"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.
Saturday, December 17, 2016
California State Bar does not do its job in investigating and disciplining rogue prosecutors - so the feds have to
In the same blog article yesterday, also wrote or referenced by links to my prior blogs, systemic problems in California regulation of attorneys.
What I did not mention yesterday is selective non-enforcement of attorney discipline in California not only as to attorneys from rich firms connected to the judiciary who fund judicial elections and benefits and serenade (literally) judges, but also as to criminal prosecutors.
In New York, the non-discipline of prosecutors has so far led to a legislative bill - fairly toothless - that proposes creation of a special Commission for Prosecutorial Misconduct, fashioned after the New York State Commission for Judicial Conduct. I say "fairly toothless" because the NYS Commission for Judicial Conduct never investigates anything and shreds most of complaints against judges without any investigation.
I have been filing complaints against judges for 7 years (some reflected in the 11th Cause of Action in Neroni v Zayas, pp. 50 to 69, some reflected in Bracci v Becker, another basis for an anti-filing injunction in federal court against my husband), based on documentary evidence of misconduct, and in all those years, the New York State Commission of Judicial Conducts has NEVER contacted me to investigate the claims - it just tosses it claiming that complaints do not warrant discipline, even if that is blatantly untrue, and contradicts applicable precedents.
New York State Commission for Judicial Conduct is also populated by people with conflicts of interest to discipline judges - judges themselves, or licensed attorneys practicing before judges whose discipline they are handling, and who can derive a benefit from non-prosecution, and whose own livelihood is in the hands of the judiciary, making their reluctance to investigate complaints a point of personal professional survival.
By the way, New York State Commission for Judicial Conduct only recently proposed a change of internal policy and prohibited members of law firms of Commission's members and staff to appear in front of the Commission representing clients - before that, the Commission did that, but refuses to disclose to the public how many cases were tainted this way.
If that is the way that the Commission for Prosecutorial Misconduct is to be fashioned in New York, it is a waste of taxpayer money and yet another "smoke and mirror" scheme, designed to create an illusion of discipline for taxpayers.
In New York, the bill for creation of even a toothless Commission for Prosecutorial Misconduct is vigorously lobbied against by the state prosecutor organizations who claim that the current status of discipline of prosecutors is just fine as it is now.
Of course, the whole idea that such a bill became necessary is proof to the contrary, and statistics show that prosecutors - even those involved in reversals of cases on the basis of prosecutorial misconduct, or in vacatur of wrongful convictions years after sentencing based on prosecutorial misconduct - were never disciplined, and instead advanced in their careers, showing that the system of attorney discipline designed, allegedly, to protect the public from wrongful prosecutions, does not work.
Attorney Kinney pointed selective enforcement of attorney discipline in California in his writ of certiorari pending in front of the U.S. Supreme Court.
I raised the same issues, that rules of attorney discipline are not enforceable to vast numbers of attorneys working for the government in the State of New York.
In my case, a federal judge, Lawrence E. Kahn, himself an attorney licensed in New York and thus dependent on favorable attitude of New York State judiciary for his own livelihood, has dismissed that lawsuit for "failure to state a claim", the 2nd Circuit (also with presiding judges licensed to practice in New York by New York judiciary) affirmed without a full opinion, and yet another judge, Gary Sharpe, also an attorney licensed by the New York State Judiciary, imposed an anti-filing injunction upon my husband for even daring to file such a lawsuit.
Here are some of my claims on behalf of my husband, made in January (initial complaint) and February of 2013 in Neroni v Zayas, in the U.S. District Court for the Northern District of New York, 11th Cause of Action, pages 50 to 69, on the issue of selective non-enforcement of attorney discipline in New York against attorneys working for the government, including criminal prosecutors, making the whole idea of attorney regulation as a pretense of protecting the public senseless and unconstitutional:
In the 11th Cause of Action, I pointed out that:
1) attorney discipline against governmental attorneys and relatives of judges and of high-standing governmental officials (like Governor Andrew Cuomo) is non-existent, and
2) that as a result, thousands of the most influential attorneys, and attorneys having the most power and the most ability to harm the public are put outside of the reach of attorney discipline, thus making attorney regulation in New York non-sensical and unlawful.
In Neroni v Zayas I pointed out, as one of examples of attorney discipline, at attorney Bruce McKeegan who was involved in defrauding local schools of taxpayer money by claiming he is an employee of the school and enrolling into the school's benefits - he was allowed to unenroll and suffered no discipline (likely because he was a law school roommate of Governor Andrew Cuomo). I also mentioned Bruce McKeegan in my opposition to discipline, indicating that my disciplinary proceedings are politically motivated.
Now Bruce McKeegan is part of New York State Supreme Court Appellate Division 3rd Department "Independent Judicial Election Qualifications Committee", and Cuomo's other controversial friend, Westchester District Attorney #JanetDiFiore, who also had a trail of allegations of criminal conduct and prosecutorial misconduct supported by documents and witness accounts, was elevated to the position of New York State Chief Judge and retaliated against me for raising issues of improriety against her, her friend and benefactor #AndrewCuomo, and Cuomo's other friend whose misconduct I mentioned in the pleadings, #BruceMcKeegan of Delhi, NY.
I also wrote about another law school roommate of a high-standing public official, the Onondaga County District Attorney William Fitzpatrick who attempted to extort money out of Judge Bryan Hedges, and had an agreement to split the proceeds of extortion with the alleged victim of Judge Hedges from 40+ years back.
"Coincidentally", Judge Hedges was the one upon whose disclosure to a victim of William Fitzpatrick's law school roommate's (Chief Administrative Judge of the 5th Judicial District James Tormey's) corruption, Judge Tormey's court employee not only sued him for retaliative discrimination in the workplace, but was able to obtain a $600,000 settlement - albeit not from Tormey's pocket, but from New York State taxpayers'.
Fitzpatrick was not only not prosecuted for extortion, not only not disciplined as an attorney, but was rewarded by having Judge Hedges taken off the bench (but not disbarred), and then proceeding to be a member of State Commission for Public Ethics and even the president of the National District Attorney's Association.
With such a figure as William Fitzpatrick leading our country's criminal prosecutors, it is not a surprise that prosecutors have become a jeopardy to proper enforcement of law rather than its tool.
For example, in the same blessed state of California that is involved in corrupt and selective enforcement of attorney discipline against solo and small firm civil rights, family court and criminal defense attorneys, a scandal has been raging for over 1.5 years about massive prosecutorial misconduct of prosecutors in Orange County illegally using jailhouse snitches to elicit incriminating statements from represented criminal defendants detained in the local County Jail, in violation of their 6th Amendment right to counsel.
Upon publicly available information, the California State Bar, too busy collecting attorney fees and disciplining sole and small-firm attorneys working for the poor and exposing judicial corruption in California and whitewashing big-fish attorneys, did not yet publicly discipline the Orange County prosecutors for repeated and systematic constitutional violations of criminal defendants' rights - and, likely, never will.
Of course, prosecutors in Orange County - as everywhere else in the country - are the breeding pool of the judiciary, and, naturally, many judges in California are direct off-springs of the Orange County District Attorney's office.
Since it is the judiciary that "regulates" attorney licenses in California, and all "regulators" of attorney licenses are themselves attorney license holders, regulators would be afraid to touch with investigation or discipline anybody from a judge's "alma mater" - prosecutors from the Orange County District Attorney's Office.
And, who will prosecute the prosecutors? Themselves? A "special prosecutor"? Who will appoint a special prosecutor to prosecute criminal prosecutors for misconduct? A judge, likely a former prosecutor him- or herself?
Especially after Pennsylvania criminally prosecuted its own elected official, Attorney General Kathleen Kane for doing her job and investigating the "ol' boys' club" of judges and prosecutors misusing their offices and disbarred her, with starking conflicts of interest involved in the disciplinary process (a judge "outed" by Kathleen Kane, before resigning from office during the pendency of a disciplinary proceeding, retaliated against Kathleen Kane by suspending her law license) - no state-employed attorney would dare to "do the right thing".
Especially where defense attorneys in California are not only the target of unfair disciplinary proceedings, but are literally beaten up for winning against prosecution in criminal cases, and baten up in the courthouse, under cameras, by employees of the District Attorney's office - and nothing is done about that.
So, since the California State Bar cannot - or, rather, would not - do its job and discipline criminal prosecutors involved in egregious, deliberate and systematic violation of constitutional rights of criminal defendants, the feds had to step in.
The U.S. Justice Department announced on December 15, 2016 in a public press release, that it is now investigating misconduct of California prosecutors.
I wonder how far the investigation will go though against the "honorable" prosecutors of the Orange County - or if the high-standing friends of Orange County prosecutors will force the U.S. Department of Justice to sweep the investigation under the rug, as the feds were forced to sweep under the rug criminal and disciplinary investigations against Hillary Clinton for exposing government secrets to the immediate world, and her attorneys for shredding evidence of her misconduct despite a court order of disclosure.
After all, this country is founded upon "history and tradition".
Including a strong tradition of corruption of prosecutors and judges.
I will continue to follow the story of federal investigation of the Orange County police and prosecutors.