"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).

“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.

"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.

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 cos
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.

Tuesday, May 23, 2017

The Texas #judgeJamesOakley who publicly incited through a Facebook post to lynch a black criminal defendant remained on the bench with a slap on the wrist and an order of "racial sensitivity training"

On this blog, I frequently cover stories from all over the United States showing that judges did not only give themselves an illegal gift of absolute immunity for malicious and corrupt acts on the bench (for violation their own oath of office once they took it), but, even if disciplined (by people with ties to and livelihood derived from the judicial system), they are usually given a slap on the wrist and allowed to continue on, engaging in the same conduct.

Another example of that came from Texas, where a judge, James Oakley,

received a slap on the wrist and was allowed to remain on the bench after posting on Facebook, in response of a media announcement of an arrest of a dark-skinned suspect in the murder of a police officer, stated: "Time for a tree and a rope".

Of course, the judge later erased the post, apologized and claimed that his post was not meant as racist, and was taken "out of context".

Yet, what kind of context is needed to read it as anything other than racist?

Why just a slap on the wrist?  Why just a public reprimand (which, as you understand, is nothing in terms of accountability and deterrence of future misconduct) and order into "racial sensitivity training" with a mentor of the Commission's choice?

Can one teach a raging violent racist how not to be a raging violent racist?

And even that discipline happened only because of the judge's own stupidity of openly stating on Facebook his obviously long-held beliefs:

  • there is no presumption of innocence in criminal proceedings;
  • a black person charged with a crime is guilty on publication of charges,
and because somebody was quick enough to save the scan and send it to the media and social media.

And, of course, the "context" of the judge's Facebook statement, had it been made just a 100 years back would be a body hanging from the tree in the courthouse square, put their by a lynching mob incited by the judge's "fighting words".

Because those words CALLED FOR VIOLENCE.

They called for vigilantism.

And no public explaining-away can erase it from #JudgeJamesOakley - the lynching racist.

Time sheet scandals prove there is no such thing as making high-ranking employees close to the judicial system accountable for misconduct and even crimes - Part IV of public comment regarding proposed New York mandatory discovery rule in criminal proceedings

Falsifying time sheets may be a misdemeanor or a felony, depending on how much in unearned public money was stolen. 

For example, recently two employees of the town of Middletown, NY, were charged with felonies and misdemeanors for falsifying time sheets.

That was considered theft of public funds.

Yet, when three attorney disciplinary prosecutors of the Attorney Grievance Committee of the Appellate Division, 3rd Department (New York):

 were implicated in doing the same, they were only allowed to quietly resign, were not prosecuted criminally or disciplined as lawyers.

While Elizabeth Devane is not even listed as an ever-licensed attorney in New York state, Peter Torncello continues to toil in private practice:

and Steven Zayas is even allowed to continue in public service,

possibly, further engaging in theft of public funds, since they were not deterred by prosecution for their previous misdeeds.

In 2015, Chief Judge's own counsel Christina Ryba was fired for unethical conduct, but was never disciplined as an attorney and was allowed to become a judge, which requires to have a valid law license.

Ryba was not prosecuted either by criminal prosecutors - for elections fraud - nor by attorney disciplinary prosecutors, nor by the New York State Commission for Judicial Conduct.

Apparently, the ethical probe that Ryba's Republican opponents wanted amounted to nothing.

Nor were there any disciplinary probes of the wife of the Chief Administrative Judge for the State of New York, Otsego County Attorney Ellen Coccoma, former member of the Attorney Grievance Committee of the Appellate Division, 3rd Judicial Department, who, while being a full-time County Attorney, engages in private practice on the side during her work time.

Otsego County responded to my FOIL requests for her time-sheets by claiming that they simply don't have them.

Ellen Coccoma, as the County Attorney, was the legal advisor for that response.  Attorney rules of professional conduct prohibiting participation in a conflicted representation, apparently, did not apply to Ellen Coccoma, as wife of a high-ranking New York State judge.

At this time, New York State Court Administration, at the same time,
  • is stalling my FOIL requests for time sheets of the new Chief Attorney of the Attorney Grievance Committee, Monica Duffy, as well as some other attorneys of the Committee and some judges who were, according to my information, skipping work to participate in wining and dining with some attorneys from Otsego, Delaware and Chenango Counties - and,
  • is trying to push through "mandatory discovery orders" in criminal proceedings that are meant to pull the wool over the eyes of the public and create an impression that prosecutors - all prosecutors - in the state of New York are allegedly accountable for their misdeeds, see my public comments on that:
    • Part I;
    • Part II;
    • Part III - and more comments to come before June 5, 2017, the deadline for submission of public comments on that issue.

They are not.

The time-sheets prosecutions against town employees, but not against attorney disciplinary prosecutors prove that.

The lack of disciplinary prosecutions against attorney disciplinary prosecutors who falsify timesheets and are even fired for unethical conduct and defrauding voters, prove that.

Monday, May 22, 2017

Immigration lawyers' lawsuit against the Trump administration - fighting for lawyers' right to NOT represent clients in the entire proceeding, and claiming to do that for the benefit of those same clients. Come again?

There is a hilarious piece in "Above the Law" by their staff writer Joe Patrice, who reportedly has 11 years of litigation experience, about the lawsuit filed by immigration attorneys against the U.S. Department of Justice and Immigration authorities - for allegedly threatening a non-profit in the Stae of Washington, the non-profit North Western Immigration Rights Proctice (NWIRP),  with "attorney discipline" for providing legal services to indigent immigrants, and for the DOJ's alleged attempts to "shut down" their asylum services.

The piece is full of derogatory rhetoric, but has no details about what exactly is happening and is claimed in that litigation, which is propaganda, not journalism and especially is not legal journalism.

So, I went to Pacer.gov to get the first-hand information about the case, and I present it here to the public, with my comments, for the public's own review and conclusions.

Here is the complaint/lawsuit by NWIRP.

Here is their motion for a Temporary Restraining Order.

Here is the government's opposition to the TRO, catching NWIRP in multiple misrepresentations, and pointing out, correctly, that NWIRP has no standing to make claims on behalf of unnamed clients who are not parties in the lawsuit, as well as no grounds to ask for enforcement of an alleged ORAL agreement with an UNNAMED court administrator to not enforce a 2008 disciplinary rule applicable to all practitioners in immigration courts. 

Try filing a lawsuit to enforce

An oral agreement with an unnamed individual who does not have authority to enforce disciplinary rules against practitioners, or opt out of enforcing them, is not and cannot be legal - that is clear.

An ex parte communication with an unnamed court administration gaining a favor of not having a certain disciplinary rule apply to a certain group of attorneys is COURT BRIBERY - a crime.

Yet, NWIRP is happily asserting that that "agreement" must be enforced, and enforced nationwide, and judge Richard Jones

happily agreed, without giving any legal reasons for that!

And "Above the Law" is celebrating enforcement of an illegal ex parte agreement as a victory for civil rights?

I don't think you will find an attorney to dare to file such a thing, for a legitimate fear of sanctions for frivolous conduct.

Yet, NWIRP found not just one, but 8 lawyers, to file the lawsuit to enforce the illegal ex parte oral agreement to allow one group of practitioners to opt out of a long-standing disciplinary rule:

8 attorneys! 3 from NWIRP and 5 from a large private law firm.

And do you know that in their complaint against the federal government in its official capacity (meaning that NWIRP is suing American taxpayers, you and me, not just Trump and Sessions, as it is being portrayed in the press) the NWIRP is asking for costs and attorney fees of their frivolous litigation?

That is why NWIRP employed 8 attorneys of record? 

That is why attorneys from that private law firm (with high fees) are employed as attorneys of record, and especially attorneys with no listed experience in civil rights, attorney discipline or immigration litigation, the main issues in the lawsuit?

Here is the list of attorneys from Davis Wright Tremaine hired by NWIRP for this litigation (from the docket report of the case available on Pacer), and their experience reported on their law firm's website:

1) Jaime Drozd Allen - partner from Seattle, WA

Ms. Allen does not claim any experience in immigration law or civil rights on her law firm's website,

or on her LinkedIn profile, so there was no need to add her to this litigation other than to inflate attorney fees.

2) James Harlan Corning - associate, former software developer

Same as attorney Allen, attorney Corning has no reported experience in the three areas of law that the litigation is about:

  • civil rights;
  • immigration law;
  • attorney discipline,
but has a personal connection to the court, being a former recent law clerk and "judicial extern" for a judge in the very court where the case is being litigated:

3) Laura-Lee S Williams - associate

Same as attorneys Corning and Allen, Ms. Williams does not report litigation experience in the three major areas of law that the lawsuit is about.

Instead she advertises her prior work for the Defendant U.S. Department of Justice.  She should have been specifically excluded from litigation for this reason - but she was instead included.

4) Michele Radosevich - a partner

Also no reported experience in civil rights, attorney discipline or immigration law, but instead connections as a reported former lobbyist before the Washington State Legislature,

recent former president of the Washington State Bar Association, an attorney regulating body (Washington has a mandatory bar) and a president professor of the Seattle School of Law (an organization that obviously is wining and dining local federal judges, including the presiding judge):

Ms. Radosevich, apparently, has high enough connections to be able to yank the license of any attorney in the state of Washington - including that of the presiding judge Richard Jones.

5) Robert Miller - associate

Same as the previous 4 attorneys of record from Davis Wright Tremaine in this case, Robert Miller does not report any experience in civil rights, attorney discipline or immigration law.

But, same as attorney Corning, attorney Miller, a recent law school graduate without any experience needed for this case, is "coincidentally" also a former "judicial extern" for a judge (the same judge as attorney Corning worked for) in the court where the case is being litigated:

That is why NWIRP employed high-priced private attorneys in addition to their own lawyers, a law firm with multiple offices across the U.S. and one in China?

A firm ranked # 114 in the country in gross revenues?  Imagine the hourly rates of this law firm!

So, the law firm, with a team of 5 attorneys, 2 partners and 3 associates, having no experience for this particular type of litigation, was hired to:
  • inflate the amount of attorney fees claimed in litigation, and
  • to use their connections to influence the court?
That's what it appears to be.

Imagine how many indigent immigrants could be represented for the money paid, unnecessarily, to 5 private attorneys representing NWIRP in this frivolous litigation, asserting NWIRP's "right" NOT to represent immigrants throughout a given a case and to leave their clients on their own before immigration courts.

And, here is the TRO (temporary restraining order), heralded by Joe Patrice as upholding the law by the federal judge where the federal judge in question did not address any of the legitimate concerns raised in the federal government's response and granted the TRO without any explanation or legal grounds whatsoever, here is judge Richard Jones' 2-paragraph (!) no-legal-grounds "explanation" that the plaintiffs have allegedly met their burden of proof - because the judge says so. 

A judge's "say-so" has never before, without legal grounds or reasoning, been enough to sustain the extraordinary relief of a temporary restraining order.

So, civil rights litigation is definitely changing in this country - but only when the Trump administration is on the other side.

Because what is challenged is a "practitioner" (the government's term) or "attorney's" (NWIRP's term" disciplinary rule.

You know where such challenges usually end up?

In the garbage bin with sanctions against those who filed them - whether the challenge was meritorious or not.

This challenge was clearly not meritorious - because NWIRP was claiming a right to NOT represent clients in immigration proceedings under the guise of trying to stretch its resources to more recipients.

Of course, attorneys no constitutional right to ghost-writing in any administrative or court proceedings.

Of course, prohibitions on partial and ghost representation exist in many states, and no attorneys dreamt of challenging them as unconstitutional - legitimately fearing sanctions.

And, while Joe Patrice is alleging that it was all Joe Sessions' fault, the rule that NWIRP are challenging was introduced, and the initial inquiry commenced, under the Obama administration.

Moreover, after having read, in detail, while making notes and researching issues, the complaint and the motion for the TRO, as well as the opposition to that motion and the actual TRO order, I have come to a personal opinion that what NWIRP is doing is:

  • not fighting for their present or potential clients;
  • not trying to assert independence of representation, as they claim -
but are trying to stamp out competition by lay representatives who are allowed to practice in immigration courts, and to assert their right to not abide by the rules of the forum where they are practicing, immigration courts, to the detriment, not the benefit, of their clients.

And, for the public's information, the disciplinary rule that NWIRP "succeeded" to block - with Above the Law cheering - was meant to fight fraud in immigration proceedings, so now, with that rule blocked, fraud can proceed full speed.

Quite a victory.

There were several motions for amicus briefs filed in support of the TRO, most notably, by the Attorney General of the State of Washington, the attorney who usually OPPOSES civil rights lawsuit by Washington state attorneys challenging constitutionality of attorney disciplinary rules, so NWIRP is definitely in bed with the devil on this one.

NWIRP is claiming in their complaint that the federal government, by applying federal disciplinary rules to practitioners in federal immigration courts somehow interferes with the State of Washington's right to regulate the practice of law - while practicing before federal immigration courts is NOT practice of law since lay practitioners are allowed.

So far, the new precedential "law" continues to emerge in federal courts, and it is quite simple:

  • no evidence is usually enough to sustain a civil rights lawsuit against an attorney disciplinary rule; but
  • no evidence is necessary to sustain a civil rights lawsuit against a practitioner (including attorney) disciplinary rule, if that is aimed against the Trump administration.
It is very clear that federal courts have become political bodies that have foregone their oaths of office in order to suit the judges' and their supporters, political beliefs, the question arises loud and clear about the necessity to enact short terms of office for federal judges, and effective measures of accountability for misconduct in office, including decisions that disregard the law.

And, there are a lot of interesting issues raised in this peculiar and peculiarly frivolous lawsuit, which I will discuss in detail in future blogs.

Stay tuned.

Saturday, May 20, 2017

Next time you are mugged in New York City, ask the City Hall why it criminally prosecutes people for honestly earning a living as street vendors of small everyday items

In July of 2015 President Obama has raised the issue whether proliferant occupational licensing in the U.S. is stifling the country's economy and preventing the upwards social mobility of Americans.

Yet, occupational licensing still flourishes, with states and municipalities licensing anything that moves for anything at all.

Licensing usually starts before the business starts to get any money, as a condition to even try to sell products or services.

Of course, under these conditions, only people who already have money can afford paying for the license (and training and documentation needed to obtain it) up front, before any income from the business has started to come in.

And, of course, for people who do not have money and cannot, thus, engage in an honest business, because they cannot afford a license fee, the only way, other than to get a job (which may or may not be possible in the current economy), there is another alternative - steal and rob.  Violent crime.

The easiest thing for a poor person, or an immigrant without any language, to do, is to either cook authentic ethnic food, or sell items he produces or resells from others.

And, both of these professions are licensed.

In New York City, for example, which prides itself on protection of civil rights of immigrants, criminal convictions for the following "criminal conduct":

So, selling to people:

  • a DVD;
  • T-shirts;
  • condoms;
  • sunglasses, or
  • umbrellas - during rain - is a crime in New York City.
But, crimes in the State of New York MUST BE violations of the Penal Code, not of an "Administrative Code" of the City of New York.

Yet, somehow, in all of these cases, convictions for violation of the administrative code of the City of New York were upheld as crimes.

Consider how much profit one would make by selling a few umbrellas, condoms, a DVD, T-shirts, or sunglasses.

Is it worth the effort and expense to put together the necessary paperwork?

It can be a one-time deal, and it will surely be less than a yearly license fee.

New York City Hall is not flexible in this respect.

It does not sell one-day, one-week, one-month or similar short-term licenses - only a yearly license.

And, of course, a rich person will not be risking a criminal conviction for selling several T-shirts - only a poor person will consider earning several dollars worth that risk.

The risk that, as the cases I referenced above, shows, is real - New York City vigorously prosecutes those who still try to earn a living by selling stuff - without a license that they cannot afford. 

Nothing like criminalizing poverty.

So, the next time you are mugged, robbed, stolen from, pick-pocketed, jumped, in New York City - ask the City Hall, why do they are they so vigorously, and stupidly, trying to prevent poor people from honestly earning a living.

How Federal Judge Margo K. Brodie cheated an indigent civil rights plaintiff out of his day in court in a case where the defendant was the judge's own former client

There is this federal statute, the Civil Rights Act, 42 U.S.C. 1983.

It has been enacted by the U.S. Congress.

It gives people who believe that their federal constitutional rights were violated by the government, to file a lawsuit in federal court.

There are federal courts, with judges who are all sworn to protect and uphold the U.S. Constitution - including the Supremacy Clause which considers as the "Supreme Law of the Land" only THREE things:

  • the U.S. Constitution itself;
  • the laws "made" under it - and the only lawmaking power, under the same U.S. Constitution, Article I, belongs exclusively to the U.S. Congress; and
  • the international treaties that the U.S. has ratified.
That's all.

There is no such thing as "federal common law", "federal case law", "binding precedent" in federal law - and that concerns all decisions of federal courts, including the U.S. Supreme Court.

And, there are federal judges who have a limited power, under Article III, to apply, not to amend or make, federal law.

That's the law.

And, on February 17, 2017, a taxi driver from New York City by the name of Nixon C. Jean Pierre, an indigent person, believing that his constitutional rights were violated by the New York City Taxi and Limousine Commission, has filed a civil rights lawsuit in the U.S. District Court for the Eastern District of New York, Case No. 1:17-cv-00973-MKB-LB.

MKB in the case number means initials of the name of the U.S. District #JudgeMargoKitsyBrodie, a President Obama's nominee, who is apparently a good friend of the U.S. Senator Chuck Schumer.

Judge Brodie is a hot commodity among the New York City Bar, and people pay money for a chance to socialize with her.

How much?

I don't know whether the judge gets a cut from the proceeds of this entertainment, or whether she agrees to selling the chance to talk to her just for a free "wine and cheese reception" and "networking" with rich members of the New York City bar, but it is apparent that people who get to talk to the judge in person may have an advantage to discuss with her, out of court, their cases - and that is a huge appearance of impropriety.

Moreover, when a judge agrees to a bar association selling tickets to her appearances, it clearly appears that that bar association has an influence upon the judge and that members of this association may have a preferential treatment for the judge, bought with free dinners or cuts from the proceeds from an "evening with a judge" - in other words, it smacks of court corruption.

But - who am I to say that.

I do not know whether attorneys for the New York City Taxi and Limousine Commission were there and sponsoring the "wine and cheese" reception for the judge.

Yet, I do know though that Judge Brodie actually worked as an attorney for the New York City Legal Department, so the defendant in this case was the judge's own former client.

She did not make a disclosure about that to the plaintiff, of course.

Yet, I do know what the judge did to the indigent civil rights plaintiff Nixon C. Jean Pierre's case:  on April 19, 2017 she dismissed it.

She first granted Nixon C. Jean Pierre's application to proceed as a poor person - and thus "forgave" him the filing fee of $400.00, but at the same time Judge Brodie used Nixon C. Jean Pierre's status in order to dismiss his case before it was served.

And, not only she dismissed it, but she "certified" that an appeal from her own decision will be frivolous.

So, as far as I have seen the record, Nixon C. Jean Pierre did not appeal, and his time to do that has lapsed, so he is without a remedy now.

But, what is the most troubling about Judge Brodie's dismissal of a poor person's claim of constitutional violations in how his taxi driver license and livelihood were revoked by the New York City Taxi and Limousine Commission (and taxi drivers in NYC are nearly predominantly immigrants - but somehow I did not see ACLU lawyers or any other pro bono lawyers breaking Nixon C. Jean Pierre's doors to represent him in court) - what was the reason judge Brodie dismissed the case.

The reason was simple - Judge Brodie claimed that Mr. Nixon C. Jean Pierre has knocked on the wrong door, he filed a lawsuit in the wrong court, he should have proceeded in a state court through what is called an "Article 78 proceedings", which would have provided enough "due process" for him.

But, didn't the U.S. Congress, when enacting the Civil Rights Act, 42 U.S.C. 1983, give the right to choose the forum to civil rights plaintiffs - to Nixon C. Jean Pierre here?

And, isn't it true that the Civil Rights Act, 42 U.S.C. 1983, does not have in its text a condition that a potential civil rights plaintiff must go through state court proceedings to litigate a constitutional violation if such proceedings are available, and not through a federal court?

And, isn't it true that under Article III of the U.S. Constitution - which Judge Brodie took an oath to uphold and protect - Judge Brodie does not have legislative powers to change that statute?

These questions are not rhetorical.

Answers to them are:

yes, yes and yes.

The U.S. Congress gave the plaintiff - and nobody else - to choose the forum where he would litigate violations of the U.S. Constitution.

The U.S. Congress did not require civil rights plaintiff to use state court procedures to litigate their federal constitutional claims.

And, the U.S. Constitution does not give legislative power to federal courts, so Judge Brodie was without authority to teach the indigent civil rights plaintiff Nixon C. Jean Pierre that he should have used New York State Article 78 procedure to litigate his federal constitutional claims - deprivation of his right to earn a living in his chosen profession, revocation of his taxi driver's license by the New York City Taxi and Limousine Commission.

But, again, Nixon C. Jean Pierre, I presume, never paid for "evenings" with Judge Brodie.

And, since there is no real accountability of federal judges in this country, Judge Brodie, after attending the free "wine and cheese reception" sponsored by the New York City Bar Association where New York City attorneys, I am sure, are prominent members, and thus sponsors, felt free to do what she, or those who sponsor her - wanted to do, dismiss the case.

So, first of all, it was completely unlawful for Judge Brodie to dismiss a federal constitutional civil rights lawsuit of a poor person because he did not pursue federal constitutional claims through a state Article 78 procedure, and it was not Judge Brodie's business why Nixon C. Jean Pierre chose the federal court and not the state court for his civil rights litigation - the law allowed him that choice, and the judge was without power to change that.

But, when Judge Brodie disdainfully told a poor person that he would have had enough "process" in an Article 78 proceedings in pursuing federal constitutional claims, and dismissed his federal lawsuit because he chose to follow the law the way the U.S. Congress allowed him, she was not even right in that - which raises not only issues of integrity of this judge, but also issues of competency.

Here is a table I have put together, pointing out just some differences between an Article 78 proceedings in New York state court and a civil rights action in federal court.

Civil Rights Act, 42 U.S.C. 1983

Article 78
Civil action or special proceeding with special rules?

Civil action
Special proceeding
Injunctive relief available?
Yes, as a remedy as of right

Only as an “extraordinary relief” in a writ of mandamus

Purpose of the statute
Allowing private individuals, victims of violations of the U.S. Constitution and statutes, to sue perpetrators of such violations for money damages, injunctive or declaratory relief

Codification of the ancient (pre-U.S. Constitution) writs about “excesses of power”
Standard of proof
Fair preponderance of the evidence (standard of court proceedings)

Substantial evidence (lower standard, of administrative proceedings)
As of right, full documentary discovery and depositions
Limited by Article 4 of New York Civil Practice Law and Rules (CPLR), by permission of court only

Right to a jury trial
Yes, as of right

Right to appeal
Yes, as of right

Of course, when you are poor and the judge who dismisses your complaint certifies that your appeal, because you are poor, will be frivolous – that’s what Judge Brodie did, but that still does not mean that the appellant needs to seek permission of the federal appellate court to file and prosecute the appeal.

By permission of appellate court only
Right to pursue money damages?

Legislative intent to enforce federal law through the statute


It is apparent that neither the legislative purpose of Article 78, nor its procedure, or standard of proof, or remedies available, matches legislative purpose, procedure, standard of proof and remedies of the federal Civil Rights Act.

So, a well educated judge, and the former attorney for the defendant in this case, without disclosure of her conflict of interest, and after an "evening with a judge" where the judge allowed the New York City Bar Association (where the defendant's counsel, I am sure, are members), to sell the opportunity to socialize with herself - cheated a poor taxi driver deprived of her livelihood out of his day in court, and certified that his appeal will be frivolous, chilling him from even considering such an appeal.

No ACLU is fighting for this guy, who is poor and not politically connected.

Because - Constitution, prostitution, who really cares? 


Thursday, May 18, 2017

Pro-prosecution change of venue in Ken Paxton's trial - Part II: a media admonition for Ken Paxtonl: don't shop for a judge when he is an Inn of Court's puppet and is in the prosecution's pocket

In my previous blog I described an unprecedented decision by a judge to move the trial, over a defendant's objection, to another county on the eve of that trial, because allegedly the jury pool was tainted FOR THE PROSECUTION.

The issue of waiver of venue objections by the prosecution who has chosen the venue

And it was allegedly unfair to the prosecution to keep the trial in the venue where the prosecution BROUGHT it in the first place - and thus picked a venue and waived all objections to it.

The issue of waiver has not been picked up by the media, as far as I saw

Instead, the media is pounding on Ken Paxton for trying to remove the judge who is obviously in the prosecution's pocket.

Changes of venue are rare and disfavored by courts.

Changes of venue at the request of plaintiffs who have CHOSEN that venue in the first place are unheard of.

Even more unheard of are changes of venue by the prosecution in criminal cases who unilaterally investigated the case for a long time before bringing it before the grand jury of a certain county, and litigated it up to the point of a trial without raising the issue of donor lists available before the indictment - the donor lists of Texas AG Ken Paxton as a defendant.

Had there been an unbiased judge, he would have tossed such a prosecution's motion, likely with sanctions against the prosecution for trying to delay the trial and deprive the defendant of his right to a speedy trial by the jury of his own peers.

Since the plaintiff (the prosecution) has chosen venue, it could not be heard about change of venue.

U.S. Constitution specifically protects the fair trial for the defendant, not the prosecution

Moreover, the U.S. Constitution only provides for a right to a fair trial for the criminal defendant, not for the prosecution, so the judge put the law and the U.S. Constitution on its head by claiming that the jury pool is somehow "tainted" for the prosecution.

Of course, the prosecution has to have a fair shot at the case - but it actually does, the whole criminal procedure is skewed towards the prosecution, so the prosecution has nothing to complain about, after having served as a legal advisor for the decision-maker (the grand jury), in an ex parte manner, about bringing the indictment in the first place.

Not only that, but the prosecution had a powerful tool - voir dire, ,jury-picking - to strike those potential jurors who were donors to Ken Paxton, were connected to such donors or were swayed by any kind of publicity in favor of Ken Paxton.

Double-standard in upholding the prosecution's objection to County officials as donors of defendant somehow contaminating the prosecution's right to a fair trial

Prosecutors usually do not object to their own choice of venue if the County officials donated to their own election campaigns.  The same should be true for the defendant.

Moreover, even for the judiciary, who should set the standard of conduct for all other participants in court proceedings, donation by an attorney or party to the judge's election campaign is not, in itself, a basis for recusal - at least, judges do not consider it as such.

The same presiding judge would have vigorously fought (as all judges do) against any requests for recusal because HIS OWN DONORS would be  either the prosecutors, or witnesses, or serving as jurors.

Double-standard in upholding the prosecution's objection to pro-defense publicity as allegedly tainting the prosecution's right to a fair trial

I write on this blog, time and again, about pre-trial publicity done by the police (prosecution's witnesses) and by prosecution in practically all criminal cases that deprive defendants of their right to a fair trial, and that is especially so with the advent of social media.

The moment the person is arrested, charged with a crime, and the information gets into the so-called "police blotter", his or her reputation is done for, and he or she is already guilty in the court of public opinion.

Just read comments on Facebook about any criminal charge - the only thing that is discussed is how to punish the person (torture and killing in prison often comes up) and how to stop spending taxpayer money on allowing the defendant a right to appeal.

In this respect, Ken Paxton is no different.

His reputation has suffered a major hit when indictments were published and widely discussed in the media.

Yet, that is the normal course of business for the prosecution.  They have always been tainting jury pools and swaying public opinion against criminal defendants long before trial, and judges did not see any problems in that, the criminal defendant's constitutional right to a fair trial be d***ed.

What was not normal course of business is that somebody would publicly stand up in defense of a criminal defendant demonized by the press.

There were gag orders issued in the trial, which neither the defense, nor the prosecution violated - no such motions were made and no sanctions imposed.

Yet, after choosing their own venue and waiving all objections to such venue, the prosecution, on the eve of trial, filed a motion claiming that the defendant Ken Paxton is now "deified" by his "powerful allies".

So, demonizing the defendant before trial is good and never causes changes of venue, but "deifying" the defendant is bad.

And these arguments fly, apparently, in the secular court of a State of Texas.

Does it bear to mention that Judge George Gallagher is also a "master" of an "Inn of Court",  usually a secret-membership organization of judges and attorneys who meet to wine and dine judges (and pay for their own and their spouses' national and international trips) behind closed doors, of course, to promote "excellence" of the legal profession.

Judge Gallagher's particular Inn of Court published its membership directory, and its schedule of events, yet, the organization still has membership by "nominations" only, and the meetings and interactions of the organizations are, as far as I could see from the schedule of events, for members only.

See what Judge Gallagher's Inn of Court reported as to how its members get to use trial judges who are members of the Inn:

Imagine that an average Texan, as a member of the public, a part of a popular sovereign, who has actually HIRED state trial judges and pays their salaries out of taxes, approaches that judge and asks him to hold a luncheon in chambers, for the public and the press, to give information to the public and the press about "what goes on within the judge's court".

I bet any trial judge, including #JudgeGeorgeGallagher, would refuse to do that, quoting confidentiality of court deliberations.

Consider a group of pro se litigants in the trial judge's court asking for the same.

The judge will refuse, quoting judicial ethics and prohibition on ex parte communications.

Yet, no such prohibitions, apparently, were at work when "trial judges" of the "Mahon Inn", including Judge Gallagher, held luncheons in the state court chambers for members of a private fraternity they were members of.

For those members, likely attorneys appearing in front of those judges, including Judge Gallagher, trial judges provided lunches in chambers, with "personal, informative and encouraging" information about "what goes on within that judge's court".

Apparently, the Inn and its members, through sponsorship of judges, have an influence upon them to do what they would not do for the public, the press, for pro se litigants or attorneys who are not part of the Inn.

That much about judicial independence, and that much for the propriety in court proceedings.

Yet, since the resurrection of the English part-clerical, part-militarized, part-nobility legal guild of the Inns of Court was the idea of the Chief Judge of the U.S. Supreme Court Warren Burger in 1977, after a free trip to England with "other lawyers and judges", and since the Inns' English partners heavily sponsor SCOTUS judicial law clerks' travel to England, as well as monthly free lunches with wines for judges and their law clerks, the U.S. Supreme Court and other federal and state judges openly support the organization,

making its members impenetrable for criticism of accountability for impropriety.

As an example, my lawsuit to try to get data from this organization was dismissed before service by a federal court whose judges were members and officers of the Inn.

So, we don't know, do we, whether Judge Gallagher made his unprecedented and illegal decision to transfer venue in Ken Paxton's case, on request of prosecution, the party that has chosen that venue because he was told to do that by HIS Inn of Court donors.

I am sure Judge Gallagher will not be in a hurry to disclose that information.

But, the "brave" media is not too brave to delve into these sticky subjects.  Investigative journalism in this country, apparently, is long dead.  It only voices the opinions of the government, or, as it happens now, of the press's sponsors who want a certain outcome in certain elections.

It is safer at this time to bash Ken Paxton, for "judge-shopping" in a situation when the presiding judge in his own criminal trial is obviously in the pocket of the prosecution.

A sad irony, and a karma for Ken Paxton as a prosecutor, possibly - but also an illustration to the public that laws and the U.S. Constitution that are supposed to protect the rights of the accused in criminal proceedings do not work even for high and mighty when they support the wrong person - here, the President of the United States.

We already have an example from Pennsylvania where a crooked judge, presiding over a crooked criminal proceeding, obtained a crooked conviction against the State Attorney General Kathleen Kane, for going against judges and prosecutors.

Let's see what will be the course and the outcome of the Texas trial against the Texas AG who would very apparently not have been indictment but for the political struggle for his seat.

I bet the Inn of Court's puppet Judge Gallagher's "unusual" change of venue and his work as a practical advocate for the prosecution - allowing it to dump the entire jury pool from the venue they have themselves chosen, in order to help the prosecution win the case - will not be his last pro-prosecution trick in this trial, if he is not removed from the case.

I will continue to monitor the trial and outcome of Texas AG Ken Paxton.

Stay tuned.

Ken Paxton's pre-trial pro-prosecution change of venue: Part I - if we change venue lists for prosecution becuase of County officials donating to the defendant, should be change venues of all criminal cases where county officials donate to the District Attorney?

The media is all over the #TexasAttorneyGeneralKenPaxton who was criminally charged for alleged investment schemes that allegedly occurred before he became AG.

That an elected AG is being prosecuted for something he allegedly committed before he was elected is a very rare occurrence and clearly smacks of a political persecution.

That impression is even stronger from the way how the trial was handled - with a judge moving the venue, without consent of the defendant, to another county - and, just "coincidentally", after Ken Paxton took a stand in support of President Trump in his immigration executive orders.

As much as I dislike the stand of Ken Paxton on the death penalty and several other issues, Ken Paxton's brief regarding President Trump's immigration executive order was the correct expression of the law in an ocean of pro-Clinton's sponsored politics that the fight against President Trump's executive orders have become.

Paxton went to the appellate court to move the trial back to his own county and to remove the judge who granted the prosecution's "last minute" request to move the venue.

The media Paxton's claim to the appellate court that the venue was moved without his consent "unprecedented".

Well, first of all, what is so unprecedented to demand a right to trial by jury of his own peers?

Peers means cross-section of his own community, where he resides and works.

That's the law, isn't it?

The venue was moved because allegedly the defendant tainted the jury pool.

As proof, the prosecution used, among other things, an exhibit showing the list of donors of Paxton's AG election campaign in 2013 - which included a number of prominent Colin County officials (the county from which the venue was moved).

Now, since the judge relied on that exhibit in moving the venue, that is what I would call unprecedented.

In each criminal proceeding, the jury is picked (is supposed to be picked) from the cross-section of the community.

Of course, while the jury pool formation is supposed to be random, ask my husband who worked in Delaware County, NY, for 37 years as a criminal defense attorney, and ask me, a criminal defense attorney's wife who worked in his office as a legal assistant for years before working in that same county as a criminal defense attorney for nearly 7 years - how many times were we called for jury duty over all these years.

How about - NONE?  None at all.  Not in town court trials, not in village court (when it still existed) trials, not in county court trials, not in Supreme Court trials, not in federal court trials.

At the same time, our neighbors were called to jury duty regularly.

The same is happening, by the way, in South Carolina.  Our neighbors and new friends here report being called to jury duty several times a year, while we are left out.

Which creates a big question - how jury pools are formed?  Is the process random, or are people with defense attorney background deliberately excluded from jury pools, in order to help the prosecution ahead of time?

I do not see media coverage on this sticky issue at all.

But, supposedly, in Texas the jury pool formation is all according to the law, random and drawing from the cross-section of the community.

If that is true, what difference does it make for the jury who were donors of Ken Paxton's 2013 election campaign?

Isn't there voir dire (jury-picking process) for that?

Isn't there a tool of striking prospective jurors for cause if they are subordinates to Ken Paxton's donors?

And, will it not be completely different if it would be Ken Paxton who would be asking to move venue simply because the prosecutor was elected with support, including donor support, from the same County?

Because that's exactly the fact in many counties across the country, the County is usually a very large employer, and those employees have many relatives and friends, and yet no connection, even a close connection, to County officers, high-ranking employees, relatives or friends, will strike a prospective juror if he claims that he pledges to be impartial?

That process should work the same way for the prosecution.

It is interesting to see how Ken Paxton, a prosecutor himself, points out major issues with the judge catering for the prosecution in truly unprecedented ways - doing their job of picking the jury instead of them, while denying the defendant a trial by the jury of his own peers.

And, an elephant of a question arises that the media appears to conveniently ignore - if County officials were election donors for a party in litigation, and if the judge deems the list of County donors important enough to change venue, does the judge and the prosecution recognize by that move that jurors in a given County may ALWAYS be influenced, behind the scenes, by the high-ranking County officials influence a picked jury behind the scenes?

Now that is an interesting proposition.