Criminal prosecutions and convictions in Delaware County NY under Acting DA Hubbard illegal as Acting DA Hubbard's residency is not verified

A District Attorney of any county in New York must reside in that county.

When DA Northrup was elected County Judge in 2015, and Acting DA Hubbard replaced DA Northrup as District Attorney, DA Hubbard now has to reside in Delaware County.

With that in mind, I made a Freedom of Information Request with Delaware County.

After a prolonged delay to answer my request, Delaware County finally answered - 

Since the county has no records verifying whether the Delaware County Acting District Attorney John Hubbard resides within Delaware County, there are the following two legal consequences of this statement:

(1) Delaware County has no right to pay John Hubbard his Acting DA salary;
(2) all investigations, prosecutions and convictions obtained by Acting DA John Hubbard are illegal - imposing liability on the County and all of its taxpayers for illegal convictions.

And that is especially so that a witness indicated to me that John Hubbard actually drives around with Schoharie County license plates.

John Hubbard is not the only one public official whose employment with the county depends on this residency within the county and whose residency, as a condition of employment, is not verified by the County for purposes of such employment.

I will continue disclosing contents of Delaware County's astonishing answers to my FOIL request in separate blogs.

Stay tuned.

A complaint was filed against the Tenessee judge Rachel Bell who delayed a hearing and kept a man in jail because she was in a hurry to speak to school students

Two weeks ago I wrote about a Tennessee judge who, reportedly,  is habitually coming late to criminal proceedings, and who kept people in jail beyond the allowed time in preliminary detention (while they are presumed innocent, before trial) because she did not have time to do her job - she had school students to meet and talk to.

It has been now reported that a complaint has been filed against Judge Bell because of her outrageous behavior.

We'll see if any discipline will be meted out at all - after all, judges in this country can do whatever they like on and off the bench, with rarely any discipline imposed upon them.

I will continue to cover the story.

Stay tuned.

When a death penalty jury is blocked from full information about applicable law, 2 judges of the U.S. Supreme Court find it appropriate

On May 31, 2016, the U.S. Supreme Court has reversed (with 2 dissenting votes) a death sentence (not conviction) out of Arisona death row inmate Shawn Patrick Lynch because the criminal defendant was not allowed to tell the jurors who were deciding between the two alternatives:

1) the death penalty and
2) life sentence without possibility of parole

that the "without possibility of parole" element of the 2nd option did not exist - that Mr. Lynch was ineligible to parole:

"Under Arizona law, 'parole is available only to individuals who committed a felony before January 1, 1994,' and Lynch committed his crimes in 2001."

In other words, the jurors were not told about the applicable LAW as applied to their deliberations.

It was clear that (1) the state court judge presiding over the death penalty phase violated his duty in not advising the jurors of the state law making the defendant ineligible for parole; and (2) the state prosecutor committed prosecutorial misconduct by pushing to withhold information about applicable law from the jurors, or objecting against the defense introducing that piece of information in any way, even at the final argument.

At stake was the person's life.

And that person had to be given every possibility to introduce at the very least the applicable law - and was denied even that.

As it appears from the texts of Mr. Lynch's court decisions, death penalty cases are decided in Arizona in three stages and decided by two separate juries - 

1. the stage of guilt, 
2. the stage of aggravation and 
3. the stage of the death penalty - stages # 2 and #3 are decided by a single separate jury from a jury that decides stage # 1

According to the state appellate case (which affirmed the conviction) "[t]he jury found him guilty on all counts, but did not reach a unanimous verdict on premeditated murder." 

That already had to give the prosecution pause not to seek the death penalty.

It didn't.

There was then a hung jury on the aggravation stage:

"[i]n the aggravation phase of the trial, the jury could not agree on whether the murder was committed in expectation of pecuniary gain. See A.R.S. § 13-751(F)(5) (2010). The jury made separate findings that the murder was both especially heinous and cruel, but could not decide whether the murder was also especially depraved. See A.R.S. § 13-751(F)(6). In the penalty phase, the jury could not reach a unanimous verdict."

It is obvious that, as a matter of fairness, the entire conviction under the circumstances had to be tossed and the entire case had to be re-tried.

It did not happen.

Instead, a second "aggravation/death penalty" jury was convened, precluded from knowing the applicable law as to the defendant's ineligibility to parole - and the defendant was condemned to death.

That is what the U.S. Supreme Court reversed - only the sentence of death, not the conviction.

Incredibly, there were 2 dissenters to the reversal: Justices Clarence Thomas and Samuel Alito.

While acknowledging that the U.S. Supreme Court reversed in reliance on its own precedent:

Simmons v. South Carolina, 512 U. S. 154 (1994) providing that "[w]here the State puts the defendant’s future dangerousness in
issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury—by either argument or instruction—that he is parole ineligible” - that precedent is allegedly wrong and should not be followed.

The state sentencing court obviously disregarded that set precedent.

The dissenting judges claimed that "it is the “sheer depravity of [the defendant’s] crimes, rather than any specific fear for the future, which induced the . . . jury to conclude that the death penalty
was justice,”  and that it was sufficient for the jury to know that, if they do not condemn the defendant to death, the court can then sentence him to life in prison with or without possibility of parole - whether the defendant was or was not eligible for parole.

In other words, the two judges claimed that the issue of parole was not relevant to the issue of life or death in sentencing and that the U.S. Supreme Court should not "micromanage state sentencing procedures".

It is interesting to mention that "Justice" Thomas cited two of his own dissenting opinions in favor of death penalty and one of "Justice" Scalia.

But, at least for now, it appears that the court becomes more convinced that,  before the death penalty is imposed,  at the very least, the death penalty jury should be given correct information about the law.

As to Justice Thomas and Alito - this dissent is the matter of their personal conscience, or rather, lack thereof. 

Basically, Thomas and Alito lamented that state courts were not allowed to disregard a U.S. Supreme Court precedent on point, Simmons v South Carolina, decided in 1994.

So, U.S. Supreme Court cases do not have precedential value, as argued by two justices of the same court?

Do justices Thomas and Alito need to consider retirement?

#JudgeAlexKozinski, "crusader" against wrongful convictions, misrepresents the record to uphold a wrongful conviction

In April of 2016, an article appeared on "Slate.com" portraying judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit as a "crusader" against prosecutorial misconduct and wrongful convictions.

Yet, on May 27, 2016, Alex Kozinski authored an eyebrow-raising decision that legitimized a conviction so wrong that a 1st year law student would see that it must be overturned.

AEDPA has been strongly criticized as gutting the federal writ of habeas corpus and blocking the way to release to individuals wrongfully convicted in violation of federal constitutional rights.

The statute has two most infamous provisions which help sustain wrongful convictions:

The language "shall not be granted" is jurisdictional, blocking a federal court's authority to grant a writ of federal habeas corpus, and a release of the prisoner - even if the prisoner is held in prison based on violations of his or her constitutional rights.

The provisions, both 28 U.S.C. 2254(d)(1) and (d)(2), are blatantly and facially unconstitutional, and any court has a right to sua sponte refuse to comply with them - because in this country the U.S. Constitution, with its Supremacy Clause, controls, and the U.S. Congress, also bound by the U.S. Constitution, may not give the U.S. Supreme Court power to determine what is the Supreme Law of the Land - as it was done in (d)(1).

Under (d)(1) it is easy to have an unconstitutionally held prisoner to remain locked up, because review of constitutional issues by the U.S. Supreme Court is discretionary, and the U.S. Supreme Court refuses to review the overwhelming majority of petitions raising civil rights issues.

It is one thing to absolve a public official of liability to a victim of his misconduct in a civil rights lawsuit (which is bad enough) based on the judicially created concept of "qualified immunity" which "requires" (courts invented it this way) to determine whether the federal constitutional right that the public official was sworn to uphold was "clearly established" - by courts, of course.

Such a "test" puts judicial determinations above the Supremacy Clause and above the text of the U.S. Constitution, which no-one - NO-ONE - in this country has a right to do.

Judicial decisions are, by the text of the Supremacy Clause, are not part of the Supreme Law of the Land.

The Supremacy Clause, Article 6 Section 2 of the U.S. Constitution, says the following:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Supremacy Clause makes it clear that only laws (statutes and regulations) made "in pursuance" of the U.S. Constitution are the Supreme Law of the Land, binding upon judges.

If a statute is made not in "pursuance" of the Constitution, in violation of the Constitution, it is not the Supreme Law of the Land, and is not binding upon judges.

Moreover, it is the separate and independent duty of each judge sworn to be obey, uphold and enforce the U.S. Constitution to refuse to obey any law that is contrary to the U.S. Constitution, according to the judge's OWN determination.

Section (d)(2) is even more tricky.

It requires (the mandate is that the writ of habeas corpus "shall be denied")

Any 1st year law student knows that the words "reasonable" or "unreasonable" in a statute are signals that that is an issue of fact to be tried before a jury.

Any seasoned lawyer who has practiced for some time in American courts, knows that it is futile to try to argue that to judges who decide what is "reasonable" or "unreasonable" without any jury - and sometimes completely contrary to common sense and the record.

For some reason, the celebrated crusader against wrongful convictions, Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, recently decided to misrepresent the clear record of a case in front of him to uphold a wrongful conviction under section (d)(2) - and while claiming that AEDPA "controls" and prevents him from doing what is fair - reversing the wrongful conviction.

In the case in question, Kozinski wrote the majority opinion, but the decision was by the full court, with just a SINGLE dissenter, a single honest judge. 

The issue in front of Kozinski's court  was exceedingly simple - even for a person without any legal training, and especially so for a longtime judge:

should a conviction for murder and a life sentence be vacated because it was obtained through the state court's dismissal of a holdout juror?

You do not have to have a law degree to know that criminal convictions in the United States in jury trials should be by a unanimous jury of 6 (for misdemeanors) or 12 (in felony cases).

A murder case is a felony case, so all 12 jurors must agree to convict.

If a single juror does not agree to convict - and jurors have an obligation only to deliberate in good faith, not to agree with fellow co-jurors - a mistrial must be declared.

That's criminal procedure 101.

The interesting part is that in 2011, the same 9th Circuit court, a panel with the same judge Alex Kozinski in it, reversed the same conviction of Tara Sheneva Witness claiming that it is was wrong for the state court to dismiss a "known holdout juror" and replace that juror with an alternate juror.

First of all, jury deliberation MUST be secret - as to the judge, too.

A judge has no right to know which juror holds which position, and in cases of a hung jury (with at least one holdout juror) the only thing that a judge can do when told that there is a holdout juror is to declare a mistrial.

The holdout juror in Tara Williams' case was expressing concern whether there was "sufficient evidence" to convict her - an issue of fact that is the authority of that juror to decide.

The judge actually questioned the juror as to his motivations in deliberations - which violates the secrecy of jury deliberations right then and there.

The juror did not display any biases and did not indicate that he is not going to follow the law.

The judge still dismissed, on request of the prosecutor, the holdout juror, but the state judge's determination as to why he is dismissing the holdout juror was, specifically, "not because he’s not
deliberating and not because he’s not following the law".

Yet, 5 years down the road, in deciding the very same issue, Judge Kozinski says the following:

Well, the 9th Circuit, Judge Kozinski argued the same as Williams did in 2011.

In 2016 Kozinski says that AEDPA "requires" him to rely on state appellate court's finding, made for the first time on appeal, and contradicting the lower court's finding of dismissal.

First of all, AEDPA "requires" no such thing, whatever the U.S. Supreme Court says, and no federal court has authority to amend a federal statute through interpretation.

Second, the state appellate court had NO AUTHORITY to decide that the judge correctly dismissed a holdout juror for NOT FOLLOWING THE LAW, when the judge clearly stated on record that he is NOT dismissing the holdout juror for not following the law.

A state court has no right to decide in retrospect what was the basis of the state judge's decision.

That's what the same Judge Kozinski said in 2011, didn't he?  In the same case?  Reversing the same conviction?

Actually, in 2011, Judge Kozinski and his court claimed that the appellate court did not rule that the holdout juror was not following the law, but quoted from the record of that court that the state Court of Appeal decided that the holdout juror was "biased" - a determination that only the trial judge could, and did not, make:

So what drove the "crusader" against wrongful convictions #JudgeAlexKozinski to rule contrary to his own prior ruling in 2011?  In the same case?  On the same issue?  Based on the same record and the same federal statute? Regarding a conviction for murder and a sentence for life?

For a detailed analysis of two decisions of Judge Kozinski, as well as other decisions in this mind-boggling case, as well as for the analysis of the strong dissent by judge Stephen Reinhardt, the only honest judge in this situation who lashed out against his colleagues stating that judges are not Humpty Dumpties, and should follow the record as it is written, not as they want to see it -

stay tuned.

A Michigan judge #LisaGorcyca is on trial for ordering three kids jailed for not wanting to see their father

A disciplinary trial has started against a Michigan family court judge Lisa Gorcyca (the last name means "mustard" in Russian, by the way).

Judge Gorcyca incarcerated three children, ages 14, 10 and 9 for defying her orders and disrespecting their father.

The only fault of the children was that they did not want to see their father after the judge ordered them to go have lunch with him because, as one of the children stated to Judge Gorcyca, he saw the father hit the mother.

Judge Gorcyca disregarded the statement and claimed the children were "brainwashed".  

Here is the video of the court proceedings that triggered the disciplinary trial.

The children spent 2 weeks in juvenile detention before the news media initially ran the story, but the "term" of incarceration, without a jury trial or proper contempt proceedings was, respectively:

• 4 years for the 14 year-old;
• 8 years for the 10-year-old; and
• 9 years for the 9-year old.

Literally.

Those kids were ordered to be held in the kiddie jail until they turn 18, or until they change their mind to have a relationship with their father.

Talking about mind control.

The kids were denied any childhood.

Denied a proper education.

Denied communication with friends or outside world.

Because they refused to go to lunch with the father who abused their mother.

Here is the smiling face of kid-jailing judge Lisa Gorcyca:

According to the news reports relying upon court transcripts of what transpired on June 24, 2016 in court, the judge was upset because, even though the judge previously ORDERED the kids "to have a healthy relationship with their father", the kids refused to see him or go to lunch with him.

Just be happy with your father, kids, will you? Even if he hit your mother in front of you.

And if you are not - the kiddie jail is the remedy for you.

Not to mention that the judge compared the children to Charles Manson and his cult.

Let's remember that custody proceedings are governed by the concept of the "best interest of the children".

Their best interests, apparently, are served by being locked up in a juvie prison for years.

The kids were reportedly separated from both parents, from each other, and their mother was not allowed to visit.

In July of 2015, after international protests and demonstrations, Judge Gorcyca, who previously denied a request to release the children, agreed to transfer them from the juvie prison - no, not back to their mother where they would at least start to heal - but to a "summer camp".

Then, in August of 2015, the judge expressed an intention to put the kids into intensive therapy for "healing" and "reunification" with their father.

Judge Gorcyca was allowed to preside over that case until December 23, 2015 when she, at the same time, denied a motion to disqualify/recuse, and disqualified "on her own" - after a disciplinary complaint was filed against her, and the disciplinary complained was, most likely, powered by international protests against lawlessness wielded by the judge against the kids.

Here is the formal complaint against Judge Gorcyca.

Judge Gorcyca apparently threatened jail time against the mother if relationship of kids with father did not improve, and made the mother to read from a pre-written script to her children, out loud, in court, that their father loves them and wants to spend his time with them.

After that did not work, and one of the boys told the judge that he apologizes to the court, but he does not want to apologize, because his father hit his mother and is violent, Judge Corcyca freaked out, held the boy in direct contempt and told him the following:

Now, how having to go to the bathroom in public served the best interests of that child and taught him to reunite with his father, is anybody's guess.

The judge clearly wanted to have the boy who "defied her direct order" "to have a healthy relationship with his father" to be humiliated for his defiance.

The judge, obviously, considered herself a mental health professional, telling the child that, because he said he does not want to communicate with his father because he abused his mother, he is "messed up", has no manners and should do research on Charlie Manson and his cult.

The judge put the keys from the child's prison into the abusive father's hands, like that:

And, the judge told the boy that the case will not be even reviewed again until he turns 18.

18 is the age of majority.

An 18 year old cannot be mandated by the court to have any communication with anybody, including his or her parents.

Nor can an 18-year-old stay in a juvenile facility.

But, the judge had to intimidate the boy by saying that, for his "bad manners", essentially, he will be locked up until further review (not release, but just review) until he is 18.

The younger, 10-year-old, boy read to Judge Gorcyca a pre-written apology.

That was not enough to save him from kiddie jail either.

The judge exercised her sadist self in full on the 9-year-old girl though.

Here is what she did with the girl:

The girl was obviously traumatized from witnessing what was done to her big brother, and was in no shape to defend herself, with the stakes of being separated from her mother and deprived of her liberty.

Did it matter to the judge?

Of course, not.  After all, the judge had the best interests of that girl in mind.  Here is how the judge made sure she took care of those best interests:

Now, how does instilling into a 9-year-old girl that a woman with authority can humiliate her in front of others, disregard her traumatized condition, put her down as stupid, mock her religion and ridicule her brother who is "defiant" and who is "living in jail" - how can that be in her best interests?

After Judge Gorcyca intimidated the two younger kids enough, she ordered them to go to lunch with their father and warned them that she will incarcerate them if "there is any hesitation at all" whether they want to do that.

The judge then hinted to the young children that she does not like their mother and asserted that she likes their father (who abused their mother):

Judge Gorcyca then repeated to the younger kids the threat she already made against their older brother - whether they want to go to the bathroom in front of other people. And added to that threat that the kids will spend their birthdays in prison.  That was supposed to be an incentive to "have a healthy relationship with the father", I understand.

When the younger boy displayed solidarity with his older brother and volunteered to go to jail with his brother rather than to bend to the judge's will, the judge punished the child for that and indicated that she will order the brothers separated:

When the little girl, despite her fear, also refused to go to lunch with the father, the judge called it ridiculous, claimed that "every single adult in the room thinks that kids are brainwashed", ordered the two kids, a 10-year-old and a 9-year-old into jail for contempt of court with no contact with the parents, and the kids were handcuffed and escorted out by the police.

Somehow, that display of intimidation was supposedly in the best interest of those children.

The judge obviously knew that what she was doing was wrong, because she later lied about it to disciplinary authorities, therefore Charge No. 2, for "misrepresentation":

Here is what the Commission found wrong in Judge Gorcyca's actions - as a preliminary matter, that's why the formal complaint was filed:

We will see what kind of discipline will be imposed upon the judge for all of that - where irrefutable proof is available that Judge Gorcyca should not be allowed anywhere near the bench or children, it is in transcripts of proceedings.

The mother made a statement when the kids were released from juvie prison that one cannot terrorize another person into loving anybody - and that is exactly true, and is especially true if one parent is abusive against the other.

Unfortunately, what judge Gorcyca was charged with - the "a to q" charges, can be filed against the majority of New York judges I appeared in front of, and I can recite about each one of them detailed descriptions fitting those charges, pertaining to specific cases.

The New York State Commission for Judicial Conduct is not interested - and never was.

Judge Gorcyca's case has proven what is very obvious - decisions of child custody may not be entrusted to be done unilaterally by one judge.

With time, judges deciding such cases start to consider themselves Gods who can do anything, law or no law, and their abuse of power causes irreversible traumas in adults and especially in children.

If such cases are to be tried, they need to be tried in front of juries, not judges.

Then, outcomes of custody cases will be much better, and parents will think twice before bringing the case in front of the jury, too, instead of agreeing on custody amicably.

And that is in the best interests of children.

I will continue to cover the disciplinary case of Judge Lisa Gorcyca.

Stay tuned.

Finally, a disciplinary complaint was filed against the Nevada judge Conrad Hafen who handcuffs and sends people to jail for constitutional arguments in criminal court

Only after outrage in the media and especially social media (including this blog), a group of defense attorneys finally filed a complaint against Judge Conrad Hafen who handcuffed a public defender for making a constitutional argument against incarceration of her indigent client, see my blogs on the subject here, here and here.

The complaint reportedly describes two other "contempt of court" cases, when Judge Hafen sent a woman to jail without bail for 2 weeks for an "outburst" in the court without first assigning her a counsel, and when Judge Hafen also held in contempt a pro se defendant who he refused to assign counsel and sanctioned for raising the issue of the 14th Amendment (due process) - practically, the same as in attorney Zohra Bakhtary's case.

Constitutional arguments for this judge are contempt of court.

And, even though the judge's unconstitutional contempt practices were known to the bar before attorney Zohra Bakhtary was handcuffed last week, nobody, apparently, filed complaints against the judge until now.

Which says a lot about the fear in even criminal defense attorneys about judicial retaliation.

Only when an attorney is handcuffed, there is an outrage, when "lay people" from the street are jailed without counsel or opportunity to be heard - that was not enough to file the complaint right there an then.

My interview on "Justice Served with Andy Ostrowsky" tonight at 6 p.m. Eastern Time - tune in

My readers are invited to tune into my interview tonight at 6 p.m. Eastern Time (in North America) by a radio show of Andy Ostrowski called "Justice Served" at "Twigs Cafe Radio".

Andy Ostrowski ran for Congress in 2014 and won an astounding 1/3 of votes while being a first-time candidate and not being endowed by financial support, as his opponent was.

Andy Ostrowski's election platform was judicial reform, and support of voters shows how important that issue has become in this country.

My interview will be largely on the issue of attorney licensing and how it contributes to the justice gap in this country, and why attorney licensing, designed as help offered (or, rather, imposed) by the government upon consumers of court representation services, creates an illusion of protection and hurts rather than helps.

It must be a lively discussion, it will be live-streamed, not pre-recorded, so it will be spontaneous questions and spontaneous answers.

Here is the link to the "Justice Served" radio show.

The radio show also has a call-in line, a text-in line and an e-mail-in line for questions during and after the on-air interview:

Even though the call-in line will not be open tonight, I asked Andy Ostrowski to forward questions to me and will strive to answer as many as I can, whether during the show (though time on the show is limited) or after the show.

Come listen to my interview - 6 p.m. tonight, Eastern Time at "Justice Served" with Andy Ostrowski/Twigs Cafe Radio.

Andy Ostrowski's "Justice Served" covered so far a wide range of sensitive topics that the mainstream media refuses to cover, such as:

1) the use of attorney discipline as a tool of retaliation against attorneys who do their jobs for their clients and criticize misconduct of the government and especially judicial misconduct - in the "Disciplined Attorney series"; 

2) abuses of basic human rights by Homeowners Associations;

3) abuses and corruption in probate and family courts.

I am grateful and honored to have been invited to speak on "Justice Served" show.

Thank you, Andy Ostrowski, and, to my readers - "see" you there.

==
6:21 pm  Update: for some technical reasons, so far the Radio Show could not reach me - some phone glitches, possibly because of a thunderstorm in my area.  I am here by the phone and we are trying to overcome the glitch.

7:20 Fortunately, I was able to get through and appear on the show - for 25 minutes out of the planned hour, but still, we had a productive discussion.

Here is the link to the interview.

Thank you for listening, and apologies for the technical glitches.