By H. Skip Robinson © 12/11/2009

The Constitution guarantees a fair trial through the Due Process Clauses, but creating a system that actually works has for the most part eluded our planet. All one must do is goggle “injustice” and you will have months of reading on everything from economic and racial injustice to judicial corruption. There is little doubt that the system is in need of major repair. Why attorneys seldom attempt to improve the system they dominate is a disservice to our society and why they are so highly revered.  

Although a number of improvements need to be made, I am going to focus on one issue that requires immediate attention and that I may attempt to take to the Supreme Court. Another solution to a number of problems can be read at the link at the bottom of this article.

The inability or unwillingness of the Judiciary to assist either Self-represented/Pro Se Citizens or Citizens being in Proper Person/ In Propria Persona in a Court where there is a skilled Attorney representing the other Party(s), violates due process when the Judge is the final Arbiter in the Case. Juries should always be the final arbiter as the Constitution supports.   

The Judges knowledge of both the specific issues of the case and rules of procedure regarding the case often affect the outcome of the case, possibly detrimental to either Parties but especially to the unrepresented Party.

The ability of the Judge to be consistently unbiased is questionable, with no reasonable or available due process remedy for the unrepresented party. If a Judge is biased, as generally the unrepresented Party is unrepresented because of the inability to afford a good attorney, the common knowledge that court appointed Attorneys provide exceptionally poor quality of service or the knowledge of not knowing when they are not being provided reasonable level of quality of due process, the unrepresented Party again may not be provided an adequate level of due process nor would know the difference if he is not. With often times no court record, this obviously reeks of injustice.   

Poor quality or no representation is one of the foremost problems within our judicial system. Those who have the most money and can afford the best attorney(s) often win, regardless of the truth, thwarting the efforts toward justice. For instance, the government often times prevails in cases as the opponent is unable or unwilling to go up against the deep pockets and endless time constraints of government.  

The current ABA Model Code of Judicial Conduct (1990) includes the duties to avoid “impropriety and the appearance of impropriety,”14 to perform judicial duties without bias or prejudice,15 and to “dispose of all matters promptly, efficiently, and fairly.”

A Judge should only be mediating justice, never being the final arbiter. That should be left to a Jury since it raises remedy issues when equal justice under the law is not being advanced.   It is not so much that it would be impossible to fairly advance equal justice under the law for a Judge in the position of being the final arbiter, it is the inability of the unrepresented party to know if they have gotten their day in court. The Judge should use their skills and wisdom to guide the parties to as high a level of justice as can be obtained and not be placed in a position of determination of justice. Judges have historically been biased even when acting in just the capacity of a mediator and the appeals process offers a remedy.  The jury being instrumental in justice, is not only the final arbiter for the issue at hand, they are also witnesses to the events of the trial. This makes it more difficult for judicial improprieties that so often occur.   

When a Judge is the final arbiter there are potentially no witnesses for the damaged party, allowing the court to thwart justice. It is no better than going up against a Monarch with the participants unable or unwilling to challenge the determination.

Challenging the lack of due process when a judge is in the capacity of being the final arbiter when individuals are unrepresented should be an easy target for attorneys whom are willing to sit in on trials of Pro Se or In Propria Persona litigants. A few cases would surely send ripples and then tidal waves through the entire judicial system, once the word get out.

A Judge cannot be an effective mediator when they are the Final Arbiter, as you just cannot do both jobs well at the same time and a Jury should always be the Final Arbiter, as it has historically been shown to be the most effective means of obtaining justice and provides a check and balance to the Judicial system which is one thing that surely needs addressing. We can no longer afford quality to be diminished for so-called expediency in judicial matters, how insignificant they are. For each individual whom is not given a fair shake at their day in court is just one of millions that do not challenge bad law because of the inherent injustice built-in to our system by Judges taking on the capacity of arbiters.           

We have surely progressed in the halls of justice over the last several hundred years, but I understand we still have much work to do.  

Allowing one or even a few Judges to be final arbiters while in their capacity as public servants has been a very big mistake and has surely thwarted advancement in Justice.  They have a built-in bias for protecting the revenue stream to the government. A built-in conflict of interest therefore exists for any Judge(s) that are arbiters in a case where revenue or damages to or against the State are at issue. This is an additional reason for ending the practice of Judicial Arbiters. 

As there is the potential of, as few as 3 people determining the rule of law for a nation of nearly 350,000,000 million people; that is surely not a progressive model to advance the democratic process. 

With advancements in technology we now have the ability to remedy many of the problems of judicial bias, corruption and manipulation. An outline of the The Robinson System of Justice can be read at: http://groups.google.com/group/HarrietRobbins/browse_thread/thread/d2fe2440f7d61564?hl=en&fwc=1

Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 2044 (1999) (noting the absence of rules for cases in which one party only is represented is a “gaping hole” to be remedied in the justice system); Judicial Council of California, Task Force on Self-Represented Litigants, STATEWIDE ACTION PLAN FOR SERVING SELF-REPRESENTED LITIGANTS 23 (February, 2004) (available at www.courtinfo.ca.gov/reference/documents/selfreplitsrept.pdf) (visited August 16, 2005)

The degree to which a judge is responsible for ensuring a fair hearing, and deciding what measures can be taken to protect constitutional safeguards for all litigants without compromising judicial impartiality, is a source of stress for judicial officers and for court staff as well. In particular, the situation in which an attorney represents one party and the other party is self-represented creates an extremely difficult courtroom environment. Judicial education in this area should attempt to provide judges with techniques they can employ to ensure due process and protect judicial impartiality.

FYI: A mediator and arbitrator are intermediaries or referees, whereas an arbiter is a judge or final authority.