"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.
Thursday, February 16, 2017
Was a whistleblower coach in Penn State sex abuse case a "public figure" for defamation purposes? Penn State claims he is - and that the judge was biased and acted as an advocate for the whistleblower.
A brief has been filed by Penn State claiming BIAS by a judge?
Lawyers for Penn State lost all fear?
Judicial bias is usually never, ever, ever raised by attorneys in court - it is a most unforgiveable offense in the American courts to criticize a judge, often leading to attorneys being stripped of their attorney status and denied ability to get employed in any more or less gainful jobs, for life.
Reportedly, Penn State in its brief accused Judge Thomas Gavin of advocacy on behalf of the plaintiff.
The jury verdict that caused Penn State and its lawyers to forget the usual fear was in favor of a whistleblower, a coach at Penn State, in a defamation lawsuit which was allowed to go ahead of a criminal proceeding (and thus potentially influence the outcome of such criminal proceedings).
The whistleblower Michael McQueary allegedly reported to his superiors sexual abuse in Penn State football program back in 2001, while the officials did not pay attention to the sexual abuse, and, as a result, in the plaintiff's theory, Michael McQueary was seen as part of the problem 10 years later when the Sandusky scandal exploded.
Yet, one of the most important claims that Penn State is making that can yet help it win the case is not of judicial bias - judges rarely rule against their own brothers on such claims - but the claim that Judge Thomas Gavin refused to consider the plaintiff, an employee of a public university, a football coach, and a whistleblower in a high profile case, a public figure when Judge Gavin was giving instructions on the law to the jury.
It is likely that the jury would have been unable to return a verdict in favor of the plaintiff or to award any damages for him, had the plaintiff been considered a public figure, with the attendant elevated burden of proof on the plaintiff to prove not only all the elements of defamation, but that the false statements were made with actual malice in mind - a burden of proof that is very difficult, if at all possible to meet, and that could possibly have been impossible to meet under the circumstances of the case.
As it usually is in American courts, whenever the issue of sexual abuse is raised, the law disappears, and what appears is clear bias and partisanship of judges against anybody who is in any way even alleged to be implicated in condoning sexual abuse - which is nearly always unaccountable to the public and remains undisturbed on appeal.
Here, it appears that the judge really shed his supposed neutrality because of the subject of the case (sexual abuse in Penn State that was subject of a scandal) and could not bring himself to rule on the law, if ruling on the law (giving a correct instruction on the law) would result in a ruling favorable to the party the judge, and the public opinion, clearly did not like.
It is very interesting to see what the appellate court will rule on this particular issue, whether McQueary was or was not a "public figure" - which can potentially turn the jury verdict from $7.3 million to a zero.
And, on the subject of how whistleblowers of sexual abuse by high-standing public officials are treated by the public, as a matter of comparison, the multi-million verdict in favor of whistleblower of sexual abuse by a celebrity was in the state of Pennsylvania where sexual abuse in a state university resulted in a public scandal, civil lawsuits and criminal trials against those involved.
And that is, once again, in the state of Pennsylvania, a state reeking of judicial corruption, a state that has recently first suspended, and then criminally convicted and disbarred, through crooked judicial proceedings, its own Attorney General for investigating misconduct of judges and prosecutors.
Yet, apparently, New York State is even worse.
New York suspended in 2008, and continues suspension of attorney John Aretakis who brought actions for sexual abuse against Catholic church.
So, multi-million dollar verdicts for whistleblower celebrity against sexual abuse at Penn State, and a suspension of a law license and professional death for an attorney-whistleblower and civil rights defender against sexual abuse of children by Catholic priests in New York...
As to the multi-million dollar verdict in question, I will continue to monitor the developments in this case, and especially on the issue whether the jury instruction that Michael McQueary was not a public figure for purposes of a defamation lawsuit, will be overturned on appeal.