The Becker beast has been booted?

In an extremely short notice Delaware County Judge Carl F. Becker, the anti-hero frequently featured on this blog, announced he retires as of July 31, 2015.

Rumors that Becker was going to be booted soon circulated for a while, but I held my breath until it is official.  It is now.

It is highly unlikely that the "retirement" is voluntary.

This man has run for a re-election in 2012 while knowing that he will not be able to serve out his full 10-year term because of his age.  

Becker would have served only 6 years out of the 10-year term (ending in 2022) due to his age.  New York has a mandatory retirement age for judges at 70, and Becker was supposed to retire at the end of 2018.

Knowing that he will not be able to serve out the full term, Becker still plunged the Delaware County into the expense of having him as a judge and having to run an additional election when he reaches the mandatory retirement age, a completely unnecessary expense for this poor rural county.

Recently, Delaware County, a County with a dwindling population and ever decreasing number of court cases, has got an approval for a second judge, and Becker's buddy Porter Kirkwood immediately announced that he will run for that position.

Yet, even before the new judge was elected for the second judgeship position, and three years before Becker's mandatory retirement age, Becker is stepping down.

I've recently seen Becker in the courthouse.  Nothing indicated that his health is dwindling to the point that he cannot physically continue to serve.

Moreover, Becker has himself ruled out that his health is the reason for his early retirement, so, most likely, he was booted.

I know only two other examples when local judges retired before their term was out.

One was the Otsego County Supreme Court Justice Robert Harlem, he retired to catch an unlawfully self-bequeathed legacy of several hundred thousand dollars, a legacy that Robert Harlem had to disgorge after the New York State Attorney General has started an investigation into his and his son Richard Harlem's shenanigans.

The other was (and that was quite an interesting coincidence) Judge Nettie Scarzafawa, the judge of Otsego County Surrogate's Court who refused to sanction Robert Harlem or Richard Harlem or make them disgorge the ill-gotten gains from the Estate, so that Robert Harlem only disgorged reportedly $600,000 after the New York State Attorney General appealed Nettie Scarzafawa's brow-raising decision.

In her decision, Nettie Scarzafawa ruled contrary to the evidence in front of her and catered for a judge who secretly practiced law while on the bench, drafted a will where he bequeathed to himself more than 1/2 million dollars worth of shares of stock plus other monetary assets and benefits and involved his court personnel - secretary Irene Mann (who later became his wife), law clerk Dennis Dineen (still practicing law) and his son Richard Harlem (still practicing law) as witnesses of his unauthorized practice of law to keep his unlawful, unconstitutional and unethical practice of law while on the bench secret.

Nettie Scarzafawa retired nearly immediately on conclusion of Robert Harlem's case, citing the need to take care of her elderly mother.  I do not know whether the claim was valid or not, it is just the timing that was interesting.

When an action for fraud was brought against Robert Harlem (during his lifetime, he died in September 2012) and his son Richard Harlem and quoted the Otsego County Surrogate's case to prove that Harlem's fraud upon the court in my husband's case was not an accident or mistake, but a continuation of a long pattern of conduct, Carl Becker - surprise! - assigned himself to the case and severely punished my husband and myself for even mentioning misconduct of Judge Harlem and for quoting OPEN COURT RECORDS and OPEN PUBLIC RECORDS as to current job status and salary of Dennis Dineen in New York State Government as VIOLATION OF PRIVACY.

In our neck of woods it is apparently not important that a judge committed misconduct and betrayed public trust, but it is sanctionable heresy to make it more public than it already is - Surrogate's Court file has always been open to the public.

I complained about Becker for years.

Becker is notorious for the following cases, among the most egregious:

(1) the "blind driver" case where accepted a plea claiming that a legally blind defendant drove a car - because DA Northrup who now announced his desire to run for Becker's place - had a blind man sign away his constitutional claims for civil rights violations against the DA and all county, state and federal law enforcement involved in his arrest and seizure of his property;

(2) the "bathroom case" - where Becker influenced the jury by telling them, at the end of a long review of evidence in the courtroom and after they drank a lot of water that "he received a message from the work team in the street that the water main feeding the courthouse was severed and there is only one flush left in all bathrooms in the courthouse" - it took jurors 15 minutes to convict, only not to have to urinate and defecate into one another's excrements (while the judge had an obligation to close the courthouse because of its anti-sanitary condition and adjourn the jury deliberations to another place and time);

(3) numerous cases where Becker disregarded medical evidence and claimed that disabled people are faking their disabioity (like the New York - registered legally blind man or a man who underwent a back surgery at the time inconvenient for Becker).

All of complaints against Becker to the Judicial Conduct Commission that I filed and that I know other people filed, were so far dismissed without review - but it is possible that his retirement is part of a complaint that finally got him out, albeit not by removal from the bench which would be the preferred route.

Becker is notorious for testifying as an unsworn medical expert on behalf of parties who Becker favors.

So far I have reviewed his unsworn testimony diagnosing the following issues:   

• dental;
• gynecological;
• surgical
• eye problems etc.

And those are only the cases where I participated or cases pointed out to me by people and that I personally researched and looked through the court records.  There may be a lot more, as one thing that can be said about the Becker beast is that he is consistent in his temper tantrums and ugly behavior in the courtroom against people who he dislikes, for his own personal reasons.

I am convinced that for years Becker will be remembered as the plague of Delaware County who was notorious for his mean temper, his snapping tantrums against litigants and independent attorneys, especially female attorneys, his sleeping through trials or making facial signals to the juries as to who the judge liked and who he disliked.

Becker has a penchant at putting women down in his courtroom, by outright yelling at them or by verbally humiliating them or not allowing them to speak.  So far, the New York Court administration, the Commission for Judicial conduct, and the state and federal courts, have dismissed complaints about such behavior as not warranting discipline or being "immune" from lawsuit under the judge-created doctrine of absolute immunity for malicious and corrupt acts on the bench.

So, it is ok under the current law to be rude and offensive to women litigants and lawyers in NY courtrooms, which empowered the Becker beast and judges who act like him, even more.

Becker is notorious for being rude to parties and counsel, disregarding rights of people of low social status and attorneys representing such people, and bowing to litigants and attorneys with political connections.  For the "blue blood" parties and attorneys, Becker is known to be bending over backwards disregarding the law and the facts of the case and trying to make decision catering for the politically powerful.

Becker is notorious for concealing his conflicts of interest and, when finally confronted with them, lashing out and punishing the messengers, either on his own or through his cronies.

Since Becker worked in Delaware County government since his admission to the bar in 1974, he has amassed a lot of cronies and can be regarded as a cancer of Delaware County sprouting out metastases.

I will never believe that this man, who is known for his meanness, greed, envy to success of others borne of professionalism, skill, long working hours and empathy to people, would step down voluntarily, after he "eked" out a victory by a razor-thin margin in his re-election campaign - and after defrauding voters by false statements in that campaign.

Seethroughny.net shows a rate of pay for Carl F. Becker for 2014 at $172,114.

When retired, Becker will get one half of that in pension.

By stepping down 3 years and 5 months before mandatory retirement, Becker will lose $294,028.10.

I highly doubt that he did that voluntarily.

So, people of Delaware County can rejoice now - at least one beast who was never fit, by character, skills or integrity, to be a judge, is going away, and doing it early.

Yet, before he went, Becker ruined lives of many people - and people should be now extra vigilant, when electing a new judge come November, not to yoke themselves with a similar one or worse than Becker.

Don't tell me there cannot be anybody worse.

Becker was elected because many people thought that the there cannot be anything worse than the previous judge, judge 

And - beware that the beast of Delaware County, while retiring early, still holds out hopes for a "judicial hearing officer stuff".  Be vigilant and be sure that Becker does not get appointed to the position of a judicial hearing officer and is not appointed to YOUR case - that would be a true disaster, guaranteed.

And - we have two "winners" running for the two judgeships in Delaware County in November of 2015:

Porter Kirkwood - notorious for his incompetency and lack of integrity; and

Richard Northrup, the current Delaware County DA - the Delaware County DA who considered  it possible not to prosecute a nephew of his employee for vehicular assault and attempted murder - while prosecuting the employee's nephew's victim

Once such people get to power, they will not get better.

They will get only worse.

I can only say this - people of Delaware County, voters, you've got rid of one beast, don't yoke yourself with two others.

Former prosecutors (and County Attorneys) are political animals who will always have prosecutorial mentality and will always honor their ties with the local government over and above the law.

These are people whose connections in the local governments are vast, who holds a wealth of information about, possibly, each person who will appear in front of them if, God forbid, they are elected, so you will never be able to figure out whether an adverse decision against you was done on the record or on extrajudicial knowledge about you that the judge has.

You will, most likely, never know what they know about you, what disqualifying conflicts of interest they have - and do not expect them to disclose those conflicts of interest, that will never happen, as my own experience as an attorney and my friends' experience with both of these individuals, Kirkwood and Northrup, shows.

An attorney who had to obtain a government job and stick to it for years because he or she could not survive in private practice is not a good candidate for a judge.

Once again - one beast is out, come November don't exchange one beast for two new ones.  Don't think it can get worse than Becker, because where Becker was not punished, the followers can repeat what he did and now, because of impunity, do much worse.

Use your vote carefully.

If we are serious about court reform - let's start cleaning up the house

Various grass roots groups and independent individuals raise, in the press, in social media, in documentaries, in rallies, the issue that corruption in court proceedings is pervasive and that court reform is necessary.

I wholeheartedly agree.

Here is what, in my personal opinion, may help clean up court proceedings in the United States, on the state and federal level.

1/  Deregulate the legal profession and remove control of attorney's livelihood from the government.  It will not cost the state any money to simply say - finita, we do not any more regulate who represents you in court, as long as you've chosen that individual and gave him/her a Power of Attorney.  

For substandard services or professional misconduct of court representatives there are private cause of action for professional malpractice, breach of contract, breach of fiduciary duty etc.  Your counsel is independent from the government and can challenge the government without fear of being stripped of his/her livelihood.  For that, you pay with having to watch out for yourself on your own as to quality of your counsel's services.

Such a measure will increase supply of legal services, drop prices in the market for such services and increase variety of services and creativity of providers.

2/ For the same reason as deregulation, abolish rules and statutes allowing judges to impose sanctions upon attorneys and parties for expressing themselves in litigation.

3/ Legislatively, or on state and federal constitutional level, abolish all restrictions to jurisdiction of federal courts to review civil rights cases - all deferences, abstentions, immunities, specific pleading (plausibility) requirements etc.

4/ Legislatively abolish any and all time and page restrictions for pleading a civil rights case.

5/ Legislatively prohibit discrimination against civil rights appellants, from putting them on the "fast track" to deciding their cases by "troika courts (three, most often, senior status judges)" through "summary orders".

6/ Cut the terms of judges to one year maximum to prevent judges from colluding with influential attorneys.   Make elections secret, through secure Internet hubs, and allow anybody who meets educational requirements to preside over judicial proceedings to register and run for a judge, no party approval  and no approval by groups of supporters to register should be required.  

7/ Simplify court rules and procedure.

8/  Teach judicial duties and requirements of the law for such duties in high schools, preparing every citizen to be able to serve as a judge by appointment, on a case-by-case rotational basis.

9/ Eliminate the pension and state benefits as a lure for incompetent losers who come to the bench because they cannot survive in private practice and spend their time on the bench avenging their incompetence against independent attorneys and litigants represented by them.   

10/ Make rotational appointment process transparent and public, so that members of the public can see, in an online register, what is the order of assignment of attorneys or members of the public as judges in every court on every particular date.

11/ Allow peremptory challenges of judges, especially where judges are fact-finders.

12/ Allow voir dire of judges, on the same principles as voir dire of jurors.

13/ Mandate judges to file their financial disclosures with the clerk of the court where the judge is serving, allowing anonymous access to those financial disclosures by the public.

14/ Equalize rights of pro se parties and representing parties in rules of service, subpoena powers et.  If the legal profession is deregulated, allow all court representatives and all pro se parties the same powers in service and non-judicial subpoena powers.

15/ Abolish absolute judicial and prosecutorial immunity for corrupt acts in office, legislatively, or on state or federal constitutional levels.

16/ Legislatively mandate all courts to publish their decisions online and make them accessible to search engines, for easy legal research by the public.

17/ Make the texts of the laws, from federal to state local laws and agency regulations, readily available to the public through easily searchable online free online databases.

18/ Until such databases are in place, abolish or suspend statutes presuming that lack of knowledge of the law is no defense.


19/ Offer free courses to eliminate illiteracy easily accessible to the public.

20/ Until such courses reach all illiterate people in the country, abolish or suspend laws punishing pro se illiterate people for imperfect pleadings or for lack of knowledge of the law.

21/  Allow all cases to be resolved out of court, through arbitration and mediation, including some criminal cases (95% of cases in this country are resolved through plea bargaining anyway, and most of them are for non-violent crimes).

22/ Abolish jail sentences for non-violent offenses, applicable retrospectively, and release all prisoners who are in jail for non-violent offenses.

23/ Equalize the scope of discovery between criminal and civil cases.  At this time, discovery in civil cases is more generous than in criminal cases, while stakes for criminal defendants are higher than in civil cases.

24/  Allow video and audio recording by private individuals of court proceedings.

25/ Open all proceedings to the public with very few exceptions, such as juvenile proceedings.

26/ Fully ratify the International Covenant for Civil and Political Rights and give a private cause of action, as other UN member states allowed, for violation of individual civil rights by the United States, federal and state governments.

27/ Legislatively abolish any and all "rules of finality" where justice was not served, and allow litigants to re-litigate matters until rule of law is correctly applied, as written.

28/ Legislatively prohibit to punish litigants and their representatives for making constitutional arguments and for making motions to recuse a judge.

If at least a fraction of these changes is implemented, court proceedings will be much cleaner than they are now and people will have a lot more trust in the integrity of the country's justice system.

Most of the solutions that I've pointed out are being offered by different scholars and members of the public for decades.  It is time to finally do something about court reform.

Let's remember that courts were established to put the predictable, uniform, status-blind and even-handed rule of law as a barrier to personal vendettas.

Why do we need to clean up the courts urgently is very clear - injustices can easily lead to public unrest, and the frequency and concentration of injustices, misconduct and corruption in this country's courts can easily - and soon - urge the public to public disobedience and unrest.

Let's start cleaning up our courthouses.  

People can decide what kind of legal services they need - and from whom - for themselves

I write a lot on this blog about the monopoly of the American legal profession on representation in court.

The establishment of the American legal profession insists on preserving that monopoly even when over 80% of consumers cannot afford services of licensed attorneys.  

While I live in the U.S. for 16 years, I was born and raised in Russia, and I follow events in my native country, including developing trends in its legal profession.  And what I see there is, unfortunately, attempting to borrow from the U.S. what the U.S. needs to shed, after several decades of a botched experiment - regulation of the legal profession and monopoly for provision of legal services and court representation.

In Russia, anybody can represent anybody else in civil court, even though representation by an attorney is required in criminal cases.  Yet, in Russia there is no attorney licensing, there is only an educational requirement, as far as I know.

While Russian Ministry of Justice announced at the end of March that it is going to introduce, as a point of "innovation", some requirements to the standards of various legal services provided, Russian lawyers give mixed signals as to what they want and why they want it.

On the one hand, the Russian legal community is clearly interested in establishing monopoly for legal services, and, as in the U.S., is claiming that the reason for establishing it is in order to help the consumers obtain only competent legal services.

At the same time, the Russian legal profession pays the lip service to the fact that, with 15 mln civil cases pending in court and only 75,000 lawyers in the country of over 146 mln people, it will be an injustice to the people to deprive them of any representation in court that they want by people that they have chosen and trust, even if they are not trained attorneys, when the trained attorneys do not have the physical ability to handle all the cases.

Of course, consumers of legal services in the U.S., where monopoly for both court representation and for any legal services at all, including real estate transactions, certifications of copies of documents drafting of wills, deeds and contracts are allowed to be done only by licensed attorneys, know that such monopoly makes legal services unaffordable and more scarse, but does not provide better services.

While in the U.S. there is no shortage of attorneys, the problem still remains that the legal education is so expensive that attorneys use their monopoly to fix their legal fees at a high rate to justify their legal education.  I have seen many statements by attorneys with claims to their bar associations not doing enough to protect attorneys from people who are practicing law without a license and thus taking their legal fees and precluding them from justifying their expensive legal education.  I have read opposition to deregulation of the legal profession and abolishing attorney licensing, on the same grounds, that the expensive legal education will then be in vain and the investment will not be recouped.  

Attorneys who make such claims completely forget that attorney licensing is in place for the declared purpose not to protect attorneys' investment into the expensive legal education by restricting entry into the market of new providers and thus allow the remaining providers to keep high (and inflated) prices which the providers agree will be dropped if the market is deregulated.  

Attorney licensing is declared to be in place to actually protect the rights of consumers to a competent representation.  That is declared by the American attorneys (when they do not snap against advocates for deregulation and reveal their true feelings and thoughts on the subject, protecting their own high fees and investment into expensive education).  That is now also declared by the establishment of the legal profession in Russia.

Yet, of course, such declarations are smoke screens designed to camouflage private interests of service providers who are hurting because of shrinking client base and want to eliminate competing providers of legal services.

It appears that Russia is moving several decades behind the global trends which are towards deregulation of the legal profession.

The U.K. started the deregulation in 2003.

In the U.S., the State of Arizona has been lax in prosecuting unauthorized practice of law, the State of New York itself has introduced in 2012 a requirement to law student to provide 50 hours of pro bono services as a pre-requisite of licensing, half-measures that show that the number of attorneys existing at this time, and at the prices they fix for their services, is unable to meet the demand of the market for affordable legal services.

In 2014, New York State also introduced the so-called "court navigators" to "help" indigent consumers "navigate" the legal system - while not providing legal services.

Those measures are, of course, half-measures that will be just a drop in the bucket and will not relieve the "justice gap" acknowledged by New York Chief Judge Lippman - even though the justice gap is created by regulation and the only thing that is needed to relieve that justice gap is to deregulate the legal profession, even if experimentally, for a certain period of time.

Various attacks on deregulation of the legal profession in the U.S. have already started.

A book advocating deregulation of the legal profession was published in 2011.

An individual without any legal education has recently challenged the requirement of the state that only individuals who graduated from an ABA-approved law school can sit for the bar examination.   
On February 25, 2015 the U.S. Supreme Court has made a decision in a case regarding regulation of dentists stripping dentists who regulate dentists of their immunity based on their anti-competitive activities, see my blogs commenting the decision before it was made, and after it was made.

Judging by the ardor with which bar associations, and not consumer groups, from different state attempted to prevent that decision, and I have read the concerted "friend of the court" brief of bar associations of several states, the establishment of the American legal profession sees the writing on the wall, that its days of monopoly are counted. 

From the point of anti-competitive activities, I recently won an interim court decision for a client in a civil rights case where the court ruled that my client can proceed with a civil rights case for actions of a disciplinary committee continuing to investigate and prosecute him long after they took his license.

I also recently asked the Federal Trade Commission to apply their recent victory in the U.S. Supreme Court the dentists' case to address attorney regulation in the State of New York for what it is - regulating of market by influential market providers for their personal gain of influential market providers, in violation of consumer's rights and federal anti-trust laws.

It is clear that the monopoly for legal services should die, and as quick a death as possible, to prevent further harm to the consumers.

I hope that the FTC starts the process of deregulation by applying the decision in the dentists' case to the legal profession.

I hope that the Russian legal establishment will not get their upper hand in claiming their monopoly.  No matter in which country and in which profession monopolies are imposed, they hurt the consumers in making services more scarce, less versatile, more costly and do nothing to ensure competence or quality of those services.

And, such monopolies take consumers for idiots and do not allow them their own free choice of who to choose as a provider of services, with their own verification of the person's abilities to provide those services and their trustworthiness.

Competent people who raise children, keep jobs, pay taxes and vote do not need such a paternalistic approach, they can decide for themselves what services from what providers they need.

A correction - Stephen R. Sirkin amended the New York State Constitution, and CPLR 5524(a), and 22 NYCRR 1000.17(a), and will amend more if given the chance

In my earlier blog, I indicated that the referee in my disciplinary case, the retired Wayne County judge Stephen R. Sirkin, has amended the New York State Constitution by "deciding" (I put it in quotes because it was unlawful, but Sirkin named his Decision without any quotes), again, by "deciding" a motion on liability in my disciplinary case instead of the required 4 appellate justices for quorum and 3 appellate justices for concurrence.

Of course, Sirkin was not authorized by law, New York State Constitution or court order of appointment to decide any motions, but such trifles as restrictions of the law never deterred judges, retired judges, referees and hearing officers covered by absolute judicial immunity for malicious and corrupt acts during performance of their judicial or quasi-judicial duties.

Really, will you be deterred from doing anything if you know that nobody can do anything to you or against you if you do what you are not supposed to, but what you still can do with impunity?

But once again, my previous story on this blog was that Sirkin has amended the New York State Constitution.

I was wrong.

Sirkin has amended actually a lot more than New York State Constiution, Article VI paragraph 4 subsection b.  He also amended CPLR 5524(a) and 22 NYCRR 1000.17(a).  The more the merrier, I guess.  From my personal impression of Sirkin, he is so old and frail and has such memory, perception and concentration problems that he would readily rubber stamp anything that is put in front of him, as long as it is put in front of him by a member of the government.

Yet, back to Sirkin's amendments.

This is the rule of the New York State Appellate Division 4th Judicial Department about entries of decisions made BY THE COURT on motions (not by retired county judges appointed as referees to hear and report facts in evidentiary hearings).

Well, at least the 4th Department recognized in the rule quoted above that it is "this Court" (and not Sirkin and referees like him) that must determine motions in "this Court" and not anybody else.

On that point, "this Court" is in agreement with the New York State Constitution, Article VI, paragraph 4 subsection b that provides:

                    "...In each appellate division, four justices shall          
                    constitute a quorum, and the concurrence of three 
                    shall be necessary to a decision... "

Yet, "this Court" has loosened the constitutional requirement by delegating the non-delegable duty to make appellate court decisions, whether on appeals or on motions, to the clerk of the court.  Of course, the rule "only" says that the court orders the clerk to "draft" "this Court"'s decisions.

Yet, you know, ladies and gentlemen, as well as I do, that where the clerk of the court - who was never elected as an appellate judge - is given permission by the court to "draft" decisions, the clerk simply makes them, signs them, and judges who are located in their own chambers far away from where the clerk is located, can do whatever they are doing there while they have delegated all that they are supposed to do to their non-judicial personnel.

Judges of the Appellate Division 4th Judicial Department are simply too busy to be bothered to do their job, as it appears from the decisions that the clerk of "this Court" has drafted, or, rather, crafted, in my case - decisions providing no explanation, no legal authorities and punishing me for requesting an explanation  for the court's decisions on issues pertaining to my ability to earn a living for myself and for my family and minor child, in accordance with constitutional guarantees of due process of law.

Of course, the word combination "due process of law" has become nowadays a swear-word in the courtroom inviting sanctions for frivolous conduct from judges who took the bench by swearing to uphold the due process of law, so no surprises there.

But let's go back to Rule 22 NYCRR 1000.17(a).

The rule actually relied on New York CPLR (Civil Practice Law and Rules) Section 5524(a) which says absolutely nothing about the right of retired county judges to craft, draft or make decisions for and instead of appellate judges.

So, by crafting, drafting and making such a decision on an appellate motion that was never made in front of him, Sirkin not only amended the New York State Constitution in how decisions are made in the Appellate Division 4th Department, but also amended CPLR 5524(a) requiring the Clerk of the court to enter the decisions of the appellate division on motions and appeals, and amended the requirements of the Appellate Division, 22 NYCRR 1000.17(a) that the clerk of the court should actually draft such decisions.

Halleluja, when people bend over one another trying to outdo each other in violating my rights and please somebody up above who wants my license taken, by law or by ... claw?, sometimes they get confused as to who and how should violate my rights better, faster and more effectively.  

Hey, guys (and gals, no gender discrimination here) who have being clawing me for 6 years and are preparing to claw me more! The end of the line of those who want my blood drawn is right there, disappearing around the corner.  Hope you do not collapse waiting in line.  Or rather, I hope you will.

In a Nebraska federal court, "generally speaking", all federal defendants are guilty before evidence is in - a judge says

In one more astounding blog post, a senior district court judge and a former Chief Judge of the Nebraska District Court, Judge Richard Kopf, makes the following revelation:

===

Quote

 Generally speaking, federal defendants are in a weak negotiation position not because of some flaw in the discovery or plea-taking process in federal court but rather because they are plainly guilty.

*This does not mean, of course, that we judges should not enforce Rule 16 aggressively or refuse to call upon prosecutors to adopt an “open file” approach to discovery. Nor does it mean that ourRule 11 plea taking procedures should be lax or performed in a rote manner. Furthermore, we may well want to assure ourselves before trial that the defendant has been fully advised of all plea offers and has knowingly and intelligently rejected them. See, here, for my standing order on that subject in light of Missouri v. Frye.

Unquote

======

The footnote does not pretend to give even a lip service to the principle of the presumption of innocence until PROVEN guilty.

Judge Kopf decides that all criminal defendants coming in front of him - including in death penalty cases - are guilty when they are CHARGED.

This blog, in my opinion as a defense attorney, is enough to have Judge Kopf taken off all criminal cases and to make motions to vacate all of the judge's decisions on motions and all convictions in criminal cases where Judge Kopf has ever presided.

This is the judge who found THREE reasons why he would allow execution of a person who the judge would know to be innocent to proceed.

This is the judge who does not want to be "a nanny" to criminal defendants and watch out against wrongful criminal convictions through coerced plea bargains of defendants who are innocent.

This is the judge who finds criminal defendants (including, obviously, criminal defendants in death penalty cases) competent to stand trial if they are not "lamppost climbing crazy" (which is not the same as "crazy as a loon"), because of the judge's prior experience in "serving" on a mental health board.

This is the judge who actually RULES whether a criminal defendant is or is not competent to stand trial - and rules that he is competent even when, by judge's own insulting definition, the criminal defendant is "crazy as a loon".

I always thought that insulting the mentally ill is not only illegal but is simply not done by civilized people.  Some members of the judiciary, covered by absolute judicial immunity for their acts on the bench, do not think that way and have the audacity to spill their noxious approach to mentally ill into the public domain.

Of course, a judge who would find not one, not two, but three reasons why he would execute an innocent person, and who believes that all federal criminal defendants are guilty before evidence is in, would not care whether a mentally ill would be convicted - or even executed.

But that is not a moral or legal norm in this country.

This judge is simply a menace to society and should be taken off the bench immediately.

Enough of judicial incompetence and insolence harming people.

The dead appearance of impropriety - the Kansas way

In one of my previous blog posts today I described the so-called "appearance of impropriety standard" as applied to judges and how judges eliminate that standard, without abolishing it, simply by applying "rules of discretion".

Kansas went further than that, eliminating the "appearance of impropriety standard" as applying to lawyer disqualification.

Example - a prosecutor represented you before, and now is prosecuting you in a criminal case.  Of course, the prosecutor knows a lot of privy information about you that he can use against you in the criminal case (whether he openly does it or not).  

At least, his or her prosecutorial discretion to 

(1) bring the charges,  
(2) maintain the charges and 
(3) offer you certain plea bargains or not, as well as 
(4) request certain pre-trial arrest, custody and bail options, and 
(5) request certain post-conviction punishment/sentencing options - 
all of that will be informed by privileged information obtained through prior representation, while you will never be able to prove it without relying on the "appearance of impropriety" standard, for the obvious reason that you cannot X-ray the prosecutor's mental activities.

Yet, now the "appearance of impropriety" standard for attorney, established in many states by ABA rules of professional conduct as well as by state case law and federal constitutional law, the standard which, in the case of a criminal prosecutor or an attorney working for the government becomes a federal due process standard protected by the federal pre-emption doctrine, is now dead in Kansas.

The Kansas Supreme Court simply abolished it, scrapping 18 years of precedent, and I wonder why.

The reason why is, very likely that the Kansas Supreme Court, consisting of judges who are not serving for life and will at some point re-enter the legal profession, and whose relatives or friends may be attorneys, ruled in favor of the legal profession that finds it increasingly difficult to stay afloat because of shrinking base of clients who can afford to pay high fees dictated by attorney marketing which operates not as consumer protection measure, but as a market restrictions by lawyers for (politically connected) lawyers.

That appears to be the only reason why a perfectly good 18-year precedent was scrapped and why lawyers are allowed a wider latitude to represent clients with potentially conflicting interests.  Otherwise the poor lawyers will starve and will not be able to hire judges at the end of their judicial careers.

And that, ladies and gentlemen, is an appearance of impropriety that nothing can abolish.  It stinks.

The ultimate solution for the mushrooming caseloads by cranky judges - just toss the cases and punish the victims of governmental misconduct

In 2004 federal courts made an announcement that federal courts are suffering severe budget cuts, and that may affect the length of time when issues are resolved in such federal courts, as well as will put a larger load on senior-status judges (whose legitimacy is questionable and was challenged by many legal scholars), see here and here.

Since 2004, funding of federal courts did not become better while population and caseloads continued to grow.

So, what kind of solution did federal courts, courts of limited jurisdiction where the only cases heard are cases between citizens of different states (diversity) and federal civil rights cases, invented to deal with the "mushrooming caseloads"?

A very easy solution:

(1) aggressively apply court-invented and unconstitutional "deferences", "abstentions" and "immunities" to dismiss as many civil rights cases as possible without allowing discovery to begin;

(2) sanction for "frivolous conduct" as many litigants and especially civil rights attorneys as possible, so that litigants and civil rights attorneys will be afraid to touch civil rights cases, for fear of having to pay thousands of dollars in legal fees to perpetrators of constitutional violations absolved by the courts from liability based on court-invented "deferences", "abstentions" and "immunities", unconstitutional judicial amendments to the Civil Rights Act enacted by the U.S. Congress;

(3) invent "court rules", such as costly and unnecessary "mandatory mediation" and "page limit" rules which drain litigants' scarce financial resources and force litigants and their counsel to reduce issues they want to raise to the bare minimum, which allows the courts to dismiss cases and claim that issues are not properly and fully presented and pled;

(4) stream appeals of civil rights litigants for a "speedy track", assign them to 70 to 80-year old senior-status judges who do not read the appeals, but instead rubber-stamp them "affirmed" by "summary orders", thus denying civil rights appellants equal protection of laws with other appellants, and denying civil rights appellants their right for a full appellate review and instead providing them a certiorari review, in contravention of appellate federal statutes.

In other words, to deal with budgetary problems and the limited number of judges who cannot physically handle the 600 to 800+ caseloads per judge, the only solution the courts invent is to continue to violate constitutional rights of civil rights litigants (for access to court, due process of law and impartial judicial review), the very same litigants whose constitutional rights have been already violated, that's why they are suing in the first place.

To break the law to fit into the budget is an answer of federal courts who are put in place to redress constitutional violations.

At the very same time, one thing I do not see reduced, despite budget cuts, is salaries of judges.  Those appear to be only growing, and, with judges "assuming senior status" and new judges appointed, the budget is only mushrooming more.

So, the corps of judges continues to grow and continues to be paid ridiculous salaries to do what - toss cases on invented and unconstitutional basis to address budgetary cuts?

A book was published back in 1999, "The Federal Courts: Challenge and Reform" by judge Richard A. Posner, where the author squarely spotted the growing trend of sanctioning civil rights plaintiffs and tied it to the necessity to get rid of the growing caseloads.

So, the more the government grows, the more immunities it is given by courts, the more it violates people's constitutional rights.

The more the government violates people's constitutional rights, the more people sue.

The more people sue, the more the caseloads become on federal and state courts.

The more the caseloads become, while budgets of courts are cut, the more frustrated judges become since they are stressed by growing caseloads (without any fault of the litigants).

The more frustrated judges become - the more they sanction the victims of governmental misconduct, to punish them into silence.

And that trend, since 1999, got only worse.  At this time, and this is my own experience as an attorney, courts stretch immunities, especially the absolute judicial immunity for malicious and corrupt acts, even where it was never declared (initially) to be - to judges' actions off the bench affecting their impartiality in litigation, and aggressively sanction litigants and their counsel simply for asking courts to help them redress violations of their constitutional rights. 

While federal courts admitted that they are "losing fight to manage workload", attempts were made at the same time by the same courts, and continue into the present time, to win that time at the expense of the very people whose rights federal courts were created to protect.

In other words, cranky judges retaliate against victims of constitutional violations by members of the government because constitutional violations of the government become too numerous for the cranky judges to handle.  There is no logic, or law underlying such attitude and judicial decisions driven by such attitude - but the trend in federal and state courts of sanctioning civil rights plaintiffs and their attorneys into silence continues with a vengeance.

With such an approach by courts - what kind of respect can courts expect from the public?