A petition for a writ of certiorari was filed with the U.S. Supreme Court, addressing the role of retaliative attorney discipline in widening the justice gap

I have filed my long-suffering certiorari petition with the U.S. Supreme Court.

I am planning to write a separate book as to how to prepare such petitions, based on my own experiences and documented steps as to how exactly to format, print and bind the petition the way the U.S. Supreme Court requires - and save money.

The entire text of the petition is available here.

Of course, the petition did not cover all issues I wanted to cover, because of the word limit and because restrictions to font, text field, page size and presentation of documents in courts below in the Appendix makes it extremely costly to properly present all issues you want to present, so you have to cut them.

The petition raises several important issues:

1) how New York lowers the prosecution's burden of proof in attorney disciplinary proceedings in order to skip hearings and strip attorneys of their licenses without a hearing based on retaliative sanctions of judges sought to be recused,  sanctions are imposed by the preponderance of the evidence standard - while the standard of proof in attorney reinstatement proceedings is higher, and the standard of proof in private attorney discipline is higher, too, not to mention that the standard of proof required by ABA Model Rule and by designation of attorney disciplinary proceedings as quasi-criminal is also higher;

2) how New York uses attorney discipline contrary to its declared purpose (protection of consumers), and thus widen the justice gap by removing predominantly qualified criminal defense, family court and civil rights attorneys working for the poor, while replacing them with uneducated, unskilled and often unlicensed providers;

3) how New York uses attorney discipline as the tool of retaliation in violation of 1st Amendment and Due Process; and

4) how New York punishes attorneys for doing their duty for their clients when New York gives attorneys one and only tool to secure for their clients the fundamental federal constitutional right to impartial judicial review - through confrontational motions to recuse in front of judges who are sought to be removed from the case, and how New York then teaches these judges how to sanction attorneys and removes attorneys' licenses, without a hearing, based on such sanctions.


I stress in the petition that, if the so-called justice gap is as important as the U.S. Supreme Court Justice Sonya Sotomayor recently publicly claimed - to the point that attorney slavery is required in order to remedy that gap - it is a good way to start bridging that gap by simply not widening it further and not removing those attorneys who are already working for the poor.

I describe in the petition the situation that, when attorneys' livelihood is automatically taken, without a hearing, for making motions to recuse, no attorneys can realistically be expected to make such motion - and thus litigants' right to impartial judicial review in New York has simply become unavailable, which is a constitutionally intolerable situation.

The petition points out to the U.S. Supreme Court that the court took 2 cases in the past 2 years dealing with the wrong use of occupational licensing contrary of its declared goal:

1) in North Carolina Board of Dental Examiners v Federal Trade Commission, 574 U.S. ___ (2015),  the Court addressed anti-competitive use of occupational licensing,  and

2) in Whole Woman's Health v Hellerstedt, 579 U.S. __ (2016), the U.S. Supreme Court struck the use of occupational licensing that was declared to protect women's health, while the regulation, in fact, was doing the opposite.

I do not know whether the U.S. Supreme Court will consider these issues important enough for its review.  The petition is in the Court's hands, and I will report on the petition's progress.

The prison inmates' strike and its (non)-coverage in the U.S.

Since September 9, 2016 there is an ongoing strike in this country, of prison inmates protesting slave labor and conditions in prison.

The inmates are protesting that they are either paid much less than the minimum wage for work essential for running the prisons - as well as for the for-profit prison industry - or not paid at all.

Since the for-profit prison industry puts "lockup quotas" into contracts with state governments, and those who are caught in the hairs of the criminal justice are predominantly the poor and the minorities - mass incarceration in the U.S., mostly through plea bargains, is clearly a plan to obtain people's labor for free, making them work for free in ghastly conditions not subject to judicial review.

The inmates are protesting, through a strike, conditions in prison (of life, guard brutality and dismal medical care) - because their legal remedy to seek justice from courts regarding prison conditions is cut off by: 

• general discrimination tactics against pro se litigants;
• Prisoner Litigation Reform Act (requiring to first exhaust "administrative remedies", complaining to the same prison officials who violate prisoners' rights, thus facing retaliation, and the statute of limitations for exhaustion of remedies is 15 DAYS);
• the federal judicial system where judges consider everything, including not providing pain medication for cases with broken bones, a violation not reaching constitutional dimensions (I remember  from my research as an intern for Prisoners Legal Services of New York, that the "no pain medication for broken bones is not a constitutional violation" decision was made by magistrate Randolph Treece, now retired, of the U.S. District Court for the Northern District of New York);
• the statute that allows judge to dismiss pro se federal civil rights lawsuits of indigent (poor) litigants, especially inmates, before the lawsuit was even served,
• and the subsection of the same statute that allows judges to cut off prisoners' right to sue if they sued several times, and their lawsuits were dismissed (by judges who do not feel, arbitrarily, that violations reached constitutional dimensions).

While many lay commentators on topics of prison conditions and medical care express an idea that those in prison must provide for themselves or go hungry and without medical care, first, there is an 8th Amendment to the U.S. Constitution, and, where the sentence imposed by a court of law in accordance with a statute is loss of liberty, prison system cannot add to that:

• loss of dignity;
• loss of medical care, or
• slave labor.

Note that not only inmates are denied medical care, but also their unborn children who are, I guess, subject to some kind of weird punishment for crimes of their mothers.

The only major media source that has reported on the prisoners' strike is a foreign source - "The Guardian", a respectable British newspaper.

Within the U.S., the strike is subject to an apparent mass media boycott and is being reported only by activist sources, bloggers and social media.  The only major media source that so far reported the strike was The Wall Street Journal that reported that prison authorities are not yielding to prisoners' demands and are not providing any concessions so far.

Actually, the strike is in its second week now.

The strike reportedly involved 40 prisons in 24 states where inmates refused to report for work - and facilities responded by lockdowns.

I guess, in a country with mass incarceration, slave labor and conditions of that mass incarceration is not a newsworthy subject.

On the danger of feeding the poor, the lemonade stands and shoveling snow for your neighbors

Remember the times when a child could earn some money, and at the same time learn about work ethic, by setting up a lemonade stand in the summer?

Remember when it was ok to help those in need?

Those times are rapidly disappearing, and the reason why is our helpful and considerate government.

The government wants to protect you, me, us the consumers - from anything imaginable.

And, as part of that protection, the government started to protect us from those who help the poor, and from "kid's businesses".

So, in 2015 two girls, ages 8 and 7, were prohibited to "operate" their lemonade stand in Overton, Texas without the city's "peddler's permit".

And, a lemonade stand of 11-year-old kids was shut down in California, too - and kids operating the stand were threatened, by the police, with a $1,500 when they continued not just to sell, but to give away their lemonade and cookies.

And you know what the police told the kids about the reasoning behind the prohibition?  No, not protection of the consumers from potentially bad cookies and bad lemonade.  Instead, the reason was that it was "unfair" to allow the kids' lemonade stand selling or even giving away food and drinks, and it is unfair to those "proprietors" who "bothered" to obtain a selling license.

So, the reason, in the words of the law, was because the kids' lemonade stand interfered with the competition by dropping prices - something that has absolutely NO place in occupational regulation, because it is in violation of federal antitrust laws.

And in New York, a couple of kids were ticketed by police for operating a lemonade stand without a license.

Kids were prohibited to operate not only lemonade stands, but even services unrelated to food, like shoveling snow during a snow blizzard.

And in the same 2015, the town police of the town of Bound Brook, New Jersey, stopped high school students from going door to door offering their snow-shoveling services in a blizzard, because they did not have a $450 license (valid for 180 days) to do that. 

Reportedly, the police was "nice about it", was "only enforcing the law", was concerned about the kids safety in an emergency situation - but allowed the kids to shovel residents' walkways IF the residents would call them to ask for that.  Of course, to call in, the residents would need to, first, know the number, and know that such services are offered at that number.

In all of those situations, nobody asked the consumers whether they want that prohibition to protect them.

Nobody asked senior or disabled citizens of Bound Brook whether they would want their walkways to be shoveled by high school kids for several bucks so that they can get out of the house - even if those kids came to their doors and offered their services, instead of them first calling the kids (once again, you need to know the number to call it, and that involves costs of advertising, time to reach the consumer, and the necessity for the consumer to actually buy that advertisement).

So, what kind of services are washed out by these efforts by the government?

Cheap services, of course.

Because, if you get a $450.00 license for 180 days, your prices will go up to reflect that investment, and it will not be just a couple of hours after school, it will be a full-scale operation - so, kids were thrown out of their little business so that they would not interfere with the local snow removal businesses.  That same town, by the way, exempted non-profits from that same license fee - and I wonder whether there are a couple of non-profits in that town dealing with snow removal where the "fathers and mothers" of the town, or their relatives or friends, are part of the non-profits.

There are no guarantees in life - for anything.

For health, for wealth, for luck.

Any one of us, at any time in our lives, can fall on hard times.

What will happen to us then?

Did you ever think about what happens to the food that is just past "sell by" date, but is still, probably, good for consumption?

Thrown out, of course, tons and tons and tons of that food, because otherwise it is a liability for the supermarkets to just give that food away.  To the poor, to the homeless.

From 1/3 to 1/2 of food is being thrown away in the so-called "rich countries".

Under such circumstances, there should be no hungry in these same countries.  Right?

No, because supermarkets around the world not only throw away edible food, but, reportedly, pour bleach on the food that is already thrown away, to prevent the homeless from eating it.

Of course, there are contrary tendencies, too - not in this country, though.

In France, a national law was passed prohibiting supermarkets to throw away edible food, instead of giving it away to charities or to feed animals.

And, community fridges for the poor sprang up in Spain and Britain, for example.

At the same time, in the U.S. giving away food brings tickets, summons (as in lemonade stand stories above), and even arrests.

A 90-year-old man was recently arrested in Florida for a grievous, and repeated violation of the law and is facing 60 days in jail and a $500 fine - for repeatedly feeding the homeless.

Of course, that was for protection of the homeless from bad food - that's what the reasoning for such ordinances is usually declared to be.

And this is how it was enforced:

"...four police cruisers and approximately a half dozen officers with the Ft. Lauderdale Police Department descended upon an area in the city where Abbott, charity representatives and church members were handing out hot meals to local homeless people.

One officer demanded that he “drop that plate right now” as others picked up the trays off food and inserted them directly into the garbage with lines of homeless people looking on."

When a government official plucks a tray full of food in front of a line of hungry people and throws it into the garbage, right in front of them, that's, of course, done for those hungry people's protection and for no other reason.

And, Ft. Lauderdale's ordinance is actually not only against sharing food, but against any other "life sustaining activities".  So, you are restricted by the government from providing a life-sustaining activity for your fellow men - or women - who have fallen on hard time.  You need a costly license for it.

In all of the above, the government not only displays it does not give a damn about the poor - but that it wants the poor to remain poor, indefinitely, and to strip them of their pride of earning a living.

Because the easiest way to start a business is to start selling what you cooked - that is, if no immediate investment is required.  And, this way, to earn money for your family.

But, if you have to put down $450 that you do not have, before earning a penny, for a snow-shoveling license, or, for a permit for a lemonade stand - your business will never open.  Which is exactly what is happening in this country - where occupational licensing is stifling cheap, affordable and diverse services under the guise of "consumer protection".

And, if the government is REALLY interested in protecting the consumers while not further stifling the economy and this country's labor market by preventing new small business from emerging through endless and burdensome licensing laws, the government would at the very least exempt from licensing fees not the rich charities from licensing fees, but individual applicants based on their incomes.

It is common knowledge that most small business do not survive through their first two years.  What about completely exempting new small businesses, based on income of their founders, for those first two struggling years, from any government regulation fees?

That way, food stands will still be regulated, and consumers will still be protected - but there will not be a money-based ban on the poor to start a business of selling food they cook, or selling snow-shoveling services, or selling any other services that are currently licensed to prevent entry of new providers into the market.

Where is the American dream?

How can future Bill Gates raise their businesses from a garage - or a lemonade stands - if their efforts are nipped in the bud by stifling licensing requirements?

The government should practice what it preaches.

It enacts occupational licensing laws to protect consumers - it needs to protect consumers, not to stifle the poor from developing their businesses and ability to earn a living, and certainly not to stifle those who want to help the hungry.

Preventing people from providing cheap or free food for the hungry should be a crime. 

It is certainly a sin - do the predominantly Christian people in government who enact and enforce such laws remember that?

Winter is coming, and with winter, harsh times for the poor, and for the disabled.

People will need cheap services to shovel snow, to provide shelters and to share food.

If we as taxpayers have enough money to go after lemonade stands, church stands feeding the hungry, and high school boys shoveling snow for their elderly or disabled neighbors, we certainly have the money for income-based licensing incentives to make regulation of food-related businesses both protecting consumers and not stifling small businesses, especially those operated by the poor and serving the poor.

Happy Constitution Day!

To commemorate this day, I will simply repost my earlier blog.

Because the Constitution is as alive as its enforcement.

Happy Constitution Day!

Yet another New York legislator involved in three fraudulent schemes, in two countries, two before his death, and one after...

Apparently, Dean Skelos and Sheldon Silver were not the latest New York legislators who were charged with fraud.

Meet Columbia Law School-educated New York Assemblyman William Nojay, who, as of today, is listed as "registered" by the New York State attorney registration website.

Of course, you will not be able to meet Bill Nojay any more. 

Because he is dead.

Committed suicide on the grave of his parents last week.

Just before he was about to be charged by the feds for the disappearance of $1.8 million from a trust fund "of his longtime client and friend".

I was wondering though - what was it to shoot yourself for?

The New York's 4th Department considers grand theft of client funds from a lawyer's account not to be such a big deal - just express remorse and you will be slapped on the wrist with notmore than a year's suspension.  It is not criticism of a judge, after all - then you would have been suspended for longer or disbarred.

And, even if charged, and even if convicted, like Sheldon Silver and Dean Skelos were, all courts up to the highest, will bend over backwards to invent reasons not to put you in prison and to create precedents for you to give you an opportunity to undo the conviction on appeal and to give you a gift of restitution payment plan to allow you to earn interest on the stolen funds faster than you pay the restitution for stealing those funds.

So, Bill Nojay just over-reacted over two trifles - a criminal charge for $1.8 million in the U.S. and a criminal charge for theft of $1 million in a rice-export operation in Cambodia where Nojay, together with his business partners, allegedly obtained an investment from a wealthy Cambodian and then closed down the company.

Probably, was easy to obtain the investment, too, using Nojay's credentials as a Columbia-educated lawyer and a New York State Legislator.

What can I say.

Poor guy.

Weak nerves.  He could have done so much better.

But - guess what?

Fraud related to Nojay did not even stop with his death.

The voters were not properly informed of his death, and actually voted for Nojay in the primary after his death.

And, the voters were not informed of his death when voting deliberately - so that his party could simply have a replacement of Nojay, but keep his seat and numbers in the Assembly.

See how simple fraud is in New York? 

Just get yourself into some high office - and then opportunities open to you will be limitless.

The only requirement for committing fraud in New York and escaping unscathed for a well-connected attorney is - good nerves. 

Bill Nojay did not have that.  Poor guy.

A Minnesota lawyer suspended for suing for violations of the Americans with Disabilities Act and for infringement of copyright laws

A Minnesota lawyer was recently suspended - indefinitely - for alleged vexatious litigation and frivolous conduct.

The "frivolous conduct" was suing for copyright infringement and for violation of the Americans with Disabilities Act.

I will withhold my opinion as to propriety of the suspension until the disciplinary office of Minnesota actually publishes cases which were the basis of suspension, because, first, I learnt not to believe conclusory statements in disciplinary orders against civil rights attorneys and, second, I know the tendency in this country of sanctioning civil rights attorneys for doing their jobs.   

I will continue to cover this story and will publish a fuller comment when original documents will become available.

Stay tuned.

On dangerously stupid legislative acts and judicial decisions: Arizona legitimized touching children's genitals through a statute, and then criminalized changing baby diapers by interpreting that statute

Stupid judicial decisions can cause a lot of havoc in people's lives.

Stupid judicial decisions that enforce stupid legislative decisions are no different.

Comes in the Supreme Court of the State of Arizona with a stupendously stupid decision dated September 13, 2016 which, as concerned commentators claimed, made it a crime to change a baby's diaper.

Only the mess is worse than that.

The decision makes no sense on many levels, raises questions of competency of all judges who authored the majority, as well as the concurring opinion, and throws into turmoil lives of parents and child caregivers of the entire state - thus warranting a serious review of how it came to life.

The judicial decision involved a conviction of a step-grandfather for sex crimes against an 11-year-old child, under two statutes: for child molestation and for sexual abuse.

Here are the texts of these two statutes, as quoted in the Arizona Supreme Court decision.

 

So, the first statute under which the defendant was convicted, says that "intentional or knowing sexual contact with a child under 15, except with the female breast" is a crime.

In other words - touching the breast of a young girl under 15 is NOT a crime, but touching the young child under 15 sexually in any other way IS a crime.

A strange exception - why is it ok to sexually touch the breast of a girl under 15 which can be quite developed?  Raises all kinds of questions as to the legislators who created that exception, and their "wisdom".  But, let's go on to the second statute.

The second statute of conviction is:

I double-checked the child sexual abuse statute, it was not misquoted.

It really says that it is NOT a crime to have ANY sexual contact with a child under 15 other than a female breast.

Once again - a person is convicted under TWO criminal statutes.

One statute says that you may not sexually touch anything on a child under 15 BUT her breast - that you MAY touch the breast, but nothing else.

The other statute says you may not sexually touch a child's breast, everything else you may touch.

And, a man is convicted under BOTH of those - diametrically opposite - statutes, and the highest state court affirms, claiming that it is not for the court to question "the wisdom of the legislature".

Yet, the case is a clear case for a jury nullification - for, a person may not be convicted under two statutes where one of the statutes makes a crime exactly what the other doesn't.

If the defendant inappropriately touched the child on the breast, under one statute it would not be a crime, while under the other it would.

If the defendants inappropriately touched the child anywhere other than the breast, under one statute it would not be a crime, while under the other it would.

Does it make sense?

Of course, not.

Does it look like "wisdom" of the Arizona State Legislature to issue such statutes?

Of course, not.

Yet, a man was convicted and sent to prison for 10 years under these two statutes.

But, the complete inconsistency of the two charges was not even the issue before the court.

The issue before the court was - who bears the burden of proof as to whether the touching was done with sexual intent: the prosecution or the defendant.

Both statutes have the same elements:  "knowingly or intentionally engaging in sexual contact".

By rules of statutory interpretation, as every law student is told in his 1st year criminal law class, when the attribute defining intent is positioned in the sentence before certain words, the element defines all those words.

Thus, if there is an element of the crime of "knowingly or intentionally engaging in sexual contact", the prosecution must prove that defendant knowingly or intentionally engaged in contact that is sexual.

In other words, the proof that the touching was done with sexual intent, is on the prosecution.

That's pure logic and general rules of statutory interpretation.

Not so fast, said the Arizona Supreme Court.

Instead, the Arizona Supreme Court put the burden upon the defendant, as an "affirmative defense", to DISPROVE that contact was NOT sexual in nature - thus violating the criminal defendant's constitutional right to remain silent throughout the proceedings and shifting the burden of proof from the prosecution to the defense, a clear due process violation.

The shift of the burden of proof is what worried the commentators, because, as interpreted by the Arizona Supreme Court, a person in Arizona may first be charged with a crime for ANY touching of the child - since prosecution do not have to prove that touching was made with sexual intent.

You accidentally rubbed off a child's body when walking in a crowd - you are chargeable.

You hugged a child - you are chargeable.

You are teaching the child in the gym and necessarily touched the child's body to show a move - you are chargeable.

You are changing the child's diaper or giving the child a bath - you are chargeable.

You are treating a child's wound, or doing or allowing to do a medical exam on a child (the statute has a clause "or causes the sexual contact") - you are chargeable.

The Arizona Supreme Court not only affirmed a conviction under two statutes where one statute allows what the other prohibits, but added insult to injury by making all physical education teachers, dancing teachers, parents, caregivers - instantly criminals.

Committing crimes of "touching" children every day.

Because, after the State v Holle decision in Arizona, the law in Arizona works the following way:  first, the prosecution CHARGES you for touching a child, and THEN you have to, the right to remain silent be damned, prove your innocence by trying to prove that you did not do anything with sexual intent - while at the same having to acknowledge the fact of touching the child (even though it is covered under the right to remain silent).

And, this "invention" by the Arizona Supreme Court was made in arrears, so, naturally, defendant Holle's attorneys did not know that Defendant Holle had an affirmative defense to prove what the statute indicates is an element to prove for the prosecution.

The Arizona Supreme Court, in the same decision where it created an affirmative defense in arrears, claimed that:

1) Arizona abolished all affirmative defenses;

2) Arizona legislature has to create statutes defining both criminal charges AND affirmative defense; and

3) criminal defendants must have PRIOR notice of charges and affirmative defenses.

Of course, if Arizona abolished affirmative defenses, why the Court invented an affirmative defense.

Of course, if Arisona allows only its legislators to create affirmative defenses, what is the Arizona Supreme Court doing creating one instead, while talking separation of powers and "respecting the wisdom of the legislature".

Of course, if a criminal defendant has a right of PRIOR notice (before the touching) that a certain action is criminal, and a certain aspect of the charge is only an affirmative defense - which defendant in State v Holle, of course, did not get.

So, the statutes under which charges were made were screwed up.

And, the whole legal theory was screwed up by the Arizona Supreme Court - with the only purpose of affirming a 10-year prison conviction of an elderly man for touching and kissing an 11 year old - which is not a crime under the mutually cancelling out provisions of the charging statutes.

So, what is a parent, a teacher, a doctor, a caregiver - to do after this monument to learned stupidity?

To wash your baby or just leave it screaming and covered with feces - to save themselves from a 10-year prison sentence and sex offender registration for life, with the attendant circumstances, such as a complete destruction of life, being prohibited to have a normal job, live in a normal neighborhood, vote, lead a normal life?

Of course, if you DO NOT touch your baby's genitals in cleaning her out - you will then be charged with child neglect, and your baby will be taken away from you anyway.

Judges want to be recognized for their zeal dealing with pedophiles.

Fighting pedophiles is the topic that gets people elected to high-paying positions of power.

Yet, judges are supposed to be neutral, and they are supposed to be educated in law, and they are supposed to think.

All of which is sorely missing from the decision in Arizona.

Now, as to the "heroes" who authored that decision and who unanimously concurred with the result - to affirm a conviction, while two judges dissented only as to some issues that they considered minor and not affecting the result, that the 10-year-conviction must be left intact.

Here is Judge John Pelander, the author of the opinion.

Judge Pelander not only has a law degree, but an advanced law degree, a L.L.M. in "Judicial Process".

He has a Juris Doctor degree with high distinction, was on Editorial Board of the law review, and clerked for a federal judge.

Judge Pelander is admitted and is practicing law since 1977, that is, for 39 years.

And, with all those distinctions, he cannot read what he wrote?

Here is Judge Ann A. Scott Timmer who "joined" judge Pelander in his monumentally stupid and intellectually dishonest opinion that denied elementary due process rights to the criminal defendant and plunged so many people in the State of Arizona into a havoc.

Judge Timmer is also a very distinguished legal scholar - supposedly at least, as can be judged from her biography on the court's website.

Judge Timmer is a magna cum laude law school graduate, and her honorary awards and civic activities deserve publishing them here in full.  Because, there are so many awards that it is a shame for Judge Timmer to produce a decision that a 1st year CrimLaw student would get an F for, and it is a shame for Judge Timmer to engage in so many activities that distract her from doing her direct duties as a judge properly.

Here are the awards of judge Timmer:

Note that Judge Timmer has an award in 2016 by a bar association (while the court regulates attorneys - just a little bit of a brown-nosing helps, I guess); and, in 2015, from the Arizona Association of Defense Counsel.

While Judge Timmer showed her glaring incompetence in criminal law.

And here are the activities of judge Timmer:

Note that Judge Timmer was, until 2015, a Chair of the Arizona Commission for Judicial Education and Training.  So, if the best of the best of the state judges cannot produce a decision that will get more than an F in law school, where did all legal talent go in Arizona?

The next author of the infamous decision is Judge Clint Bolick,

who also has a trail of awards and a history of public service, such as a Commissioner of the U.S. Commission on civil rights - of all places. 

The list of awards, public offices and publications does not explain the lack of elementary competence in the law displayed in the State v Holle decision produced by this judge, together with his colleagues.

And here are the two dissenters on the issues who nevertheless concurred in the result - to affirm the clearly unconstitutional conviction.

The Chief Justice Scott Bates who dissented/concurred in the result.

Judge Bates is a magna cum laude graduate of an Ivy League Law school, the Harvard Law School, a former law clerk to the U.S. Supreme Court Justice Sandra Day O'Connor, a law professor.

Judge Bates is handling attorney licensing at the state level.

Judge Bates also has many other "obligations" that obviously take so much of the judge's time that no time is left for doing his job properly, and, as part of those other obligations, Judge Bates, as a member of the Accreditation Committee of the American Bar Association, defines requirements to legal education in this entire country.

While, judging by his concurrence, he would benefit from another trip to law school, as a student.

Here is Judge Robert M. Brutinel, another dissenter/concurrer.

Judge Brutinel, together with judge Bates, completely missed that the wording of the statutes of conviction made convictions impossible and unconstitutional.

Instead, Judge Brutinel engaged in constitutional analysis of affirmative defenses, lamenting about the fate of parents and caregivers changing diapers.

Yet, out of 5 pages, single-spaced, of the dissenting/concurring opinion, Judge Brutinel and Judge Bates dedicated just ONE SINGLE SENTENCE to the actual case in front of him:

When judges of many years, practicing law for decades, having publications, teaching law, claim that shifting the burden of proof from the prosecution to the defense on one of the main element of the charged crime is a "harmless error" beyond the reasonable doubt - while looking at a case where the jury specifically asked specifically whether they need to consider the question that the prosecutor never proved,

that is not incompetence.

That is deliberate intellectual dishonesty and judicial misconduct warranting removal from office of all judges who authored this unconstitutional and shamelessly stupid decision.

Let them pursue their "service" of sitting on various boards to their hearts' desire.  At least, when they will do it after removal from the bench, these numerous activities will not interfere with their direct job duties.

On the other hand, who would want them on any boards after their removal?  But, that's a whole separate problem.

Let's see whether this case will wind up in the U.S. Supreme Court and whether the U.S. Supreme Court will consider it important enough to take it, review it and reverse it.

In the meantime, parents, caregivers, doctors and teachers in Arizona, since September 13, 2016, engage in daily felonies, and Jerry Charles Holle continues to sit in prison as a child molester based on two diametrically opposite criminal statutes and non-sensical lawmaking from the Arizona Supreme Court bench.