"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 22, 2017

New York State Appellate Division 3rd Judicial Department and its struggle with the best evidence rule

Today I read a schizophrenic case from New York State Supreme Court Appellate Division 3rd Department that correctly applies the best evidence rule - but puts in question prior decisions of the same 3rd Department on the same best evidence rule.

The best evidence rule is the rule of evidence requiring production in court of written document, if certain rights may only be established through written documents, and not through oral description of those documents or of those rights.

The 3rd Department has an interesting and politically tainted history with the best interest rule.

In 2012, New York State Supreme Court Appellate Division 3rd Department refused to vacate the plea of a criminal defendant where the defense counsel never properly appeared in the case by written notarized consent to change counsel, as required by law.

Of course, the defense counsel who screwed the case by obtaining a plea of a legally blind defendant to an A2 felony through stating (twice, on record) that he drove the truck where drugs were found while somebody else did, and received a speeding ticket that was in the record of the case - that legal genius was, "coincidentally"the former Vice-Chair of New York State Commission for Judicial Conduct Stephen Coffey, who sat on that Commission with the 3rd Department Chief Judge Karen Peters and dismissed, together, my complaint against Judge Becker based on misconduct in that same case, without recusal because of personal financial involvement (fee litigation) in that same case.

Whether an attorney is, or is not, attorney of record, is defined in New York only by written documents:

  1. notice of appearance,
  2. order of assignment of counsel, or, if there was a prior counsel in the case,
  3. notarized consent to change counsel, CPLR 321(b).

Coffey had none of that, but, given his cozy position with judges, he obviously did not need to comply with any laws.

And, even though settlements negotiated by attorneys who are not officially attorneys of record, are void in New York, Coffey's plea bargain imposed upon his legally blind client was upheld by Coffey's "buddy court".

4 years later, in 2016, the 3rd Department affirmed the dismissal decision (with sanctions, attorney fees, anti-filing injunction and a threat of criminal prosecution) of a "3R" (#RecusalReentryRetaliation)judge James Tormey.

In that case, Judge Tormey refused to distinguish between two court cases - one in which I was an attorney of record after the judgment was entered, and another - where I was never an attorney of record, and claimed that attorney Jonathan Follender (also a judge in justice court in Town of Denning, Ulster County) was
not expected to know, for purposes of Judiciary Law 487, fraud upon the court, and defamation claim, whether I was or was not an attorney of record in the 2nd case.

In fact, determining that "complicated" issue was a no brainer:

  1. I never physically appeared in court in the 2nd case (with a separate index number);
  2. was never hired to represent anybody in that case;
  3. my supposed clients in that case appeared their pro se;
  4. there was no notice of appearance filed by me in that case with the court and
  5. I told attorney Follender, orally and in writing, ever so many times, that I was not hired that case and was not representing anybody in that case.
That did not preclude attorney Follender from running his mouth that I am not appearing, did not appear, abandoned my clients etc. - which eventually led to a lawsuit for fraud upon the court and defamation against attorney Follender which was fixed by attorney Follender and the 3R judge Tormey who claimed that:

So, in this case, and especially because Tormey sent the decision over to be used in my disciplinary proceedings, reason, law, as well as the best evidence rule, all disappeared.

But - voila - the best evidence rule now re-appeared in the least expected of all cases, a prisoner discipline case.

On March 16, 2017, in the Matter of Lawrence George Wilson,  the best evidence rule suddenly reappeared, when the same court overturned discipline of a prisoner based on a "mail watch" (procedure where prison officials watched outgoing correspondence of the prisoner)  - because the mail watch could only be established by written permission of the prison's superintendent, and there was no such written permission given to the prisoner or included into the record.

The court rejected transcript of oral testimony of an investigator claiming that there was such permission given, insisting that, if the law requires that mail watch to be established by a written permission, and there is no such thing in the record, discipline based on a procedure not established through that required written document must be annulled.

The best evidence rule, therefore, got resurrected by the 3rd Department - of course, in that case, no criticism of judges, critics of judicial misconduct, attorneys "close to the body" of judges or claims of judicial misconduct or bias were involved.

So, it was safe to apply the law.

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