EVOLUTION OF JUDICIAL TYRANNY:

"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 cos
t.



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.



“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.

Monday, August 31, 2015

Criminal tricks serve to keep state Attorneys General in check

My previous blog described the mechanism of how state Attorneys General, elected public officials, are controlled by a select private group, which requires deregulation of the legal profession that serves many goals, but none of them is protecting any public interests, and many of them are downright criminal.

In addition to that post, I would like to point out the following string of logic:

  1. any conflicted representation is a discipilnary violation that may ultimately cause (depending on the degree of conflict) sanctions against a licensed attorneys and revocation of the attorney's license;
  2. all State Attorneys General are required by statutory law to be licensed attorneys;
  3. all state legislatures are run by attorneys;
  4. state legislatures enacted attorney licensing schemes that violate separation of power and antitrust laws, putting attorney regulation in the hands of private attorneys and judges who are also required to be licensed attorneys;
  5. state legislatures enacted statutes governing duties of the State Attorneys General that require Attorneys General to both enforce laws and protect state actors from enforcement of laws against them by members of the public when such a private enforcement is allowed by state or federal statutory law (the Civil Rights Act of 1871, 42 U.S.C. 1983);
  6. so, the state legislatures, run by lawyers, require that State Attorney Generals be lawyers, that only lawyers regulate the law licenses of the State Attorneys General, and that the State Attorney General must engage in a conflicted representation that at any time may become the subject of a discipinary prosecution and lead to revocation of the law license of the State Attorney General - and removal of the AG from office as not fulfilling the requirement of being a licensed attorney.
So, in other words, a statutory scheme is in place - in all states - to undermine the will of voters to elect certain people to the position of the Attorney Generals and to allow private interests to control State Attorneys General from their first second in office.

With such an axe over their heads, there is no wonder that no state Attorney General as yet even tried to raise the issue that they SHOULD NOT, ethically, represent state actors against private citizens in civil rights actions alleging violations of constitutional rights, because the AG was elected to protect people, not protect those who violate people's constitutional rights.

Yet, such a statutory scheme that puts an elected public official in constant apprehension of suspension of her or his livelihood of a lifetime if she steps out of line with private interests is nothing less than a criminal trick.

And I wonder when the People, the true sovereigns of their states, change their state Constitutions prohibiting attorney licensing BECAUSE of the problems with
  • undermining democracy,
  • blocking access to court,
  • preventing independence representation in court,
  • undermining the will of voters to elect individuals of their choice to public office, and
  • interfering with proper investigation and prosecution of crimes in states, and especially the most heinous crimes that do the most damage to the public, the crimes of corruption in public office
It's high time to do that.

Attorney regulation must be extinguished as not only violating antitrust laws, but cancelling the will of voters and interfering in investigation and prosecution of criminal laws

In May of 2015 the following letter was written by a Consumers'  Union to the National Association of Attorneys General.




 
 
In plain English, the letter stated that states continue to violate federal antitrust laws in ignoring the decision of the U.S. Supreme Court that held in February of 2015 that licensing/disciplinary boards run by supermajority of market participants and without proper state oversight are in violation of federal antitrust laws - in other words, are committing felonies on a large scale and exposing their states to lawsuits that can bankrupt those states.
 
The letter points out what changes the states were supposed to make in their licensing regimes (that they did not make) to bring them into compliance with antitrust laws:
 
  • either establish supermajorities of public members not connected with the regulated trade on the regulation boards; or
  • establish oversight an active from a neutral state agency that will have a veto and modification power and that will ensure that members of regulatory board are advancing the state interest and not their own private interests in making their anticompetitive decisions
 
The letter contains a paragraph that is absolutely precious and is worth quoting:
 
"You are the chief law enforcement official of the State.  You also advise state agencies.  As such, your predominant obligation is not to arrange or excuse violations of law, but to prevent them and, where that fails, to enforce that law.  That function may place you at odds with the political and institutional prerogatives of these agencies, but we respectfully contend that your duty is not to them as clients receiving blind fealty, but to compliance with applicable Supreme Court decisions warranting your respect".
 
The paragraph is a monument to political correctness, yet, it correctly hits the bull right in the eye, politely.
 
It says, in plain English - dear Attorneys General!  You represent agencies whose members violate federal laws and commit felonies.  You also represent people of your state and have a duty to enforce laws, not condone violations of laws.  That is an IRRECONCILABLE conflict of interest.  And in the balance of those interests you need to choose to enforce the laws and not to represent a client.
 
First of all, that will not and cannot happen.
 
An attorney MAY NOT act contrary to his or her client's interests.
 
If the Attorney General represents those suckers who violate federal antitrust laws, he will represent them 100%, without ifs or buts (excluding violations of the law by the Attorney General himself during such representation).
 
Also, if the Attorney General represents those suckers who pay his salary (us, taxpayers), he must ALSO do that 100%, without ifs or buts.
 
Those two overlapping 100%s are the problem.
 
Both of them are ordered by the state laws in most states, imposing upon state Attorney  Generals duties BOTH to uphold the laws, prevent and prosecute violations of laws AND be the representative of state agencies and its members in lawsuits for violations of those laws that the Attorneys General are supposed to enforce.
 
Until this changes, only the feds (if they do not have their own conflicts of interest - like employing judicial offspring) are neutral enough to provide oversight, investigate and prosecute antitrust violations in the state regulating agencies.
 
One additional problem with Attorneys General handling compliance with antitrust laws - it concerns them not only in the attorney-client situation where members of licensing boards committing antitrust felonies are AGs' clients.
 
AG are THEMSELVES licensed attorneys subject to THEIR CLIENTS' regulation of THEIR OWN licenses.
 
As the case of Kathleen Kane, the currently embattled Attorney General in the State of Pennsylvania shows, battling misconduct in the close ranks of state prosecutors and even in her own office can cost the Attorney General dearly - right now Kathleen Kane, for exposure of misconduct in the "old boys' club" was:
 
2) referred to the disciplinary authorities - her own clients, THOSE SAME PEOPLE who she is supposed to:
 
(a) represent in lawsuits against them;
(b) verify their compliance with federal law, as the letter from the Consumer Union requests of her, and as is her duty.
 
"Coincidentally", the disciplinary referral was made right after a court decision allowing release of porn e-mails of the "old boys' club" using their office time paid by taxpayers for ribald entertainment.
 
That is - when Kathleen Kane was starting to win in asserting her claim that criminal charges against her was part of political conspiracy to get her out of office and retaliate against her for properly doing her job, her own clients - the disciplinary board - jumped on the bandwagon and lended a helping hand to the "old boys' club" to finish Kathleen Kane without much ado, because suspension of her license will automatically remove her from office as an ELECTED public official, elected by MILLIONS of voters of the state of Pennsylvania.
 
An awesome power of "market participants" to remove an elected public official from office behind closed doors, without any public input and without any procedure that would ensure fairness to the public, isn't it?
 
So - when the elected public official is REQUIRED to ALSO be a licensed attorney, the elections are a FARCE and a waste of taxpayer money.
 
Now, Kathleen Kane's own clients/active market participants in Pennsylvania will decide whether Kathleen Kane will keep her license or not - and if they decide - in their absolute discretion, behind closed doors, without any public input, that Kathleen Kane's law license "must be" suspended, then Kathleen Kane will lose her position as the Attorney General that REQUIRES her to hold a law license from the very people whom she must :
 
(1) represent in lawsuits for misconduct, and
(2) investigate and prosecute if they are in violation of the law
 
By the way, there is a petition currently pending on Change.org against disciplinary prosecution of Kathleen Kane - filed by consumers and by members of the public who want Kathleen Kane to do exactly what the "politically correct" paragraph I cited from the above letter asked her (among other state AGs) to do - disregard corrupt state actors as "clients receiving blind fealty" and enforce laws against them, which is what this courageous woman is doing. 
 
So - as much as the Consumer Union's letter wanted to be politically correct, life itself requires that we put political correctness aside and call a spade a spade.
 
Attorneys General, especially looking at the example of what is being done to Kathleen Kane, WILL NEVER try to "step out of line" and prosecute their own clients or even try to verify their powerful clients' compliance with federal antitrust laws - for as long as those clients hold the AGs' own law licenses, reputations and livelihoods for a lifetime to come, tightly in hand.
 
In order for anything to move, it is necessary to:
 
(1) FREE the state Attorneys General from their obligation to represent and advise state agencies, and
 
(2) REQUIRE that the state Attorneys General MUST NOT be licensed attorneys - because otherwise their independence in assuring that it is public interest and public right to effective legal representation in court that is protected by the states and NOT private interests of board members is NON-EXISTENT.
 
And, for as long as Attorneys General continue to represent members of the state licensing boards - or any state actors - ALL INFORMATION about them violating any laws, including criminal laws, fall under attorney-client privilege and CANNOT be disclosed by the very same elected official who MUST investate and prosecute his own clients for the crimes, information about which is covered by the absolute attorney-client privilege because of the statutory scheme created by a legislature overpowered by licensed attorneys.
 
Nice job, isn't it?
 
You can't frame the Attorney General into a conflict-of-interest quagmire any better and cannot create a better criminal cartel to run your own interests under the guise of the law.  No political correctness is needed here.
 
And, you can remove a public official elected by millions of voters because several market players gathering in a Star Chamber-like proceedings behind closed doors and without any public input, wanted it.
 
That's exactly why the legal profession as a whole must be deregulated.
 
No band-aids of "oversight" by governments that are controlled by attorneys.  Just deregulation.  Nothing else will help.
 
Otherwise we allow a bunch of private attorneys overrun the will of voters of sovereign states and interfere with investigation and proseuction of crimes and other misconduct in office of high-standing public officials.
 
So, the need to deregulate the legal profession, as Kathleen Kane's example shows, is bigger than just antitrust violations.
 
Such regulation undermines democracy, and must be extinguished. 
 
 
 
 
 
 
 
 
     
     
 
 
 

 

 
 




On the undisclosed goal of the New York State Statewide Commission for Attorney Discipline

I wrote on this blog several times about the newly created New York Statewide Commission for Attorney Discipline:


as well as that the New York State Office of Court Administration, the same office that created the Commission and is holding the hearing, is at the same time blocking my Freedom of Information request regarding public records pertaining to:

  • appointments to the disciplinary committees;
  • statistics of attorney discipline by classes of disciplined attorneys 
I already wrote in my very first blog that the creation of the Commission was NOT motivated by protection of consumers - that was the declared purpose - but, rather, as a panic reaction of the legal profession to the decision of the U.S. Supreme Court stripping members of attorney disciplinary committees of the "state immunity" for antitrust violations, in other words, for disciplining attorneys not for purposes of protection of the public, but to protect committee members' own market turfs, since the absolute supermajority of committee members are practicing attorneys with financial interest in disciplinary investigations.  

In other words, disciplinary proceedings in New York - as in other states - bear the definite attributes of quashing competition (that's along with quashing critics of misconduct in the judiciary and in any other branch and level of the government).

Of course, the Chief Judge Lippman, when creating the Commission to review how to save the market players from antitrust liability, did not tell the public that it is spending public money to save the market players from antitrust liability.  Of course, it was presented to the public that the Commission was created to:

  • make attorney disciplinary proceedings uniform across the 4 Appellate Divisions, 
  • fair and efficient to attorneys while
  • making them also efficient in protection of the public
Well, the "public" hearing and how they were conducted showed to a lot of consumers just how they are being protected by the Statewide Commission.

As another illustrative point, I did not see anywhere on the Commission's website an announcement to the public - in the form of a disclaimer of a conflict of interest by the Commission's attorney-members and law professor-members who are breeding the "future lawyers of America" (while intentionally not teaching them about attorney disciplinary proceedings - according to the testimony of one of the esteemed "legal ethics" professors testified) - about a letter by a consumer union to the State Attorneys General to investigate antitrust violations by the disciplinary committees in all states of the United States.

The letter was reported by "The National Law Journal" back in May of this year.

The letter, as I stated above, requested State Attorneys General to bring the disciplinary committees within compliance with federal antitrust laws and the decision of the U.S. Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission decided in February of 2015 and, before being decided, ardently opposed by bar associations from across the country - those same people who allegedly regulate the legal profession in order to protect the consumers of legal services.

The National Law Journal quotes a former antitrust prosecutor to say the following about the U.S. Supreme Court decision that applies not only to the dental examiners, but to any licensing board with a supermajority of regulated market participants and without strict and neutral supervision from the state:


        "The Supreme Court declared, in effect, that 
         a thousand agencies—most state regulatory boards 
         and commissions—are committing felony offenses
         said Robert Fellmeth, a former antitrust prosecutor 
         and director of the Center for Public Interest Law"

and that

       "The high court ruling was not limited to the North Carolina
         dental board, Fellmeth said. "This was a cosmic case 
         where the Supreme Court said any agency controlled by     
         active participants in the trade regulated does not have 
         sovereign protection," he said. "They are in same position 
         as a cartel of truckers, insurance agents and other 
         horizontal competitors meeting and deciding what to do. 
         And, by the way, lawyers are included here."

"Coincidentally", I wrote about that, both in this blog, and in the pleadings in my own and in my husband's disciplinary proceedings.

Moreover, at this time I filed a request with the Federal Trade Commission to investigate the New York State attorney disciplinary authorities for non-compliance with antitrust laws.

But - wait a minute.  If these people are "committing felony offenses", violations of criminal antitrust laws, where are federal investigators and prosecutors?

And, isn't a disciplinary investigation by panels of non-attorneys of ALL attorney-members of disciplinary committees are in order INSTEAD OF appointing them as members of the Statewide Commission?

As the National Law Journal further contends, the National Attorneys General Association "declined to comment" on the letter, but, as the National Law Journal reports, the former antitrust prosecutor recommended, back in May of this year, to make two changes, in the alternative, to AVOID ANTITRUST LIABILITY for members of attorney disciplinary proceedings - not for protection of the public:
  • Either "get rid of a majority of the trade members, or" 
  • "create some oversight that passes muster"

    Getting rid of majorities on the disciplinary committees?
What of hundreds of disciplined attorneys who ALREADY suffered from anti-competitive actions of their competitors on the committees who violated federal antitrust laws in prosecuting them, thus committing felonies - and were absolved BY FEDERAL COURTS who gave them absolute JUDICIAL IMMUNITY?

Courts will now claim that the U.S. Supreme Court's decision does not have a "retroactive effect"?

That issue aside, I wrote on this blog on June 25, 2014, 8 months before the U.S. Supreme Court made the decision that rattled the legal profession, that attorney disciplinary proceedings are necessary not to protect the public, but to quash competition, and that blog post remains in the 10 most read posts out of more than 500 blog posts in this blog (the 10 most read blogs are determined automatically by viewing statistics, I have no control over it).

Nevertheless - and quite predictably - I was never invited to speak to the Commission at its "public hearings".

Nor did I ask the Commission for an opportunity to testify.

First, what I wanted to say, I say regularly on my blog, without time or space restrictions, and the member of the Commission Christopher Lindquist, of the Appellate Division 4th Department, was notified of my blog because I was charged criminally (by the disciplinary prosecutor acting as a prosecutor and the main witness, a completely disqualifying combination) for telling the truth about fabrication of court transcripts in my disciplinary proceedings.

Second, for me, the purpose of why the Commission was convened was quite clear - and it was not to help attorneys get a fairer treatment in proceedings that are characterized with no procedural protections and gross separation of powers and conflicts of interest violations, and not to protect consumers.

It was, as I said above, a panic reaction of attorneys to protect themselves from AUTOMATIC DISBARMENT that will result if members of disciplinary committees (who sit there to do the bidding of judges to eliminate critics of judicial misconduct and to drum up their own business, quashing competition and rescuing high-standing attorneys from discipline) are convicted for antitrust felony violations.

As to the advise of the "former antitrust prosecutor", I don't believe that it is an "either - or" situation where the states should EITHER get rid of majority of trade members on the disciplinary committees OR create state oversight that passes muster, because the "oversight which passes muster" must be from NEUTRAL bodies and NEUTRAL actors, and ALL branches of New York State government are controlled by the "trade members", licensed attorneys.

And, of course, the creation of the Statewide Commission of trade members is an answer as to whether the legal elite wants to give up the controls of the disciplinary proceedings to the public that it claims it is protecting.

By the way, with all that said - as I also pointed out to the 4th Department in my pleadings - there is NOTHING in New York State statutory law giving authority to the now existing disciplinary committees to conduct disciplinary proceedings.  An attentive reader will search in vain the statute that governs regulation of the legal profession in New York, Judiciary Law 90, for existence or authority of anything other than "character and fitness committees", and for anything other than checking fitness of CANDIDATES for licensing, not disciplining licensed attorneys. 

That "little glitch" somehow escapes review of Appellate courts that created those committees and consider them "an arm of the court" (thus creating a separation-of-power, and conflict of interest/court-as-advocate and prosecutor-as-adjudicator/court issue).

So, while the Statewide Commission is presenting a smoke screen to the public that it is sitting out there to come up with ideas as to how to make attorney disciplinary proceedings more uniform, fair and at the same time protection of the public more efficient - the real reason is how to save attorney members of disciplinary committees from multi-million dollar lawsuits, felony convictions and automatic disbarments after such felony convictions.

And such purposes should have been squarely announced to the public - that would be honest and honorable to do, by the profession that self-appoints itself as honorable, wouldn't it be?

What I am very upset about that taxpayers of the State of New York were not notified that what NEEDS to be created - and was not - was a Statewide Commission of CONCERNED TAXPAYERS interested in protecting the state budget from indemnifying the potential felons who quash competition and drum their own business behind closed doors under the guise of protecting the public from bad attorneys - when lawsuits against them for antitrust liability will start raining in.

Actually, the letter of the Consumer Union - see the link below DOES point out the need to protect state budgets from "indemnifying" liability.

Not to mention that saving the hides of felons should NOT be a matter of public concern and should NOT be the matter upon which taxpayer money is expended - and I am sure, taxpayer money was expended on the running of the Commission.
 
That these concerns behind creation of the Commission and the Commission's hidden goals were not presented to the public - thus reducing importance of the Commission in the public eyes - reveals just how honorable our self-appointed "honorables" are.
By the way, here is the letter of consumer organizations to the associations of the Attorneys General.  

The detailed analysis of the letter and the reaction (or non-reaction, and reasons for non-reaction) of the Attorneys General - in my next blog post.

Stay tuned.

















Sunday, August 30, 2015

Parties with booze in the courthouse and double standards in criminal investigation and prosecution on obscenity grounds based on whether the person to be investigated and prosecuted is or is not a high-ranking judge



Here is why I think it is inappropriate and judicial misconduct for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit to host monthly movie-night parties with food, alcoholic drinks, involvement of court personnel in preparation and hosting those parties and with invitations of judges, jurors, attorneys and court employees to such parties.

These by-invitation parties have nothing to do with expanding public access to courts, contrary to press describing such parties as "bringing the court and the public closer together".  Public is not invited there, legal elite is.  Nor should the court and the public "get closer together".  

Kozinski, instead of hosting parties in the public courthouse should instead do his job properly and stop tossing civil rights cases under unconstitutional pretexts (equitable theories in federal court while he publicly rejects authority of federal courts to exercise equitable jurisdiction when his own litigation and his own money are concerned).

If anything, the parties hosted by Kozinski with the help of court personnel to the invited elite few create an appearance of elitism of a certain invited group of people as opposed to litigants and attorneys excluded from such invitations, and create questions as to motivation of judge Kozinski and his court behind making this or that decision. 


Authority
An appellate judge does not have authority to host private after-hours by-invitation-only parties for legal elite in a public courthouse

Security
Federal appellate courthouses do not have nearly any traffic at all, with most of the appeals decided on paper and rare oral arguments not gathering crowds.   Hosting hundreds of people, especially when alcohol is served, in a building where confidential documents are stored, is a problem. 

Does Judge Kozinski increase security when his movie nights are hosted on a monthly basis?  Who pays for that security?

Possible interference with last-minute death penalty filings
Kozinski’s court hears death penalty cases.  Federal courthouses are kept open on a 24/7 basis to allow last-minute filing in death penalty cases.

Hosting large parties with alcohol may distract court personnel from cases, prevent proper filing and cost people their lives.

Here is a link to the site of the U.S. Court of Appeals for the 9th Circuit with statements "Inmates with pending executions" and "There are no pending executions" that show that the court where parties with alcohol are held DOES handle death penalty cases.


 
Liability
From slip-and-fall, to food poisoning, to assault on premises by an inebriated guest, to serving alcohol to minors (who, reportedly, did attend such parties) must be covered by liability.   Had Judge Kozinski wanted to incur that liability, he would have hosted such monthly parties at his own home.  So, it will be the taxpayers who will foot the bill, including legal fees, if anybody gets hurt and sue the federal government.

Slave labor
Slave labor and indentured servitude are prohibited by the XIIIth Amendment.
Judge Kozinski hosts monthly movie night with food, drinks, alcohol and a salad, for hundreds of people coming by invitation.
Judge Kozinski claims that his administrative assistant helps him shopping for such parties, that the administrative assistant cooks the salad for such parties, and that the administrative assistant and law clerks help host such parties.

Yet, such claims are unbelievable.
·      Buying food for 100-200 people;
·      Cooking salad for 100-200 people;
·      Staying after hours for enhanced security;
·      Catering for 100-200 people;
·      Cleaning after 100-200 people on a monthly basis
Is a job.

I doubt that Kozinski pays court personnel to do that job.
I doubt that court personnel does that job willingly, or, rather, has no choice but to comply with the judge’s “wishes” (demands) or` lose their jobs.

Using court personnel for such parties is highly inappropriate.

Creating disqualifying
social relationships


Lack of transparency

Guest lists to such parties which may lead to forming social relationships disqualifying the court, and to ex parte communications with judges, are not published. 

That creates appearance of impropriety and a sense of uncertainty in litigants whether certain decisions are made by Judge Kozinski and other judges of his court who attend such parties because of ex parte communications during such parties and because attorneys representing the winning side are included into the elite club that is invited to such movie nights.

Kozinski’s wife, an attorney practicing in his court, as hostess of private parties in the courthouse

By allowing his wife to help host parties to the legal elite in a public courthouse, Kozinski sends a message to litigants in his court that his wife (an attorney practicing in his court, which is inappropriate in itself), is part of the court and has power to influence the court.


Favoritism to attorneys over pro se parties

Potential for ex parte communication

Judge Kozinski stated that he invites “attorneys, judges, jurors and court employees”, but never mentioned inviting pro se parties.   Such selective inclusion and exclusion from such parties creates an appearance that Judge Kozinski favors represented parties over pro se parties. 

There is vast potential for ex parte communications between invited attorneys and Judge Kozinski about their cases over a beer bottle at such monthly parties where pro se parties are not invited. 

Favoritism as to some attorneys over others

Attorneys who are invited as opposed to attorneys who are not invited are obviously singled out and considered an elite club of people who get preferential treatment in Alex Kozinski’s court.
Potential influence on the outcome of U.S. Supreme Court Appeals

Kozinski paraded the fact that U.S. Supreme Court Justice Stephen Breyer attended some of the movie night “with his brother, a California judge”.

Not only is it inappropriate for a U.S. Supreme Court Justice to have a brother who is a judge (because the brother’s decisions are appealable to the U.S. Supreme Court), but Justice Stephen Breyer is the judge of appellate court reviewing Kozinski’s court’s decisions.   Hosting parties for him is inappropriate as an attempt to influence Stephen Breyer in his decisions.

Kozinski did not state when exactly Stephen Breyer visited his parties, making it impossible to match cases coming out of the 9th Circuit before the U.S. Supreme Court, but now all voting by Justice Breyer is suspect because of his visits to Kozinski’s movie nights with beer and socializing with “judges and attorneys”.

Gaining support of influential people in case of another disciplinary proceeding

Alex Kozinski regularly gets involved in controversies.  To get him out of disciplinary sanctions, he needs support of high-ranking friends.  Monthly parties in the courthouse by invitation only, with food, alcohol and entertainment can go a long way towards securing social contacts in the right places, contacts that Kozinski will not disclose when presiding over cases and that is impossible to trace since guest lists are not published.

Kozinski so far did not recuse from a case where he was disqualified through owning stock, and recused from an obscenity trial, in the middle of the trial, only after his possession and dissemination of man-donkey and women-demeaning porn was outed by the media.  

There is an appearance that Judge Kozinski is using the lure of movies, free or cheap food, drinks, and socializing with “important” people to secure the right connections that will absolve him of any discipline in case he gets in trouble, including inappropriate use of public courthouse for parties and thus having federal taxpayers incur liability for the use courthouses were not meant or budgeted for.

Potential influence on jurors and contamination of the jury pool

Kozinski invites jurors to his monthly movie parties.  Kozinski does not say whether he invites all jurors or not, prospective jurors or jurors who already served, or jurors already called for particular cases.

Communication with jurors is normally prohibited, and by inviting jurors to the movie nights Kozinski creates an opportunity for a select (and secret, since guests lists are not published) group of attorneys – and judges – to communicate with jurors, contaminating jury pools for years to come.

In view of the fact that juries may decide issues of life and death in death penalty cases, such communication is especially inappropriate.

Example Judge Kozinski gives to other judges in the country
Judge Kozinski is considered by many judges and law professors as one of the most prominent American jurists.  As such, he should lead by example.  At this time, he gives an example of:

·      How to host parties with alcohol at the courthouse after hours, creating liability, breach of security and confidentiality and appearance of impropriety issues;
·      How to use court personnel in preparation of those parties;
·      How to invite a selected group of people to those parties, excluding others

On the other hand, if every judge in the country follows Judge Kozinski’s example and starts hosting monthly club nights in their respective courthouses in accordance with the judge’s personal interests, with alcohol served, for an elite by-invitation only group of people, using court personnel to prepare and host such parties, maybe, the public will get enraged and demand true reform of the judicial system sooner.





Disclaimer:  I never litigated in front of Kozinski, nor my friends or relatives, nor do I plan to, and I have no personal connections with or grudges against Kozinski.

I am upset though that, while creating and contributing to the crisis in constitutional litigation, by dismissing majority of meritorious civil rights appeals on grounds that amount to unconstitutional legislating from the bench (Younger abstention, deference, comity, immunity, Rooker-Feldman doctrine, Iqbal pleading deficiencies), Kozinski tries to appear on a high horse and try to appeal to the public through populist self-advertisement instead of his job.

I am also upset that Kozinski has engaged in substantial judicial misconduct and was never disciplined for it, partially because of the "cordial guy",  "witty intellectual" and "progressive" image he advertises of himself, and because of high connections that he has - including connections with the so-called "legal ethicist" that seem to explain away any blunder that Kozinski commits, no matter how bad.

This country must be based on the rule of law.

Kozinski's example shows that he gets dry out of the pond because of his status and connections, when other people in his position would have likely been charged with a crime - as was with the case of possession of questionable porn that police never checked out.

As a criminal defense attorney, I had clients whose houses were raided because of just a hint to the police that there was bad porn on their computers.

The person over whose trial Kozinski was presiding when he was outed for man-donkey porn on his computer, was convicted and sent to prison for 4 years (!) for creating and distributing images involving "bestiality" and "extreme fetishes".

So, whether Kozinski violated FEDERAL CRIMINAL law was the issue of fact for the jury, after investigation by the police of Judge Kozinski's computer.


 

Same as Ira Isaacs, Kozinski was disseminating his "funny" stuff, which was exactly what federal criminal obscenity statutes prohibit.

Here is one more description of the "funny" stuff that is "part of life" and that was on Judge Kozinski's computer while he was presiding over the obscenity trial.


Funny joke.

I would really be concerned about female court personnel around such "funny joker" of a judge.

I would really be concerned about female litigants in front of this "funny joker" of a judge.  It appears that this "funny joker" has a really sick mind.

As to Kozinski's claim that "he did not know that public had access to the computer", supported at face value by Kozinski's friend professor Gillers, had Kozinski heard such a claim from a "regular Joe" criminal defendant, he would have sent such a defendant to jail-without-bail until trial, for arrogance and continued danger to the public.

So, what was on Kozinski's computer could very likely be in violation of federal criminal obscenity laws and could constitute a felony, for Kozinski and his attorney wife.

Only now we will never know what was there, because, instead of investigation, Kozinski was encouraged to delete that evidence, there was no investigation, no criminal prosecution, and no jury.

Too many influential friends stood up in his defense accusing the newspaper who published the report, the lawyer who directed information to the newspaper, and explaining away the judge's behavior.

For example, a well known professor of legal ethics Stephen Gillers (now a member of New York State Statewide Commission on Attorney Discipline as an expert on legal ethics) told LA Times in an interview the following:


For the prominent legal ethicist Professor Stephen Gillers, a potential violation of federal criminal obscenity law is being "seriously negligent" when it comes from "a treasure of the federal judiciary" and a person whom Professor Gillers "has known for years".

A good lesson in legal ethics to law students of Professor Gillers.

And a good sneak preview for New Yorkers as to what to expect from Professor Gillers as a member of the Statewide Commission for Attorney Misconduct in New York.  

Advice from an expert - it depends who we need to discipline.  

If it is "a treasure", as determined by some "authority's" subjective definition (possible after some kind of perk like a courthouse-with-booze-and-movies nights) - then there will be no discipline.  If it is "no treasure" - then it is for hell to break loose on the person. 

In the disciplinary investigation, the following was provided to the "Special Committee" of the 3rd Circuit:

  • Evidence from the website, www.alex.kozinski.com (existence of a hosted website in his name, and the owner has to pay for registration and hosting, defies Kozinski's claims that he did not know that pictures and videos he placed on that website were accessible by other people);
 
  • Affidavit and Statement of facts from attorney Cyrus Sinai (let's note that no affidavits were requested from or provided by Judge Kozinski);
 
  • Legal opinions from FIVE law professors claiming that the judge committed NO misconduct whatsoever:
    • not through failure to recuse because he knew he had the same or similar material as what was subject to a criminal trial over which he was presiding;
    • not through failure to recuse immediately after he was outed;
    • not for HAVING such potentially criminally obscene material in his possession;
    • not for sharing such potentially criminally obscene material with his friends

 
 It is really interesting to know the names of those five law ethics professors...  I am sure, law students and attorneys who were their law students will also be interested to know that they were of such an opinion regarding Judge Kozinski's possession of what is described here.

The opinion of five law professors overcome the common sense, the affidavit of Cyrus Sanai and the evidence provided to the Special Committee - and which, quite possibly, died in that Committee.

Kozinski was absolved without discipline, and was never criminally investigated or prosecuted.

Kozinski's non-investigation and non-prosecution is a good example of how criminal laws are applied in this country.

If you are Ira Isaacson, you go to prison.

Yet, sending "the treasure of the federal judiciary" to prison for a felony means automatic disbarment - and end of career, for both Alex Kozinski and his attorney wife who shared the computer with her husband.

And to do that to a "potential Supreme Court candidate"?  Who hosts booze-and-movie parties in the courthouse where U.S. Supreme Court Justice Stephens comes?  

 

No, we cannot criminally investigate or prosecute a "nationally respected" judge and a "potential Supreme Court candidate".  We simply cannot have that.

If you are Alex Kozinski or his wife Marcy Tiffany, you are "a treasure of the federal judiciary", and a good friend of 
  • professor Stephen Gillers, and 
  • of professor Arthur Miller, and 
  • of an unknown number of high-standing party-goers to the club-in-the-courthouse-with-booze-and-movies including U.S. Supreme Court justice Stephen Breyers - 

and you are simply "seriously negligent" instead of "committed a crime and an impeachable disciplinary violation", and you escape without criminal liability, and with your law license and judicial position intact.


No investigation whatsoever of Judge Kozinski as to whether images that he kept on his computer and distributed to his friends and the public violated that same federal criminal law.

With Kozinski, whose case was publicized extensively, with the police knowing that there were question of whether some of images he possessed and disseminated were in violation of obscenity laws (for which Kozinski held trials over other people),  just his "word" that it was "nothing", he was simply "negligent", somebody else sent him the pictures that "somehow" ended up on his "personal computer" - prevented such a raid.

What is "bestiality" and what constitutes "extreme fetishes" is obviously a mixed question of fact and law.  To analyze whether the images on the Judge's computer, the images at least had to be subject to a police investigation, prosecution and a jury trial.

Only a jury in this country is allowed to tell, unless jury is waived by the defendant, whether a federal crime was or was not committed.

As to Kozinski, we will never know whether he and his wife did or did not commit a crime, and whether litigants do or do not appear in front of a person who has committed a crime of moral turpitude while judging others.

It will be simply too much for this country, to charge a judge criminally for SUCH an offense.

Ira Isaacson is a different issue, he is not a judge, so he can go to jail for 4 years.

Kozinski timely asked for disciplinary investigation of self and timely "repented" to deflect a criminal prosecution.

Obviously, the disciplinary prosecution was "in lieu" of criminal prosecution.  After Kozinski apologized, he was not even disciplined.

Yet, his apologies are worth absolutely and positively nothing, as he has demonstrated by calling the rule of judicial disqualification for owning stock of a party while presiding over a case involving that party is "stupid" - Judge Kozinski said that in November of 2014, 15 years after he apologized, expressed his "embarrassment" and likely escaped discipline through his apology for violation of that same rule in 1999.


  
That message, had it come from a regular Joe-from-the-street criminal defendant during the pendence of an investigation against him for possession and dissemination of potentially criminal obscenity - would have gained such a criminal defendant, from an irate judge, jail-without-bail-until-trial.

Yet, Alex Kozinski knew he could pull off this arrogant stuff because he knew nobody would touch him because of his status and his connections.

So, once again, his apologies for any disciplinary violations, in view of his actions - or words - contrary to his apologies, are worth absolutely positively - nothing. 

Moreover, any "insights" from Alex Kozinski about reformation or injustice of American criminal justice system, in my opinion, are insincere - because Alex Kozinski is the one who helped create such system, helped it remain the way it is and used his status to escape criminal liability that jeopardized his and his wife's law licenses and careers.

*   *   *

I do not know who is worse - an openly bad judge, or a judge who pretends to be good, while he is bad inside.

With openly bad judges, such as the much described in my blog and now retired Carl Becker, everything was more or less clear - he was bad, and people expected from him only bad in all of his actions.

Kozinski pontificates about judicial propriety in articles, and then engages in gross acts of impropriety, as I described in blogs posted today and yesterday.

Yet, those gross acts of impropriety are covered up by his influential friends and his projected populist image of the guy who hosts movie nights with booze in the courthouse.  

That makes Becker look good (no, I am not nostalgic for Becker's reign - especially that soon Becker's twin Porter Kirkwood is expected to ascend to the same bench). 

The law should apply equally to the "come-and-have-a-beer-at-the-courthouse-by-my-invitation" judge and to a man from the street.

Doesn't seem like that in Kozinski's case.

And that's what sucks about our sighted Lady Justice.