THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Tuesday, June 21, 2016
Why the National District Attorneys Association chooses the most unethical prosecutors as their Presidents - Part I, #DAWilliamFitzpatrick The Extortioner
That is the District Attorney who is the law school buddy and roommate of the corrupt judge James Tormey who remains the Chief Administrative Judge of the 5th Admnistrative District despite being sued by several female plaintiffs for sexism, retaliation and using his judicial office for political espionage.
The last time Judge Tormey sued, he was sued together with his buddy DA Fitzpatrick, because of their collusive efforts to demote and strip of livelihood a Spanish female court interpreter who Fitzpatrick tried to prosecute for a felony, but who was acquitted by a jury.
The lawsuit - unfortunately - was dismissed on 'absolute immunity" grounds.
The previous lawsuit was brought against Tormey by a female court attorney who Tormey harassed, demoted and persecuted after she refused to spy on a judge who ran for re-election on a Democratic ticket (Tormey is a Republican).
That lawsuit was litigated for 4.5 years and was settled on the eve of trial for $600,000 out of taxpayers pockets.
The judge who leaked to the plaintiff Bobette Morin that Tormey and his cronies are out to get her was Onondaga Family Court judge Bryan Hedges.
After the settlement of the lawsuit against Tormey, William Fitzpatrick, Tormey's law school buddy, according to the records on file with the New York State Commission for Judicial Conduct, started to blackmail Judge Hedges and extort from him money on behalf of himself and the alleged victim of Judge Hedges of nearly 40 years back.
Fitzpatrick knew that in New York there is a statute of limitations for sex crimes, in criminal and civil court, and that claims of the alleged victim were time-barred.
Nevertheless, Fitzpatrick pursued extortion against Judge Hedges, according to e-mails of the alleged victim referenced by Judge Hedges attorney in the disciplinary proceedings before the New York State Commission for Judicial Conduct.
According to the alleged victim, DA William Fitzpatrick wanted a portion of the extorted money,
see my blog about the corrupt relationship between DA Fitzpatrick and Judge Tormey here, see arguments of Judge Hedges to the New York State Commission for Judicial Conduct here, page 9.
When Judge Hedges did not cave into that extortion, DA Fitzpatrick turned him into the NYS Commission for Judicial Conduct.
Judge Hedges was taken off the bench.
DA Fitzpatrick was never prosecuted for extortion.
Instead, he was appointed to the New York State Commission for Public Ethics (the now-disbanded "Moreland Commission"), and is currently listed as the President of the National District Attorneys' Association.
Look at how the extorting DA Fitzpatrick talks about morals and ethics. It is truly sickening.
Apparently, NDAA is happy to acknowledge that William Fitzpatrick is representing the FACE of ALL of prosecutors in the United States.
Look at the face of the "hero".
A very self-righteous guy, isn't he?
And extremely ethical.
As to my separate blog about yet another unethical pick-for-President (a recent one) by the National District Attorneys' Association - stay tuned.
Sunday, June 19, 2016
Pennsylvania overturns a $1M sanction against an attorney because of wrong jury instruction and criticizes opposing counsel for personal venom
Not only the amount was staggering, but, as the appellate court found:
- the jury instruction on the subject was not clear as to whether the testimony was precluded; and
- it is generally unfair to sanction an attorney for actions of a third party that is not within the attorney's control.
"Each time plaintiff's counsel brought the contempt issue before the court, they presumed what they were initially required to prove and presented their conclusions with transparent venom, bloom, innuendo and increased outrage, refreshed periodically with personal attacks on Ms. Raynor," said the opinion, written by Superior Court President Judge Susan Gantman.
It is very clear that courts should not have authority to impose monetary fines upon attorneys, and especially fines of such a magnitude as was imposed upon attorney Nancy Raynor.
Such sanctions, imposed as a matter of the court's "discretion" (whim) are absolutely arbitrary and can be used simply as a tool of retaliation against an attorney who the judge simply does not like.
I am glad that for attorney Raynor the ordeal is over.
But, "discretionary" sanctions against attorneys and parties, which are nearly impossible to eliminate on appeal, are still on the books and should be eliminated.
Attorney Raynor is simply lucky that the issue upon which she was appealing caused an uproar in the upper echelons of he legal establishment.
Had the fine been $10,000, she would still be saddled with it.
California Legislature is seeking to dismantle attorney regulation by attorneys. Good first step, but too small under the circumstances to help close the "justice gap".
California belongs to the majority of states with "organized bars", meaning that a non-profit corporation, a bar association, is acting as a government agency prosecuting attorney misconduct.
In February of 2015, the U.S. Supreme Court declared that occupational licensing and discipline by members of the regulated profession without neutral state supervision is in violation of federal antitrust laws and stripped antitrust immunity from regulators.
After that, state bars did nothing to comply with that decision, give consumers more authority in the regulation of the legal profession which is done allegedly for consumers' benefit, nor did legislatures enact laws which would ensure neutral state supervision over occupational regulation in general and over attorney regulation in particular.
Last month, I wrote about how California State Bar and judiciary, in obvious collusion, were fighting against the former insider of the California State Bar and now whistleblower Joseph Dunn.
The California Legislature responded to the corruption games in the California State Bar by a yet-unprecedented move suspending the CalBar's authority to collect annual membership fees (allegedly used to prosecute attorney discipline).
It appears that the California Legislature is reacting to the U.S. Supreme Court decision in North Carolina Board of Dental Examiners v FTC in seeking "deunification" of the "organized bar" of the State of California, seeking to remove regulatory authority over attorney licensing and discipline from the California Bar Association, attorneys' special interest group.
The next logical step would be removal of yet another special-interest group, the American Bar Association, from controlling attorney licensing through certification of law schools where an attorney can only be licensed to practice law in a given state if he graduated from an "ABA-certified" law school.
Talking about special interests.
But, let's come back to where this article has started.
When
- attorney discipline was ruled - by the California top court - as having nothing to do with effective representation,
- when all states at this time are violating federal civil and criminal antitrust laws in occupational regulation, including attorney regulation, by their non-compliance with the 2015 U.S. Supreme Court precedent;
- when what constitutes the practice of law is not clearly defined, and when the U.S. Federal Trade Commission AND the U.S. Department of Justice distinguish between legal services (by licensed attorneys AND unlicensed providers) and the practice of law, and
- when FTC and DOJ acknowledges that attorney regulation should be loosened up to deal with the "justice gap" - obviously admitting that the justice gap has been caused by attorney regulation -
On adherence to "5-lawyer majority opinions" and the use of AEDPA in the State of Alabama - and in other states
He is upset for being investigated by disciplinary authorities for disobeying the 2015 U.S. Supreme Court precedent that legitimized same-sex marriage throughout the United States.
The judge calls that precedent a "5-lawyer majority decision".
And, apparently, thinks that such a "5-lawyer majority decision" cannot be binding law upon the judge when such a majority decision clashes with the judge's personal, including religious, views on homosexuality and marriage.
The interesting point in Judge Parker's opposition to "5-lawyer majority decisions" is that Judge Parker is a former Assistant Attorney General for the State of Alabama who regularly sought the death penalty for criminal defendants, according to his own biography on the court's website.
And, as the Assistant AG, Judge Parker had to regularly oppose death penalty appeals and habeas corpuses where defendants routinely raised the issue that the death penalty is unconstitutional.
And, I am sure that Assistant AG Parker argued that there is no "5-lawyer majority opinion" proclaiming that the death penalty is unconstitutional, and therefore, the defendants must be executed.
But, when a "5-lawyer majority opinion" is now being used against Judge Parker, with a potential to bite him in the butt, then Judge Parker got on the white horse and is claiming that U.S. Supreme Court decisions are just a "5-lawyer majority opinion" nonsense.
Judge Parker's yoyo arguments in the death penalty cases and in his own case prove only one things - there is no such thing as the rule of law or independent justice when a long-time prosecutor and judge sends people to death based on authority of the same court that he rejects in his own disciplinary case.
What was good to send people to their deaths should be good to discipline a judge.
Shouldn't it?
Who was #JudgeJosephBoeckmann betting with to take sexually suggestive pictures of a criminal defendant?
Here is the "hero" Judge Boeckmann:
Now, reports come out that Judge Boeckmann also forged court records reflecting his sentences in such cases.
While there are reports about a disciplinary investigation against Judge Boeckmann, I did not see reports in the press as yet that Judge Boeckmann was criminally charged - for abuse of office, as well as for forging court documents.
And, the lingering and unsettling question is - many people HAD to know what Judge Boeckmann was doing.
Court personnel, probation HAD to know that Judge Boeckmann was forging court papers.
Moreover, Judge Boeckmann reportedly was not just taking pictures of defendants for his own personal pleasure - but was doing that as "bets with friends".
I wonder - will Judge Boeckmann AND his enablers be investigated, both in court and the "betting" friends?
And, who are the betting friends of Judge Boeckman?
Leniency/corruption in regards to discipline and criminal prosecution of drunk driving judges in New York continues - the case of #JudgeTimothyJCooper
- Albany County Family Court Judge Gerard Maney - who drove drunk and tried to intimidate the arresting police officer with his status as a judge to get out of criminal charges;
- Juvenile Drug Court, and
- Family Treatment Court - you know, substance abuse, alcoholics and domestic violence caused by drinking.
The next celebrity drunk judge in New York who escaped proper discipline is:
Judge Landicino is also an attorney who has "no record of public discipline", despite public discipline (super-light though it was, just censure) from the New York State Commission for Judicial Conduct;
- Judge Leticia Astacio, of the Rochester City court was charged with a DWI on the way to court, where she was supposed to hear DWI cases - she is still on the bench, and not disciplined.
True to the policy, the New York State Commission for Judicial Conduct recently took off the bench Judge Timothy J. Cooper, a justice of the Evans Town Court in Erie County, with a stipulation that he will neither seek nor accept a judicial office, and that if he breaks the terms of the stipulation, the judicial disciplinary proceeding will resume and go a hearing before a referee.
Here is judge Cooper:
I guess, New York State Commission for Judicial Conduct needs to be prodded in the rear end to commence such a proceeding before a referee because Judge Cooper did violate the terms of the Stipulation - or the Stipulation was deliberately not worded precisely in order to allow Judge Cooper to retain his position of - guess who? - a Magistrate judge in the Niagara County Family Court, which he remains, according to the court's website, until this day:
Now the Commission took off ONE bench out of TWO Judge Timothy Cooper (without mentioning that Justice Cooper of the Town of Evans court is also a Niagara Family Court magistrate).
Not only the discipline of Judge Cooper was crooked, his criminal prosecution and conviction was even more crooked.
Let's see what Judge Cooper did, what he was charged with, and what he was convicted of.
The snippets below is from the NYS Commission's publication regarding proceedings against judge Timothy J. Cooper.
Let's remember - Judge Cooper drank before driving four 12-ounce(large) beers and a one half-ounce shot of whiskey.
His alcohol content should have been quite high if Judge Cooper could not control himself from veering into a LONELY car coming his way in the opposite lane.
There was just ONE car coming his way because otherwise, when Judge Cooper struck it and when it has spun, flipped and stopped across the highway, there could have been additional accidents if there were more cars on the road at that time.
So, attorney, Niagara Family Court magistrate and Town of Evans justice Timothy Cooper was driving drunk, veered into oncoming traffic despite seeing that there is a vehicle coming his way in the opposite lane, hit that vehicle and caused the other vehicle to "spin, flip on its side, and come to rest blocking the northbound lane of the roadway".
It is sheer luck that the person in that vehicle was not killed and that there were no more accidents.
Where a vehicle is blocking the roadway across, it could very well be that more vehicles could ram into it, not having time to stop.
The injured person sustained "a cut on the side of his head" - not to mention the stress of the near-death experience.
Judge Cooper:
1) admitted to using alcohol - four 12-ounce beers and 1 half-ounce shot of whiskey;
2) refused a breathalyzer test;
3) failed the field sobriety tests;
4) had glassy eyes, slurred speech, and "smelled of alcohol" ("smelled of alcohol" was bad police work, the police should verify that the breath, and not the clothes, smells of alcohol).
In my practice and my husband's practice as criminal defense attorneys in New York,
1) refusal to take a breathalyzer test leads to an automatic suspension of a driver's license;
2) arrest for driving while intoxicated after causing a car accident with injuries, and with an admission to the amount of alcohol Judge Cooper admitted "consuming" leads to charges for
Here is what Judge Cooper was charged with:
VTL 1192(3) - a misdemeanor driving while intoxicated (up to 1 year in the local jail if convicted, 3 years probation and a mandatory ignition interlock device on all vehicles in the family); the next DWI after a misdemeanor DWI conviction is automatically a felony, and conviction of an attorney for a felony in New York causes automatic disbarment as of the date of conviction;- VTL 1194(1)(b) - refusal of a chemical test, which should lead to a 1-year suspension of the driver's license in the case of a first refusal;
- VTL 1128(a) - failure to keep right.
- fines and surcharges totaling $615;
- suspension of Judge Cooper's driver's license for whopping 90 days; and, imagine
- a conditional discharge.
Saturday, June 18, 2016
FTC and DOJ joint letter regarding statutory definitions of the practice of law confesses that the regulation of the legal profession is a sham
Here is the letter.
The letter is, let's say, interesting.
It asks the legislators to EXEMPT certain activities from the DEFINITION of the practice of law or unauthorized practice of law because - gasp! - the practice of law is NOT CLEARLY DEFINED.
Now, if something is not clearly defined, there is NO definition, and thus there can be NO regulation of the practice of law (which is not clearly defined) and NO prosecution for unauthorized practice of law (which is not clearly defined) and NO exemptions from what is not clearly defined - because there is nothing to exempt anything from.
That would be pure logic, wouldn't it?
By the way, FTC has been mulling on my complaint against New York State for its antitrust activities in regulation of the practice of law for over a year, but now gives birth to this masterpiece?
So, now FTC and DOJ recommends, in an official letter, to a state legislature that, to close the "justice gap" (access to court by litigants who cannot afford an attorney), document self-prep websites should be LEGISLATIVELY permitted so that the honorable legal profession wouldn't prosecute such justice-gap-closing and consumer-helping businesses for taking the bread out of attorneys' mouths.
What is also extremely interesting is that FTC and DOJ in its letter seems to separate the concept of "legal services" with the "practice of law":
"Overbroad scope-of-practice and unauthorized-practice-of-law policies can
restrict competition between licensed attorneys and non-attorney providers of
legal services, increasing the prices consumers must pay for legal services, and
reducing consumers’ choices."
As far as I know, there is no such thing as "attorney providers of legal services" in the American jurisprudence.
Instead, legal services are automatically equated with practice of law and, if done by unlicensed providers, are equated to the committing the crime of unauthorized practice of law.
So, FTC and DOJ is urging state legislatures to erode the concept of the "practice of law" even further.
Since that concept is not clearly defined anyway, it becomes increasingly clear that:
1) regulation of the legal profession creates and aggravates the "justice gap", for the benefit of attorneys and is harming consumers of LEGAL SERVICES;
2) what constitutes the practice of law is not clearly defined, thus undermining both the administrative regulation of the practice of law, and criminal prosecution of unauthorized practice of law;
3) separation of the terms "practice of law" and "legal services" BY THE FEDERAL GOVERNMENT and official promotion of competition between "licensed attorneys and non-attorney providers of legal services" further shows just how bad people are hurting BY regulation of the practice of law that prevents people from getting an affordable provider of legal services (which, for FTC and DOJ, is not the same as, exclusively, a licensed attorney).
What is unsettling though is that the federal government does not require the state legislatures to dismantle what constitutes illegal (and anticompetitive) regulation of the legal profession to help consumers of LEGAL SERVICES (which is not the same as the practice of law, according to FTC and DOJ), but instead humbly "recommends" to provide a "Band-Aid to cover the bullet hole" and to allow people who cannot afford a licensed attorney to at least be able to use document self-prep websites.
Yet, people who cannot afford an attorney, most likely, have a low literacy level and may have a problem with the self-prep websites, too, or no or poor Internet access and no literacy as to how to use the Internet.
So, why people who cannot afford an attorney should scramble either on their own, or with the help of document-prep websites, but cannot hire a "non-attorney provider of legal services" of their own choice who they trust?
And why FTC and DOJ, after all but confessing that regulation of the practice of law is a sham to protect the turf of the legal establishment, still continues to help protect it, instead of posing an ultimatum, according to its own logic:
1) Either you bring your attorney regulation in compliance with federal antitrust laws, in accordance with North Carolina Board of Dental Examiners v FTC (as of February 2015) and FTC Guidelines to Staff (as of October 2015) - or you STOP regulation of the legal profession as hurting consumers, creating and contributing to the justice gap;
2) Either you CLEARLY DEFINE what constitutes the practice of law, on a legislative level, and without participation of market players IN THE LEGISLATIVE PROCESS (remember what percentage of state legislators in any state are licensed attorneys?) - or you deregulate, because otherwise your regulation, including criminal UPL laws, is nothing other than helping the legal establishment protect their markets at the expense of consumers, in violation of federal CRIMINAL and civil antitrust laws.
When will FTC and DOJ finally start doing their jobs and pursue elimination regulation of what is not defined, of the "practice of law" as unlawful and as a practice that hurts consumers, creates and contributes to the justice gap, only to enrich the market players?
And, by the way, the FTC and DOJ letter of June 10, 2016 somehow advises to state legislatures to actually regulate the document self-prep websites, too, for "consumer protection" purposes - and advise the state governments to use a 1980 U.S. Supreme Court precedent on permissible content-based restrictions on commercial speech.
Yet, the recommended 1980 U.S. Supreme Court precedent was effectively overruled in June of 2015 in Reed v Town of Gilbert, now requiring of the government to satisfy the "strict scrutiny test" (which the U.S. Supreme Court did not require in 1980).
So, why are FTC and DOJ recommending to use a precedent that was overruled a year prior to the date of their letter recommendation?
Are the FTC and DOJ trying to actually help state governments keep the corpse of attorney regulation alive for a little more, under the false pretensions of legality?