"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, May 18, 2017
Ken Paxton's pre-trial pro-prosecution change of venue: Part I - if we change venue lists for prosecution becuase of County officials donating to the defendant, should be change venues of all criminal cases where county officials donate to the District Attorney?
That an elected AG is being prosecuted for something he allegedly committed before he was elected is a very rare occurrence and clearly smacks of a political persecution.
That impression is even stronger from the way how the trial was handled - with a judge moving the venue, without consent of the defendant, to another county - and, just "coincidentally", after Ken Paxton took a stand in support of President Trump in his immigration executive orders.
As much as I dislike the stand of Ken Paxton on the death penalty and several other issues, Ken Paxton's brief regarding President Trump's immigration executive order was the correct expression of the law in an ocean of pro-Clinton's sponsored politics that the fight against President Trump's executive orders have become.
Paxton went to the appellate court to move the trial back to his own county and to remove the judge who granted the prosecution's "last minute" request to move the venue.
The media Paxton's claim to the appellate court that the venue was moved without his consent "unprecedented".
Well, first of all, what is so unprecedented to demand a right to trial by jury of his own peers?
Peers means cross-section of his own community, where he resides and works.
That's the law, isn't it?
The venue was moved because allegedly the defendant tainted the jury pool.
As proof, the prosecution used, among other things, an exhibit showing the list of donors of Paxton's AG election campaign in 2013 - which included a number of prominent Colin County officials (the county from which the venue was moved).
Now, since the judge relied on that exhibit in moving the venue, that is what I would call unprecedented.
In each criminal proceeding, the jury is picked (is supposed to be picked) from the cross-section of the community.
Of course, while the jury pool formation is supposed to be random, ask my husband who worked in Delaware County, NY, for 37 years as a criminal defense attorney, and ask me, a criminal defense attorney's wife who worked in his office as a legal assistant for years before working in that same county as a criminal defense attorney for nearly 7 years - how many times were we called for jury duty over all these years.
How about - NONE? None at all. Not in town court trials, not in village court (when it still existed) trials, not in county court trials, not in Supreme Court trials, not in federal court trials.
At the same time, our neighbors were called to jury duty regularly.
The same is happening, by the way, in South Carolina. Our neighbors and new friends here report being called to jury duty several times a year, while we are left out.
Which creates a big question - how jury pools are formed? Is the process random, or are people with defense attorney background deliberately excluded from jury pools, in order to help the prosecution ahead of time?
I do not see media coverage on this sticky issue at all.
But, supposedly, in Texas the jury pool formation is all according to the law, random and drawing from the cross-section of the community.
If that is true, what difference does it make for the jury who were donors of Ken Paxton's 2013 election campaign?
Isn't there voir dire (jury-picking process) for that?
Isn't there a tool of striking prospective jurors for cause if they are subordinates to Ken Paxton's donors?
And, will it not be completely different if it would be Ken Paxton who would be asking to move venue simply because the prosecutor was elected with support, including donor support, from the same County?
Because that's exactly the fact in many counties across the country, the County is usually a very large employer, and those employees have many relatives and friends, and yet no connection, even a close connection, to County officers, high-ranking employees, relatives or friends, will strike a prospective juror if he claims that he pledges to be impartial?
That process should work the same way for the prosecution.
It is interesting to see how Ken Paxton, a prosecutor himself, points out major issues with the judge catering for the prosecution in truly unprecedented ways - doing their job of picking the jury instead of them, while denying the defendant a trial by the jury of his own peers.
And, an elephant of a question arises that the media appears to conveniently ignore - if County officials were election donors for a party in litigation, and if the judge deems the list of County donors important enough to change venue, does the judge and the prosecution recognize by that move that jurors in a given County may ALWAYS be influenced, behind the scenes, by the high-ranking County officials influence a picked jury behind the scenes?
Now that is an interesting proposition.