THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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.

Sunday, December 12, 2021

On plea bargains

About 98% of inmates in the US are in prison without a prior trial, after plea bargains.

Often these pleas are rushed, and inmates enter into it without the benefit of a good sound conscientious legal advice.

Attorneys often rush their clients into taking the plea because they took large fixed payments to represent the defendant in a criminal case and the shorter their representation - the less time they spend for the same amount of money.  After all, a jury trial in a criminal case, especially in a high profile criminal case (rape, murder) may last for weeks, and the attorney has to travel back and forth every day and bill that time to the same fixed amount paid.

It is easier to rush your client into a plea bargain and go get hired by another set of anxious relatives willing to sell anything they own to generate money for the defense of their loved ones.

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When facing a "quick" plea bargain suggestion by the prosecution and the defense attorney, people rarely know the difference as to what kind of rights they will lose with the plea bargain.

Well, a lot of them.

For example, prosecution has a very weak/bad/no case in a high-profile prosecution.

Prosecution wants to "win" the case and put the defendant away for a number of years.  The defense attorney (if assigned) wants to get paid (assigned attorneys are only paid when the case comes to an end), or, if hired privately, want to cut short their representation to put less time and work for the same amount of money already paid.

Prosecution usually overcharges the case - charging more that it can win at trial.

In a plea offer prosecution then reduces the charge and makes an offer - still overcharged, but less time in prison (let's say), so seems less scary.

A normal person who has never been in prison and, naturally, doesn't want to go there, often agrees, nevertheless, to do less prison time, just because it is - well, less prison time.

But, consider what the defendant loses.

For example, the defendant is looking at a life (or up to life) sentence if convicted at the jury trial for the highest charge.

As opposed to agreeing to, let's say, 8 to 10 years in prison.

High stakes?

Very high.

BUT.

Before trial, there are possibly some motions made by the defense attorney - and the judge ruled on them.

Every such ruling is appealable, with a possibility of reversal of the conviction on appeal.

During the trial, the defense counsel makes objections - and the judge rules on every one of it, which is transcribed by the stenographer.  Every such ruling is, again, appealable, providing at least a CHANCE of reversal on appeal.

So, when agreeing to several years in prison on a plea bargain, the defendant WAIVES (agrees to give away) his right to appeal the absolute majority of prosecution's and court's mistakes.

So, if you are convicted to, let's say, life in prison, but your attorney fought properly on motions and during the trial - you are sitting in prison, but STILL have a chance to have your conviction on appeal.

If you simply folded and agreed to many years in prison, especially where the prosecution's case is weak - YOU ARE STILL SITTING IN PRISON, but now YOU CANNOT CHANGE THAT, you have given away a chance to change that, you cannot appeal.

Is it smart to do it to yourself?

A reasonable person would not undergo a major surgery without a 2nd, 3rd, 4th opinions from other physicians.

Similarly, a reasonable person would not be rushed into a plea bargain because, supposedly, the plea offer will otherwise be off the table.  In a weak case, the plea offer is NEVER off the table - up until the jury verdict.

A reasonable person would resist the pressure to do a shotgun plea deal and will consult the 2nd, 3rd, 4th experienced criminal defense attorney whether to make such a momentous decision in his life.  It is well worth it.


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