"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).
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,
“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.
Sunday, July 31, 2016
On constitutional restrictions of peremptory challenges of judges: opinion of Judge Richard King, California
On peremptory challenges to recuse judges - when the challenger is a prosecutor caught red-handed in misconduct
I wrote on this blog about the concept of peremptory disqualification of judges - the same as it exists for jurors - and about the states that allow that form of disqualification and that do not allow it.
California does allow peremptory challenge, and the Orange County DA has filed motions to disqualify judge Thomas Goethais in nearly all of 49 criminal cases assigned to the judge at the time the decision to - initially - deny the motion to disqualify was issued by the Superior Court of the State of California, Orange County, Judge Richard M. King.
The Orange County DA appealed the denial of disqualification through a writ of mandamus to the Court of Appeal of The State of California, Fourth Appellate District, Division Three.
Judge King was represented in opposition to the writ of mandamus by professor Erwin Chemerinski, a controversial constitutional law professor and a hired lecturer of BarBri, a company accused in a federal lawsuit of underhanded tactics in dominating the market of bar exam preparation by stifling competition and undercutting and eliminating better courses than what BarBri uses.
The Court of Appeal reversed and allowed the Orange County DA to disqualify Judge Thomas Goethais, in another 48-page opinion, with a strong dissent, allowing a peremptory challenge of a judge even when the reason for peremptory strike of a judge is that the challenger, a criminal prosecutor, was caught committing egregious and systematic violations of constitutional rights of criminal defendants - and should have been not only disqualified himself, but also impeached, disbarred and criminally prosecuted. Of course, none of that happened to the Orange County DA (California), Anthony Rackaukas - even though Rackaukas was not caught in committing misconduct for the first time in 2015.
In 2002 he was accused of political favoritism during grand jury proceedings, in particular towards his campaign contributors - yet, no discipline against him followed.
Instead, in 2009 California State Bar disbarred whistleblower attorney Dr. Richard Fine who caught California judges in the scheme where they were paid not only by the state, but also by the county appearing in front of them - as a result, the whistleblower was disbarred and held in jail for 14 months without criminal charges, on a civil contempt order of a judge Dr. Fine accused of corruption, and the legislators gave California judges retroactive civil and even criminal immunity in charges of corruption. I understand, otherwise too many judges had to be criminally prosecuted.
Even though criminal immunity in state courts did not extend to criminal immunity in federal courts, FBI did not investigate or prosecute the corrupt California judges, or prosecutor Anthony Rackaukas for political favoritism towards his campaign contributors in grand jury proceedings, or the illegal use by the Orange County DA of jail snitches to elicit confessions out of defendants, including in death penalty cases.
So - the whistleblower attorney Richard Fine was disbarred, for his constitutionally protected conduct.
The prosecutor repeatedly caught in committing misconduct continues with his license, and his public office - and removes judges from his cases who dared to criticize him, something that was not allowed to Richard Fine to do in the same state of California, under the same peremptory challenge law.
That's the short story.
I will analyze Judge King's decision, Professor Chemerinski's brief, and the California Court of Appeal decision, including the dissent of judge Thompson in separate blogs.
#LivestreamRecordingOfPoliceMisconduct - the police was unable to destroy video of their misconduct created by Maurice "Mo" Crawley's in Syracuse, NY: it was already "on air"
Usually the police arrest people for "obstruction" - and then think how to justify the arrest.
Well, the 2nd Department has made bringing such criminal charges harder - by actually following the law and requiring to provide what the law has required to provide all along - non-hearsay support for each element of the charged crime, and description of the allegedly obstructed government function, in specificity.
Which did not prevent the police in Syracuse, NY, Onondaga County - that is the 4th Department - to concoct charges against an individual who recorded police misconduct.
The interesting point is not only the police that committed misconduct, but the District Attorney's Office of the Onondaga County who went along with it and is pressing charges against the reporter of police misconduct.
But, of course, in the situation where the local judges of federal court are former prosecutors of that office and preside over civil rights lawsuits against that office, invariably ruling for that office, I wrote about that on this blog before - the Onondaga County DA may seem unreachable by any attempts at accountability.
What police was trying to do by arresting the individual for recording them is, of course, destroy the evidence, the videotape.
Yet, that was not possible, because the individual, Maurice "Mo" Crawley, knew those police tricks and, as a precaution against attempts of our noble public servants to falsify evidence, live-streamed his recordings to his Facebook page - a recording that later, reportedly, went viral.
The Onondaga County Chief of Police, after viewing the video made by Mr. Crawley, including the video of his arrest, said one word as to his impression - "Troubling". It is interesting to know what was troubling more to the Chief of Police - the contents of the video or the fact that his "boys" were indiscreet enough to allow themselves to be caught on video recording - and on a live-streamed video-recording, too.
Mr. Crawley was charged with resisting arrest and "interfering with investigation". How can a person interfere with an investigation on a public street by video-recording it from afar, nobody knows, and the Onondaga police force needs to be trained just a little bit better as to "resisting arrest" charges - because in New York, an unlawful arrest can be resisted with deadly force, if necessary, and there was nothing lawful in arresting an individual for recording the police.
So far, Mr. Crawley was arrested, put in jail, released on bail, but charges against him - completely unconstitutional charges - were not dismissed and continue to be pressed by the Onondaga DA's office, which is attorney misconduct.
The court lingers with dismissing the case obviously protecting the police, because once the case is dismissed, the police can be immediately sued in federal court. If a civil rights lawsuit is filed at this time, it will most likely be dismissed on the "Younger abstention" ground - claiming that the state court has an ability to resolve constitutional matters in question as well as the federal court.
We will see just how well the federal court will resolve those constitutional issues - where a man was arrested for asking the officer to repeat what he said, and, mainly, for recording the police.
One lesson Maurice "Mo" Crawley taught all of us though - if you are recording the police, LIVESTREAM it immediately, this way the evidence will be instantly preserved on an independent remote server unreachable by the police.
Otherwise, our noble and brave public servants will try to use their armed force to get the evidence you created against them, destroy it and make up some criminal charges against you in retaliation for filming them in the first place.
So, #LivestreamRecordingOfPoliceMisconduct. It may make a difference between life and death for you and other people.
I will continue to cover this case.
The 3rd Department attorney disciplinary committee hires a confidential court analyst, without a law degree, for spying on attorneys online and for managing the court system where the Committee appears
Note that the "court analyst" will perform "confidential analysis, research, planning and other related duties" in the areas of:
- budget development;
- court finance;
- personnel administration;
- resource allocation; and
- court system management and administration.
#CarlFBeckerBeast is moving out of Delaware County, New York? Becker's house as Becker's face - a cold house of a cold-hearted man
Apparently, it was just put up for sale - it is reported to have been on Zillow for 21 days.
So, apparently, there are no job offers for the Becker Beast in the area?
Becker's registration still shows no new employment.
Apparently, a year after retirement nobody offered Becker a lucrative job in a law firm, as it usually happens with judges - so, nobody wants a former judge with a reputation as sullied as Becker's is? Becker ran from the bench, after fighting to get re-elected and defrauding voters to get re-elected, portraying himself as a Boeing 747 as compared to his opponent (now Judge Gary Rosa's) portrayed by Becker, in a demeaning manner, as a "single engine prop plane".
Becker ran from the bench, having announced his "retirement" one day before the NYS Comptroller announced the results of the audit of Delaware County, quite scathing and showing corruption going back years, to the highest level, and Becker and Becker's close friends County Attorney Richard Spinney and Social Services Commissioner William Moon ran from their respective jobs even earlier.
The NYS Commission for Judicial Conduct, in its report of the year 2015 mentioned a number of judges who resigned pending investigations in that year. It appears that Becker is one of them, and that he had a "choice" - continue on the bench and be booted, or retire years before the end of his term and years before his mandatory retirement at 70.
As to the house - all that negative energy concentrated in those walls... All the vile of this man with the ugliest soul I know. All the anguish of wrongfully convicted people, parents and children wrongfully rendered apart by Becker, a former social services attorney of 27 years who had an adoption practice on the side while handling adoption investigations through his agency and using his power for his benefit. Then, 12 1/2 years on the bench, ruling for his own client of 27 years, the Department of Social Services - that's why the Department wanted to put Becker's successor and student in his place so much, Porter Kirkwood - and failed, thankfully.
"Retirement" of a judge who was clutching at his position like Becker was, who valued his position as an absolute king over lives of people in all aspects does not appear credible - especially as abrupt as it was - appears like a desperate act of running, and Becker proved that by crying when announcing that he was leaving. Too much power to lose too soon and too abruptly, and at the time when judicial salaries were expected to go up considerably, and they did.
Anyway, the Beast will cease hovering around the Delaware County courthouse, as he did for some time after his retirement, obviously having a difficulty coping with the loss of his king-like power over people, and good riddance.
The front door and the dormer door to the balcony
- with a house that looks inside uncared and junky,
- with Becker having an adoption practice on the side plus a Social Services attorney job feeding that adoption practice, and then
- a judicial job where he cast around favors for friends and connected attorneys, plus his wife's teaching job, for years, with benefits paid for,
- with the audit of Delaware County that recently found that the county, including under Becker's guidance, was giving public contracts to people without public bidding - and knowing Becker's greed and laziness, one must look for kickbacks
If I was looking at such a house as a buyer, I would wait until winter to see how the house is heated before bidding on it, ask for copies of recent heating invoices, invest into a full home inspection - and be prepared for a lot of fairly costly renovation to be made throughout the house, unless, of course, one is looking for a summer home only and likes everything "dated" (and dingy, as pictures show).
And, the buyers should keep in mind that since Becker defrauded the voters as I described, defrauded litigants - for years - by failing to disclose his conflicts of interests that keep coming out after his decisions were made and after he "retired" from the bench, and since Becker repeatedly invoked absolute immunity for CORRUPT acts in various courts - he can defraud the buyers of his property with as much ease as he did with taxpayers, voters and litigants.
Saturday, July 30, 2016
#TheThiefJudgeJanetDiFiore - of the State of New York - and her generous donation of other people's money to a powerful nonprofit, one day before her confirmation hearing in the NYS Senate
I publicly opposed, through written statements to the New York State Senate (NYS Senate did not allow testimony of witnesses against DiFiore who wanted to testify, including myself), the appointment of Janet DiFiore to this position and publicly asked the senate - a request which the senate ignored - to criminally investigate Janet DiFiore's activities.
Since then, DiFiore was appointed as a Chief Judge and, of course, retaliated against me in two court cases - denying me review of constitutional appeal "as of right" of my unconstitutional suspension for criticism of a judge in motions to recuse, twice, and denying me a constitutional appeal from another case, I wrote about that case here and here.
DiFiore also readily showed her corruption and payback to those who were backing her up, as well as her total lack of integrity and the fact that she is using her high position for her own personal gain in a court case I wrote about which DiFiore apparently fixed fixing for a gaming-regulator, the industry that supported DiFiore's benefactor NYS Governor Andrew Cuomo.
DiFiore chose to hear a case of a subdivision of New York government where DiFiore's own husband Dennis Glazer worked and decided it in favor of her husband's agency. DiFiore not only did not disqualify herself from that case, but wrote the opinion in that case favoring her husband's agency. Not to mention that her husband was appointed to that agency by Cuomo after DiFiore saved Cuomo's hide from a corruption investigation by corrupt acts in her position as the Chairwoman of the New York Public Ethics Commission. Talking about letting foxes into chicken coups.
To add to the picture, recently some reports emerged about Janet DiFiore's "generous donation" of $940,000 to law internships from her re-election campaign for the position of the Westchester County District Attorney.
The media so far tended to glorify that donation instead of characterizing it for what it is - improper allocation of donations to the election campaign.
Friday, July 29, 2016
One more example of that was reported to me from Delaware County, New York.
An individual carrying a child carrier tried to access the County building at 111 Main Street, Delhi, NY (the Department of Social Services and its official helpdesk is located on the 2nd floor of the building) - from the front door and from the back door.
It was reported to me that neither of the doors was equipped with handycap-accessible push-button on the wall allowing to open the door by pushing the button with, let's say, any body part, including simply leaning on that button - which would be ideal for a person carrying a baby carrier in one hand and a bag (for the baby and with documents) in another hand.
Moreover, the individual who reported the lack of the push-button, also told me that she was observed in her efforts to get through TWO doors located one after the other by several social workers, and NONE of them helped her out by holding the door for her.
Additionally, it was reported to me that the elevators that exist in the building, do not go into the basement where some depositions are held by the County for individuals who sue the County, thus precluding disabled individuals from access to those rooms in the basement.
Social Services were created in order to help people, right?
So, they are expected to comply with, at the very least, Americans with Disabilities Act - right?
And, since people who come to the helpdesk of Social Services at 111 Main Street, Delhi, NY, are often disabled or have small children, access to the building for the county where a multimilion budget is given every year to some pet non-profit corporations of Social Services, should be secured before a penny is expended towards those non-profits, right?
Since then, a request was made through a media post for Judge Weaver to resign her judicial position, and there is a report that the FBI is investigating court accounts that Judge Weaver mis-handled.
It is interesting to see whether Judge Weaver will actually be held accountable for her gross misconduct - or if she will be allowed to escape with a slap on the wrist, as it usually happened with judges involved in misconduct, and even in criminal conduct.
I will continue to cover this story.
The issues covered in the interview is access to justice and the impact of occupational regulation of the legal profession, and antitrust issues involved in such regulation, upon everday access to justice of all Americans.
The archive of the interview is available here.
Tuesday, July 26, 2016
Yay! We started to publicly discuss judicial misconduct - in cartoons. About murder cases in death penalty states. Where the only way a criminal defendant can call attention to ineffective assistance of counsel is to throw "F" words at the judge. And - the public is laughing...
That is the same judge who sentenced a 13-year-old girl to 30 days' incarceration and 276 hours of community service for cutting the hair of a 3-year-old without her consent - and offered to the young defendant's mother a "deal", to humiliate the girl in the courtroom by cutting her own ponytail in exchange for a sentencing reduction. Judge Johansen even provided scissors for the "ponytail-cutting sentence" - which was clearly in violation of 8th Amendment.
There were calls for the judge's impeachment, but Judge Johansen was not removed or disciplined.
A Michigan Judge Lisa Gorcyca, a white female, incarcerated three children because they refused to spend time with the father they claimed abused them and their mother - lashing out at the "disobedient children", including holding in contempt of court a child who was not subject to any court orders.
"Coincidentally", the lashing out against the child occurred after another child's testimony caused a million-dollar verdict against Gorcyca's husband, for wrongful incarceration of two parents and for splitting a family - exactly what Gorcyca did in retaliation, against a completely different family, see my blogs here and here.
Here are Judge Gorcyca with her former DA husband.
Judge Gorcyca was reprimanded for her shenanigans, but was met with a standing ovation in court arranged by herself, her husband and over 100 attorneys practicing in front of her - a real show of defiance and disregard of any discipline imposed on her.
A Texas judge Kerry Neves posted on Facebook a warning that he will not accept plea bargains in cases of assaults on police officers, a clear case of bias and prejudgment based on the identity and status of the alleged victims, and coupled that decision with an order indicating that he will not accept plea bargains in such cases unless there are "compelling reasons" for such bargains - but that order did not apply to criminal cases where the alleged victims were not police officers.
Judge Neves is a white male, and
a "true Republican we can trust" (whatever that means nowadays) who appealed to potential contributors to his election campaign with the following statement:
I guess, police officers and their associations or law firms representing them contributed generously.
Of course, the defense attorneys association stated that defense attorneys expect the judge to recuse from cases which he already prejudged, and, of course, the prosecutors said that the judge's statements did not affect his impartiality.
A federal judge in Milwaukee, Raymond Randa,
was just criticized by the U.S. Court of Appeals for the 7th Circuit for engaging in "there went the neighborhood" reminiscences at sentencing, and in comments on protests in Baltimore regarding police brutality, which had nothing to do with the case.
The court said:
“A reference to general deterrence or protection of the public would have been proper, see 18 U.S.C. § 3553(a)(2)(B), (C), but blaming Robinson indiscriminately for everything wrong in that neighborhood would not.”
And, there is a recent report about shenanigans of a Wisconsin Judge James Troupis, who, as an attorney, was reportedly involved in secretive and politically charged redistricting scheme, and gave advice to detain Democratic Senators to prevent them from leaving the Senate during voting and preventing the vote from going through on quorum grounds.
Judge Troupis was, before he took the bench, reportedly a "leading attorney on conservative causes".
Judge Troupis resigned in May, claiming that the full-time judgeship position did not allow him to "attain to the estate of his mother, who has died last year".
Yet, as busy as Judge Troupis was with the estate of his mother, he still found time to waste taxpayers' money - and caused two people to incur giant attorney fees and made a little boy, at least temporarily, and unnecessarily, an orphan - because of his personal beliefs that having a child through a surrogate mother is a form of human trafficking.
Here is the hero, former judge James Troupis:
A Georgia judge Bryant Durham Jr., who proudly makes known that he was raised by missionary parents, ordered criminal defendant in contempt, sentenced him to many days in jail, called him "looking like he is 'queer'" and discussing with the defendant that the defendant may be raped in prison - simply because the criminal defendant asked for a competent public defender, correctly stating that the public defender obtained just 4 pages through discovery, which is completely inadequate for effective defense in a murder trial.
The judge denied the defendant a new counsel, and mocked the defendant, through a series of question, trying to point out it would be stupid for the defendant to represent himself, but that the defendant has no other choice - either represent himself or accept the incompetent attorney Judge Durham imposed upon him.
The defendant then lashed out with a series of offensive and threatening comments about the judge, and the judge, instead of recusing, engaged in spewing vulgarities at the same level and punishing the defendant, while he was clearly biased and, as a victim of the defendant's threat, disqualified from continuing to preside over the case.
A merry cartoon of a criminal defendant resorting to threats against the judge because the judge denied him effective representation in a murder trial - in a death penalty state.