Williams v Pennsylvania, "officer of the court" status and invalidation of ALL criminal convictions in the United States

In 2016, the U.S. Supreme Court, through Williams v Pennsylvania, said that a judge cannot be at the same time an "accuser" and an "adjudicator".

So, judge and prosecutor cannot be ONE.

In other words, judge cannot be prosecutor, and prosecutor cannot be judge (part of adjudicating court).

But, every prosecutor is a sworn "officer of the court".

And, attorney disciplinary prosecutors are also deemed an "arm of the court" - see the saga of how I sought a FOIL request from such a disciplinary prosecutor who kept claiming she was part of the court, here and here.

So, if a judge is the court, and the prosecutor is the court (officer of the court), the judge = prosecutor, and prosecutor = judge in EVERY criminal case.

Now, every criminal case in the United States, due to this "officer of the court" requirement for all prosecutors, has been invalidated by Williams v Pennsylvania, including the death penalty cases which are scheduled for execution?  Including those where people were already executed?

The concept of officers of the court and the right to practice law

No attorney in the U.S. is allowed to practice law without first being sworn in as an "officer of the court".

Yet, all State Constitutions prohibit judges - "officers of the court" - to practice law.

So, the practice of law is conditioned in the U.S. upon joining a class of people who, by State Constitutions, are prohibited to practice law.

And, the rule for lawyers to be "officers of the court" (who are not allowed to practice law) in order to be able to practice law was concocted by lawyers themselves, who are the best experts in the practice of law.

Mamma mia. 

Pennsylvania leads in deregulation of the legal profession - again

First, it suspended Attorney General Kathleen Kane's law license, but Kathleen Kane remained the head of the Attorney General's office.

Then, Philadelphia District Attorney Self Williams agreed to temporary suspension of his law license, but will continue to head his prosecutorial office.

Somehow, in real life, in real time, one case after the next, law licenses become disjointed from law practice - or whatever it is lawyers are doing in their jobs.

The road to the demise of attorney regulation continues...

Impugning integrity or competence of a judge is bad or constitutionally protected? And, if attorneys waived that constitutional protection, does it mean that the declared purpose of attorney regulation (protection of consumers) is fake?

43 years ago, the U.S. Supreme Court has announced in Gertz v Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) that:

"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."                                     

3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).

In Rinaldi, New York top court (NY Court of Appeals) rejected the idea that an investigative journalist writing about judges in the criminal justice system of the State of New York could be sued for libel for saying, among other things that "the plaintiff was and is a corrupt, venal, biased, incompetent and unqualified justice of the Supreme Court of the State of New York who should be removed from office", and that "plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures."

So, impugning integrity or competence of a judge in New York, calling a judge corrupt, incompetent, and who should be taken off the bench is not actionable, because it is an opinion, and an opinion, no matter how wrong, cannot be sued upon (according to the top court of the State of New York), and, there does not exist anything such as a "false opinion", according to the U.S. Supreme Court in Gertz above.

Yet, rules of professional conduct for attorneys, in New York and in all other jurisdictions, continue to contain a rule prohibiting to make "false statements" about competence or integrity of a judge.

But, competence or integrity is what is called by scientists not "falsifiable" concepts (you say "black" about a white object - sheet of paper, dog, cat, sheep, dove, you falsified FACTS, you said that the judge is not competent or not honest - there is no way to measure his competence or honesty without involving subjective opinions, and thus, the concepts of competence and integrity are not falsifiable and cannot be false).

So, statements about competence or integrity of judges cannot possibly be false - because competence and integrity are non-falsifiable concepts.

Those statements are opinions.

 And, as opinions, they are not actionable in New York.

And, as opinions, they are subject to the protection of the 1st Amendment to the U.S. Constitution, as there is no such thing as a false opinion - according to the U.S. Supreme Court in Gertz above.

So, why such an unconstitutional rule still exists and is enforced not only in New York but across the United States against attorneys?

Well, as to attorneys, there suddenly emerges the doctrine of waiver - that attorneys waive their constitutional rights, including their right to free speech about judges under the 1st Amendment, and attorneys supposedly waive those rights "in exchange for" the "benefit" of the "special status" of being "members of the bar".

Of course, waivers of constitutional rights should be voluntary, knowing and intelligent, and in writing.  Thus, the claim that attorney waive any constitutional right simply be accepting a state license to practice law, has no merit.

It has even less merit when we consider a strong of cases decided by the U.S. Supreme Court clearly saying that government may not regulate speech (a constitutional right under the 1st Amendment) by giving or withholding a state benefit (a law license):

1. Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
2. Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.  This would allow the government to 'produce a resuslt which it could not command directly'";
3. Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) -  government may not condition a benefit to a person on forfeiture of a constitutional right.

So, the claims that attorneys somehow "implicitly" waive their constitutional rights, especially the right to free speech - when speech is their working tool - are nonsense from all points of view.

In reality, being "members of the bar" is a euphemism of having a license to work as a lawyer from the government, which is part of the general scheme of occupational regulation by states and the federal government.

And, regulation of professions by states is done only for the declared purpose of benefits for the consumer, for protection of the consumer.

Lawyers - when cornered - ardently claim that they are not in there for the money only.

For example, in the case People ex rel Karlin v Culkin, 248 N.Y. 465, 4710-471, 162 N.E. 487, 489 (1928) the famous (or, rather in-famous) judge Cardozo, stated: "Membership in the bar is a privilege burdened with conditions. ... The appellant was received into that ancient fellowship for something more than private gain."

So, suddenly state licensing of attorneys is the equivalent of "receiving [the attorney] into an ancient fellowship" as a matter of "privilege burdened with conditions", and the privilege is so beneficial for attorneys that they are deemed to have implicitly waived their constitutional rights while entering that "ancient fellowship" (guild, right?).

Well, guilds existed NOT for the benefit of consumers.  They existed as closed societies to obtain benefits from rulers in exchange of bribes and other benefits provided directly to rulers.  And, the "ancient fellowships" of lawyers existed specifically as guilds, which, again, had no goal of benefiting the consumer, only themselves.

Of course, in a California decision, which is (like the Cardozo's decision in New York) is used as the basis of definition of the practice of law (because no clear definition exists of what it is that states license and prosecute so vigorously for practicing without a license), the judge calls treating the legal profession as a business as "sordid" - when discussing that lawyers cannot come together into corporations and work for corporations (something that, 95 years down the road, is happening without any problem):

""The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence.

It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client.

There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant.

The corporation would control the litigation, the money earned would belong to the corporation and the attorney would be responsible to the corporation only.

His master would not be the client but the corporation, conducted it may be wholly by laymen, organized simply to make money and not to aid in the administration of justice which is the highest function of an attorney and counselor at law.

The corporation might not have a lawyer among its stockholders, directors or officers.

Its members might be without character, learning or standing.

There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders.

The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state."

Of course, the U.S. Court of Appeals for the 2nd Circuit has, this month, messed up this honorable crap (oops, talk) some more, by stating that somehow

• ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer),  BUT
• a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)

So, membership in the legal profession is:

• an equivalent of a privileged membership in an "ancient fellowship" (=guild) (Cardozo, New York);
• not meant only for financial gain (Cardozo, New York, and Judge Richards in California in 1922, but see the 2nd Circuit saying, as of March 22, 2017, 8 days ago, that it really depends, a private attorney, even a private civil rights attorney is only there for the money); and
• that, somehow, "an attorney's voluntary entrance to the bar acts as a voluntary waiver of the right to criticize the judiciary".

But, people only waive certain rights in exchange for benefits FOR THEMSELVES.

When we talk of constitutional rights, there must be tremendous benefits for an attorney attained by membership in the state bar (= receiving a state law license) in order to waive (or "implicitly waive") their 1st Amendment rights and to shut up for a lifetime.

By arguing the concept of WAIVER of constitutional rights to criticize judges - something that is allowed, and is constitutionally protected for anybody else, as cases with which this blog article started, demonstrate - as a condition to receive the privilege of "entering ... the ancient fellowship" (Cardozo), the judiciary (licensing agency for attorneys) acknowledges that it is the ATTORNEYS, and not the CONSUMERS (whose protection is claimed to be the whole reason for existence for attorney regulation in the U.S.) who receive benefits under the attorney regulation scheme.

Courts lied again?

What a surprise...

Federal judge Edwin Kosik found alive - but questions arise now about his performance

I ran a blog yesterday about a federal judge missing who rejected the plea of Marc Ciavarella, the Kids-for-Cash judge in Pennsylvania, and who has sentenced Ciavarella for 28 years in a regular (not "country club" in Florida) federal prison.

The yesterday's press reports indicated that the 91-year-old Judge Edwin Kosik stopped hearing cases because he was recovering from rib fractures he suffered at home.  Putting those things together, I asked whether investigators are taking these issues seriously and considering foul play, both in Judge Kosik's alleged fall at home with rib fractures, and his disappearance.

Today, the media reported that Judge Kosik was located in the woods outside Scranton, PA, within 100 yards of his car, that he was taken to a hospital and that it is hoped that he will make a full recovery.

While I am happy that a 91-year-old man did not freeze or starve to death in the woods, what was reported next was disturbing.

There is a significant gap in this reporting.

The judge stopped hearing cases only last month, but he is taking medication for memory loss for how long?  And why is his taking of memory loss medication not reported to the public, parties and attorneys, so that they at least have a chance to make a motion to disqualify?

Privacy of a judge?

We all have a right to know whether our President has health issues while holding his finger on the big red nuclear button.

Yet, we do not get to know about health issues of a judge who holds his finger on the big red button of our lives?

Come on.

The man appeared to be functional enough to drive a car without crashing it, but demented enough not to know where he is - so, he only "stopped hearing cases" last month?  How many cases did he botch over time?

I bet he botched a lot, otherwise why would the court system lie in initially telling reporters that Judge Kosik stopped hearing cases last month not because of dementia, but because he made a conscious decision to stop hearing cases because he was recovering from a physical injury (rib fracture) from a fall at home?

That lie had to be authorized by the Chief Judge of that federal district court Christopher C. Conner, and that lie had to be issued in order to try to do damage control because Chief Judge Conner had to know that Judge Kosik was, probably, TOLD to stop hearing cases because of his dementia issues.

Yet, even when it was outed that the judge was "out there", and not only in the woods near Scranton, the court system was still trying to do some damage control and pretend that the judge had all his wits around when found.

First, it was not the local police, but the federal court marshall who has found the judge - even though it was the job of the local police to do it.

Apparently, the court system was very concerned as to who will find the judge first and what the judge would tell to that person, and how it will be reported.

So, it was one of the court's own employees to see the judge first when he was found - I wonder how it happened that a U.S. Marshall from the judge's own courthouse was on the scene quicker than the police.

And look what that U.S. Marshall reported about the judge's reaction to seeing him.

Here is a man off medication for a long time, out in the woods in freezing weather, not contacting his family, and having his family launch a police search for him.

Yet, being found "conscious", the first thing he says to his rescuer is that the rescuer has cut his hair?  While that indicates some memory retention about basic things - how people looked, that kind of memory level does not mean that the judge was lucid, or at least, lucid enough to be on the bench until last month.

Once again, our Legislative representative in the U.S. Congress MUST finally pass the much-needed and much-overdue law REQUIRING federal judge to report their disabilities and medications and REQUIRING them to step down if asked on motions to disqualify based on such medical reports.

Otherwise, right now people whose cases Judge Kosik decided - for how long? - are left in limbo as to whether he was entirely lucid when he was making his determinations.

And we, the taxpayers, may have to pay for retrials, or, if such retrials are denied, will be left with a bitter taste that the federal court has cheated us - and litigants involved - out of justice and out of their proper performance.

And, the question remains.  How many MORE demented and mentally unstable judges remain on the bench while courts are bent on concealing this information until situation gets so bad that the judge has to be let go - and even then the courts would like, as they did in Judge Kosik's case, about reasons why he was let go, in order to not allow the judge's decisions to be vacated because of his mental disability?

Quite like it happened with Chief Judge Solomon Watchler in New York (a convicted felon who was disbarred, but is now restored as a lawyer and is a "distinguished" law professor in the Touro Law Center in New York) where judge Wachtler is commended by the New York Court system for defrauding federal courts and playing yo-yo with his mental health issue with the federal prosecutors and the federal sentencing judge when he was charged, and later convicted, for extortion and intimidation of a woman - claiming he was mentally ill before and after the plea bargain, but claiming he is absolutely healthy for the purposes of the plea bargain, and doing it specifically because he did not want lawyers and parties to be massively filing motions to vacate decisions made by a mentally unstable judge.

No honor in such behavior.

An awful waste of money.

And, such secretive and dishonest behavior, both of former Chief Judge Wachtler of New York State court system, and of Chief Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania, or of Judge Edwin Kosik and his family, does not inspire much respect to the justice system, including federal courts.

So now, with any decision coming from federal courts, especially from an elderly judge, we need to think - how demented this judge is?  Did he or she take his medication on time?  Does medication work?

This is a lot of speculation we do not need as a nation.

We need transparency.

We need the truth.

We need our public servant to properly do their work, and to properly disclose to us when they cannot do that work because of their disability.

It is not too much to ask.

PA Supreme Court agreed to hear, in April of 2017, whether suspended or disbarred attorneys should be singled out into a special class for whom it will be UPL to do what people can do without any law license

On March 22, 2017, Supreme Court of the State of Pennsylvania denied reinstatement to civil rights attorney Andrew Ostrowski based on, among other things, his criticism of judges, the fact that he organized a "civil rights network", engaged in advocacy (not practice of law) for certain causes, the main cause being court reform and the fight against judicial corruption, because, having been deprived of opportunity to earn a living, attorney Ostrowski has debts that he cannot start to pay as he has no income, and based on claims that he practiced law during suspension period - even though his supposed "practice of law" was representing clients in front of the Pennsylvania State Unemployment Compensation Board, where representation, by state Statute, is not deemed the practice of law.

The legal community found nothing better than to laugh about it.

The self-righteous Unemployment Compensation Board, irate by being overruled by the Court of the Commonwealth because the court indicated that the UCB improperly deprived Andy Ostrowski's client of a "representative" (not attorney) of his choice despite clear law stating that representation before that board does not constitute the rule of law, the UCB now wants the Pennsylvania Supreme Court to single out suspended and disbarred attorneys into a "special class", and to prohibit to this class more than is prohibited to people who were never licensed to practice law.

Of course, where the statute is clear that representation in front of Unemployment Compensation Board is not practice of law, there is nothing to "mull over".

Rules of statutory construction are clear - a court does not have authority to "interpret", or, rather, change through interpretation, clear statutory text, it is the prerogative only of legislature.

What constitutes contempt of court, and unauthorized practice of law, are both criminal statutes and must also be clearly defined by the Legislature, not by courts on an "ad hoc" basis, specifically because two suspended civil rights attorneys dared not to just go broke, but to try to earn a living helping people by doing what was not the practice of law, by statute.

So, the corrupt Supreme Court of the State of Pennsylvania that refuses to discipline corrupt judges (including the Kids-for-Cash judge Marc Ciavarella, until the feds indicted him and had him convicted and sentenced to 28 years in prison), that allows judges who were former prosecutors on the same case to decide appeals, who allows judges who are subject of investigation to suspend attorney licenses of their own investigators, like it was with Judge Eakin to PA former AG Kathleen Kane - now refused reinstatement of yet another civil rights attorney, and is claiming that it is because he stood his ground in criticism of three judges, and because he provided legal services (which are not legal services in Pennsylvania by statutory law and the court's own precedent).

And, that court magnanimously "agreed to review" the question whether it will violate the statutory law of the State of Pennsylvania, after all (while the court had no right to do that, as it would constitute legislative amendment, for which the court has no authority), and single out suspended or disbarred attorneys into a class from which the public must be specifically protected - so, even certain ways to earn a living is allowed to everybody else (including to convicted felons, including to felons convicted for fraud or theft or any other crimes of "moral turpitude"), it would not be allowed to suspended or disbarred attorneys.

I raised this specific issue, of unequal treatment of suspended attorneys and never-licensed individuals in prohibitions for earning a living, in 2013 in the U.S. .District Court for the Northern District of New York, on behalf of my husband - the case name is Neroni v Zayas.  The court rejected the equal protection challenge as baseless, claiming such discrimination does not exist.

In 2015, though, New York decided the case regarding attorney Joel Brandes, and recently the New York State Court of Appeals affirmed denial of reinstatement of a disbarred attorney because he allegedly engaged in the practice of law (paralegal services) while to anybody else in New York engaging in paralegal services is not the practice of law.

In January of 2017, the Appellate Division 3rd Judicial Department in New York eagerly jumped on the bandwagon, declaring, in response to a motion of suspended attorney Gaspar Castillo, that 21 activities (not all of them listed in the decision, but I have just sent in money for the records to obtain the full list) as practice of law if done by a suspended attorney, even though the same activities are not practice of law for unlicensed individuals.

South Carolina and many other states prohibit attorneys to work as paralegals or even legal secretaries or investigators, activities which are allowed to individuals who have no law licenses: "A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34."

So, Pennsylvania is not unique in discriminating against suspended or disbarred attorneys and making sure they go broke and cannot maintain a living (by the way, being broke was also one of the reasons why attorney Ostrowski was denied reinstatement - because, being deprived of a right to earn a living, he, naturally, could not pay his debts).

Yet, one thing is very clear - the court system, the supposedly "honorable" court system where each and every judge took an oath of office to be faithful to the U.S. Constitution would rather break that oath, legislate from the bench as to the meaning of Unauthorized Practice of Law statute to be completely different depending on who the defendant is (which is a violation of due process, separation of powers principle, ex post facto laws and bill of attainder clause, to name a few), than allow a civil rights attorney who criticized judges back to practice law.

The system is not protecting the public from civil rights attorneys.

The system is protecting itself from criticism.

The federal judge who rejected a plea of Kids-for-Cash judge and sent him to prison for 28 years is missing

The 91-year-old federal #judgeEdwinKosik, the judge who rejected as insincere the plea bargain of the Kids-for-Cash judge Mark Ciavarella and who has sent him to a federal prison that is not a country club like the other judge (who did plead guilty) got (in Florida), is now missing.

First, he sustained rib fractures, allegedly in a fall at his home, and stopped hearing cases.

Then, he is now missing.

I wonder whether the authorities are taking Judge Kosik's disappearance seriously enough and whether the possibility of foul play is considered.

After all, not many judges, as it was admitted in a recent article, go to jail even if they are convicted of crimes, and there was plenty of reasons for revenge against Judge Kosik in establishing a precedent that a judge not only was convicted for felonies, not only his plea was rejected as insincere, but that he was sent to a general prison for 28 years.