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).


“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.


"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.


This case illustrates to me the serious consequences to the Bar itself of
not affording the full protections of the First Amendment to its applicants for
admission. For this record shows that [the rejected attorney candidate] has
many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney
candidate] has followed a high moral, ethical and patriotic course in all of
the activities of his life, but also that he combines these more common virtues with
the uncommon virtue of courage to stand by his principles at any cos
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.







Saturday, July 9, 2016

"I thought there were rules here" - out of the babe's mouth, or the false promise of discipline against the Michigan #JudgeLisaGorcyca

I wrote about judge Lisa Gorcyca, of the State of Michigan, in two blogs so far, before and after she was disciplined - and celebrated her defiance to that discipline with a flash-mob of supporters.

In this blog I will analyze in more detail the actual order of discipline against Judge Lisa Gorcyca and whether the discipline was adequate to misconduct committed by Judge Lisa Gorcyca that was reflected in court documents.

So far I could spot, in addition to what I pointed out in the previous blogs, the following misconduct of Judge Lisa Gorcyca:


I.  Lying to court - a disbarring offense




II.  Ex parte communications with children's prosecutor before the prosecutor filed a contempt proceeding, advocacy for the prosecution (her own former office of 15 years) and acting upon ex parte advice of the prosecutor as to how to handle the case







Judge Lisa Gorcyca was a prosecutor for 15 years and could not claim she did not know that it is the prosecutor's job, not the judge's to bring criminal contempt proceedings.

Moreover, in such proceedings, children would be entitled to the full panoply of constitutional rights - arraignment, discovery, pre-trial motions and hearings and then the trial.

None of that was provided by Judge Gorcyca to the children.

Judge Lisa Gorcyca also apparently lied stating that she only snapped on June 24, 2015 because before that she exercised "judicial restraint", while it was likely because the lawsuit against her husband was finally settled on June 9, 2015 and Judge Lisa Gorcyca needed somebody to take her frustration out on.



III.  THREATENING JAIL TIME FOR CHILDREN WHO ARE UNWILLING TO SEE THEIR FATHER



While seeing both parents may be beneficial to the children, children are autonomous people and not slaves of their parents or of the court, and must have some autonomy and freedom of association rights, including the right to refuse to see a parent they do not want to see because he is abusive to the other parent.

Here, Judge Lisa Gorcyca clearly violated children's freedom of association right by threatening them with jail time for years and by separation from one another and from their mother - and fulfilling that threat, for several months - simply because they insisted they did not want to see their father.

Contempt of court is not failure to satisfy every judicial whim, but failure to comply with a LAWFUL order of the court.

An order to children to see their father whom they did not want to see - or go to jail - is not a lawful order.

Judge Lisa Gorcyca acted like a capricious aristocrat acting on a whim when she first ordered children to see their father who they did not want to see - "or else" - and then put them in jail, having intentionally separated them from one another and from their mother.


IV. HOLDING THE OLDER BOY IN CRIMINAL CONTEMPT OF COURT WHEN THERE WAS NO EVIDENCE OF ANY WRITTEN COURT ORDER HE VIOLATED


On June 24, 2015, Judge Lisa Gorcyca held a contempt hearing and held LT, the oldest of the Tsimhani children, the 14-year-old boy, in contempt of court.

Yet, there was no evidence of any written order that the boy allegedly violated.  Judge Gorcyca's own order provided for visitation with LT only in the future, in July of 2015.




The presence of the boy LT on June 24, 2015 in court during visitation of his father with his younger siblings was simply a matter of chance, his mother brought him "along", possibly, not to leave him home alone, but he did not have to come to court on the day when he was jailed.





V. UNDER THREATS OF JAIL, JUDGE GORCYCA MADE AN 11--YEAR-OLD BOY WHO CLAIMED HE WAS ABUSED BY HIS FATHER ON MULTIPLE OCCASIONS TO MEET WITH HIS FATHER







So, a young child tells the judge who is supposed to protect the child that his father assaulted him, and was mean to him many times, and that's why the child does not want to see his father  - and the judge claims that "there is no evidence" of it, meaning that she tells the boy he is lying, and threatens to send the child to jail if the child does not agree to spend time with his abuser.


VI.  JUDGE GORCYCA CREATED EVIDENCE AND ACTED AS THE ADVOCATE AND UNSWORN WITNESS FOR THE FATHER

Of course, Judge Gorcyca had absolutely no right to create evidence, or to tell the kids, as an unsworn witness on behalf of the father, that their father loves them - it was not her personal knowledge, she could not know the father's mind and could not testify on his behalf of the father's feelings even if she was his official witness, such testimony about another's feelings would have been inadmissible.

After Judge Gorcyca created evidence and acted as an advocate and unsworn witness on behalf of the father, she had only one way out of the situation - immediate recusal.

Yet, she plunged right on.

When the THREE children - including the older boy LT who was not even supposed to be there, refused to see their father on June 24, 2015, Judge Gorcyca appointed attorneys, called in extra sheriff support "anticipating" that she will put children in jail and held contempt hearings for all three children - including the oldest one, LT, who did not violate any court orders, but who Judge Gorcyca chose to demean and insult the most:





VII.  GORCYCA HELD THE OLDEST BOY IN CRIMINAL CONTEMPT WHILE HE VIOLATED NO COURT ORDER, AND SENTENCED HIM TO INCARCERATION FOR FOUR YEARS, AS FOR A FELONY, WITH NO CONTACT WITH THE MOTHER OR OTHER FAMILY MEMBERS, BUT THE ABUSIVE FATHER - A CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE 8th Amendment


Judge Lisa Gorcyca was a criminal prosecutor from 1993 to 2008 before she came to the bench.

She had to know how criminal contempt proceedings are brought and prosecuted.

Yet, she first held the oldest boy in a semblance of civil contempt where the contemnor in custody "holds the keys to his own jail cell by complying with the court order".

But there was no court order to comply with, and Judge Gorcyca gave the key to the jail cell to the father and not to the boy himself, and knowing that the father was leaving out of the country for a prolonged period of time, so it was criminal contempt.

Yet, for criminal contempt Judge Gorcyca sentenced the boy to 4 years in prison, which is a felony - for which the boy had to be indicted by the grand jury, with charges being presented by a prosecutor, with all the criminal procedure followed, which also did not happen.  Since the boy was not in contempt of anything to begin with, and all procedure was screwed up, it was a gross violation of his 14th and 4th Amendment rights.

Finally, even an incarcerated felon has a right to see his family at visitation time, and Judge Gorcyca expressly prohibited visitation by certain members of the family - which was cruel and unusual punishment in violation of the 8th Amendment.

Judge Gorcyca's incompetence was staggering - even the boy appeared "confused" and said that he thought there should be rules to put him in jail.

And, the presiding "Master" at the judicial disciplinary proceedings stated that no wonder the boy was confused since none of the required procedure and law for civil or criminal contempt was followed.









VIII.  JUDGE GORCYCA ASSIGNED INCOMPETENT OR COWARDLY ATTORNEYS TO CHILDREN WHO DID NOT EVEN FILE APPEALS OF THE CONTEMPT PROCEEDINGS, NOR MADE ANY OBJECTIONS


Judge Gorcyca tried to defend herself by claiming that none of the 3 attorneys she assigned to the children in the instant contempt proceedings objected or appealed the contempt decision.

Yet, children's attorneys asked to assign appellate counsel, and it became unnecessary because Lisa Gorcyca dismissed contempt proceedings, after a media frenzy over jailing the kids, and before the appeal was filed - thus making appeals of the case moot.

Yet, the children's attorneys conspicuously did not participate in signing the letter of support of Judge Gorcyca before she was disciplined, I do not know about the attorney flash-mob after the discipline was imposed that gave a standing ovation to Judge Gorcyca as soon as she was disciplined in this case.

Attorneys for the children involved in the case were, according to the disciplinary decision against Judge Gorcyca:

  1. William Lansat, Guardian Ad Litem for all three children;


and three attorneys appointed by Lisa Gorcyca specifically for contempt proceedings, individually for the three children:

  1. G. Jeffrey Schwartz for the 14-year-old boy, LT;
  2. Michael Dean for the 11-year-old boy, RT; and
  3. Karen Cook for the 9-year-old girl, NT



IX.  CHILDREN MAY HAVE BEEN INCARCERATED TO "BREAK" THE MOTHER AND COERCE HER INTO A SETTLEMENT

In a "cautionary story" published on June 6, 2016, during the pendency of proceedings against Lisa Gorcyca, one of the plaintiffs against Gorcyca's husband, former Oakland County District Attorney David Gorcyca, Tali Wendrow (see my previous blog about that lawsuit here), indicated that, based on the treatment of her family by David Gorcyca and his staff, it appears that what Judge Lisa Gorcyca was doing was part of her training and of the DA's office's policy to break people so that they would concede certain points in litigation.

Gorcyca was clearly "breaking" - the kids and their mother, to do what they considered inappropriate to do, socialize with their abuser.

This is not the first custody case where people have complained against Judge Gorcyca.

Judge Gorcyca also reportedly jailed a woman with stage 3 cancer, right after a session of chemotherapy (and that was the 5th time Judge Gorcyca jailed that particular woman on civil contempt charges).

After ALL the above, here is what lawyers wrote to the community IN SUPPORT of judge Lisa Gorcyca:






Of course, the last name Gorcyca - a "Jeffrey Gorcyca" surfaced in support of Judge Lisa Gorcyca.  Since the last name Gorcyca is not a common last name in the U.S., we may carefully assume that it is some kind of a relative who supported Gorcyca.  I wonder if that supposed relative is practicing in front of Judge Gorcyca.

Let's compare the language of the disciplinary decision and the language of the letter.

The disciplinary Master found that judge Gorcyca:

1) lied to the court;
2) confused civil and criminal contempt proceedings;
3) engaged in ex parte communications with the prosecutor;
4) violated procedure as to all kids in holding them in contempt, and especially as to the oldest boy whom she sent to detention without violation of ANY written court orders.

All the while the judge was demeaning, insulting and intimidating kids and acting as the advocate of their father - which points out the lack of competence, necessary judicial temperament, honesty, and integrity.

The judge's opinion of what was in the "best interests of the child" (which, as she ordered, was, obviously, jail, going to the bathroom in front of other people until they are 18, and no contact with each other or their mother) was not swayed even by the fact that three children unanimously preferred jail and being deprived of contacts with one another and their mother, as well as being subjected to invasion of privacy and humiliation, rather than to have any contacts with their father.

Judge Gorcyca clearly was "breaking" the kids to her will - which was NOT within her judicial function or authority to do as part of the custody proceedings, but was likely part of her prosecutorial training to do, as claimed by the plaintiff against her husband and former boss, former Oakland County DA David Gorcyca.

In other words, it is grounds - and ample grounds - for taking Judge Gorcyca off the bench.  And the Master did not even consider that Judge Corcyca's behavior was a simple snapping against an innocent victim in reaction to a lawsuit by somebody else against her husband.

I will just single out the key phrases (as I see them, of course) in the lawyers' support letter of Judge Gorcyca, with some comments:


That is a conclusory statement, which does not disclose what exactly was unfair.  The obvious problem that lawyers see here is exposure - "publicly".  Gorcyca complained about the media on July 10, 2015 when she dismissed her own contempt proceedings after exposure in the media - according to the disciplinary decision.


That is another conclusory piece, which does not specify what exactly is Judge Lisa Gorcyca's "immence contribution" to that community, and why the contribution, whatever it is, should outweigh her documented misconduct.  The word combination "salacious media sound bites" is equally conclusory, since it does not specify which "media sound bites" the signing attorneys find "salacious".

Apparently, attorneys appearing in front of a judge may find anything negative published against the judge "salacious" - to please the judge and drum up business for themselves, such appeal to the public has little, if any credibility.


Judge Gorcyca, according to attorneys appearing in front of her, has
  1. an "unwavering compassion for the people" who appear in front of her,
  2. to those people who are most "vulnerable" and
  3. a deep dedication to children.

Yet, the "unwavering compassion" demonstrated by Judge Gorcyca is not a little bit lopsided - it appears that the judge chooses the side she likes better, takes that side and starts to advocate for it instead of being a neutral arbiter, and she is advocating with much "unwavering compassion", but only to that one side of litigation, to the detriment of all other people involved.

As to the "most vulnerable people" in the community, the report about sending a stage-3 cancer patient just out of chemo to jail for failure to provide an affidavit speaks for itself.

Nor did I see a letter directly from those "vulnerable people" in the community in support of Judge Gorcyca.

As to Judge Gorcyca's "deep dedication" to children, God save us from that dedication, and transcripts of how exactly Judge Gorcyca treated the Tsimhoni children speaks louder than any conclusory sycophanting of attorneys who hope to please and not to ire Judge Gorcyca.

The letter reminds me of such "letters to the editor" in the Soviet Union asking to hang those treasonous whoever "as evil dogs" - and this is about the same as what attorneys say about the press.  People signing such letters do that for the obvious reason of self-preservation, which does not justify insulting people's intelligence and attempting to mislead the public as to misconduct and performance of a public official.


My position at all times was that a person must do his or her job properly FIRST and FOREMOST.

Judge Gorcyca's job is to be a judge.

She cannot prove her competency or fitness to be a judge by stating that she sits on some charity boards.  In fact, if such "service" on charity boards distracts Judge Gorcyca's from brushing up on her competence, as the Tsimhoni case clearly showed, she should abstain from "helping" the community by sitting on those boards.

With a $140,000 a year salary Judge Gorcyca should be doing her job, first and foremost, and do whatever else she wants to do in her free time - and in such a way that it would not create conflicts of interest.

When a judge sits on boards helping "victims of domestic abuse", that means the judge is an advocate for such victims, which is also not good, because the judge must be neutral, so when attorneys even admit that they know that a judge puts herself into the position of advocacy, and present it as the judge's good side, rather than a conflict of interest, that tells a lot about competency of attorneys who signed the letter.

But, even if judges would be allowed to advocate for causes that they adjudicate, what kind of advocate the judge is for victims of domestic abuse if she disregards statements of victims of domestic abuse and jails them for not wanting to communicate with their own abuser?

Then, after listing what duties Judge Gorcyca performed as a prosecutor and what entities or units she founded - which is irrelevant to the issue whether she did or did not commit documented misconduct in the Tsimhoni case - attorneys list Judge Gorcyca's awards:


Well, when sycophants bestow awards upon one another, the value of such awards to the community is zero.

The public should not care what is:

  1. an "Esteemed Woman of Michigan", or
  2. why Gorcyca got a "Wonder Woman" award, or
  3. why Gorcyca was named "Crime Fighting Mom" when she was a judge for 4 years already and, supposedly, a neutral adjudicator, not an advocate "fighting crime", and certainly
  4. it is rather a matter of curiosity why Gorcyca, with all her "achievements", was named "Top Circuit Judge" of 2014, 2015 and 2016 - the years when she was investigated and prosecuted.
The awards in 2015, 2016, based on "integrity, knowledge of the law, efficiency and judicial temperament" was clearly meant as an antidote to disciplinary proceedings and exposure of the opposite qualities in the media.


This is the letter by trial attorneys to a trial (disciplinary court).

These people KNOW what they are doing and WHY.

If they would come with such a "character reference" to court, their case would be thrown out because it is IRRELEVANT what they think and say about the judge always being respectful when DOCUMENTARY EVIDENCE of this particular case, says otherwise.

The question is - whether Judge Gorcyca was acted in an incompetent, dishonest and unfit manner in THIS particular case which is the subject of the complaint.

All the conclusory character references to the contrary, signed by attorneys whose licenses are regulated by the judiciary and who get their piece of bread with salmon from the judiciary, is a very easily discernible brown-nosing and nothing else.

The attorneys do not say - we have read the record of the proceedings, and we, as amici curiae, say that there is not legal basis for charges (they cannot say that, because there is a basis), or that the record is not authentic (they cannot say that, because, most likely, they did not read the record, and there was no question about authenticity of the record, because the record was created by Judge Gorcyca's own court personnel).


This statement is laughable, and especially when it is coming from trial lawyers, 50 of them, because nobody can testify with any degree of certainty about what is happening in another person's mind.


Any adjudicator may perceive this statement as a blunt attempt to pressure them to arrive to a certain conclusion - because it is the adjudicator's role to make such a determination, and all the attorneys could have done is offer their humble opinion, yet they didn't, and the letter is not testimony under oath either.

The saddest part of the letter, though (in my opinion, of course) is this paragraph:



Attorneys who, after reading the record that was published and still continue to support the monster judge "without reservation", display that they are desperate to make a living by any means, and a desperate to support the judge no matter what misconduct she commits.

Remember the "kids for cash" scandal in Pennsylvania.


Why the "canaries did not sing" and why the attorneys did not report misconduct of judge Marc Ciavarella when he was SELLING kids into juvenile facilities.

First of all, such a situation cannot be excluded with Judge Gorcyca, after all she is "serving" on so many boards and she and her husband insinuated herself into the local government for so long that anything is possible.

But, that the legal profession would DEFY THE RECORD of misconduct, bad misconduct, egregious misconduct, with such letters of support and even a standing ovation to a judge who committed it - really tells the public who is who.

Well, at least these attorneys outed themselves, so that the public would know who would sell them - to Judge Gorcyca or to another judge.

A single silver lining in this big mess.

 Because with all the above misconduct, Judge Lisa Gorcyca was allowed to continue to be a judge.

To the detriment of the public at large and to the joy of sycophants.




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