New York State of the Judiciary Address 2015 - here goes the "fourth power", independence of the grand juries

Jonathan Lippman appears to be really upset with existence of a power in the State of New York which is not under control of the judiciary.

That is the grand juries.

In fact, a criminal offense in the State of New York "superior" court may not be prosecuted other than "through the agency" of the grand jury.

In other words, a court higher than a village justice court will not receive jurisdiction over criminal proceedings other than through the indictment of the grand jury, which is a fairly independent body, not answering to the court.

In fact, I would add to the powers of the grand jury to commence their own investigations without presentment by local district attorneys.

Judge Lippman, of course, paid the lip service that the grand jury is a good thing and that it would not be proper for him to criticize their decisions:

Then Lippman starts to claim that the grand jury, an body independent from the court and giving (or not giving) the power to the court in felony cases, is actually, in Lippman's view, "a part of the court", and "an institution for which the Judiciary is ultimately responsible".

Grand jury is not "part of the court", it is a fairly independent body, but it is clear that Lippman is suffering from control pains since he considers himself "ultimately responsible" for the institution that he (and his courts) cannot control, but instead the grand jury controls the courts by giving or withholding from the court jurisdiction over felony proceedings.

And, even though Lippman recognizes that "it is not his role to defend or decry a particular grand jury decision", he pretty much does that:

Now not only 23 men and women of the grand juries cannot be right in indicting - or not indicting - a particular individual.

Now prosecutors cannot be left to themselves to present a case to the grand jury.

If Lippman thinks that prosecutors may be just a little bit too partial to police if, say, a case is presented to the grand jury against a police officer, what would be the logical solution?

I thought it would be a no brainer, especially for such a man of brilliance as Jonathan Lippman, the Chief Judge of the State of New York, the man commanding all this "spectacular" and brilliant judiciary, the "absolute best" in the country, according to his statement in the same address.

It would be to EXPAND the grand jury's independent powers, to allow the grand juries to conduct independent investigations on complaints of citizens, and to eliminate prosecutors from their official position as, both the person interested in the indictment, and the "legal advisor of the grand jury".

But that would mean - the horror! - more independence from the judiciary, too!

And less possibility of getting indictments against people "not liked" by the government.

So,  Lippman had a diametrically opposite plan - to put the grand juries under the control of the courts.

Presumably, a judge, in his or her infinite wisdom, will direct the unreasonable 23 men and women toward the light of what needs to be done and whether to return or not to return an indictment.

And the judge will steer the grand juries from "sensitive" indictments against corrupt public officials to the "correct" indictments against "incorrect" people who government dislikes - right, Judge Lippman?  Isn't it the purpose of putting the grand juries under control of the courts?

And, of course, this power-grab is meant to be for "the public good".

There is a saying: "when it isn't broken, don't fix it".

Whenever a public official tells you he/she is trying to do something new and cancel something old and working well "for the public good"...

Should we push for grand jury reform?  Definitely.

To make it MORE independent from courts.

For the Grand Juries to have their own independent investigative powers.

For the Grand Juries to be able to hire their own legal advisers and experts, not to be led by the nose by the prosecutors - or by judges - as unreasonable children.

We need independent grand juries to clean up the corrupt mess that this state has become, including its "absolutely best" "spectacular" and spectacularly corrupt judiciary.

New York State of the Judiciary Address of 2015 - "bail reform"?

9 BILLION dollars, ladies and gentlemen, homeowners in the State of New York.

That's the annual cost of pretrial detention in New York.

61%

That's the share of people held in New York jails who are put in jail before trial without bail or with a bail that they cannot pay, the number quoted in the yesterday's "State of the Judiciary 2015" address by Judge Jonathan Lippman, page 16.

Let's count.

That's $5,490,000.00 - 5 BILLION 490 MILLION dollars YOU pay PER YEAR to detain people who are presumed innocent, before trial.

No wonder we have a budgetary crisis in this country.

No wonder people cannot pay their mortgages because of high property taxes.

No wonder people are fleeing the state of New York to go to states with lower property taxes.

That's the money.

Now as to how bail issues are decided.

Here is a report by the New York State County Lawyers' Association which describes problems with the push for the so-called "bail reform" quite well:

(1) that it is inappropriate to set bail on people in such a way that people cannot afford it;
(2) that it is inappropriate to consider, for the so called "public safety" considerations, the same factors as when the judge decides whether the defendant will or will not return to court for appearances;
(3) that what constitutes "public safety" consideration for bail decisions/bail denials is vague and prone to arbitrary enforcement;
(4) that the reasoning for such "public safety" determinations are going to be obscured from public review;
(5) that it is simply wrong to presume that the person who can (or his family or friends can) pay a high bail is automatically safer to the community than the defendant who cannot pay bail.

Etc. etc. etc.

That report was issued a year and a month ago, on January 15, 2014.

It all fell on the deaf ears of the New York State Chief Judge of the Court of Appeals Jonathan Lippman.

In his State of the Judiciary Address he pushes for bail-for-public-safety as the paramount issue, while ignoring all concerns raised by practitioners (and judges, by the way) in the NYCLA report of January 15, 2014.

It is understandable that, with the possibility of Lippman's 70-year-old childhood friend Sheldon Silver starting to crack up and cough up to the prosecutors information about his still high-standing friends to avoid dying in prison, Lippman's goal at this time may be to present as many populist ideas to the public as it is humanly possible.

But, as the NYCLA report said, presuming that those who can pay bail are safer to society than those who cannot pay that bail is not a reasonable consideration.  It is quite a stunningly un-democratic consideration actually for Lippman who is knocking himself out at every turn with his claims as a champion of "access to justice".

Once again, nothing not to be expected from this judge who has no litigation experience before he was propelled to the Supreme Court bench and then propelled higher and higher, until he hit the ceiling (in the State of New York) by his - now disgraced - friend Sheldon Silver.

But thank you for the numbers, Judge Lippman.

They are, once again, staggering, for a human being, an attorney, a New York homeowner and a taxpayer.

And, yay, let's decide whether a person is or is not safe to the community by his own and his family's ability to pay his/her bail.

After all, money, status and power is all what justice system - and the judiciary - is concerned about.  Isn't it?

State of Judiciary address of 2015 - a general impression

I am starting to analyze the yesterday's "State of the Judiciary 2015" address by Jonathan Lippman, Chief Judge of the New York State Court of Appeals.

Here is a general impression.

Nothing unexpected there.

A lot of self-aggrandizing.

A lot of self-praise - how "spectacular" the New York state judiciary is.  How it is the "absolute best" in the country.  How it deserves the best pay in the country.  How a new raise for judges is planned (from the current puny $152,000 for County Judges and $172,000 for Supreme Court judges) despite the "access to justice crisis".

Happens all the time, year in and year out.

Listening to Lippman was like a flashback to my youth in the Soviet Union.

There were also a lot of speeches by the Communist party leaders at that point, a lot of self-aggrandizing, a lot of self-praise, a lot of claims that they are the absolute best for the country.

Quite sickening, actually.  Both then and now.

Different country, different language, allegedly different societal structures.

The same blights.

I will try to analyze the State of the Judiciary address of 2015 issue by issue, in detail, on this blog, in the nearest future.

Stay tuned.

Richard Harlem at his sleaziest...

Received a letter today from attorney Richard Harlem, son-of-a-judge representing plaintiffs in the Mokay litigation, see my blog post "the Mokay saga", you can also word-search this blog for "Mokay" and "Richard Harlem".

It appears that Mr. Harlem is nervous as to the upcoming trial at the beginning of April of this year.

Because with his letter, Mr. Harlem returned to me witness checks that I provided together with service of subpoenas on Mr. Harlem's clients and one employee (now a former employee) in 2012, when the trial was scheduled for August 2012.

Then Judge Becker recused, the trial was scheduled for November 2013.

Then Richard Harlem's "trial counsel" allegedly got sick 3 weeks before the jury trial date, but I got notified only 3 days prior to the trial date.

The trial was adjourned without a date over my vigorous objections.

The trial was then scheduled for May of 2014.

Once again, right before the trial Richard Harlem's "trial counsel" allegedly got sick again, and again, over my vigorous objection, the trial was adjourned without a date - and that is, after my husband and I were sanctioned for delaying litigation!

Mr. Harlem was not even supposed to have witness checks for his clients, he should have passed them over to his clients and to the employee at the time of service back in 2012.

For 3 years he keeps the checks that were not meant for him, and on the eve of trial, returns them to me with a claim on behalf of his clients called as hostile witnesses, and even on behalf of his former employee, that the checks were not cashed (naturally, since Richard Harlem withheld them from their addressees), that they are "stale" now and that  I need to re-issue new checks now.

It is interesting actually to ask Mr. Harlem a question - why did he withhold the checks?

Why did he return the checks to me, especially the check meant for Richard Harlem's former employee, one month before the trial while the trial date was set in early January?

Why did Mr. Harlem never notify me before the trial dates in November of 2013 and in May of 2014 that the checks were never cashed?

And, by the way, why does that matter?

The law provides for giving the witnesses the money for mileage, and I did.  If the witnesses chose to throw that money into the garbage or not to cash the check - that is their problem and certainly does not entitle them not to come and testify, or for a re-issue of the checks now.

And if those witnesses do not come to testify claiming the "stale checks", I will certainly move to hold them in contempt of court - together with Mr. Harlem who was apparently actively trying to filibuster their testimony.

"You might as well shoot your lawyer..."

That's what a Georgia judge told a witness in the courtroom - and offered her a real gun.

Yes, judges are allowed to carry concealed weapons in the courtroom.

But, judges are not allowed to pull their weapons to intimidate witnesses or their attorneys.

Fortunately, that judge is off the bench, even though the attorney who was questioning the witness when the judge pulled his pistol in the courtroom, tried to practically justify his conduct by describing how "combative" the witness was and that it was the judge's usual style, just a little bit more than the "usual", and that the judge should not have been "judged by one incident".

Wow.

Well, the judge resigned.

But, had the judge killed somebody in that courtroom, accidentally or intentionally - I bet he would have invoked his "absolute judicial immunity" if sued for wrongful death.

Which brings back the point - does judicial immunity make us all unsafe in the courthouses, including physically unsafe from our "officers of justice" who deem themselves "independent" from all restrictions of the law and morals because of that absolute immunity?

And one other thing - why wasn't the judge charged with assault?

Because he is a judge?

But isn't it true that anybody else in the judge's situation would have been charged with an assault with a deadly weapon if he would pull his gun at somebody in public?

I bet that if ANYBODY ELSE pulled a gun in an open courtroom and offered it to a person with a suggestion to shoot another person, the armed court attendants would not have hesitated to overpower and arrest the owner of the weapon.  To protect the public.  And there should be no exceptions to this rule.

So my question - why that was not done? Because the judge can do whatever he wants in "his" courtroom to whoever appears there before him?

On sexual harassment of females in American courts - let's breed sexual predators on the bench?

I've recently come across two episodes, from two different states, which I felt compelled to cover, as I see so much harassment of female personnel and attorneys going on in the American court system.

In Kansas - a female lawyer was disciplined for her actions in her own divorce case where she perceived that the judge was masturbating, as well as using profanities and asking her personal questions of sexual character, requiring her to answer those questions in front of her ex-husband.

The female attorney reported the judge to the judicial disciplinary authorities.

You know who was investigated and disciplined?

The female attorney.  For making false claims against the judge. 

As a criminal defense attorney, I know how plea bargains are often obtained.  Sometimes the defendant claims innocence, but realizes that, if he goes to trial and loses, he or she will get a lot of years behind bars, while he or she is offered no jail time - and the defendant agrees, even though he/she is innocent.

The female attorney claimed mental problems during the disciplinary proceeding and thus was "only" suspended for 2 years, instead of disbarred, for allegedly "making false claims against a judge".

Knowing how unfair and biased attorney disciplinary proceedings usually are, and I researched this issue in other states, too, and how slanted they are against an attorney who dared to criticize and report judicial misconduct, I fully understand that an attorney who wants to preserve her livelihood and license could have been forced (this is my personal opinion, and I do not claim knowledge that she was in fact forced) to claim mental health problems in order to get a more lenient disposition of the disciplinary case.

Was there a jury trial these pseudo-defamation charges?  No, of course not.

Was the attorney protected by immunity for reporting judicial misconduct?  Appears that she wasn't.

But, it is a constitutional right in American courts not only to receive justice, but also appearance of justice.

Thus, the standard of reporting judicial bias and misconduct is "appearance of impropriety", which is based only on the reasonable perception of the individual.

Yet, in all American jurisdictions that I researched, including, apparently, Kansas, attorneys instead are required to provide "hard proof" of judicial misconduct when reporting it.

Please, tell me, what may be the "hard proof" in the Kansas case?  Should the attorney have caught the judge with his hand "you-know-where"? How was she supposed to do that?

Of course, it is her words against words of other witnesses.

And of course, the court personnel sided with the judge for fear of their own job security.

And of course, the judge would probably have lost had he sued the female attorney for defamation directly, because then she would have been able to call that judge to a deposition, ask, possibly, for his medical records, subject him to examination under oath before a jury.

It is easier for the judge to abuse his power and to use the disciplinary process as his advocate against the complainant.

Yet, let's look at the second episode.

In Oklahoma a judge was convicted for indecent exposure, for using a penis pump while on the bench during public trials.

He was reported by a police officer who, while testifying in front of the judge, saw a plastic pipe sticking from under the judge's robe and, during lunch time, took pictures of the penis pump under the bench.

Once again, those were police officers, they could do that.  A "lay" complainant cannot just barge onto the bench, delve under it and start making pictures of judge's personal effects left there or make a forensic sweep of the scene for semen.

A court reporter testified that she heard a "wooshing sound" and saw the judge actually put the penis pump on his penis "ten times" during a given trial.

That was happening, ladies and gentlemen, for years, sometimes every day!  And the court reporter kept mum, possibly fearing for her job.

Only when the police officer reported it, and when tangible evidence of the use of a penis pump on the bench (semen under the chair, on the judge's robe) were found, only then the judge was charged and convicted.


What is the conclusion from these two episodes?

That the only time attorneys can report judicial misconduct, even if it is sexual misconduct, is when there is "hard proof" to be found, and since there is never an assurance that such proof will be found - then it is safe not to report the judge at all than report him and face suspension of your livelihood and destruction of your reputation when the judge retaliates with a disciplinary complaint for "making false claims", without any lawsuit for defamation that the judge might know he cannot win?

So, let us have a potential sexual offender get more and more bold in view of his complete impunity?

Let us make courthouses a breeding ground of sexual offenders, because judges know they are untouchable?

That's what the absolute judicial immunity and lack of accountability and discipline for judges, as well as the use of attorney disciplinary system as a sword against whistleblower, has come to.

Is the public well protected now that the Kansas lawyer is suspended?

Will any other attorney report a judge masturbating on the bench?

I bet you know the answer.

Do you feel safer when attorneys are THAT MUCH intimidated?

And why the court system is still called a "justice system" if victims of sexual misconduct must remain mum for fear of potential retaliation by the high-and-mighty offenders?

Judge Tormey has a distinct tendency of discriminating against females working in the court system. I wonder when finally the State of New York will clean the bench of Judge Tormey's presence.

As I indicated in my previous blog post, Bobette Morin sued Judge James Tormey in 2007, won a denial of a summary judgment, and obtained a $600,000 settlement in 2011 on the eve of trial.

Her claim against Judge Tormey was discrimination and retaliation after she refused to do his bidding and spy on a judge and judicial candidate in the upcoming at that time judicial elections.  Judge Tormey, according to Ms. Morin's affidavit filed with the court, retaliated against her by demoting her, inconveniencing her by assignments requiring her to travel hundreds of miles, assigning her to moldy rooms, etc.

Nancy Rodriguez-Walker (Walker) is suing Judge Tormey now, for discrimination against her and practically for conspiring with his buddy and law school roommate Onondaga County District Attorney William Fitzpatrick to block Ms. Rodriguez-Walker's assignments as an interpreter to criminal cases which provided to her 95% of her livelihood, according to her lawsuit filed in federal court on January 15, 2015.

In my own case, even though I am not a court employee, I am an attorney and officer of the court, Judge Tormey relentlessly pursued me and sanctioned me, even though it was pointed out to him that he was absolutely disqualified from presiding over a case where my opponent asks Judge Tormey to sanction me, in part, for suing Judge Tormey himself in federal court.

What is amazing  - that with all affidavits of witnesses available, Judge Tormey was never pursued criminally for engaging court employees in political espionage, for theft of honest services of a public official.

It appears to be a pattern that Judge Tormey does not like women working in the court system - especially women who challenge his misconduct.

He engages in relentless campaigns to discriminate against such women and reduce their livelihoods or deprive them of their livelihoods altogether.

And in our day and age, this is intolerable and should not be tolerated any further.