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.

Sunday, February 22, 2015

New York State of the Judiciary 2015 - the disaster of the criminal "Gideon" unveiled


At the NY State of the Judiciary 2015 address the Chief Judge of the NYS Court of Appeals Jonathan Lippman made a flowery speech that New York is on the way to implement constitutional rights of criminal defendants to counsel established long time ago by the U.S. Supreme Court.



This part of Lippman's speech is more scary than inspiring.

First, an individual had to sue the State of New York so that the State of New York would wake up and recognize a systemic problem of continuous violations of the fundamental constitutional right of indigent criminal defendant in the State of New York for effective legal representation at every stage of criminal proceedings.


Think about the amount of money the State of New York spent on legal representation in a case where it FINALLY admitted existence of a systemic problem.

I do not find this situation inspiring.

Furthermore, the settlement agreement covers only 5 counties out of 62 counties of the State of New York.  

Thus, other 55 counties at this time may continue NOT providing assigned counsel at arraignment, providing assigned counsel with unmanageable caseloads, and failing to monitor competence or actual effectiveness of the work of defense counsel for the indigent, whether through the public defenders offices, legal aide or assigned counsel program.

There is an interesting concession in the agreement.  "Incident" or "sporadic" failures of counsel to appear for the indigent defendants will not be considered a breach of the agreement.  And, with the exception termed in such broad language, I am sure this exception can be used as a loophole to swallow the entire rule and obligation to provide effective assigned counsel at arraignments.


A disastrous figure that the settlement (but not Lippman) cited was over 500 and, in some counties, over 700 cases as caseloads of public defenders.  Such caseloads are completely unmanageable and constitute a constructive denial of meaningful legal representation.

All in all, it can be deemed that in counties with such caseloads on public defenders, legal defense of indigent criminal defendants is non-existent, and all convictions ever made under such circumstances should be instantly vacated and reversed.  Will the State of New York make this huge step?  I highly doubt it.


Such a rule does not exist for malpractice in civil cases, the botched civil case does not have to be reversed for the right to sue for malpractice to arise.

Why does this rule exist?

Obviously, to insulate criminal defense attorneys from any malpractice liability for botched up cases.

Since appellate courts, as a matter of policy, affirm practically 99.9% of criminal appeals, and since the standard of "effective assistance of counsel" set by the court is extremely low, the chance of overturning the conviction in order to satisfy the "criminal defense malpractice rule" is next to zero.

And apparently, this court policy exists to absolve the overworked public defenders from malpractice liability, even though, with 700 cases per attorney, it is obvious that they cannot possibly provide proper legal representation - and should decline accepting cases where they cannot provide such effective representation.

So, the solution that the "spectacular" and "absolute best" New York judiciary has so far found for the staggering problem of ineffective assistance of criminal defense counsel for the indigent because of excessive caseloads is - while not relieving the caseloads - invent a way to block criminal defendants from suing their public defenders for accepting cases where they knew they could not possibly provide effective legal representation - and, predictably, botching the cases.

Thus, indigent criminal defendants in New York are hurt several times - by not being given assigned counsel at arraignment, by being given overworked and underfunded assigned counsel, and then by being blocked from suing his or her assigned counsel for malpractice due to predictably botched representation resulting in a conviction that is impossible to overturn due to courts' policies of priority of finality over fairness.

And existence of such "policy" approaches to resolution of constitutional problems in New York courts is the real problem that Lippman did not address.
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