EXCLUSIVE–How a Federal Appeals Court Acted Like a Rigged Casino
EXCLUSIVE–How a Federal Appeals Court Acted Like a Rigged Casino
Kids and Families Went To Boston's Federal Appeals Court Expecting Justice, Instead the Court Secretly Stacked the Deck Against Them.
For decades the second-highest court in the land cheated children and families in Massachusetts who had sued Harvard and state and federal social-services agencies, according to billions of computer simulations and statistics independently compiled from the public records of the Boston-based U.S. Court of Appeals for the First Circuit.
The findings build atop a 2021 Wall Street Journal investigation that surfaced conflicts of interest throughout the U.S. federal judiciary.
According to the court’s own rulebook, judges are supposed to be assigned to cases randomly. This is meant to ensure, for example, that no judge can cherry pick cases involving a particular party or attorney the judge likes or dislikes. Random assignments are thus crucial to public trust in the courts.
“Judges don’t look for cases; but rather cases look for judges.”
―South African Judge and former Deputy Chief Justice Dikgang Moseneke
But the statistics and simulations show that, at odds as low as one out of 1.2 billion, most of the court’s social-services and Harvard cases went before Judge Sandra Lynch, a former state social-services official and partner at Boston’s quintessential Harvard-stable firm.
Judge Lynch wrote precedential opinions in those cases, overwhelmingly favoring Harvard and state and federal social-services agencies. The federal trial courts in Massachusetts, Maine, New Hampshire and Rhode Island then had to follow those precedents in future cases against Harvard and the social-services agencies.
―Federal Judge F. Dennis Saylor IV of the District of Massachusetts (2018)
The exposé that laid the groundwork
One hundred thirty-one federal judges presided over 685 lawsuits in which the judge or the judge’s family had a financial interest in the outcome, according to a front-page Wall Street Journal bombshell a few years ago.
“When judges participated in such cases, about two thirds of their rulings on motions that were contested came down in favor of their or their families’ financial interests,” noted the Journal.
For instance, Judge Julia Smith Gibbons of the U.S. Court of Appeals for the Sixth Circuit in Ohio heard an appeal in Ford Motor Co. v. Mustangs Unlimited, Inc., even though her husband owned Ford stock. After the case was briefed, but before Gibbons’s decision went public, her husband’s financial advisor bought him more shares of Ford. Gibbons then ruled in Ford’s favor on Good Friday, April 22, 2011. The next trading day Ford’s share price notched a modest gain.
When the Journal confronted Gibbons a decade later, she said she wrongly assumed that her husband’s holdings did not require that she remove herself from the case.
But the relevant federal law and judicial ethics requirements could hardly have been clearer.
“A judge should inform h[er]self about h[er] personal and fiduciary financial interests,” says a federal statute, “and make a reasonable effort to inform h[er]self about the personal financial interests of h[er] spouse and minor children residing in h[er] household.”
A different subsection of the statute requires a judge remove herself from any case where she “individually or as a fiduciary, or h[er] spouse or minor child residing in h[er] household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” (The relevant statute also mandates self-removal for conflicts of interest held by individuals outside the judge’s immediate family.)
The Code of Conduct for U.S. Judges, which applies to all federal judges, contains nearly identical language as to a judge’s duty to stay informed of her spouse’s and others’ interests and remove herself from cases implicating those interests.
“I regret my misunderstanding,” Gibbons told the Journal, “but I assure you it was an honest one.”
As far back as 1938, however, Gibbons’s own court had held, “Ignorance under such circumstances is not an excuse.”
And after the Journal’s exposé, Gibbons dismissed a prisoner’s habeas petition because, “of course,” neither a litigant’s “ignorance of the law” nor lack of legal representation are “excuses for a lack of diligence.”
George W. Bush gave Gibbons a lifetime seat on the appeals court in 2002. Two years after the Journal’s investigation and 21 years into her appointment, she announced she will take a form of paid semi-retirement.
The questions The Wall Street Journal left unanswered
At any given time, there are roughly 835 federal judges nationwide. The 131 whom the Journal noted “broke the law” thus represented nearly one sixth of the federal judiciary.
But, despite ubiquitous rules and procedures that mandate random assignments, the Journal never asked how the 685 conflict-of-interest-affected cases that it found were assigned to those 131 law-breaking judges in the first place.
And though the Journal scrutinized every federal judge’s financial disclosures, which was truly a broad inquiry, financial disclosures provide only a shallow view of potential conflicts of interest.
Federal law, in contrast, addresses all kinds of improprieties, not just monetary temptations. (The relevant statute widely requires, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The Code of Conduct for U.S. Judges contains nearly the same provision.)
The Journal, nevertheless, did not ask how many cases were decided by federal judges who had other types of conflicted interests.
A deeper look at Boston’s federal courts
The Journal’s investigation showed that conflicts of interest had gone undetected in federal courts nationwide for decades. It led MartyG Reports to perform what was, at first, a preliminary review of federal appeals in Boston, where the two things best-connected to the federal judiciary are likely Harvard and social-services organizations.
Sixteen of Boston’s 26 federal trial and appellate judges have a degree from Harvard or are known to have held a position there. (Yale, the next-most-represented school, accounts for only four of those same 26 judges.)
The initial review showed an apparent skew in the assignments of Harvard and social-services cases to Judge Lynch. This led to further research into Judge Lynch’s connections to Harvard and social-services agencies and a comprehensive review of the court’s relevant cases.
Judge Lynch and social-services agencies
Judge Lynch worked in the Massachusetts attorney general’s office from 1973–74, according to her official biography. There she was tasked with defending state agencies from lawsuits in state and federal courts, including the state’s social services agencies.
She then became the top lawyer at the Massachusetts Department of Education. Her duties there kept her working with the Attorney General's office on litigation, including court appearances to defend the department from parents and children who felt sufficiently aggrieved to sue.
She held that post until 1978, when she entered private practice.
Harvard, Foley Hoag, A Civil Action and Judge Lynch
Lynch spent the next 17 years at Foley Hoag LLP, where she basked in Harvard’s jurisprudential sunshine but may have wound up on the wrong side of history.
Early Foley Hoag partner Bob Birnbaum recently recalled:
Mr. Foley, ah, felt that you should build a law firm on merit. He hired, um, without regard to religion, politics, or, or, whatever. But the fact is, I, think probably merit was, at the time, translated into hiring Harvard Law School graduates, and, and high-ranking graduates, too. I think it was the year after I came here, the firm hired five Harvard Law Review editors.… Well, there’s not another law firm in the United States today that could do that.
Foley’s namesake firm soon earned itself a reputation as Boston’s quintessential Harvard stable.
And its reputation became even more widely noted after the firm took a retainer to defend one of two alleged toxic dumpers blamed for causing dozens of leukemia cases in a blue-collar section of a small Massachusetts town.
Perhaps unknown to Lynch and her colleagues, journalist Jonathan Harr was embedded with the legal team representing the children and families. The case would be the basis of Harr’s number-one national bestseller A Civil Action, and of the 1998 feature-film of the same name staring John Travolta, Robert Duvall, James Gandolfini, Dan Hedaya, John Lithgow, William H. Macy, Kathleen Quinlan and Tony Shalhoub.
Harr’s book makes clear that the plaintiffs faced an uphill battle. When they entered federal court in Boston, Harvard lawyers represented both of the corporate defendants, and the case had been assigned to Judge Walter Jay Skinner, who was a Harvard alumnus twice over.
During the trial, according to the book, Lynch personally accused the plaintiff’s lawyer of potential jury tampering. That accusation was unsubstantiated.
Instead, it was one of the Harvard lawyers who had definitively acted unlawfully, by withholding material evidence bearing on his client’s liability. The plaintiffs moved for a new trial, but Judge Skinner denied their motion.
The leukemia victims ended up with very little to show for their trust in the courts and years of litigation.
Lynch, in contrast, was ascending. Clinton selected her for a lifetime appointment to the U.S. Court of Appeals for the First Circuit. She took her seat five months before A Civil Action hit bookshelves. Perhaps adding insult to injury, the E.P.A. eventually all but forced her client and others to clean-up the area in question, at a record-setting $69-million cost.
A comprehensive review of decades of Harvard and social-services cases
After researching Judge Lynch’s relevant connections, MartyG Reports used straightforward criteria to perform a broad search of the court’s relevant decisions in LexisNexis, a leading repository of federal court decisions. Those criteria and the detailed results are publicly reviewable at the link here.
MartyG Reports also wrote a high-speed computer program to simulate billions of random judicial assignments and record the results for comparison purposes. The program produces an audit trail and checks itself against Federal Information Processing Standards (FIPS). The source code for that program and results of its simulations are available at the link here.
The searches showed that between 2000 and 2020, Lynch was assigned to all of the court’s 10 decisions most important to the Massachusetts Department of Health and Human Services. The simulations showed that the apparent odds of those assignments occurring randomly were lower than one in 10,000.
MartyG Reports also found that during the same period, Lynch was assigned to all of the court’s nine decisions most important to the Massachusetts Department of Children and Families, at apparent odds lower than one in 9,629.
The review also found that Lynch had been assigned to all five of the court’s most-important decisions for the Massachusetts Department of Developmental Services, at apparent odds lower than one in 51.
The combined apparent odds of Lynch’s assignments to all of the decisions most important to those three agencies were lower than one in 1.2 billion. Those are more than four times lower than a single ticket’s odds of winning the Powerball jackpot, which are one in 292.2 million.
The searches and simulations also found that, during the same period, Lynch had been assigned to seven of the court’s nine most discretionary decisions listing Harvard University, its presidents and fellows, its medical school or its cancer research center as litigants or interested parties, including the Students for Fair Admissions decision recently overturned by the Supreme Court. The apparent odds of those assignments were lower than one in 42.
The searches and simulations further found 91 federal appellate cases involving either the Massachusetts or federal Health and Human Services departments, and that Lynch had been assigned to 50 of them, at odds lower than one in 855.
A different set of 91 cases were found implicating other state social-services agencies. Lynch had been assigned to 43 of those, at odds lower than one in 10.
MartyG Reports is asking the courts for answers.
Citizens going to court against a government agency or a $49-billion university expect a fair opportunity before a fair judge. But what if the judge is secretly breaking the court’s own rules to cherry pick the cases of organizations to whom she is sympathetic from her prior employment?
This writer has filed the above calculations in federal court in Boston. Subscribe, below, for updates as they develop.
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The safe families act of 1997 gives cps a bonus if they place more kids than the year before. Hear say is accepted in these cases. Cps lies with abandon. One child can generate up to a million for therapists, gal, foster workers, and all involved. Foster kids have a 2% chance of completing a secondary education. A very high percentage of people jailed are from foster care. The statistics are cruel.