THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Saturday, June 30, 2018
In his article about the decision, Cole claimed that by temporarily limiting acceptance of immigrants from 5 enumerated countries, the U.S. blocked entry of 150 MILLION people.
According to the official information of the U.S. Government (Census Bureau), the U.S. entire population at this time is 328 million people.
If, by blocking entry of people just from the enumerated 5 countries, Trump blocked entry of 50% of the current population of the United States, he should be given a medal, not blasted in organized protests across the country.
Such an infusion of population would bankrupt social safety networks, and that is already happening.
But, people blasting Trump's immigration policy in the streets do not seem to care.
Are we witnessing an organized attempt to replace the American population that voted for the "wrong" president with a huge infusion of those who will vote for the "right" one?
Tuesday, June 26, 2018
Hey, Google, why were you allowed to replace New York judges now? New York quietly passes judicial functions to private corporations and creates a new - HUGE - hearsay exception under the guise of "judicial notice"
But it is - very important.
The new law amends the so-called Civil Practice Law and Rules Section 4511 that, as of today, reads like this:
Let's go through the original pre-admendment law and see what it means, why was it changed and what problems - if any - the new change has brought to New York litigants, especially those litigants who do not have enough money to afford an attorney, much less a court expert.
A "judicial notice" is a type of action of a court of law to recognize certain law or facts without a trial.
The concept of judicial notice of law is simple and of unquestionable constitutionality. Judges, as a requirement of their professional competence - and CPLR 4511(a) have to know and apply without asking them to do that, laws applicable to the circumstances of a particular case (that are not violative of the U.S. or State Constitutions - such a condition is always implied, as it is in loyalty to the Constitutions that each judge is sworn).
Here is the text of CPLR 4511(a):
"(a) When judicial notice shall be taken without request. Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts."
Judicial notice of laws is mandatory for every judge - as reflected by the language of CPLR 4511(a) "every court shall".
Now, a judge may have a choice to take or not to take judicial notice as to some
Here is the text of CPLR 4511(b):
"(b) When judicial notice may be taken without request; when it shall be taken on request. Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice."
Ok, so if a party requests a court to take judicial notice of:
- private acts and resolution of the Congress of the United States;
- private acts and resolutions of the New York State Legislature;
- ordinances and regulations of officers, agencies or governmental subdivisions of the State of New York or United States, and/or
- laws of foreign countries or their political subdivisions
It is obvious that in such a situation the shifting of the burden of proof to the defendant is a violation of due process, and putting the plaintiff and the defendant on completely unequal grounds undermines fairness and adversarial nature of judicial process.
Note also who constrained the defendant will be now in time to rebut this "judicial notice":
Monday, June 18, 2018
Commission on prosecutorial conduct in New York - a dangerous illusion about to be created by good intentions of wrongfully convicted together with special interest groups
In this case, federal court said that members of the public (victims of misconduct) have absolutely no say (standing) to complain about non-prosecution of judicial misconduct.
And, the New York Commission for Judicial Conduct has permanent budget constraints, which ostensibly prevents it from properly handling the majority of complaints. That is not true, of course - once I did talk to an investigator from the Commission when I did call them, and the person on the other end refused to send me documents by e-mail citing their "policy", the "policy" being that they are supposed to send out anything they send out only by fax.
Sending anything by fax in our day and time is not only technologically obsolete, but it also has the advantage - for the Commission - that such a transaction does not leave a record of what was sent, unless an e-mail. Some policy.
Moreover, New York State Commission for Judicial Conduct is conflict-ridden. Most members of the Commission are attorneys (whose licenses and livelihoods are regulated by judges) and judges. The public is not allowed to have a say as to competence and integrity of judges, it is all decided behind closed doors by a "good ol' boys' club".
As a result, the majority of judges (double digits with 4-digit number of complaints filed each year) disciplined by the Commission are not licensed attorneys, they are justice court judges who wield much lesser power than those who the Commission allows to continue to sit on the bench, no matter what misconduct they engaged in.
Guess what, the NY Senate has just voted, and the NY Assembly is expected to vote this week on the law establishing a commission to deal with prosecutorial misconduct - fashioned after the useless New York State Commission for Judicial Conduct.
The sad part about this vote is that groups of wrongfully convicted New Yorkers support creation of this dangerous illusion.
Why it is a dangerous illusion?
Well, first of all, if it is fashioned after the Commission for Judicial Conduct, it will work the same way - only then it will be claimed that the mere fact that such a Commission exists is somehow giving the public a remedy against prosecutorial misconduct and the resulting wrongful conviction, which will not be true - as the case Bracci v Becker raising the issue of non-availability of appeals when complaints against judges are dismissed without investigation are filed by victims.
The supposed "remedy" is that there will be yet another group formed out of attorneys and judges, the cause of the problem, to deal with prosecutors behind closed doors, without the public being able to take part in the decisions or to contest it.
There are several problems that the Commission will be unable to meet.
The first is the identity of prosecutors who have caused wrongful convictions for people who have served years in jail.
It is an open secret that "serving" as a criminal prosecutor in the United States (and in the State of New York, too) is the stepping stone to become a judge. The overwhelming majority of American judges are former prosecutors.
The number of convictions is used as the evidence for voters of "being tough on crime" in judicial elections of a prosecutor.
There is a very high probability, therefore, that prosecutors who have gained wrongful convictions are already judges at his time.
If the general rule of attorney discipline is applied to prosecutorial misconduct, that there is no statute of limitations for attorney misconduct (including prosecutorial misconduct), but the prosecutor has become a judge, the following problems appear.
1. judges are regulators of attorney licenses and livelihoods, they will not disbar their own for former prosecutorial misconduct;
2. there is already in place the system of attorney discipline in New York, hearings were held in 2015 before a special commission on attorney discipline, issues that attorney grievance committees refuse to deal with prosecutorial misconduct for political consideration were raised, see testimony of Bill Bastuk before that commission (Bastuk was formerly counsel, coincidentally, for the Judicial Conduct Commission and one of the supporters of a separate commission for prosecutorial conduct fashioned after the useless and conflict-ridden Judicial Conduct Commission where Bastik once worked) and rejected by the commission.
If there is no statute of limitations on attorney misconduct, including prosecutorial misconduct, and attorney disciplinary bodies (under the guidance and as part of courts) have been working in New York for decades, why wasn't prosecutorial misconduct handled through these bodies?
Does it mean that attorney discipline in New York is handled as a selective, political process, and prosecutors are "spared" discipline - after being granted by the U.S. Supreme Court immunity for malicious and corrupt conduct in office specifically because discipline is (theoretically) available?
If that is true - and the Senate's vote to create an alternative Commission for prosecutorial conduct has already proven it - what does it say about the integrity of the judiciary, regulator of attorneys, and of the integrity of those commissions, "arms of the judiciary", consisting of attorneys, sworn "officers of the court"?
And why do we need "regulation" of attorneys - and, through attorneys, of access to courts - that is now admittedly selectively political in nature?
It appears as if the public was duped first by the U.S. Supreme Court - that gave prosecutors immunity from lawsuits for civil rights violations (which are federal crimes, 18 USC 242), and then by state courts and their attorney disciplinary committees who refuse to apply discipline that was used as a pretext to give prosecutors that immunity.
Now, the public is about to be duped for the 3rd time - by expending money on creating and maintaining a "commission" that will block the public from dealing with the issue of prosecutorial misconduct directly.
There is still no remedy, the Commission is not creating a remedy, it is taking it away, and sucking up the much needed funds that could have been used otherwise.
And, there also exists an issue that the secretive Commission can, indeed, be used, but in the way opposite to the declarations of why it is created (same as with attorney discipline) - to disenfranchise the public and remove from office elected public prosecutors who actually do their jobs, but have stepped on toes of powerful public officials.
As attorney discipline was used against Pennsylvania elected public official, Attorney General Kathleen Kane. Kathleen Kane had the misfortune of investigating the very people who suspended her license and caused her demise as an elected public official.
Yet another secretive body to deal with an elected public official, a prosecutor, is a very bad idea.
There is the procedure of impeachment.
As the recent recall of judge Aaron Persky in California showed, matters of misconduct of public officials causing grievous injuries to the public - and wrongful convictions are such injuries - must be subject to a recall of the prosecutor through a referendum.
And, if the same NY Senate put the same effort it did into creation of the useless secretive Commission for Prosecutorial Conduct, consisting predominantly of attorneys and judges and not of non-attorney members of the public:
into legislation abolition of prosecutorial immunity, prosecutorial misconduct would have disappeared overnight.
Only that would not happen - too many careers of too many powerful people depend on that.
So, urge your representatives in the Assembly to vote NO to the creation of the Commission of Prosecutorial Conduct.
It is a dangerous illusion, a waste of much needed public funds, and a delay of the much needed reform in regulation of prosecutors, attorneys, judges and of access to justice in New York.
An important silver lining of the Senate's vote, as I mentioned above, is an admission by the NY Senate that attorney disciplinary committees, "arms of the court", are politically selective in regulation of prosecutors and do not do their jobs in attorney regulation of the only powerful people who have authority to put corrupt attorneys, corrupt prosecutors and corrupt judges (regulators of attorneys) in jail, through grant juries.
It is interesting how the current regulators of attorneys deal with attorney discipline:
- favoritism of the judiciary, regulator of attorneys, specifically to prosecutors, as revealed by the supposed necessity to create a separate body to regulate prosecutors, speaks loud and clear - gifts (immunity and no discipline) to prosecutors in return for non-prosecution of judges (unless prosecutors commit the ultimate no-no and criticize judges - the only prosecutors discipline in New York since the 70s were two prosecutors, the Albany DA Paul David Soares, and the Manhattan DA Elizabeth Holtzmann, for criticizing judges, regulators of their licenses);
- punishment for "regular attorneys" who do not have the power to assemble and advise a grand jury to indict, let's say, a corrupt judge - for speaking out against judicial corruption.
And, the public should demand a legislation on recall of prosecutors (and judges), and a legislation on access to grand juries bypassing prosecutors with their grievances of crimes committed by public officials.
Foxes do not do a good job guarding chicken coops, attorneys (including judges and prosecutors) do not do a good job guarding consumer interests, consumers can do it well themselves.
It is logical and reasonable, especially based on the necessity to create a separate commission to deal with prosecutorial misconduct, for consumers, voters to demand the NY Senate and Assembly to finally do their jobs and promote not legislation lobbied by yet another attorney-senator (as this particular bill's "sponsor" Senator John DeFrancisco is), not a legislation that will give power and jobs to yet another bunch of attorneys while blocking victims of prosecutorial conduct from having a remedy for wrongful convictions, but through an independent public review.
And that independent public review, the "sunrise review" of a packet of legislation to revamp the public's access to court and to criminal justice, should exclude SPECIAL INTEREST GROUPS at every single stage of it:
- market survey - by independent experts only, not connected to attorneys, prosecutors or judiciary;
- bill sponsoring - not by attorneys ("officers of the court") whose license and livelihood, theirs and their family members' (like John DeFrancisco's son with whom he co-owns a law firm) are in the hands of those same people who fail to regulate attorneys properly - which caused the Senator to veer the public away from the actual problems, prosecutorial immunity, lack of public access to grand juries, lack of recall procedures for public officials;
- composition of any publicly funded bodies, or bodies having power of investigation or prosecution.
Wednesday, June 6, 2018
New York Attorney General as a "cop on the beat"- a cop protecting the criminal and bashing the victim
For example, after the disgraceful departure from the position of the New York State Attorney General of the holier-than-thou Eric Schneiderman, there is a new rising star on the horizon, a U.S. Representative Sean Patrick Maloney trying to get into the NYS AG seat.
Along with announcing that he will seek a Democratic nomination to run for NYS AG, Maloney reportedly claimed the following:
First, Maloney does not even try to hide that the job he is seeking is the "best job" in New York "politics" - so, he is seeking it not for the people, but for his own career, likely to catapult himself later on to higher offices, like a federal judge, a U.S. Attorney, a NYS Governor (the usual path) and then the U.S. President. Born in 1966, he still has time for that.
As to "doing so much good", I have been writing forever about the many hats that the NYS AG is wearing, which has nothing to do with "doing good".
For example, I wrote about the claims of NYS AG Schneiderman about himself as defender of civil rights.
With statistics showing that Eric Schneiderman is actually representing civil rights VIOLATORS, defending them against their victims - to the point of asking courts to punish victims of civil rights violations for bringing such lawsuits.
Here is my blog article further analyzing statistics of how exactly a NYS AG was "doing good" in quashing civil rights lawsuits, predominantly of the poor and underprivileged New Yorkers whose civil rights were violated by the powerful.
Yet, in the election campaign all New York Attorney General candidates NEVER even mention their role of quashing civil rights and defending civil rights violators.
I wonder, how so?
They know "the law" under which NYS AGs are representing public officials sued for civil rights violations by victims of such violations, right?
They know they are going to be doing it as soon as they are elected, right?
So, why not say it openly - I WILL BE FAITHFULLY BLOCKING VICTIMS OF CIVIL RIGHTS VIOLATIONS AND DEFENDING PERPETRATORS OF THESE VIOLATIONS.
I WILL BE FAITHFULL ASKING FOR SANCTIONS AGAINST THE VICTIMS FOR DARING TO ASK FOR A LEGAL REMEDY.
Because that's the truth, that's what NYS AGs are doing.
To tell people the truth in an election campaign is an intolerable concept in "New York politics"?
By the way, civil rights violations are federal crimes, 18 U.S.C. 242.
So, a NYS AG, in representing public officials sued for civil rights violations, is defending potential criminals - the ones he must prosecute.
But, that conflict of interest never occurred to the New York Legislature to change.
Possibly, because NYS AG represents - instead of investigating and prosecuting for civil rights violations - them, too.
On integrity of prosecutors and regulators of prosecutors, Pennsylvania-style. Time for voters to stop being disenfranchised in the choice of their prosecutors
The court that kept NOT disciplining as an attorney the judge who was selling - for years - kids into kiddie prisons, until the feds locked him up for over 20 years. And instead disciplining attorneys who reported judicial misconduct so viciously that attorneys preferred to let kid-selling continue rather than lose their licenses and livelihoods.
By the way, the kid-selling judge, when sued by his victims, was still declared immune, because of the "law" that judges invented for themselves - a gift of absolute judicial immunity barring victims of their misconduct and corruption from obtaining a legal remedy for their injuries in court.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009.
Oh, the court of supreme integrity, which repeatedly allowed a prosecutor who obtained a death penalty through prosecutorial misconduct, to preside over the same case as a judge, block the condemned TO DEATH prisoner from habeas corpus relief and even have the audacity in authority special opinions blasting the federal defenders who would not shut up defending the condemned-to-death-person against the judge (former prosecutor) own misconduct.
Which allowed a judge who was the target of an elected State Attorney General's investigation (and who had to later resign and pay a fine because of his misconduct that the State Attorney General was investigating) to yank the State Attorney General's law license in order to disenfranchise the State of Pennsylvania voters and remove the State Attorney General from her office.
And which refused to reinstate the law license because it was taken with the help of the target of the Attorney General's official investigation - Judge Michael Eakin, and in retaliation for that investigation.
And that repeatedly refuses to reinstate the law license of attorneys Andrew Ostrowski - who ran for the U.S. Congress on the platform of judicial reform and cleaning up judicial corruption, and of Don Bailey, the former State Auditor, who, using his skills as the former State Auditor, investigated judges and claimed judicial corruption - for which claim he was disbarred.
And that invented a "rule of law", contrary to a state statute, that lay representation of indigent (poor) unemployed before the Pennsylvania Unemployment Compensation Board is allowed by statute - but not if the lay representative is a suspended or disbarred attorney, for those buggers such a lay representation will mean "unauthorized practice of law". Thus, the extremely honest Pennsylvania Supreme Court has changed a criminal statute to mean different things for different people - exactly what is prohibited in the U.S. Constitution, the Bill of Attainder clauses (2 of them, for the federal government and for the states), which every single judge of that honest court was sworn to uphold. So that lawyers who were stripped of their livelihood for their big mouths - publicly raising the issue of corruption of their own regulator - will remain forever tarred-and-feathered and impoverished, without any possibility to earn a living with their skills, while the population desperately needs their skilled services.
THAT honest court now is investigating a prosecutor, for ex parte communications with a former judge.
Now, prosecutors routinely engage in ex parte communications with judges, and are never disciplined.
Why the extremely honest Pennsylvania Supreme Court turned its radar towards prosecutor Stacy Parks Miller?
She has caused publicity.
Note that obligations to the public are not mentioned, what is mentioned is violations of a public prosecutor's supposed obligations "to the Board, court and the legal profession".
And those obligations supposedly trump a court-imposed gag order, since the public prosecutor was ordered in a disciplinary proceeding to disclose what a court, another court, prohibited her to do.
So, she had a Catch-22 - disclose it, and be sent to jail for contempt of court. Do not disclose it, and be stripped of your law license and public office - same as Kathleen Kane was (aided by a fabricated criminal case).
What is wondrous with all of that happening is how people continue to tolerate those jerks ruling access of the public to court at their own personal whim.
A SECOND FEMALE public prosecutor, elected public official, is being yanked out of office through a closed-doors, no-public-allowed disciplinary process.
She may have done something wrong. But then, the same standards should be applied evenly across the board, and for public officials there is only ONE way to go out of office - impeachment.
Without it, disciplinary process operated by the public officials' competitors or people who she investigate or may investigate in the near future, have no right of undermining her public status.
And, it is time for the Pennsylvania voters to change their state Constitution to remove requirement that any public official should be also an attorney and to actually prohibit such a thing - to prevent cancelling voters' decisions through backyard deals.
The reasoning in the extremely short decision was as follows:
1. The petitioner was pregnant and sought certain relief from the courts based on her pregnancy.
2. The petitioner terminated her pregnancy and thus mooted (terminated jurisdiction) for her own case.
3. The petition cannot at the same time end her own case by having an abortion (mooting the case) and continue to claim relief.
Guess what, in Roe v. Wade the petitioner also obtained an abortion before the U.S. Supreme Court reviewed and ruled on the woman's case - human pregnancy is much shorter than the judicial process winding up through courts of different levels, the window for an abortion is even shorter.
In Roe v Wade, a 1973 case, 45 years ago, the same U.S. Supreme Court claimed, in providing a full review of the similarly "mooted" issues, that the situation in the case is prone for repetition, but, due to the time limits of pregnancy and abortion, will always evade review.
In 2018 suddenly the same issues, "prone for repetition, but evading review", are mooted.
Which begs the question - is the U.S. Supreme Court playing games while preparing to overturn Roe v Wade as incorrectly decided without jurisdiction because it was mooted.
Or, is the issue of providing abortions to young women who came to the U.S. illegally so wide-spread and promises such consequences for the government and taxpayers that our "non-political" court was afraid to provide a full review and opinion on the issues involved?
Time will show - likely, soon.
There is a separation of powers doctrine.
It is a constitutional doctrine.
Every public official in the United States - that is, including every judge - is sworn to uphold the U.S. Constitution, together with separation of powers built into it.
According to the U.S. Constitution, only the U.S. Congress is allowed to make the law.
Yet, here goes the speech by an Albany Law School professor Vincent Bonventre, the breeder of the future lawyers of America, who openly states that in the "baker's case" where the baker refused to create a cake for a same-sex wedding based on his religious beliefs, the decision of the U.S. Supreme Court is "narrow", and the U.S. Supreme Court did not create a broad "rule of law", as the court NORMALLY does.
So, a respected law professor openly admits that the U.S. Supreme Court routinely violates the U.S. Constitution it is sworn to uphold by making the law for the entire country INSTEAD of the U.S. Congress - and that it is now the new "norm".