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, October 14, 2016

On judges tasing litigants and the necessity to legislatively abolish judicial immunity

In February of this year I wrote about a Maryland judge Robert Nalley (a white man) who ordered tasering of a black criminal defendant for making constitutional arguments in court for himself.

The judge was then charged with a misdemeanor only (for assault with grave physical injury!), ordered to pay a fine, serve probation only and taken off the bench.  Still, no jail time - and just a slap on the wrist.  Barred from serving as a judge any more?  He is 72, it's not a big loss for him.

Here is Judge Nalley - bow tie and all, does not look like a dangerous violent criminal that he is, does he?




You might imagine that there can be nothing more disturbing about a courtroom proceeding than a judge ordering to taser a handcuffed litigant for making constitutional arguments to the judge.

But no - there is.

It is when the judge not only orders to taser a litigant for making arguments to the judge (including arguments pertaining to misconduct and appearance of impropriety of the judge, requiring recusal of the judge), but when the judge actually tosses his black robe and JOINS in the tasering efforts.

And that is what a Michigan judge John McBain, reportedly, just did.


Here is the official biography of this "honorable" judge.


Judge McBain was a career prosecutor before coming to the bench, he worked as a prosecutor, first in Florida, then in Michigan, since he was admitted to the bar, since 1988 and until 2002 when he was first elected as a judge.

Both prosecutors and judges in this country are given by courts a gift of absolute immunity for malicious and corrupt acts - and that sense of impunity breeds in prosecutors and judges the idea that they can do ANYTHING, literally, ANYTHING in court, with impunity.

So, Judge McBain was faced with a litigant who was charged with contempt of court - violating an order of protection.

Since such charges are criminal in nature and may involve jail time, the litigant was entitled to an attorney, an appointed attorney if he could not afford one.

There is no indication in reports regarding what the press calls a "scuffle" in the courtroom that any attorney for defendant Jacob Larson was present.

The video of court proceedings shows that the defendant appeared in front of the judge without an attorney - the only other man in the picture is the court attendant who is handcuffing the defendant.   After the court attendant roughly handles the defendant, the judge himself apparently joins, and together the two men knock the defendant down on the floor, and that is accompanied by the judge's yelling "taser him right now".

The judge was "upset" (that is the polite word) because the defendant:

1) talked about the judge's own daughter, and
2) raised the issue that the judge is "buddy-buddy" with the subject of the order of protection that the defendant allegedly violated.

Since the defendant's alleged violation of the order of protection occurred out of court, his contempt of court proceedings were entitled to an evidentiary hearing and an attorney representing him there.

Judge McBain did not assign an attorney, discussed the charges with the unrepresented defendant directly, and engaged in a verbal scuffle because defendant hurt his feelings personally - while the ONLY thing that Judge McBain could ethically do under the circumstances was to RECUSE from the action.

Instead, the judge not only ordered tasering of a litigant because the judge did not like the litigant discussing the judge's daughter and raised the issue that the judge may be too familiar with the opponent in litigation, but joined in physically overpowering the defendant.

Every concept of "neutral arbiter" of judicial proceedings, of course, was ripped off these proceedings, together with the black robe.

Judge McBain's robe should remain where Judge McBain left it - ripped off him, for good.

And, Judge McBain should also be disbarred for his behavior.

This is not a petty "ethical violation".

This is a violent outburst of a judge of 14 years and an attorney of 28 years of experience who knew better.

The judge instead:


  1. had to assign counsel for the defendant - but didn't;
  2. had to hold an evidentiary hearing before sending the defendant to jail - but didn't;
  3. had an obligation NOT to discuss with the defendant the merits of the case until the defendant appear in court with counsel - which the judge did not do, provoking the defendant into discussing issues that were personal to the judge;
  4. had to recuse because his own daughter and his personal relationship with the opponent in litigation were issues in litigation - but didn't;
  5. and instead ordered handcuffing, tasering of a pro se defendant and bodily participated in the scuffle;
  6. and ordered jailing the defendant while he was disqualified from doing so by his personal involvement.
The question I would also ask - why did Judge McBain toss his black robe before he joined the brutal overpowering of a litigant in the courtroom?

To confuse the viewer into believing that the second man joining the first who is tackling a defendant on the floor is simply a second court attendant, white shirt and all - instead of a judge?

So, the judge knew exactly what he was doing and thought his actions through to the point of attempting to deceive the viewers of the court recording, to beat the future charges of misconduct?

John McBain is not simply a violent man.

He is a violent man who knows that he is COMPLETELY IMMUNE for what he is doing in the courtroom during the court proceedings.

If Jacob Larson, the man the judge PHYSICALLY tackled during the court proceedings, sues judge McBain, the case will be dismissed based on judicial immunity.

And that is the best illustration of why judicial immunity MUST be abolished legislatively - because it allows the judge TO COMMIT VIOLENCE in the courtroom.

Imagine that this judge not just tackled a litigant, but shot him, right in the courtroom.

And, we do not know whether judges have guns on them during court proceedings or not.

If a judge shots a litigant or anybody else during a court proceeding, he will STILL be immune from a lawsuit.

Judge John McBain is a violent man who engaged in a physical assault upon a litigant who presented no danger to safety other than VERBALLY protesting against unlawful actions of Judge McBain.

And, Judge McBain is a product, as a prosecutor and as a judge, of a mentality that was in-bred into him over 28 years of his experience as a judge and a prosecutor, since he was admitted to the bar, for his entire legal career that anything - ANYTHING - he does in the courtroom will be covered by immunity, so he can just go ahead and do whatever he wants.

Note that the defendant raises the issue that the judge cannot simply send him to jail - even if that was expressed not in the most courteous language:

Defendant:  You cannot do this sh*t!
McBain:      Appeal it.

I described this "move up or move on" tactic regularly utilized by New York judges, on this blog:

  • a tactic that is wasting taxpayer money by forcing appeals that should not have happened had the judge simply followed the law as he or she is supposed to,
  • a tactic that is discriminatory against pro se litigants and non-moneyed litigants, because an appeal is a costly endeavor, and
  • a tactic that destroys in litigants their belief in the rule of law and integrity of the judiciary.

So, it is the taxpayers' resources that will be wasted on appeals from Judge McBain's illegal decisions aimed at using his paid position of power, as a public servant, to fix his personal grudges against a defendant who dared to mention the judge's daughter and the judge's potential personal relationship with a litigant in open court.

Will Judge McBain be required to reimburse taxpayers of the State of Michigan for that waste?

I doubt it - unless there is public pressure to make Judge McBain do it.

Judge McBain engaged in a violent act in his courtroom apparently believing that he is immune from lawsuit for his action - and that, likely, he will not be charged or disciplined as a judge or as an attorney, because who is going to discipline him - attorneys appearing in front of him, whose licenses are in the hands of judges, just like him?

Nobody stopped the judge - on the video - from doing what he was doing.

Nobody confronted the judge - even though there are people shown sitting in that courtroom.

Everybody is afraid and thinking that WHATEVER the judge is doing is right.

Right?

What kind of country have we become that we allow this to happen in front of our own eyes, in a public courtroom?

We will see in the future whether the State of Michigan will have the decency of having Judge McBain disbarred, taken off the bench and charged with assault.


I will continue to cover this story.

Stay tuned.



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