justice was biased against cadets. The Webster Smith court-martial and the Civil Rights Complaint are both still under appeal; so, we do not know yet whether there is any justice in the Coast Guard’s military justice system. The equivalents of smoking gun evidence and latent DNA evidence have been presented to the Coast Guard appellate court and the Civil Rights officers, but to no avail. The Coast Guard has simply asked for more and more time to try to twist the facts to fit the Official preconceived version of the events.
Things might be different this time. We have inside information. A Coast Guard Administrative Law Judge has given irrefutable evidence of wrongdoing.
However, on the other hand, it would not be very difficult to achieve a conviction rate of 98 percent, or charges found proved rate of 98 percent, if 95 percent of all of your cases were plea bargained. That is exactly what we did in New York when I was the Chief of the Marine Investigation Department at Marine Inspection Office (MIO), Battery Park, New York.
From 1982 to 1986 I was a Coast Guard Law Specialist on a rotational tour out of specialty, as the Senior Investigating Officer (IO), with 10 junior officers as IOs on my staff. The IOs would investigate incidents of alleged misconduct by merchant seamen, and I would review the incident reports. If I thought there was adequate probable cause, I would draft charges against the merchant seaman.
The charges were drafted multiplicious. A single incident would give rise to 10 or more charges and specifications. Before a Hearing in front of the Administrative Law Judge, we would meet with the accused and/or his attorney representative. A merchant seaman facing 10 or more specifications would usually be more than willing to plead guilty to a single specification in order to make all of the other specifications go away. That is what usually happened 9 times out of 10.
With or without attorneys, the seamen were happy to cop a plea in exchange for leniency. The attorneys were veterans. They knew what was happening. They were fully complicit in what was happening.
We had neither the time nor the resources to try all of those cases on the merits in a full blown adversarial hearing.
Moreover, the IOs who prosecuted the cases were not lawyers. They were junior grade officers. None of them had been within a mile of a law school. In an adversarial system, both sides should be equally matched. Or, they should be as close to equally matched as possible. The IOs, with no formal legal training at all, were going up against some of the finest admiralty and trial defense attorneys in New York, that is to say in the entire world. They were out-matched and sometimes out-gunned. In order to hold their own, sometimes they may have needed some coaching, or a lucky break. At the most, some of the judges may have attempted to balance the equities.
The only law or legal procedure that they knew was what I had taught them in a week or two of intense indoctrination. They were good and they were courageous. After having been briefed on the charge or charges, and given the correct legal terminology they faced Judges Frances X J Coughlin and Judge Albert Frevola at the World Trade Center (WTC) court room. They won their cases with a guilty plea and a little help from the judges.
The judges were both retired Coast Guard officers. Judge Albert Frevola retired as a captain after 25 years of active duty and went to work as a Coast Guard judge. He worked as a judge for 30 years and died on the job at his desk in the WTC one Friday afternoon.
Rep. Elijah E. Cummings, D-Md., said he also plans to look into allegations that the system is stacked against merchant mariners, and he plans to speak with Coast Guard Commandant Thad W. Allen. Cummings wants to take immediate action to protect the rights of defendants whose cases are now before the Coast Guard's courts.
Rep. Cummings is chairman of the Subcommittee on Coast Guard and Maritime Transportation. He said “Even the appearance of injustice or impropriety cannot be tolerated.”
The Coast Guard’s administrative court system handles hundreds of cases each year brought by the Coast Guard against civilian mariners accused of negligence, misconduct or other infractions. Its judges have the authority to suspend or revoke the credentials mariners need to work.
A former Coast Guard Administrative Law Judge Jeffie J. Massey, who left the Coast Guard service in March and 10 days later gave a sworn statement detailing her experience, said she was told by Chief Judge Joseph N. Ingolia that she was not a judge but rather a tool for the Coast Guard to achieve rulings it wants.
“I was specifically told (by Ingolia) that I should always rule for the Coast Guard,” she said in the statement.
According to Judge Massey, Chief Judge Ingolia told other judges how to rule in cases and dictated policy through private memos that were never shared with defendants or their lawyers, a practice that could violate federal laws requiring agency judicial procedures to be published and subject to challenge. And staff attorneys for the chief judge and the Commandant's office discussed cases with Coast Guard investigators, possibly violating the mariners' rights to an impartial hearing. Judge Massey’s accusations have been verified in court records, and internal memos obtained by an independent source.
Judge Massey appeared to have more empathy for the accused than for the victims. She probably was an ACLU kind of judge. She would be satisfied that an accused got off on a technicality and more people died, than for the accused to lose his license for a few months and more people avoid injury or death. Judge Massey’s perspective was different from that of judges and lawyers more familiar with the mission of the US Coast Guard.
In these type of cases the benefit of the doubt must go to the prosecution rather than to the accused, since it is the negligence of the accused that is the basis of the enforcement action.
Resume of ALJ Jeffie Janette Massey
The Federal Energy Regulatory Commission Chairman, Pat Wood, III appointed Jeffie Janette Massey as an Administrative Law Judge for the Commission on 1 Oct 2001.
Judge Massey had previously served as a judge with the Social Security Administration in San Antonio, Texas. Before that, she was a public defender with the Public Defender's Office of Colorado County in Columbus, Texas, where she represented defendants in the County and District Courts. She also represented juvenile offenders charged with delinquent conduct. Before that Judge Massey was in private practice in Columbus, Texas where she litigated criminal and civil proceedings at the state and federal levels. She also served as Assistant Criminal District Attorney in Canton, Texas. Before that, she held several positions with the U.S. Department Of Energy's Economic Regulatory Administration in Dallas, Texas, including Supervisory Attorney, Deputy Chief Counsel, and Senior Attorney Advisor. Judge Massey received her J.D. and B.A. degrees from Southern Methodist University in Dallas, Texas. She is a 1977 graduate of Southern Methodist University with a Juris Doctorate in Law. A member of the Texas BAR Association. She retired in 2007.
Out of more than 6,300 charges brought over the last eight years, mariners prevailed in just 14, according to the agency's records. When dismissals are included, records show the Coast Guard wins or reaches a settlement in more than 97 percent of its cases.
“I practiced law for 20 years and I can't imagine some of this stuff happening,” said Representative Cummings. “I mean, you don't have investigators and judges' staff talking to each other — not if what you're looking for is fairness.
“If these things that are being said are accurate, then anyone in the mariner's position would be hard-pressed to believe that they're going to have their case heard in a fair and impartial manner. And we need to address that.”
Committee Chairman Cummings said he hopes to have Judge Massey testify before members of Congress, and Judge Massey said she would agree to do so if asked.
“I am willing to tell the truth about what happened at the Coast Guard with anyone who will listen,” said Massey, reached at her home in Texas. “What they are doing is wrong and people need to know about it.”Representative Cummings said he and U.S. Rep. James L. Oberstar, D-Minn., will decide in the next few days whether to convene a hearing before the Coast Guard subcommittee or the full House Transportation Committee, which Oberstar chairs. He said he hopes to hold the hearing soon after Congress returns from its July 4th recess.
Coast Guard officials have declined to discuss the issue, but the boating safety regulations save lives. These regulations are literally written in blood. Every section of the regulations probably represents someone who has died as the result of someone committing an act prohibited by the regulations. Enforcing these regulations is beneficial to society. It saves lives. Those charged with enforcing the regulations have more empathy for the boating public, and innocent victims than for the accused.
The Coast Guard is charged with enforcement of the nation’s federal boating safety regulations and making sure that licensed merchant mariners are competent to operate safely at sea. It can suspend or revoke mariner licenses. Mariners have the right to be represented and to respond to charges before an administrative law judge. They can appeal an adverse ruling to the Commandant, US Coast Guard and to the National Transportation Safety Board (NTSB).
Labels: Coast Guard Judges.
posted by ichbinalj at 8:47 PM
6 Comments:
Judge Masey seems to have forgotten that she has complete judicial independence. No one can tell her what to decide or how to decide.
Judges are not evaluated like Coast Guard officers. Judges cannot be fired. They have an appointment for life providing they exhibit good behavior. The Chief Judge has very little power over other judges, except to assign cases and to keep attendance.
If all of Judge Massey's assertions are interpreted in light of these facts, you can easily see that she is greatly mistaken. She was only bound by the law and the facts. She was the determiner of the facts based on the credible evidence that was presented. Everything the Chief Judge told her was merely his personal opinion. She was not required to follow any of it. I am surprised she ever thought that she was required to follow his musings.
From reading the resume of Judge Massey, I can see that some of this may be just a case of "sour grapes" for her. She may have felt like an outsider during the brief time she was a Judge working with the Coast Guard.
Truth wears many faces; all of them are true form the perspective of the person proclaiming it. I can see her point of view and how her interpretation of the conversations and events may have given rise to what she has said since retiring.
The Chief Judge made a few errors in judgement, most of them were harmless errors. Except for Judge Massey, I dare say, the other judges with more Coast Guard experience and those who felt more a part of the "Coast Guard old boys network" did not pay much attention to what the Chief Judge said. He was not their boss. He was just another judge. He was only first among equals. The Federal Government has between 1000 and 1300 Administrative Law Judges who work for various agencies. Chief Judges do not have the power or the authority to supervise other judges. All judges have complete judicial independence. This is guaranteed by the Administrative Procedures Act; and, if a judge attends the annual conferences of administrative law judges, they are constantly reminded of it all day every day. Judge Massey may have been a bit too intimidated by the aura of the Chief Judge to realize that she always had total judicial independence.
The ACLU sued the city of Slidell, La., 3 July for displaying a painting of Jesus in a courthouse lobby, saying it violates the constitutional separation of church and state.
The ACLU sued after the Slidell City Court refused to voluntarily remove the picture and a message below it that reads: "To Know Peace, Obey These Laws." The ACLU says the portrait — an image of Jesus presenting the New Testament — is a religious icon of the Eastern Orthodox branch of Christianity.
Washington — Members of Congress called Tuesday for the U.S. Coast Guard's administrative court system to be removed from the agency's control and placed within an independent arm of government.
They say recent claims of bias and mismanagement have raised doubts within the maritime industry about whether the system is fair to the civilian defendants whose cases it handles.
U.S. Rep. Elijah Cummings, D-Md., and chairman of the House's Coast Guard subcommittee, said he will submit legislation to strip the administrative law system from the Coast Guard, with hopes of having the change implemented by next year. He made the proposal after hearing testimony from two former judges, a maritime attorney and a law professor who said they found evidence of bias or improper management within the current system.
At a hearing called to explore claims of bias, former Coast Guard Judge Jeffie J. Massey described a meeting in the office of Chief Judge Joseph N. Ingolia during which, she said, he told her to always rule for the Coast Guard and disregard any regulations that the Coast Guard opposed.
Another former judge, Rosemary Denson, told committee members that Coast Guard judges are perceived in the maritime industry as pawns for the agency's uniformed leadership, and that she felt the same way about some judges with whom she worked. And Abraham A. Dash, an administrative law professor at the University of Maryland, said he was “troubled” by one memo Ingolia circulated to other judges that appeared to tell judges how to rule. He said the memo, and the alleged meeting Massey described between Coast Guard investigators and the chief judge's staff, were possible violations of the regulations that guarantee impartial hearings.
Coast Guard officers, meanwhile, defended the system as fair.
The Coast Guard's administrative law system each year handles hundreds of charges of misconduct and negligence brought against civilian mariners, often for alleged drug use, and can result in revocation of the credentials a mariner needs to work at sea. No civilian mariners testified at Tuesday's hearing, but Cummings said many contacted by the committee were afraid to testify because they feared retaliation by the Coast Guard.
“There has been no issue that we've dealt with in the last seven months that has gotten more response than this, and that tells you the appearance of bias is out there,” Cummings said. “Being treated fairly by a judge is a fundamental right of every American and we need to send a strong message to the mariner community that when they come before the Coast Guard that's how they're going to be treated.”
Rep. Steven C. LaTourette of Ohio, the committee's senior Republican, said he also would support removing the judges from the Coast Guard, though he was not convinced that the agency suffers from systemic bias or unfairness.
Washington
The Coast Guard’s maritime safety inspection program is staffed by unqualified personnel who don’t follow proper procedures and mismanage their backlog of thousands of unfinished investigations, according to an internal report by the inspector general of the Department Homeland Security.
The findings, which could have broad implications for the future of U.S. maritime oversight, were unveiled Tuesday 20 May before a House panel.
Among a sample of 22 safety investigators, 15 were not fully qualified under U.S. regulations and four were not qualified at all, the investigation found, although a senior Coast Guardsman defended the service’s 136 maritime investigators as a group.
“I find it to be a disservice to the American people when government kicks around the same issues year after year — or, in this case, decade after decade,” said Maryland Rep. Elijah Cummings, the Democratic chairman of the Coast Guard subcommittee.
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