"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 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.