EVOLUTION OF JUDICIAL TYRANNY:

"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 cos
t.



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.



“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.

Wednesday, August 30, 2017

#FederalJudgeClayDLand, an unlicensed OB/GYN - a severe case of menopause of the brain. #IStandWithAlishaColeman. #ImpeachJudgeClayDLand


I wrote on this blog earlier this year about a federal judge, Clay D Land, whose arbitrary decision to return a properly filed case from Georgia to South Carolina landed that case into the hands of local judicial mafia who catered for "their own" and disciplined an outsider attorney in an intellectual infringement case for following the law as it was written, on behalf of his wronged clients.

After that invaluable service saved the defendants from a 4.2 million dollar judgment, Judge Clay D Land





was promoted to the position of a Chief Judge of his District Court.

And, in that position he authored an opinion which I can only characterize as a menopause of the brain.

Because, the case IS about menopause.

Here is the name of the case.





Here is the complaint of Alisha Coleman, an African American middle-aged woman who is, while working, is struggling with the effects of menopause, same as many millions of American women do every day.

The complaint is trying to plead the case in the most clinical, sterile way, in the most politically correct language possible.

Yet, the facts of the case are messy and ugly - and I will present them as they were alleged, only without political correctness.

Alisha Coleman, a woman undergoing her menopause, worked for a federal contractor, provider of - guess what? - E-911 services!

And



I will translate.

Alisha Coleman's regular periods stopped, but once in a while she had breakthrough heavy bleeding and had blood clots dropping out of her.

Such bleedings can be sudden, unpredictable and very profuse.

And, as any bleeding, it can be a medical emergency, possibly a life-threatening emergency.

Let's see how much compassion Alisha Coleman got from her employer, a federal contractor, when such a sudden heavy bleeding happened to her at work.

When #AlishaColeman shared her very intimate condition with her supervisors, they expressed - concern about her health? no, of course, not - a concern that she needs this:



So - the proper thing to tell your employee who may periodically experience a medical emergency is to have enough stuff to mop her blood after herself.

Great people.

I wonder if any of them cared to look into what post-menstrual bleedings actually are, and whether commercially available "feminine sanitary devices" are able to "contain and absorb" a river of blood that may suddenly rush from a postmenopausal woman.

So, while working for this extraordinary compassionate employer, on one unfortunate occasion, Alisha Coleman had a sudden onset of that river of blood.



And, she bled so heavily that she "soiled an office chair".

Did her supervisor express a concern about her condition, took her to the emergency room to verify if she is ok?

Oh, no.  The supervisor has brought a DISCIPLINARY ACTION against a middle-aged woman for sudden heavy bleeding outside of her control, and was warned that if she ever "do that again" - meaning, if ever again a river of blood suddenly rushes from her, and she "soils" any other office furniture - she will be fired.

Apparently, the administration of the federal contractor never read the Americans with Disabilities Act requiring to provide reasonable accommodations for people with disabilities - and that would include some accommodations for Alisha Coleman, which could be as easy as discreetly purchasing a look-alike, but washable office chair for her to use. 

And - did Alisha Coleman "did it again"?

She did.




"Became episodic" is a politically correct way of saying - Alisha Coleman suffered once again from a river of blood rushing down her legs that was so profuse that it soaked through her pads, ran down her legs and onto the carpet.

In other words, they had an employee in the office who was bleeding so heavily that she bled onto the carpet.

Now, was THAT considered by the employer as a medical emergency in order to show the woman some compassion and bring her to the emergency room?

Apparently, not.

Instead, Alisha Coleman, in her condition, did this:




Think about it.

A middle-aged woman who had a likely emergency condition, thought not about her health, but how to clean the office carpet of her own blood with "bleach and disinfectant" in order not to be fired - for bleeding.

But, she was fired anyway.



And, Alisha Coleman sued.

And, Chief Judge Clay D. Land was "assigned" to her case.

Nobody can accuse Judge Land of lack of intelligence - especially when he achieved such a rare (rarest, in fact) thing as "the order of coif", having straight "As" in law school.



But, Judge Land, in order to make this egregious case of discrimination to go away, pretended to be dumb anyway: he first correctly summarized the facts of the case as alleged in Alisha Coleman's lawsuit,




but then engaged in bizarred unlicensed OB/GYN diagnostics:


  • alleging that heavy bleeding from the uterus indicating the process by which the body stops its reproductive function, is not related to childbirth or pregnancy - see how this argument is contradicted in the appellate brief filed on behalf of Alisha Coleman by ACLU;
  • comparing heavy bleeding, through pads and on the floor, with urine incontinence; and
  • claimed that Alisha Coleman failed to allege that men were treated differently with urine incontinence than she was with her heavy bleeding.

Once again, an "order of coif" guy cannot pretend to be THAT dumb.

Moreover, it may be a shocking piece of news for Judge Land, but women have incontinence, too, so urine incontinence was not a medical condition unique to the male gender, while post-menopausal heavy bleeding is unique to the female gender.

And, since Judge Land dismissed the case at the pleading stage, without the benefit of discovery and expert reports, with his accounting and law degree, he was certainly not qualified to act as a unsworn expert OB/GYN, claim that post-menopausal bleeding is not "related to childbirth or pregnancy" within the meaning of the statute, or that it is comparable to incontinence.

So, Judge Land, without any compunction, claimed in his decision dismissing her lawsuit that the only way Alisha Coleman could claim discrimination under the Equal Protection Clause (that she was fired because of a medical condition unique for her gender) was if her condition would be related to childbirth or pregnancy - and concluded the bleeding that occurs when the woman's ability for pregnancy is winding down - is NOT related to pregnancy.

Follow the reasoning:



The statute says that a woman may not be discriminated against by her employer because of medical conditions "because of her sex" or "on the basis of sex", which, as the statute explained, "include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; ... 42 U.S.C. 2000e(k)".

This is a civil rights enforcement statute, and the rule of construction of such statutes is (1) broad, (2) liberal, and (3) to ensure that legislative intent is followed.

And the legislative intent was clearly to ensure that women are not discriminated against and certainly not fired because of their sex, including, BUT NOT LIMITED TO conditions that arise on the basis of pregnancy or childbirth, or "related medical conditions".

How could an "order of coif" judge not conclude that a uterine bleeding by which nature winds up the process of pregnancy and childbirth in a certain female is not "related" to pregnancy or childbirth - is a scientific wonder.

But he did.

Here is what this "order of coif" judge says, and this is a direct quote from his decision:



Here Judge Land could just end his atrocious self-embarrassment.  But, he felt the need to continue.



"Not terminated simply because she was "pre-menopausal or menstruating".

She did not allege that she was menstruating - she alleged that she was bleeding as part of the menopause, which is a completely different story and may be a medical emergency.

Women do not usually "menstruate" through their clothes, pads, down their legs and on the floor - it is may be an emergency bleeding, as in "losing blood", as in "bleeding to death".

Doesn't a person with an "order of coif" get that?

But, again, without the benefit of discovery and expert evidence, Judge Lance decided to act as an unlicensed OB/GYN and claim that she was simply "pre-menopausal OR menstruating".

In fact, claiming that Alisha Coleman was "or menstruating" was a statement directly opposite her allegations in the complaint, and thus a statement made by the judge on behalf of defendants, as their advocate.

But, that did not embarrass Judge Land enough either.

He rushed head on:




Dear sisters, American women.

Mothers, wives, childless women - does not matter.

The Chief Prick (not sorry) of the U.S. District Court of the Middle District of Georgia, a middle-aged man), considers it appropriate and not discriminatory if a woman is fired "for being unable to control the heavy menstruation and soiling herself and company property".

How callous and humiliating is that?

First, Judge Land, once again, falsifies the record by downplaying the facts and alleging that it was menstruation, not heavy (very heavy) bleeding - so heavy that Alisha Coleman bled onto the floor through the pads and clothes.

Next, Judge Land claims that now a woman may be fired for soiling HERSELF (and a piece of carpet) with HER OWN BLOOD during A MEDIAL EMERGENCY. 

To say that in an official document, a man and a judge must be a special kind of jerk.

But, Judge Land did not end his atrocious woman-hating and racist rant even at that, he had to continue.



Once again Judge Land is attempting to:


  1. equate emergency bleeding with incontinence;
  2. imply that incontinence is a medical condition attributable to male sex only; and
  3. claim that alleging that in order to claim discrimination in being fired for sudden emergency bleeding on the floor in the office, a woman must somehow allege that incontinent males will not be fired under the same circumstances.
That last claim is, in fact, no less disturbing than the implied claim that a woman may be fired for an emergency bleeding - Judge Clay clearly implies that, if a federal contractor and an E-911 operator would similarly discriminate against a man for "allowing" himself to be suddenly and unexpectedly incontinent through a spillover of urine or feces despite precautions, and fires such a man, that would be ok, and Alisha Coleman then cannot sue for discrimination either.

Since Judge Land attributed emergency bleeding as BAD BEHAVIOR and a proper reason to fire a middle-aged woman, and an African-American middle-aged woman, I must add - who was herself an E-911 employee, by sad irony - can he now be IMPEACHED for bad behavior for his misogynistic rant in Alisha Coleman's case and for creating for employers in the State of Georgia a practical invitation to fire pre-menopausal women for their medical condition.

Even if he is not incontinent yet and did not soil any chairs in the courthouse.

Sick, sick man.

And, what bothers me, too, is why Alisha Coleman's complaint did not include discrimination under the Americans with Disabilities Act.

After all, I agree that in this case it is a gender discrimination.

But, it would have provided yet another basis for the lawsuit to proceed if Alisha Coleman would also claim that it does not really matter from which part of the body you suddenly bleed when you are fired for that sudden bleeding on the company chair - or carpet - from a wound on your body, from your nose, mouth, ears or from your uterus.  

Such firing is clearly still a discrimination against a temporary disability, and is equally reprehensible.

Alisha Coleman could have fell, struck her head and bled on the same floor.

Alisha Coleman could have nose-bled on the same floor.

She would have been fired, too?

One thing appears to be clear - Judge Clay D. Land has no place on the federal bench, nor should he remain a licensed attorney.

He is a disgrace to his profession.








The Human Dx project - medical care for or medical experimentation on the poor?

We have licensing of medical professionals that not many people would challenge.  People with whom I discussed the subject, as well as articles that argue that licensing of medical professionals is a necessity usually ask me the same question - will you allow an unlicensed surgeon to do your surgery?

My answer - yes, and that was already happening in Russia where I am from.

When my relatives had a surgery, when I gave birth to my children in Moscow, there were no licensed physicians there - because physicians were not licensed at that point.

A diploma from a 6-year medical college with a rigorous training schedule and rigorous exams at the end of each semester, year and 6 years, and a residency after that were enough proof of professionalism.

Here in the United States the idea of occupational licensing of medical professionals became some kind of a sacred cow - even if a physician treating you does not really know the drugs he or she is prescribing and cannot adequately explain to you the necessity or possible complications or side effects of the proposed diagnostics or treatment.

And, in the medical profession, same as in the legal profession, the advance of artificial intelligence (AI) raises the question as to - why occupational licensing is needed - more and more.

For example, I recently wrote about a controversy in South Carolina where entrenched optometrists blocked consumer use of a smart phone application accurately diagnosing vision problems in order to get cheaper prescription glasses - forcing themselves upon consumers as the necessary link to get glasses, only through a prescription by a licensed optometrist.  While such a measure provides a zero incremental value for the consumers and deprives the consumer's own choice about their own health, for their own money, it provides protection for optometrists who invested all those years and all that money into education, training and licensing, and could not let go of they grip on a diagnostic procedure that can easily be done now in your own home by a phone app.

The same is happening in the legal profession where, despite the existence of an AI research engine for several years already, and despite the availability of online dispute resolution computer systems, professional bar associations try to draw out the life of their dying profession by blocking (on "ethical grounds", of course) introduction of virtual offices where people having knowledge of the law would be able to practice that law from any point in the world that has an Internet connection, to benefit any consumer who wants to pay for that service, and through criminal "unauthorized practice of law" laws, deeming as "practice of law" what a computer bot can do without a human, trained or untrained, licensed or unlicensed - which makes no sense whatsoever.  The not so funny part is that what constitutes the sacred cow of the "practice of law", is not clearly defined anywhere.

A similar situation, eroding the alleged necessity of medical licensing, is developing now in the medical profession with the introduction of an AI project called "Human DX" which supposedly contains databases, input from participating physicians and an ability to quickly and accurately analyze diseases and conditions remotely.

The interesting quirk in marketing and promotion of the Human Dx project is that all diagnostics can be done remotely.  Supposedly, that is good to provide medical care in "remote rural areas" - in the today's "doublespeak", to provide care for the poor.



Now, would people want to "tap into collected wisdom and gain access to tests, opinions or diagnoses that" "primary care docs at smaller or remote practices" would not have otherwise?

Sure.

But, didn't all of us, at some point in life, hear from their physician "that is beyond my area of expertise, I will refer you to a specialist"?

And, aren't there disciplinary rules prohibiting physicians and other medical professionals to practice outside of their area of expertise - as a measure of protection of consumers?

Then, what is that "tapping into collective wisdom and gain access" thingy?  Who is going to diagnose "underserved patients" in remote rural areas?  

Office secretaries who would run an AI set of tests based on input of data that a nurse collected?

How would the patient subject to diagnostic procedures, know who exactly diagnosed him/her and who is responsible for that diagnosis?

How much such a remote diagnostics cost - will it up the cost of medical services because of the cost of the Human Dx project which surely does not come free?

And, the two most important questions of all -

  1. will the use of the Human Dx project become mandatory for the poor, as a substitute of a referral to an actual physician, in order to save money, and 
  2. does the use of Human Dx on the poor - instead of diagnosing them, as the rich will, most likely, continue to do, with the use of human physicians - amount to unlawful medical experimentation without consent?
Because it sure looks this way - whenever some supposed medical "innovation" is started not as an innovative measure in rich medical centers, but as a measure to "help underserved populations", those "underserved populations" should be immediately on a "guinea pig alert", that they may be used as part of a medical experimentation that, if it comes out all right and does not cause too many misdiagnoses, injury and deaths, can be then used on the rich.

To promote the Human Dx project, prominent physicians say things that they usually do not say about their professions - because it is prone to backfire, and it sure raises questions:


So, is the esteemed Dr. Sanjay Desay, MD saying that the presumption of fitness of licensed medical professionals claimed by the government when it imposes licensing requirement upon both medical professionals and consumers of their services is actually a lie?

That "we have no current methods for measuring [the fundamental skill of clinical reasoning]" - "aside from using a combination of the subjective opinions of more senior doctors and surrogate markers such as exams".

So, why do we need licensing then?

And, as to licensing of physicians -
  • if any given disease or condition can now be easily diagnosed by "tapping into the collective wisdom", remotely, and by an AI system that has not only a superior way of assessing the "fundamental skill of clinical reasoning", but supersedes it and superimposes itself as a super-diagnostician unsurpassed by single human physicians, and
  • if such remote diagnostics of a patient without seeing him by those into whose "collective wisdom" "primary docs" in remote locations will "tap", if this kind of remote diagnostics is not an ethical violation in treatment of the poor, and the poor will not even know if they were diagnosed by a physician or by an office assistant running a battery of tests on an AI,
a $100 million question is - why do we need medical licensing at all now? 

Who does such licensing protect if it does not protect the most vulnerable population, people who are indigent and, likely, less educated than the rich?



AVVO attorney referral programs and the ire of bar associations - choosing a lawyer based on actual client reviews and pro bono consultations vs presumption of fitness through licensing

New York - and several other states - continue to stifle public access to legal information and affordable legal services.

After New York successfully dragged itself, and its consumers of legal services, back into the caves for some more time by prohibiting a virtual office to out-of-state attorneys while allowing the same to in-state attorneys, it continued its protectionist policies by issuing an "ethics" opinion "cautioning" New York-licensed attorneys from participation in the referral services of AVVO - an online marketing device where people exchange opinions about lawyers, seek free legal advice from attorney-volunteers, and are referred to attorneys who are willing to take their cases.

The reason why New York state considers a referral that it would be "unethical" for an attorney to use a referral by AVVO?

The rule against "profit-sharing" between attorneys and non-attorneys - which in itself makes no sense, but referral services are not legal services.

AVVO's representatives correctly pointed out that there are anti-trust and 1st Amendment implications that the New York State bar associations fails to consider, hiding behind its reluctance to make policies - which it is making anyway.

Of course, NYSBA is not a disciplinary authority in New York State, but I bet that this opinion would be considered in a disciplinary proceeding against an attorney.

I have just one question about all of these under-carpet noises:  why wouldn't the government allow ITS OWN SOVEREIGN, consumers for whose benefits attorney licensing is established are not allowed to decide how to pick their own court representatives and which marketing source to use for that purpose?

After all, the U.S. Supreme Court has ruled more than 2 years ago already, in North Carolina Board of Dental Examiners v FTC, that regulation of any market by market participants without neutral state supervision may be a violation of antitrust provisions of federal law?  

And, a federal court has ruled that regulation of a market by a competitor is a violation of due process as to other competitors?

Might there be a concern that then the big fat pie of occupational licensing, created under the guise of "helping" consumers, will fall apart?

Not to mention that there is a presumption of knowledge of the law in this country, so it is counterintuitive (stupid) to pretend that a person is presumed to know the law in order to be put in jail, but should be presumed to not know the law in order to be "protected" from having an opportunity to choose an independent court representative he trusts for the same criminal proceeding that presumes his knowledge of the law to be put in jail.

Attorney licensing, as any other occupational licensing, is revealed more and more as an outmoded and unlawful method of protecting a group of entrenched individuals from competition - to the detriment of consumers.

And, in treatment of AVVO as an "unethical" source of referrals, the otherwise supposedly progressive New York is, by the way, behind other states that allowed such referrals, allowing their consumers to use services of lawyers who are approved by online consumer ratings and participation in pro bono consultations online.

Wasn't licensing introduced, after all, to HELP consumers in their own marketing and choice of attorneys?  Only through a PRESUMPTION of fitness through licensing - which is far from perfect.

Isn't it better to rely on statements of ACTUAL FITNESS from former clients, and upon actual performance of attorneys through their pro bono consultations online?


The ditched hopes on impartial AI judicial review

Oh, the hopes for an impartial computer-judge - which, I confess, I entertained.

Lo and behold, the Artificial Intelligence thing-y has learnt to lie, too.


#ArpaioPardon and the rule of law - Part II. Charges of criminal contempt of court. Can a court constitutionally be the victim, accuser and adjudicator in the same proceeding?

Recently I posted an article about the supposedly "controversial" presidential pardon of an Arizona sheriff Joseph Arpaio, where I argued that the pardon was justified by the egregious violations of due process in the criminal proceeding.

I've seen the following interesting counter-arguments on social media in favor of legality of such proceedings and impropriety of the pardon.




The counter-argument refers to the 1994 decision of the then 83-year-old federal judge Cecil Poole, a career prosecutor before coming to the bench - NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994).

The case, the so-called "precedent" of the 9th Circuit that the 9th Circuit, probably, used in denying Arpaio's petition for a writ of mandamus ("probably" because the 9th Circuit did not provide any legal reasoning for the denial),





is astounding in its incompetence and egregious violations of the most basic concepts of criminal constitutional law - which can be attributed either to the authoring judge's advanced years, or to his background as a career prosecutor, or to his bias, or to all of the above.

At the same time, the case has striking similarities with Arpaio's proceedings - civil and criminal - and thus is worth reasoned review, especially at the background of lynching "public opinion" where commentators base their opinion on the identities, personalities and personal history of Arpaio and President Trump who pardoned him, and not on the legality of criminal proceedings against Arpaio.

So, same as in Arpaio's case, the NRLP case involved a civil proceeding and a criminal proceeding, and there was a civil contempt proceeding within the civil proceeding.



A civil contempt proceeding is civil in nature and - as the case demonstrates - the respondents were required to answer charges and provide affirmative defenses to the charge of civil contempt of court.

That is one of the major differences between a civil and a criminal contempt - in a criminal proceeding the defendant is presumed innocent and has a right to remain silent from the beginning to the end of the criminal proceeding.

But, look what happened next.




So, in a case where respondents already filed an answer, criminal charges were added.

That is why the so-called "civil contempt" proceedings should not even exist - first, because courts routinely fail to distinguish between civil and criminal contempt of court proceedings, mixing them up - see, for example, how #JudgeSusanBolton prosecuted Joe Arpaio on her own "order to show cause" in a criminal proceeding - and an "order to show cause" is an element of a CIVIL contempt of court proceedings requiring the defendant to actually waive his constitutional right to remain silent.

So, the situation in NRLB was that:


  1. a plaintiff in a civil case wanted to have criminal charges brought against the defendant in the same civil case, on top of civil contempt charges that were already brought;
  2. a private individual in the U.S. may not bring criminal charges against anybody;
  3. bringing criminal charges against anybody is the prerogative of the EXECUTIVE branch, the prosecution;
  4. since the alleged crime was committed against a federal court, federal prosecutors, the U.S. Attorney's office, was the correct authority to bring criminal charges.
My argument is backed up by the fact that criminal contempt charges were prosecuted against Joe Arpaio by the U.S. Attorney's office, as any other crime - and, as any other crime, should have been brought by the U.S. Attorney's office, too.

In Arpaio's case criminal charges were not brought by the U.S. Attorney's office, but were at least prosecuted by the U.S. Attorney's office.

In NRLB case above, a private party requested the VICTIM of the alleged contempt, the court, to file an accusatory instrument, and the VICTIM "referred the case" to a "special master" of the civil contempt proceedings, a magistrate of the U.S. District Court for the Northern District of California. Once again:


Let's note that the plaintiffs did not ask the U.S. Attorney's office to bring criminal charges, but the court, the supposed victim of the crime.

Recently, I had a situation where a criminal court in a case where my husband and I were victims of a violent crime (burglary and attempted arson), appointed a prosecutor who himself, as well as one of his assistant prosecutors, had disqualifying conflicts of interests and a personal interest to hurt us instead of protecting us as alleged victims of the crime.

I addressed the court on that issue.

The court, #JudgeGaryRosa of the Delaware County Court (NY) explained to me that I, as an alleged victim of the crime, have no say in the criminal proceeding.

Rosa then allowed the prosecutor, John Muehl,

to continue handling the case where we were the alleged victims of a burglary and attempted arson - with a predictable result, the case did not reach the grand jury.

Now, if an alleged victim - and, until the verdict, any claimed victim is an alleged victim - has no say in the criminal proceedings, then that concept does not change if the alleged victim is the court itself.

Yet, in the quagmire of criminal contempt proceedings, this factor, as well as many others, are ignored - in order to allow courts to do what other alleged victims are not allowed, to bring, prosecute and adjudicate proceedings where they claim themselves to be victims.

So, the court claiming to be the victim of a crime in NRLB, "referred" now the additional CRIMINAL case to the same "special master" that was already handling the civil contempt proceedings.

That "referral" was also highly irregular, as criminal proceedings must be commenced in criminal court on charges brought by the U.S. Attorney's office and nobody else, as the court is put into an untenable position when it acts both as an accuser and an adjudicator - a position that the U.S. Supreme Court recognized in 2015 in Williams v Pennsylvania as unconstitutional.

And, of course, the 9th Circuit, an appellate court has no authority whatsoever to commence criminal proceedings, so the referral was illegal to begin with.

To add insult to injury, the "referral" was made not to a district judge who has the authority to preside over criminal proceedings, and who is appointed by the President and confirmed by the U.S. Congress to do that job, but to a "special master" who was a federal magistrate.

Of course, a federal magistrate does not have a right to try criminal cases without consent of the criminal defendant.  There is no indication in the decision of the 9th Circuit that such a consent was obtained from the criminal defendant in NRLB case.

But, what happened next is even more astounding in terms of incompetence of the magistrate, F. Steele Langford, Chief Magistrate for the Northern District of California.


Magistrate Langford acted as if he has never been to law school and never took the mandatory Criminal Law class.

Even though he appointed counsel for the criminal defendant, he also committed two egregious errors invalidating the proceedings:

1) consolidated a CIVIL and a CRIMINAL contempt proceeding - which never happens, there is no such thing in law as a consolidation of a civil and a criminal proceeding; and

2) "appointed" an interested party, attorneys for the other supposed victims in the proceedings, NRLB, to prosecute the case.

Of course, by that, Chief Magistrate Langford denied the defendant's due process right to an impartial prosecutor from the very beginning.

Then, magistrate Langford, as a court-appointed "special master", held hearings in the CONSOLIDATED civil and criminal contempt proceeding, the two proceedings which could not possibly be consolidated, for the following reasons:




Civil contempt
Criminal contempt
Who brings the charges
A civil party
The government

What is the purpose of proceeding?

To coerce compliance with a court order by a threat of fine or incarceration

To punish incompliance with a court order
Can the contemnor “purge” his contempt?

Yes, as soon as the contemnor complies, he must be released from jail

No, no matter whether compliance comes after charges are brought, if the contemnor is convicted and sentenced, there is no automatic release from jail because of belated compliance with the court order





Does the right to remain silent apply?

No
Yes
What is the burden of proof in the proceeding?
By preponderance of the evidence
Beyond the reasonable doubt








So, proceedings were unlawful for the following reasons (at least):

  1. a federal appellate court does not have original jurisdiction to hold criminal proceedings - if that is true, what court will be reviewing the appeal as of right from that criminal conviction? or, will the appellate court review the appeal from its own decision?
  2. a federal appellate court does not have authority to file accusatory instruments;
  3. a federal appellate court does not have authority to allow magistrates to act as trial judges in criminal proceedings without consent of a criminal defendant;
  4. a federal appellate court does not have a right to act as an accuser and adjudicator in a case where it also considers itself a victim of a crime;
  5. proceedings in civil and criminal contempt may not be consolidated;
  6. proceedings in criminal contempt may not be allowed to be prosecuted by anybody but the U.S. Attorney's Office;
  7. proceedings in criminal contempt may not be allowed to be prosecuted by an interested party;
  8. criminal proceedings must end with a VERDICT, not with a "report and recommendation" to the appellate court - the "report and recommendation" part indicates that the "special master" did not have the power to render the verdict.  Nor did the appellate court, since it has no ORIGINAL jurisdiction to try criminal cases.
But, you know what happened when the defendant objected to the 9th Circuit that the magistrate did not have authority to handle her criminal proceedings?

The 9th Circuit agreed with her (in part) that it actually violated the law by:

  • giving to a federal magistrate jurisdiction he did not have by statute; and


  • by referring a criminal case to be tried by a magistrate without consent of defendant

But, after agreeing on that, the 9th Circuit initiated criminal contempt proceedings again, anew, and with many of the previous constitutional violations.



  • The 9th Circuit still claimed the original jurisdiction to try criminal cases and sentence the defendant;
  • there was still no criminal prosecutor (U.S. Attorney's office) in the picture, and
  • still the court (federal appellate court) was the initiator of criminal charges, which is the exclusive prerogative of the executive branch of the government
  • still the criminal case was referred to a "special master", not to a jury trial, with all the necessary preliminary criminal procedure.

Of course, the 9th Circuit explains its lawlessness in usurping original jurisdiction for criminal cases, instead of referring the case to the U.S. Attorney's Office to act at its discretion to bring or not to bring a criminal contempt charge in the proper jurisdiction - by the lawlessness of its "brothers", the 3rd and the 5th Circuits:


And here comes a great big problem - pre-judging a penalty in order to deprive a criminal defendant of a constitutional right.

Somehow, Judge Cecil Poole completely forgot (even though he has been a career prosecutor and a judge of many decades) that it is not the penalty that defines the charge, and the procedure that is required for such a charge - it is the charge itself.


Yet, the 9th Circuit's shameless decision apportioning constitutional criminal procedure based on the end result rather than designation of the charge, is EXACTLY what Judge Susan Bolton did in denying Joe Arpaio a right to a jury trial and in granting the prosecution's motion (!) for a bench trial - something that usually never happens in a criminal proceeding:



Because until now - long after Judge Bolton's conviction on a bench trial on a pretext that somehow a penalty of "no greater than six months" in prison makes the charge a misdemeanor, it is listed in Arpaio's docket as a felony:






So, based on this logic, if the government brings a felony charge against you or your loved one, but then, without even attempting to substitute the charge for a misdemeanor, argues to the court, as the prosecution did in this case, that, IF the defendant is convicted, a sentence of "no greater than six months would serve the ends of justice", suddenly the felony becomes a misdemeanor and thus the defendant is not entitled to a jury trial?

It is prosecutor-speak all right, but it is certainly not how criminal procedure works.


I wonder if they taught such nonsense in the University of Iowa School of Law where Judge Susan Bolton obtained her Juris Doctor degree - but I highly doubt that.  Had Judge Bolton said something like that on her bar exam, we would never have had the displeasure of having her license and then on the bench.



But, back to the NRLB criminal case, the "inspiration" for judge Bolton in the Arpaio's criminal case.



Judge Poole produced one more pirouette in order to do what his court had no authority to do - start a criminal proceeding.



There was one more problem there - there was a trial on the merits, the defendant was put in jeopardy of a conviction and incarceration, and double jeopardy clearly applied.


Judge Poole (the 9th Circuit) got out of that conundrum beautifully:
  • first, by acknowledging that the 9th Circuit made a mistake by allowing a magistrate to try a criminal case without consent of the defendant and;
  • second, completely bypassing the questions
    • whether a federal appellate court has an original jurisdiction to try criminal cases, and
    • whether it has a right to initiate criminal proceedings, especially those where the court is presented as the alleged victim
  • the 9th Circuit claimed that BECAUSE it made a jurisdictional mistake by allowing a magistrate to conduct a nonconsensual trial in a criminal case, double jeopardy DOES NOT apply.


So, criminal law is put by an 83-year-old judge (former prosecutor) on its head where:

  1. federal appellate courts now have original criminal jurisdiction;
  2. constitutional procedure in a certain criminal proceedings is defined not by the status of the charge as a felony or a misdemeanor, but by the judge's consideration ahead of time as to what the penalty should be; and
  3. double jeopardy will not apply if the trial court makes jurisdictional mistakes.

Beautiful.

And, while skipping the question whether an appellate court has original jurisdiction to try criminal cases, the 9th Circuit borrowed "wisdom" from the 2nd Circuit by simply changing a magistrate as a special master to a district judge:




Rule 42. Criminal Contempt











(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.
(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a defense; and
(C) state the essential facts constituting the charged criminal contempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.
(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.


But, Rule 42 of Federal Criminal Procedure is the rule issued not by the U.S. Congress, but by the U.S. Supreme Court, while nothing in the U.S. Constitution allows the U.S. Congress to re-delegate the Article I power delegated to it by the people to the U.S. Supreme Court under any circumstances, and especially in situations where the court legislates about cases where the court itself is the alleged victim of a crime.

Here, the court allows itself
  • to act as a victim, accuser and an adjudicator - which, as the same court said in 2015 in Williams v Pennsylvania, is a violation of due process rendering such proceedings VOID; and 
  • to appoint a prosecutor other than a government prosecutor ("The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.")
Moreover, even if the government declines to prosecute the case - which ends criminal prosecution in all other criminal cases, somehow the court "must" overrule the government if the case is a crime where the court itself is a victim and appoint "another attorney", a private attorney, to prosecute the case anyway.

Beautiful.

As to the NRLB case, the special master appointed on referral of the 9th Circuit appointed the private firm that represented the alleged victims to prosecute a criminal contempt case against the alleged perpetrator, ON CONSENT from the U.S. Attorney's Office.


The 9th Circuit admitted in NRLB that it erred twice in how it handled the criminal proceedings:


Of course, it did not address the fact that it is acting as a victim, accuser and adjudicator, and that it created a rule by which defendants can routinely be stripped of their constitutional rights to a jury trial on a judge's pre-judgment of a penalty, and of their right to double jeopardy based on their own mistakes.

And, THIS decision, wrong and incompetent from the point of view of criminal procedure and constitutional law, wrong through and through, is being offered as a Gospel to be followed in Arpaio's case.

And, people are signing petitions accusing the President of the United States for wrongfully granting a pardon to rescue an "unpopular defendant" (which is an understatement of the century) from the clutches of politicized judges who would invent any rules and bend any law in order to arrive at the decision they would like.

Yet, when the public is ardently chest-thumping that the President somehow violated the "rule of law" by cutting the thread of judicial misconduct with a presidential pardon, think about this proposition: the law equally applies to everyone.

Next time anybody else is subjected to a criminal contempt proceedings, including, let's say, a contrived charge of disobedience to a completely insane court decision or because of bad blood with a judge who got a bribe to fix your case, remember petitions you signed claiming that the very same corrupt conduct of a judge - but towards a person you do not like - is somehow "the rule of law".

Oh, well.

And, as to the argument that Arpaio had to take his chances on appeal - with the 9th Circuit, the author of the wonderful NRLB opinion, which already rejected Arpaio's petition for a writ of mandamus without any legal reasoning, and by the U.S. Supreme Court that legislated the Rule 42 allowing itself and other courts to act as alleged victims, accusers and adjudicators in the same proceedings, and to appoint private prosecutors on their own behalf (whose livelihood they completely control through licensing).

Not to mention that both the 9th Circuit and SCOTUS are courts distinguished by their open and adamant lack of integrity.

Suggesting that these corrupt people somehow constitute the symbol of the "rule of law",



and that their corrupt decisions must be obeyed as Gospel requires a collective lobotomy to believe and follow.

So, contrary to claims of some prominent commentators, and uninformed, but emotionally charged comments on social media from people, who most likely never read the case and opposed the pardon simply because they think Arpaio is a racist, and that is a good enough reason why he should be held in criminal contempt of court, this particular pardon is a victory OF the rule of law, not AGAINST it.