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.

Friday, June 24, 2016

Cutting off snakes' heads - episode 2: a new method of New York prosecutors to eliminate criminal defense attorneys

Recently, I wrote about a civil rights lawsuit filed by a criminal defense attorney George Galgano against Putnam County District Attorney and other defendants, for their role in bringing about illegal searches, retaliative investigations and retaliative felony indictment against attorney Galgano.

Apparently, a similar story is developing at this time in St. Lawrence County, New York, against criminal defense attorney Edward F. Narrow, a criminal defense attorney with 15 years of experience.



In an interesting case in St. Lawrence County, New York, a judge denied the motion made by the prosecutor to disqualify the District Attorney's office from a case of a certain defense attorney, Edward F. Narrow, because the DA's office plans to indict Mr. Narrow for a felony for his alleged role in the murder case of Oral "Nick" Hillary accused of murder.

A public scandal erupted when a St. Lawrence County Assistant District Attorney David A. Haggard was leaving his position in the DA's office.

At about the time when he announced that he was leaving his position, the St. Lawrence District Attorney Mary E. Rain, accused ADA Haggard of "collusion" in a criminal case, based on the alleged discussion of that criminal case with defense attorney Edward F. Narrow.

Here is DA Mary E. Rain:




Assistant District Attorneys to DA Mary Rain, listed as of today, are:



New York State law does allow law graduates to practice law on special admission if working in certain public offices, including the District Attorney's office.

But, an order of admission should be first obtained, because allowing an unadmitted individual to practice law is the supervising attorney's responsibility.

Apparently, such "formalities" were not met, and, if there was no order of admission before admission to the bar, DA Mary Rain, in allowing ADA Jirkin to practice law in her office was engaged in the crime of unauthorized practice of law, and that's what attorney Narrow reported.

So, attorney Narrow reported DA Rain for an ethical violation and commission of a crime.

ADA Haggard was leaving the office, after having worked a very short time, less than two years (from April 2014, announced that he is leaving in March of 2016), and was a witness to DA Rain stating that "during the period I worked with Ms. Rain, she indicated to [ADA Haggard] that she intended to use the grand jury to investigate individuals that she disliked", and that the list of those Ms. Rain disliked reportedly included:

  • County Attorney Stephen D. Button,
  • Chief Public Defender Steven G. Ballan,
  • former county Board of Legislature Chairman Joseph R. Lightfoot,
  • attorney Edward F. Narrow,
  • former County Administrator Karen M. St. Hilaire
  • and others.

So, Mr. Haggard, apparently, joint the list of individuals that DA Rain disliked when DA Rain made an extraordinary accusation of collusion against her own subordinate, ADA Haggard, without indicating what the collusion actually was citing "confidential investigation".

So, DA Rain openly bad-mouthed two people she obviously disliked, but claimed "confidential investigation" to allow herself not to be specific.

The claim of collusion by the DA against her own subordinate is extraordinary.

It is usual for a prosecutor to discuss a pending case with a criminal defense attorney.

Prosecutors discuss potential plea bargains with criminal defense attorneys all the time.

In fact, the absolute majority of criminal cases are decided through plea bargains.

So, why did DA Rain allege "collusion" between her own subordinate and a criminal defense attorney?

Attorney Narrow upset DA Rain by complaining to the disciplinary authorities that DA Rain allowed one of her Assistant District Attorneys, Jonathan S. Jirik, to practice law without a license by prosecuting cases before being admitted to the bar.

Jonathan Jirik is not admitted to the bar to this day, I checked today.

DA Rain also reportedly made a false statement that she forewarned a local judge, Judge Richards, that DA Rain is considering an indictment of Attorney Edward Narrow at a court conference, while Judge Richards stated that DA Rain never made such a disclosure at that conference.

So, DA Rain added lying about court proceedings and about disclosures made to the court, yet another ethical violation.

The DA's office asked to disqualify themselves because of a complaint filed by attorney Narrow pertaining to the murder case making the DA's office and the defense witnesses against each other.

The DA's affidavit cited to the case Berger v United States, a 1935 U.S. Supreme Court case that indicates the dual role of a prosecutor to (1) prosecute crimes vigorously, but at the same time (2) to be fair to the accused.

It is apparent that, when a defense attorney filed a complaint against the prosecutor during the pendency of a criminal case and when the prosecutor is retaliating against the attorney by preparing felony charges against him, the prosecutor cannot be fair to the attorney, and to his clients by extension.

It is also apparent that the DA's office is abusing its power to prosecute a defense attorney who dared to file a disciplinary complaint against the DA's office by investigating the complainant and planning to file a felony indictment against him.

In New York, conviction for a felony automatically disbars the convicted attorney.

So, the DA's office definitely does not play fair with Attorney Narrow where it took Attorney Narrow's (complainant against the DA's office) discipline into their own hands and abusing their power to obtain his disbarment.

Under the circumstances where the DA's office is subject of a disciplinary complaint of Attorney Narrow, the DA's office should seek a special investigator and a special prosecutor not so much or not only in cases where Mr. Narrow appears as a defense counsel, but to investigate and hold grand jury proceedings against Mr. Narrow as a suspect and defendant.

Yet, the DA's office is not seeking such a special investigator and prosecutor, instead, trying to pretend they are following ethical rules while, in fact, they are grossly violating those rules and seeking to disbar Mr. Narrow in retaliation for filing a complaint against the St. Lawrence County District Attorney and her staff.

Criminal defendants have their right to counsel of their choice, so, if attorney Edward Narrow or his office are hired in 59 pending criminal cases, the court must work around those defendants' constitutional right to counsel of their choice and effective representation of counsel.

I am wondering why Edward Narrow himself is not making motions to disqualify the DA's office on his clients' behalf - it is clear that the DA's office is so disgruntled as to Edward Narrow that it cannot be fair to his clients, and the DA's office recognizes it implicitly and explicitly, by making its own motion to disqualify themselves.

It appears that the judge was "playing safe", but here, "playing safe" can cost New York taxpayers, instead of appointment of one special prosecutor, to handle 59 criminal appeals throughout all appellate courts - not a good idea entirely.

Yet, after St. Lawrence County Surrogate Court Judge John F. Richey denied the DA's office its motion to self-disqualify from all cases of attorney Edward F. Narrow, Judge Richey reportedly appointed a special prosecutor to investigate and, if necessary, prosecute attorney Edward F. Narrow.

Guess who Judge Richey appointed to investigate and, if necessary, prosecute attorney Edward F. Narrow?

An attorney who was the defense attorney on the same murder case that is the subject of the investigation, Gary W. Miles, who can be called a witness in the case and who, based on his prior position as defense counsel in the same case as Mr. Narrow was, is in an extremely awkward position that may require him to use his knowledge acquired as a defense attorney to prosecute a crime.

Once again - of all available local counsel, to appoint as special prosecutor of one attorney, based on the attorney's alleged criminal conduct in a criminal case, the attorney's successor in representing the same client in the same case!

What was Judge John F.  Richey thinking when making such an appointment?

He "took the case out of the hands" of one conflicted prosecutor and put it into the hands of a prosecutor no less conflicted?

This extraordinary appointment of a very special prosecutor by Judge Richey prompted me to look into Judge Richey's own biography.

And, of course, Judge Richey is the ultimate insider of the court system, having worked as court attorney for two judges for 26 years before his unopposed election in 2015.


Judge Richey appears to have had no experience in criminal law before he was elected as a Surrogate's judge.

In his pre-election interview on YouTube judicial candidate John F. Richey stated that he is running for the Surrogate's Court because his "entire career was in the Surrogate's Court".

Judge Richey disclosed that in 1989, while working in Surrogate's Court of St. Lawrence County, he was hired as a part-time court attorney by the then-Surrogate Judge Rogers.

Judge Richey indicated that, while working for Surrogate Judge Rogers as her part-time court attorney, Judge Richey continued to maintain his private practice.

After 2 years of working as a part-time court attorney for Surrogate Judge Rogers, Judge Richey added a position as a part-time court attorney for a multi-bench judge Maine in Franklin County and left private practice entirely - in 1991.

In 1992 John F. Richey, according to his court biography (see above) also was elected as a village justice of the Village of Massena, where he "served" as a judge until 2002.

In 1995 John F. Richey's position as a court attorney for Judge Rogers became full-time, and Judge Rogers became an Acting Supreme Court justice.

John F. Richey was the court attorney for Judge Rogers from 1995 up to the time he was elected.

So, from 1992 to 2002 John F. Richey was a justice in a village within St. Lawrence County, and at the very same time, was a court attorney for a judge who carried out appellate functions in the same St. Lawrence County, so Judge Richey's decisions as a village justice were appealable to Judge Richey's employer, Judge Rogers, as assigned judge in County Court cases.

So, Judge Richey knows A LOT about conflicts of interest - he LIVED a conflict of interest, and financially benefited by such conflicts, it appears, for years.

John F. Richey claimed he wanted to be the judge because "he's been there for 26 years".

Apparently, John F. Richey cannot claim inexperience in criminal cases, after having been a court attorney for a multi-bench judge, and after being a court attorney for an Acting Supreme Court justice who must have been handling criminal cases - same as Judge Richey is doing now.

Therefore, appointing a special prosecutor with a conflict instead of a prosecutor with a conflict to investigate and prosecute attorney Narrow was clearly inexcusable.

I also did not see Judge Richey appointing a special prosecutor to investigate DA Mary E. Rain for targeting people she dislikes with criminal proceedings, lying about court proceedings and facilitating unauthorized practice of law.

Possibly because DA Rain works in collaboration with Onondaga County DA William Fitzpatrick, a corrupt yet powerful prosecutor and a law school buddy of the Chief Administrative Judge of the 5th Judicial District James Tormey.

And, a careful courtier such as Judge Richey knows how to please people in power to advance his career, as his career amply demonstrates.

So, is DA Rain unsinkable because of her connection to Judge Tormey's law school buddy now matter level of misconduct she is engaged in as a prosecutor? 

Future will show.

I will continue to cover the story about attorney Edward Narrow and abuse of power in St. Lawrence District Attorney's office.

Stay tuned.





















Stay tuned.

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