"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 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, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Wednesday, March 8, 2017

In a messed up review, the 3rd Circuit makes a revolutionary pronouncement: litigants have an UNWAIVEABLE right to impartial judicial review - so, judges' "absolute discretion" to recuse or not to recuse has been flushed down the toilet. Long overdue, by the way

On February 28, 2017, the U.S. Court of Appeals for the 3rd Circuit, judges Joseph Greenaway (born in 1957), Jane Roth (born in 1935, 82 years of age) and D Michael Fisher (born in 1944, 73 years of age) recently reversed a 1998 conviction for murder decided by a single judge, the then-70-year-old #LisaRichette

who died in 2007, at a bench trial in a state court in Pennsylvania, and since then, affirmed on appeal by the Supreme Court of the State of Pennsylvania, including judge #MichaelEakin and #RonaldCastille, who both retired or resigned from the bench and were both subject to controversies with refusal to recuse.

Eakin refused to recuse from suspension proceedings of Pennsylvania Attorney General #KathleenKane whose investigation brought about his resignation - so he first ordered suspension of her license, and only then resigned from the court.

Castille retired only after he denied 4 TIMES a habeas corpus petition to a criminal defendant in a DEATH PENALTY case, where
  • Castille, as a District Attorney, ASKED for that death penalty from the prosecuting court;
  • Castille's subordinate, an Assistant District Attorney, concealed Brady material (exculpatory evidence) from the defense; and
  • Castille's subordinate, an Assitant District Attorney, suborned perjury from a co-defendant in the case in order to convict and obtain the death penalty in that case;
  • Castille was elected to the Supreme Court of the State of Pennsylvania on the platform of being "tough on crime" as a prosecutor, counting the fraudulently obtained conviction and death penalty as one of his personal achievements;
  • Castille refused to recuse from the 4 habeas corpus petitions;
  • Castille instead filed a "concurring" opinion blasting allegedly inappropriate behavior and zeal of the condemned person's attorneys;
  • the U.S. Supreme Court reversed and remanded denial of habeas corpus - of course, it was sent back to the same court that denied it 4 times before - in Williams v Pennsylvania in 2016, specifically indicating that decisions made by a judge acting as an accuser and adjudicator are void, and that the judge had an obligation to recuse - actually, 4 times!

After this stellar combination of judges affirmed the conviction on appeal, the convicted defendant brought a habeas corpus petition in federal court.

The lower federal court, Judge Norma Shapiro,

who also died, in 2016, one month after the appellate oral argument of this case, denied the petition.

Judge Norma Shapiro, who was 86 years old at the time of the decision, denied the habeas corpus petition WITHOUT ANY EXPLANATION.

Here are the habeas corpus issues raised in the petition,

and here is the decision of those issues by Judge Norma Shapiro without any explanation:

- begging questions:
  • whether Judge Norma Shapiro anything about the case at all, or whether she was too frail to meaningfully perform her duties as a judge; and
  • whether #JudgeNormaShapiro, in denying the petition, protected the memory of her female "trailblazer" colleague on the bench Lisa Richette with whom Judge Norma Shapiro was personally acquainted, was likely her friend, and fought discrimination against women together - but Norma Shapiro nowhere in this case made a disclosure about her close connection with Lisa Richette:

I would ask - what was the likelihood that Judge Norma Shapiro was even assigned to the case screwed up royally by her friend in the Pennsylvania State court Judge Lisa Richette?

And what was the probability that Judge Norma Shapiro would die one month after the oral argument in the case, when she, probably, realized that there is no way to save her friend from embarrassment.

Well, the court managed that anyway - even with the reversal of conviction, describing egregious misconduct of the 70-year-old Judge Lisa Richette, but refusing to put the blame on her, instead putting the blame entirely on the criminal defense attorney who did not move for her recusal - omitting two sticky issues:

  1. that the attorney in question was an appointed attorney:
    1. appointed by Judge Lisa Richette;
    2. financially dependent on that and further appointments; and
    3. in Judge Lisa Richette's hands entirely - the attorney could be suspended from practice of law (as, for example, New York did with attorney John Aretakis in 2008 for making a motion to recuse also in a criminal case).
As I recently stated - but was not heard by the U.S. Supreme Court - in my certiorari petition of my disciplinary suspension for making motions to recuse a judge:

"an attorney should not be put in a situation where carrying out her duty to her client in securing a federal constitutional right even theoretically involves a risk of losing her livelihood for herself and her family, otherwise motions to recuse will never be made".

Yet, Pennsylvania repeatedly puts attorneys in such a position, and the public is repeatedly suffering for it.

Pennsylvania had a "kids for cash" scandal where a judge sold kids for money into privately run juvie prison because attorneys were afraid to report the judge - see two articles on that topic, by Indiana attorney Paul Ogden, and a law review article by Sarah L. Primrose.

After the Kids for Cash Scandal, the State of Pennsylvania - and the 3rd Circuit - removed law licenses of Pennsylvania attorneys #KathleenKane and #DonBailey, Don Bailey - for claims of judicial corruption in federal courts, and as to PA AG Kathleen Kane - for investigation of the "Porngate scandal" where high-ranking judges and prosecutors in PA were caught exchanging misogynistic, sexist and racist jokes, heavily interspersed with pornography, through the use of court computer system.

Plus, in 1999, 2000 and 2006 Pennsylvania removed licenses of three attorneys who criticized judges:

Even though Eugene Wrona was disbarred (in 2006), and attorneys Price and Surrick were "only" suspended for 5 years each, in 1999 and 2000, respectively, they still remain suspended 13 and 12 years, respectively, after expiration of their suspension, so that suspension was as good as disbarment and professional death.

Of course, discipline of attorneys Wrona, Price, Surrick, Kane and Bailey, and refusal to reinstate the license of PA Attorney Andy Ostrowski for Ostowski's running for U.S. Congress on his platform of judicial reform, and for his radio show "Justice Served with Andy Ostrowski" where he interviewed victims of judicial misconduct and experts on judicial corruption, happened after assigned attorney Fred Harrison refused to move to recuse Judge Lisa Richette in a bench trial of a murder case.

Yet, attorneys were disciplined for criticism of judges at the time Fred Harrison represented his client, too, and attorney Fred Harrison did not live in a vacuum - he knew that criticizing a judge, pointing out at judicial misconduct is what is regarded in the legal profession what is politely called "professional suicide".

So, what did Judge Richette do that the 3rd Circuit finally deigned to reverse the conviction after the defendant served 19 YEARS (!) in prison?

Judge Richette:

  1. Held an ex parte conference in chambers, involving the District Attorney and the victim's family  (the family of the person who was allegedly killed by the defendant) but not involving the defendant or his counsel  - the ADA who participated in that conference was NOT disciplined, even though it was a violation of both judicial, and attorney professional code of conduct;
  2. During that meeting, Judge Richette, among other things:
    1. sought approval from the alleged victim's family;
    2. told them that, contrary to online criticism by a third person, she is not "Let 'em Loose Lisa" and is not lenient on crime;
    3. sought to vet in the future anything published about her online by the alleged victim's family.

The 3rd Circuit though preferred to play fast and loose with the truth by saying this:

It is "even more difficult to understand why defense counsel Harrison failed to object to the proceedings or to move for the judge's recusal at any point during the conference"?


Do these judges wear blinders as to what is happening in the real world, as to the fear they and their "regulation" of the legal profession instilled in that same legal profession?

I had an EXACT same situation in my practice as an attorney, with the only differences that:
  • the case was civil, and
  • I was a retained, not assigned, counsel.
Back in 2014, Judge Christopher Cahill of Ulster County Supreme Court, called in my opponent into his chambers for a "conference", but, when I ventured to come it, his clerk prohibited me to do that, saying clearly that Judge Cahill wanted to see my opponent alone.

After my opponent emerged out of the chambers, some 15 minutes later, I was then graciously called in. 

Instead of stepping into the chambers for my own ex parte communication with the judge, I remained at the entrance and publicly asked for the judge's recusal because he has just had an ex parte communication with attorney Delice (Dolores Felice by registration) Seligman (and attorney Seligman later confirmed the fact of ex parte communication in her later affirmation submitted to the court, moreover, she confirmed that it was usual for judge Cahill to hold such separate ex parte conferences with one party at a time).

In return, the judge started screaming that he will turn me into the disciplinary committee - even though he recused.

The screaming occurred before the chambers (that were just next door) of Judge Karen Peters who, "coincidentally", is the regulator of attorney licenses in that jurisdiction.

The result? I was suspended from the practice of law in a year, but not only nothing was done to Judge Cahill and attorney Delice Seligman - the NYS Court System even destroyed the security videotapes of how Judge Cahill was calling Delice Seligman into the chambers, and how I was trying to enter into the conference, too, but was blocked by the judge's personnel.
So, contrary to what the 3rd Circuit contends, it is not at all "difficult to understand" why attorney Henderson preferred to keep his license and livelihood intact and not to ask a judge to recuse herself, sending his client to 19 years in prison after a wrongful conviction.

Here is what Judge Richette did, as described by the 3rd Circuit:

Was attorney Fred Henderson wrong not to have made a motion to recuse under the circumstances?

Before it all happened to me, I would have said: "yes", without any question.

Now, I am saying - what right does the public, and a client, have in the U.S. to require of his or her attorney what amounts to a sacrifice of the attorney's entire livelihood and ability to support the attorney's family and children for that client?

What right does the public have to require that attorneys make motions to recuse, even though that same public does absolutely nothing to protect attorneys from the consequences of such work on behalf of their clients - retaliation by the judicial system?

There are, of course, good things that this decision brought.

As dishonest as it is in pretending that the court does not know why attorney Fred Henderson did not ask judge Lisa Richette to recuse, and as dishonest as it is in not actually blasting both judge Lisa Richette for misconduct and failure to recuse, and judge Norma Shapiro in the district court below for her own misconduct - failure to disclose close personal relations with judge Lisa Richette, failure to recuse herself and denying a case with evident egregious misconduct without so much as an explanation of reasons - the decision of the 3rd Circuit is, in a way, revolutionary.

First, the 3rd Circuit, did do "the right thing" - reversed the conviction that occurred as a result of judicial misconduct, ex parte communication of the judge with prosecution and the alleged victim's family.

Second, by applying the string of U.S. Supreme Court cases referring to situations where judges were irked by criticism of litigants themselves to the case where the judge was swayed by criticism of non-parties in litigation, the 3rd Circuit

finally recognized what is usually fiercely denied in court decisions, that judges are human and do not have iron-clad self-discipline, that out-of-court criticism of judges by even people other than the litigants affect litigant's cases.

But, the main point of the case, the truly revolutionary point, is the admission by the 3rd Circuit that the right of a litigant to impartial judicial review, guaranteed by the right to a motion to recuse, is NOT WAIVEABLE - and look at the colorful precedents and analysis that has led the 3rd Circuit to that decision.

So, from now on, at least in the 3rd Circuit, and in the blessed State of Pennsylvania, judges no longer have a right to refuse to recuse as a matter of their so far absolute "discretion", after "examining their own conscience", as biased and corrupt judges in New York do?

So, Kathleen Kane can go free now, and her conviction overturned because of all the appearance of bias of all presiding judges in her case - disciplinary case as well as criminal case?

So, all attorneys who have ever been disciplined for making motions to recuse are now vindicated?

Or, is it just a decision within the 3rd Circuit, the one that is mandatory on paper to follow, but is merely discretionary in reality - because courts will refuse to apply it, as they do with content-based regulation of attorney speech in disciplinary cases for criticism of judges?

In New York, by the way, the law remains (as a result of John Aretakis' disciplinary case and my case - this):
  1. there is a right to impartial judicial review and access to courts, in both civil and criminal cases;
  2. yet, motions to recuse in civil court are punishable against attorneys by financial sanctions for frivolous conduct and suspension without a hearing - as it happened to Tatiana Neroni in 2015; and
  3. motions to recuse in criminal court are punishable against attorneys by contempt of court in criminal court and also by suspension without a hearing - as it happened to attorney John Aretakis in 2008; even though
  4. several U.S. Supreme Court precedents prohibit content-based regulation of speech without strict scrutiny in all cases - but, since the U.S. Supreme Court refuses to hear cases of attorney discipline for criticism of judges, such cases, and the 1st Amendment - do not exist for attorneys; and
  5. if the attorney does not make the motion to recuse - fearing what happened to attorneys John Aretakis and Tatiana Neroni - the attorney will WAIVE the client's right to raise the issue of judicial bias on appeal ("The father's claim that Family Court demonstrated bias, which involves facts outside the record, similarly is unpreserved for our review in light of the father's failure to object or otherwise move for Family Court's recusal", that is one of my cases, by the way, where I did not move to recuse the same judge who sanctioned me - and had my license suspended when I did move him to recuse -  see where the 3rd Circuit's decision declaring that right as UNWAIVABLE comes in and is important?), and will be subject to discipline and malpractice lawsuit for that now.

Future will show whether Pennsylvania courts will adhere to this newly created precedent that litigants have UNWAIVEABLE rights to impartial judicial review.

The bad cloud on the decision though is that it created a new basis for attorney discipline - for failure to make a motion to recuse. 

While the client in this case suffered pronounced harm (19 years in prison) because of that failure, the public and the courts regulating the legal profession cannot entirely lay the blame on attorney Fred Henderson for that failure - attorneys cannot be, in all fairness, disciplined for failing to do what they would otherwise be disciplined for doing.

As I said in my certiorari that the U.S. Supreme Court refused to hear: "...restrictions on the judiciary imposing sanctions upon attorneys for criticism of the judiciary should require application of strict scrutiny even more (than in other cases - TN), given that the judiciary acts in a triple role, as the object of criticism, regulator of the legal profession, and adjudicator of the controversy".

Unless this mess of attorney discipline for criticism of judges is resolved, until the public addresses and resolves that issue, all attempts to put the blame upon attorneys in causing wrongful convictions (and civil adjudications) against their clients will not make a dent, in practical sense, in wrongful convictions.

Once again, the public MAY NOT expect an attorney to sacrifice his livelihood AS A DUTY to his client in order to secure his client's constitutional right.

Before you require that duty from your attorneys whose licenses are still intact and who have themselves and their families to feed - fix the mess first with suspensions and disbarments of those attorneys who actually follow that duty.

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