#ArpaioPardon and the rule of law - Part II. Charges of criminal contempt of court. Can a court constitutionally be the victim, accuser and adjudicator in the same proceeding?

Recently I posted an article about the supposedly "controversial" presidential pardon of an Arizona sheriff Joseph Arpaio, where I argued that the pardon was justified by the egregious violations of due process in the criminal proceeding.

I've seen the following interesting counter-arguments on social media in favor of legality of such proceedings and impropriety of the pardon.

The counter-argument refers to the 1994 decision of the then 83-year-old federal judge Cecil Poole, a career prosecutor before coming to the bench - NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994).

The case, the so-called "precedent" of the 9th Circuit that the 9th Circuit, probably, used in denying Arpaio's petition for a writ of mandamus ("probably" because the 9th Circuit did not provide any legal reasoning for the denial),

is astounding in its incompetence and egregious violations of the most basic concepts of criminal constitutional law - which can be attributed either to the authoring judge's advanced years, or to his background as a career prosecutor, or to his bias, or to all of the above.

At the same time, the case has striking similarities with Arpaio's proceedings - civil and criminal - and thus is worth reasoned review, especially at the background of lynching "public opinion" where commentators base their opinion on the identities, personalities and personal history of Arpaio and President Trump who pardoned him, and not on the legality of criminal proceedings against Arpaio.

So, same as in Arpaio's case, the NRLP case involved a civil proceeding and a criminal proceeding, and there was a civil contempt proceeding within the civil proceeding.

A civil contempt proceeding is civil in nature and - as the case demonstrates - the respondents were required to answer charges and provide affirmative defenses to the charge of civil contempt of court.

That is one of the major differences between a civil and a criminal contempt - in a criminal proceeding the defendant is presumed innocent and has a right to remain silent from the beginning to the end of the criminal proceeding.

But, look what happened next.

So, in a case where respondents already filed an answer, criminal charges were added.

That is why the so-called "civil contempt" proceedings should not even exist - first, because courts routinely fail to distinguish between civil and criminal contempt of court proceedings, mixing them up - see, for example, how #JudgeSusanBolton prosecuted Joe Arpaio on her own "order to show cause" in a criminal proceeding - and an "order to show cause" is an element of a CIVIL contempt of court proceedings requiring the defendant to actually waive his constitutional right to remain silent.

So, the situation in NRLB was that:

1. a plaintiff in a civil case wanted to have criminal charges brought against the defendant in the same civil case, on top of civil contempt charges that were already brought;
2. a private individual in the U.S. may not bring criminal charges against anybody;
3. bringing criminal charges against anybody is the prerogative of the EXECUTIVE branch, the prosecution;
4. since the alleged crime was committed against a federal court, federal prosecutors, the U.S. Attorney's office, was the correct authority to bring criminal charges.

My argument is backed up by the fact that criminal contempt charges were prosecuted against Joe Arpaio by the U.S. Attorney's office, as any other crime - and, as any other crime, should have been brought by the U.S. Attorney's office, too.

In Arpaio's case criminal charges were not brought by the U.S. Attorney's office, but were at least prosecuted by the U.S. Attorney's office.

In NRLB case above, a private party requested the VICTIM of the alleged contempt, the court, to file an accusatory instrument, and the VICTIM "referred the case" to a "special master" of the civil contempt proceedings, a magistrate of the U.S. District Court for the Northern District of California. Once again:

Let's note that the plaintiffs did not ask the U.S. Attorney's office to bring criminal charges, but the court, the supposed victim of the crime.

Recently, I had a situation where a criminal court in a case where my husband and I were victims of a violent crime (burglary and attempted arson), appointed a prosecutor who himself, as well as one of his assistant prosecutors, had disqualifying conflicts of interests and a personal interest to hurt us instead of protecting us as alleged victims of the crime.

I addressed the court on that issue.

The court, #JudgeGaryRosa of the Delaware County Court (NY) explained to me that I, as an alleged victim of the crime, have no say in the criminal proceeding.

Rosa then allowed the prosecutor, John Muehl,

• whose #ChiefAssistantDistrictAttorneyMichaelGetman (in the past, caught along with this judge-father in fraud against a non-profit, but never prosecuted or disciplined) was sued by my husband for fraud and fraud upon the court, and
• where the allegedly assigned "special prosecutor" John Muehl (allegedly assigned because the assignment did not list the correct address where the crime was committed) was the target of many of my blogs where I described his misconduct in other criminal cases, such as 
• the Norman Michaels case - see here and here;
• the general case-fixing by John Muehl here; and
• the Anthony Pacherille case here (the blog had 5 parts, previous parts interlinked in Part V here).

to continue handling the case where we were the alleged victims of a burglary and attempted arson - with a predictable result, the case did not reach the grand jury.

Now, if an alleged victim - and, until the verdict, any claimed victim is an alleged victim - has no say in the criminal proceedings, then that concept does not change if the alleged victim is the court itself.

Yet, in the quagmire of criminal contempt proceedings, this factor, as well as many others, are ignored - in order to allow courts to do what other alleged victims are not allowed, to bring, prosecute and adjudicate proceedings where they claim themselves to be victims.

So, the court claiming to be the victim of a crime in NRLB, "referred" now the additional CRIMINAL case to the same "special master" that was already handling the civil contempt proceedings.

That "referral" was also highly irregular, as criminal proceedings must be commenced in criminal court on charges brought by the U.S. Attorney's office and nobody else, as the court is put into an untenable position when it acts both as an accuser and an adjudicator - a position that the U.S. Supreme Court recognized in 2015 in Williams v Pennsylvania as unconstitutional.

And, of course, the 9th Circuit, an appellate court has no authority whatsoever to commence criminal proceedings, so the referral was illegal to begin with.

To add insult to injury, the "referral" was made not to a district judge who has the authority to preside over criminal proceedings, and who is appointed by the President and confirmed by the U.S. Congress to do that job, but to a "special master" who was a federal magistrate.

Of course, a federal magistrate does not have a right to try criminal cases without consent of the criminal defendant.  There is no indication in the decision of the 9th Circuit that such a consent was obtained from the criminal defendant in NRLB case.

But, what happened next is even more astounding in terms of incompetence of the magistrate, F. Steele Langford, Chief Magistrate for the Northern District of California.

Magistrate Langford acted as if he has never been to law school and never took the mandatory Criminal Law class.

Even though he appointed counsel for the criminal defendant, he also committed two egregious errors invalidating the proceedings:

1) consolidated a CIVIL and a CRIMINAL contempt proceeding - which never happens, there is no such thing in law as a consolidation of a civil and a criminal proceeding; and

2) "appointed" an interested party, attorneys for the other supposed victims in the proceedings, NRLB, to prosecute the case.

Of course, by that, Chief Magistrate Langford denied the defendant's due process right to an impartial prosecutor from the very beginning.

Then, magistrate Langford, as a court-appointed "special master", held hearings in the CONSOLIDATED civil and criminal contempt proceeding, the two proceedings which could not possibly be consolidated, for the following reasons:

	Civil contempt	Criminal contempt
Who brings the charges	A civil party	The government
What is the purpose of proceeding?	To coerce compliance with a court order by a threat of fine or incarceration	To punish incompliance with a court order
Can the contemnor “purge” his contempt?	Yes, as soon as the contemnor complies, he must be released from jail	No, no matter whether compliance comes after charges are brought, if the contemnor is convicted and sentenced, there is no automatic release from jail because of belated compliance with the court order
Does the right to remain silent apply?	No	Yes
What is the burden of proof in the proceeding?	By preponderance of the evidence	Beyond the reasonable doubt

So, proceedings were unlawful for the following reasons (at least):

1. a federal appellate court does not have original jurisdiction to hold criminal proceedings - if that is true, what court will be reviewing the appeal as of right from that criminal conviction? or, will the appellate court review the appeal from its own decision?
2. a federal appellate court does not have authority to file accusatory instruments;
3. a federal appellate court does not have authority to allow magistrates to act as trial judges in criminal proceedings without consent of a criminal defendant;
4. a federal appellate court does not have a right to act as an accuser and adjudicator in a case where it also considers itself a victim of a crime;
5. proceedings in civil and criminal contempt may not be consolidated;
6. proceedings in criminal contempt may not be allowed to be prosecuted by anybody but the U.S. Attorney's Office;
7. proceedings in criminal contempt may not be allowed to be prosecuted by an interested party;
8. criminal proceedings must end with a VERDICT, not with a "report and recommendation" to the appellate court - the "report and recommendation" part indicates that the "special master" did not have the power to render the verdict.  Nor did the appellate court, since it has no ORIGINAL jurisdiction to try criminal cases.

But, you know what happened when the defendant objected to the 9th Circuit that the magistrate did not have authority to handle her criminal proceedings?

The 9th Circuit agreed with her (in part) that it actually violated the law by:

• giving to a federal magistrate jurisdiction he did not have by statute; and

• by referring a criminal case to be tried by a magistrate without consent of defendant

But, after agreeing on that, the 9th Circuit initiated criminal contempt proceedings again, anew, and with many of the previous constitutional violations.

• The 9th Circuit still claimed the original jurisdiction to try criminal cases and sentence the defendant;
• there was still no criminal prosecutor (U.S. Attorney's office) in the picture, and
• still the court (federal appellate court) was the initiator of criminal charges, which is the exclusive prerogative of the executive branch of the government
• still the criminal case was referred to a "special master", not to a jury trial, with all the necessary preliminary criminal procedure.

Of course, the 9th Circuit explains its lawlessness in usurping original jurisdiction for criminal cases, instead of referring the case to the U.S. Attorney's Office to act at its discretion to bring or not to bring a criminal contempt charge in the proper jurisdiction - by the lawlessness of its "brothers", the 3rd and the 5th Circuits:

And here comes a great big problem - pre-judging a penalty in order to deprive a criminal defendant of a constitutional right.

Somehow, Judge Cecil Poole completely forgot (even though he has been a career prosecutor and a judge of many decades) that it is not the penalty that defines the charge, and the procedure that is required for such a charge - it is the charge itself.

Yet, the 9th Circuit's shameless decision apportioning constitutional criminal procedure based on the end result rather than designation of the charge, is EXACTLY what Judge Susan Bolton did in denying Joe Arpaio a right to a jury trial and in granting the prosecution's motion (!) for a bench trial - something that usually never happens in a criminal proceeding:

Because until now - long after Judge Bolton's conviction on a bench trial on a pretext that somehow a penalty of "no greater than six months" in prison makes the charge a misdemeanor, it is listed in Arpaio's docket as a felony:

So, based on this logic, if the government brings a felony charge against you or your loved one, but then, without even attempting to substitute the charge for a misdemeanor, argues to the court, as the prosecution did in this case, that, IF the defendant is convicted, a sentence of "no greater than six months would serve the ends of justice", suddenly the felony becomes a misdemeanor and thus the defendant is not entitled to a jury trial?

It is prosecutor-speak all right, but it is certainly not how criminal procedure works.

I wonder if they taught such nonsense in the University of Iowa School of Law where Judge Susan Bolton obtained her Juris Doctor degree - but I highly doubt that.  Had Judge Bolton said something like that on her bar exam, we would never have had the displeasure of having her license and then on the bench.

But, back to the NRLB criminal case, the "inspiration" for judge Bolton in the Arpaio's criminal case.

Judge Poole produced one more pirouette in order to do what his court had no authority to do - start a criminal proceeding.

There was one more problem there - there was a trial on the merits, the defendant was put in jeopardy of a conviction and incarceration, and double jeopardy clearly applied.

Judge Poole (the 9th Circuit) got out of that conundrum beautifully:

• first, by acknowledging that the 9th Circuit made a mistake by allowing a magistrate to try a criminal case without consent of the defendant and;
• second, completely bypassing the questions
• whether a federal appellate court has an original jurisdiction to try criminal cases, and
• whether it has a right to initiate criminal proceedings, especially those where the court is presented as the alleged victim
• the 9th Circuit claimed that BECAUSE it made a jurisdictional mistake by allowing a magistrate to conduct a nonconsensual trial in a criminal case, double jeopardy DOES NOT apply.

So, criminal law is put by an 83-year-old judge (former prosecutor) on its head where:

1. federal appellate courts now have original criminal jurisdiction;
2. constitutional procedure in a certain criminal proceedings is defined not by the status of the charge as a felony or a misdemeanor, but by the judge's consideration ahead of time as to what the penalty should be; and
3. double jeopardy will not apply if the trial court makes jurisdictional mistakes.

Beautiful.

And, while skipping the question whether an appellate court has original jurisdiction to try criminal cases, the 9th Circuit borrowed "wisdom" from the 2nd Circuit by simply changing a magistrate as a special master to a district judge:

Of course, arguably, a federal court of any level ARGUABLY has jurisdiction to try a criminal contempt proceeding:

Rule 42. Criminal Contempt

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

But, Rule 42 of Federal Criminal Procedure is the rule issued not by the U.S. Congress, but by the U.S. Supreme Court, while nothing in the U.S. Constitution allows the U.S. Congress to re-delegate the Article I power delegated to it by the people to the U.S. Supreme Court under any circumstances, and especially in situations where the court legislates about cases where the court itself is the alleged victim of a crime.

Here, the court allows itself

• to act as a victim, accuser and an adjudicator - which, as the same court said in 2015 in Williams v Pennsylvania, is a violation of due process rendering such proceedings VOID; and 
• to appoint a prosecutor other than a government prosecutor ("The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.")

Moreover, even if the government declines to prosecute the case - which ends criminal prosecution in all other criminal cases, somehow the court "must" overrule the government if the case is a crime where the court itself is a victim and appoint "another attorney", a private attorney, to prosecute the case anyway.

Beautiful.

As to the NRLB case, the special master appointed on referral of the 9th Circuit appointed the private firm that represented the alleged victims to prosecute a criminal contempt case against the alleged perpetrator, ON CONSENT from the U.S. Attorney's Office.

The 9th Circuit admitted in NRLB that it erred twice in how it handled the criminal proceedings:

Of course, it did not address the fact that it is acting as a victim, accuser and adjudicator, and that it created a rule by which defendants can routinely be stripped of their constitutional rights to a jury trial on a judge's pre-judgment of a penalty, and of their right to double jeopardy based on their own mistakes.

And, THIS decision, wrong and incompetent from the point of view of criminal procedure and constitutional law, wrong through and through, is being offered as a Gospel to be followed in Arpaio's case.

And, people are signing petitions accusing the President of the United States for wrongfully granting a pardon to rescue an "unpopular defendant" (which is an understatement of the century) from the clutches of politicized judges who would invent any rules and bend any law in order to arrive at the decision they would like.

Yet, when the public is ardently chest-thumping that the President somehow violated the "rule of law" by cutting the thread of judicial misconduct with a presidential pardon, think about this proposition: the law equally applies to everyone.

Next time anybody else is subjected to a criminal contempt proceedings, including, let's say, a contrived charge of disobedience to a completely insane court decision or because of bad blood with a judge who got a bribe to fix your case, remember petitions you signed claiming that the very same corrupt conduct of a judge - but towards a person you do not like - is somehow "the rule of law".

Oh, well.

And, as to the argument that Arpaio had to take his chances on appeal - with the 9th Circuit, the author of the wonderful NRLB opinion, which already rejected Arpaio's petition for a writ of mandamus without any legal reasoning, and by the U.S. Supreme Court that legislated the Rule 42 allowing itself and other courts to act as alleged victims, accusers and adjudicators in the same proceedings, and to appoint private prosecutors on their own behalf (whose livelihood they completely control through licensing).

Not to mention that both the 9th Circuit and SCOTUS are courts distinguished by their open and adamant lack of integrity.

Suggesting that these corrupt people somehow constitute the symbol of the "rule of law",



and that their corrupt decisions must be obeyed as Gospel requires a collective lobotomy to believe and follow.

So, contrary to claims of some prominent commentators, and uninformed, but emotionally charged comments on social media from people, who most likely never read the case and opposed the pardon simply because they think Arpaio is a racist, and that is a good enough reason why he should be held in criminal contempt of court, this particular pardon is a victory OF the rule of law, not AGAINST it.

Criminal contempt for criticism of a judge - the revival of seditious libel in the United States

There was a crime of seditious libel in the Old Country - the good old England.

Here is how its origins were described in a 1983 law review article:

It was supposedly replaced in the U.S. by the 1st Amendment, saying the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Then, the U.S. Congress delegated rule-making authority in criminal cases to the U.S. Supreme Court, and the U.S. Supreme Court produced a Rule 42, containing the following clause:

"If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."

Wait a minute - but, the U.S. Congress:

• had no authority to re-delegate to the U.S. Supreme Court its Article I legislative authority delegated to the U.S. Congress by the People of the United States;
• had no authority to make law to infringe freedom of speech, and thus could not re-delegate such a right to infringe.

And, the U.S. Supreme Court consistently rules in 1st Amendment cases that any content-based regulation of speech is subject to strict scrutiny.

But - a branch of the government, the U.S. Supreme Court, is allowed to make a rule making it a criminal contempt to criticize itself?  

And this is in the supposedly democratic United States of America in the 21st century?

So, how will we make the powerful 3rd branch, the judicial branch, accountable if judges are involved in misconduct and corruption, if:

• they gave themselves a gift of absolute immunity for malicious and corrupt acts;
• they gave themselves a gift allowing them, as alleged victims of a crime of "criminal contempt of court", to 
• initiate criminal proceedings against their critics;
• appoint prosecutors, private or public, those whose livelihood they completely and totally regulate through licensing; and 
• adjudicate such crimes?

And, note that judicial corruption is now rampant, people who raise that issue are targeted and punished, no present political candidates - President Trump included - made eradication of judicial corruption as their campaign promise, and those who do criticize judges and do make eradication of judicial corruption their campaign pledge, are being prevented from practicing law for their efforts?

In 2013, the prominent constitutional scholar Eugene Volokh condemned criminal prosecution of a pro se litigant for criticizing a judge.  Of course, in 2015, the same Eugene Volokh ducked at the opportunity to voice to the U.S. Supreme Court that professional prosecution of an attorney on the same grounds of reasonable criticism of a judge is unconstitutional - but everybody has their limits of courage, especially on a topic that may involve their own livelihood.

In view of tremendous powers of courts to take away life, liberty, property, children, ruin careers, make people destitute, people are afraid to speak out against court corruption.

Instead, we see crowds of journalists and commentators in the social media treating obviously corrupt judicial decisions as Gospel and shredding commentators who dare to raise the issue of such bias and corruption - as long as court corruption is targeting individuals that the crowds do not like.

Apparently, it is not prohibited, and it will not constitute criminal contempt to praise corrupt court decisions.

So, is the American public aware that its 1st Amendment is no more in the American courts?

That judges who swear to uphold it as the condition of taking the bench, gave themselves a carte blanche to put you in jail for exercising it - by criticizing their own misconduct?

And, where are the crowds, the petitions to fight this blatant violation of the 1st Amendment and freedom of speech?  This rule by which American federal courts gave themselves the right to prosecute people for seditious libel, for criticism of the government?

But, silencing a discussion is, as Judith Koffler, author of the law review article I interlinked above, state, is an equivalent of claiming infallibility - that the judiciary is never wrong.

And, if we punish for criticism of a judge, it means that criticizing this particular branch of the government, that undertook to police criticism against itself, is "constructive treason".

Are we still in a democracy?

Reaction of the press and the public to the presidential pardon of Joe Apraio and the farce of the criminal case U.S.A. v Arpaio. Do we need the rule of law or do we only need it for people we like?

Since election of Donald Trump, the concept of the "rule of law", and what people of this country consider and are prepared to accept as the rule of law, has undergone a radical transformation.

Judges refuse to follow their own precedents, statutory law, accepted rules of evidence and pleadings, as well as rules of standing and jurisdiction - only to find against Trump.

Public comments on social media brand "everything Trump" as bad, and anything "against Trump" as good.

Yesterday, President Trump pardoned Joe Arpaio who was convicted of a felony criminal contempt in a bench trial by U.S. District Judge Susan R. Bolton, a Bill Clinton appointee.

Because of this identity politics substituting the rule of law since Trump's election, across federal courts in the U.S., reaching up to the U.S. Supreme Court, and because of my own knowledge and experience as to how politicized (and corrupt) court proceedings operate in this country, I got interested as to, what exactly was the essence of criminal contempt proceedings against Joe Arpaio.

With that in mind, I purchased the docket report of the criminal contempt case against Joe Arpaio from Pacer.gov and reviewed relevant documents in it.

What struck me in these proceedings is the blatant bias and disregard of the applicable law, including jurisdictional and constitutional law, by the trial judge and her clear political bend and pre-judgment of the case.

For example, initially there were more defendants than just Joe Arpaio - which the docket I downloaded today did not reflect, but documents inside it did.

Somewhere during these proceedings, a motion was made to dismiss the whole case against all defendants because all events were barred by the 1-year statute of limitations.

Judge Bolton had NO CHOICE, but to apply the law and dismiss proceedings.

And, she did that - as to all defendants, but Joe Arpaio.  Here is her order of dismissal.

Here is Judge Bolton's legal analysis of the claim that criminal charges against ALL defendants are precluded by the statute of limitations:

So, based on Judge Bolton's legal analysis, criminal charges against all defendants must be dismissed.  Right?  

Here is her conclusion.

Here is the "order to show cause" that Judge Bolton decided to prosecute - as a felony, as the docket states, while dismissing all charges on the same grounds against all other defendants, and let's compare that order to show cause (Doc. 36) with the initial accusatory instrument (Doc. 1).

The problem with substituting Judge Snow's order to commence criminal proceedings against Joe Arpaio (in addition that it is not an indictment of the grand jury, which was a jurisdictional defect and a violation of the 5th Amendment) by the order of Judge Bolton, the TRIAL judge in the case, is that by prosecuting Joe Arpaio on HER OWN order and by adjudicating that case in a bench trial (over the defendant's objection), Judge Bolton put herself into the role of accuser-adjudicator - which the U.S. Supreme Court specifically prohibited in June of 2015 in Williams v Pennsylvania.

By signing the accusatory instrument, Judge Bolton clearly put herself into the position of both accuser and adjudicator.

Did Joe Arpaio's attorneys raise that issue?

No.

Did Joe Arpaio's attorneys make a motion to recuse Judge Bolton? 

No, one group of Joe Arpaio's attorneys bowed out of the case, and the group that came as a replacement lamely applied for a motion for a "change of venue" claiming that local press coverage will unduly inflame "the court" - while such arguments are usually made as to the jury pool and not a judge presiding over a bench trial.  The motion, of course, was denied by Judge Bolton.

Yet, when a criminal defendant is facing a bench trial, and the judge is as obviously biased and is pre-judging the case the way Judge Bolton did, the only possible motion is a motion to recuse.

Which, apparently, was a problem for Joe Arpaio's attorneys (Batch # 1 to make, for obvious reasons - because to make a motion to recuse may result in loss of attorney license, as it happened to this criminal defense attorney, the 1st Amendment and due process and duty to the client to make such a motion be damned.

In other words, attorneys are simply afraid to make motions to recuse for fear of losing their livelihood when the judge, and the judicial system regulating attorneys retaliate, instead, they bowed out.

Can we blame them?  I do not know.  They did have an obligation to make that motion, and should not have undertaken representation of this defendant if they were afraid to provide that representation in full, all that was required by the circumstances.  I do understand their fear, though - very much so, since I myself lost my law license for making motions to recuse a judge, and know how very real this possibility is.

So, Joe Arpaio was prosecuted for a felony without an indictment by the grand jury, as is required for felonies and "heinous crimes" by the 5th Amendment of the U.S. Constitution, but based on an order of the trial judge who conducted a bench trial over his objection, which is a DOUBLE jurisdictional violation.

And, even though Judge Bolton tried to wiggle out of the sticky issue of the statute of limitations, Joe Arpaio's attorneys, Batch # 2, kept jamming it down her throat:

• with a motion to dismiss - which Judge Bolton denied;
• with a petition for a writ of mandamus to the appellate court - that denied the petition without any legal analysis; and
• with a motion to vacate and reconsider the judgment of conviction - which Judge Bolton, again, denied.

Arpaio's attorneys from Batch # 2 showed a spectacular courage, especially in view of a very real possibility of losing their licenses if they make allegations of judicial bias and misconduct, by stating this in their motion to vacate and reconsider the judgment of conviction (interlinked above):

Wow.

These attorneys

deserve recognition for their courage.

Why wasn't Joe Arpaio given a jury trial when he was so obviously entitled to it, especially that the charge was a felony?

It is more difficult to convict with a jury - which has to be unanimous, and may very well result in a mistrial, given public support of a large portion of population of Joe Arpaio.

Was it a political decision for the judge, a Clinton appointee, to deny Joe Arpaio his lawful right to a jury trial?

I have no doubt about that.

What was going to happen to Joe Arpaio after the verdict - which the judge did not even care to pronounce in front of a defendant, but simply sent by an e-mail notification to his attorneys, in violation of existing law?

He had bleak chances on appeal, even though the law was on his side - because the 9th Circuit has already demonstrated that it does not want to interfere, when Arpaio filed a jurisdictional petition for a writ of mandamus, most likely on political grounds.

He had even bleaker chances with the U.S. Supreme Court since its review is discretionary, and it takes only 70 cases a year from over 8,000 petitions filed.

So, was President Trump justified in giving Joe Arpaio a pardon?

I do not know.

There are many enraged articles in the so-called "mainstream media" and enraged public comments on social media that President Trump defied the law in giving that pardon.

Yet,

1) he didn't, because he had authority to give the pardon; and
2) he didn't, because by giving that pardon he UNDID AN INJUSTICE, not created it - since criminal proceedings against Joe Arpaio were unlawful, unconstitutional and void on many grounds, as described above.

Was Joe Arpaio wrong in racial profiling of Latinos and holding them in inhumane conditions, which some victims called a "tent concentration camp"?  If that is true, of course, he was.

But, the criminal charge was not about that, it was about contempt of court, of a certain court decision, which also had to be proven, beyond the reasonable doubt, to be lawful - while Judge Bolton, according to pleadings of Joe Arpaio's lawyers, PRESUMED that the decision of Judge Snow that was the basis of criminal contempt, was lawful,



instead of making the U.S. Attorney's office PROVE it beyond the reasonable doubt.

The question is - do we want the rule of law in this country.

And, if we do, what do we understand by the rule of law?

Does it mean politically correct judicial decisions that pander to the views of whoever shouts louder and has more "presence" in the press and social media?

Or does it mean meticulously following the U.S. Constitution, the federal law, the precedents not inconsistent with the U.S. Constitution and written federal laws, including the rules of evidence - irrespective of the identity of the defendant?

I saw on social media that any attempt to make a reasonable comment about Arpaio's criminal case which does not agree that President Trump is a vile "Agent Orange" and a racist who pardoned a racist - but that the president vacated by pardon an already void criminal proceeding, which was made void by the presiding judge who screwed the criminal justice process at every turn - meets with allegations of racism against the commentator.

Yet, if we want the true rule of law in this country, if we want people to respect the law because it is based on that rule of law, and not on the rule of men (and women), which is what decisions in Judge Bolton's courts appear to be, then we cannot do what Judge Bolton did in criminal proceedings - break the law at every turn in order to arrive at a decision which she most certainly politically coveted.

The rule of law is blind as to identity of the defendant.

It has to be followed no matter what.

It was not followed in Joe Arpaio's case.

Had it been followed - by the U.S. Attorney's office and by the judge - the President may not have felt so compelled to undo the injustice of a criminal conviction in a proceedings which were thoroughly fixed.

I know that both the names of President Trump and of Joe Arpaio are red rags for many people, and their blind rage blocks them from even considering that a criminal conviction is only lawful when criminal procedure was followed in full to obtain it.

But, the rule of the crowd never equaled the rule of law.

Florida 3rd CIrcuit Court of Appeals Judges Ivan F. Fernandez,Thomas Logue and Edwin A. Scales, III - we cannot disqualify our longtime personal friend, no way

I wrote on this blog about impropriety of attorneys and court employees listed as Facebook friends of judges in whose court they appear, land implications as to the judge's impartiality in giving such attorneys lucrative assignments, ruling in their favor, or assigning certain FB friends-stenographers who may then conveniently fix court transcripts for the chance of their employment security.

Specifically, I wrote about Facebook friends of the law clerk of Judge Kevin Dowd, of the Chenango County Supreme Court (who has made her friend list private after I ran the blog) and of the Albany County Family Court judge Sue Kushner.

The problem exists not only in New York, I guess, and many people are complaining.

In Florida, the judiciary decided to deal with the problem the usual way - declare that black is white, with the belief that such a declaration will take care of the problem.

Here is the full decision of the Florida 3rd District Court of Appeal on the subject of a judge's Facebook friends that, as the court decided, did not mandate the judge's recusal from the cases where those Facebook friends appeared in front of him as attorneys of record.

The decision has such interesting details that it is definitely worth deciphering.

First of all, the FB friend in question was not simply a Facebook friend of the judge, but was also a former judge himself, clearly suggesting that the attorney and the judge are former colleagues:

#IsraelReyes

was not simply a Facebook friend of the "trial judge" that the decision is, conspicuously, too shy to name.

He also advertises himself as having been a judge for 30 years, and having been a Circuit Court Judge of the Eleventh Judicial Circuit of Florida, appointed by former Governor Jeb Bush, for 8 years, from August 14, 2003 to his retirement on May 22, 2011.

Yet, the petition clearly identifies the unnamed "trial judge" of the court order, as 11th Circuit Court Judge Beatrice Butchko.

Here is Judge Butchko's biography posted on her official website:

Judge Butchko reports that she has been an "Assistant State Attorney, Miami-Dade County, for the years 1989-2000.

Retired Judge (now private attorney appearing in front of Judge Butchko and Judge Butchko's Facebook friend) Israel Reyes reports that 

"[f]rom 1980 until 1995, he was a police officer/detective with the Miami-Dade Police Department where (during various times) he worked in the Homicide Bureau, Media Relations Section, and Special Investigations Division’s Criminal Conspiracy and Racketeering Squads.  He served in the Organized Crime Bureau (where he was one of the principal investigators in the San Pedro corruption case); U.S. Secret Service Task Force; Police Applicant Background Investigation Unit; Firearms Training Section; and Uniform Patrol Division, earning numerous commendations and awards including the Employee Excellent Award."

So, from 1989 to 1995, for 6 years, Judge Butchko was a prosecutor and attorney (and former judge) Reyes was a police officer in the same county.

For 15 years they were most likely not just close, but joined at the hip, as Detective Reyes' performance on the stand as a police witness had to seal convictions and promotions for prosecutor Butchko.

That's one reason why her name was not mentioned in the decision - because in the decision judges pretended to "look the other way" and not see the conflict of interest that was SCREAMING at them.

Even if we do a collective lobotomy and even theoretically presume that a judge will not rule for a fellow judge,

even if that fellow judge is now a retired judge,

the fact the judge was a colleague of attorney Reyes in a pair of prosecutor/detective for 6 years, which working relationship was so successful that they both became judges soon after, that these two were in a close working relationship and their mutual careers depended on each other's performance for 6 years, and that she was Judge Reyes' colleague on the 11th Circuit Court for 5 years, from 2006 when she was appointed to 2011 when he retired - those lumps of evidence could be overlooked only willingly.

In its decision, the court took an extremely narrow position, reviewing only this issue:

and disregarding the actual history of working relationship that accompanied the "Facebook friendship" of these two.

What the court also completely forgot is the sense of propriety.

The court cited prudential considerations in a situation where a constitutional right to an impartial judicial review was involved and the convenience of the court administration was irrelevant:

The court hypocritically decided that when a judge and an attorney are Facebook friends, in an of itself, that is not a reason for disqualification of the judge

For these three reasons:

1) Because, supposedly, "some people have thousands of Facebook 'friends'"

The court did identify #JudgeBeatriceButchko in the decision and did not consider how many FB friends she actually had.

I was unable to locate Judge Beatrice Butchko's profile on Facebook, so it is likely that she has hidden or deleted her profile, and made her list of FB friends private - which begs a question, why?  If she did not do anything wrong?

2) Because, supposedly, "Facebook members often cannot recall every person they have accepted as 'friends' or who have accepted them as 'friends'" - which certainly was not the case here, and the court did not even go into verification whether Judge Butchko was aware that she accepted her former colleague of 11 years in two different jobs and an attorney appearing in a contested case as a Facebook friend:

3) Because, supposedly, some people may accept some Facebook friend on the basis of data-mining suggestions by Facebook itself - while that was certainly not the case here, and the court did not trouble itself to verify whether there outlandish proposition that former Detective Reyes and former Judge Reyes ended up on Judge Butchko's Facebook friend list as a result of Facebook's own data-mining.

So, because of these three SPECULATIONS, the court disregarded the ACTUAL appearance of impropriety in the ACTUAL relationship of the judge with her ACTUAL twice-colleague of 11 years.

Nice job, Florida's 3rd District Court of Appeals,

• #JudgeIvanFFERNANDEZ, a former police officer who likely worked with both prosecutor Butchko and Detective Reyes during his career as a police officer and who could not pass up the chance of helping "his own"; 

• #JudgeThomasLOGUE, former assistant County Attorney for Miami-Dade County from 1982 to 2012 who worked with Judge Butchko for 11 years and with attorney and former Judge Reyes (when he was a Police Detective in his county, obviously working in close contact with him, for 13 years from 1982 to 1995);

• #JudgeEdwinASCALESIII, member of a Commission on Ethics, member of a Judicial Nominating Committee, representative of the Florida Judiciary in the Florida Bar Foundation Board of Directors, etc, etc.

So, the absolute majority of this appellate "panel", 2 out of 3 judges that decided a case about judicial disqualification of Judge Butchko from a case where attorney (and former detective, and former judge Reyes appeared as an attorney of record) ACTUALLY WORKED side by side with both Judge Butchko and Attorney Reyes - Judge Fernandez as a police detective himself, and Judge Logue as a prosecutor), and the third, the paragon of ethics, Judge Scales The Third (no pun intended) went along with the two crooks.

These two judges, Fernandez and Logue, were themselves disqualified from this case since they had ACTUAL knowledge as witnesses contrary to what they were speculating about.  They could be called as witnesses in an evidentiary hearing about this particular recusal - and most certainly could not preside over this decision.

And, of course, how can they possibly hurt the feelings of Judge Butchko, a longtime former colleague of their youth, a beautiful woman and a Secretary of the Florida Conference of Circuit Judges?

Is expecting any kind of elementary honesty from the judiciary a foregone conclusion?

How do they say it - you scratch my back and I scratch yours?