"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, July 15, 2014

The elevated duty of appellate courts at the time of trial courts' self-forgiveness

With increased caseloads in courts, on the one hand, and cut budgets, on the other, it is no surprise that many court cases are decided in a rush.

While every litigant is (theoretically) entitled to due process of law, diligent review of his or her case, application of the law and the law only, and not of judicial whims, any attorney or party who has ever went through New York court system knows that what the judicial system actually delivers and what it is expected to deliver are two different things.

Time and again I was told as an attorney, during off-the-record conferences, of course, that my client "had better settle, or else".  Sometimes we settled, sometimes we didn't, but the incentive and the fear put into litigants by judges, and unnecessarily put, is real.  I do not believe a judge even has a right to threaten harsher determinations against a litigant if the litigant refuses to settle.

"Or else" meant the so-called "exercise of discretion" in such a way that my client will lose more than he or she could afford to lose.

This way innocent people are coerced into guilty pleas, parents who did not neglect their children are coerced into saying they did, and agreeing to years of abusive and humiliating "supervision" by social services...

And that was happening because the judge, who was not supposed to prejudge the case before all evidence was in, "theorized" that in the event that my client is convicted/ found liable for child neglect, the judge will then convict him for a longer number of years, as opposed to probation and being free, or, in the case of child neglect, a person's child will be kept in foster care longer and will likely be adopted out while the parent is appealing the case and spending his last penny on the appeal.

Moreover, there are a number of trial court judges in front of whom I appeared who view their discretion so broadly as to encompass open disregard of the law and the record.

Their remedy for litigants whose rights judges blatantly violate by openly not following the written law, the case law or the record of the case - "take it up" (appeal).

Of course, what was pled (settled), cannot be appealed - but that is the risk litigants take when settling.

If they do not settle, not many of litigants appeal adverse court decisions - usually because (1) an appeal is prohibitively expensive;  (2) overwhelming majority of appeals are affirmed.

Because of a cavalier attitude of the lower court to disregard applicable law and contents of the record, and because of the high costs of appeals involved, I believe that the appellate courts owe litigants an elevated duty of care - which must have some mechanisms of enforcement.

Instead, appellate judges in New York do not even sign their decisions, a clerk of the court does, and there is no assurance that the judges even decided those cases instead of allowing law students/ interns/ law clerks to do that for them, as quickly as possible, and with a directive to affirm as many cases as possible, even if that means further misrepresentation of the record and further disregard of the law.

I believe that new legislation should be in order imposing a higher responsibility upon appellate judges, higher requirements to their qualifications, requirements to their presence and holding offices where the appellate courts are located, and providing for enforceable and transparent public discipline if the appellate courts, the last hope for many litigants to resolve their cases, blatantly disregard their duties and rule as if they never read the case - which happens often, as any appellate attorney knows...

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