THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Friday, August 22, 2014
Yet another Pennsylvania judge convicted of corruption - but not disbarred and not sent to prison. Why such leniency to a "member of the pack"?
That culture perpetuates the court system where any type of misconduct is met with unapologetic "so what" - and, more than that, sanctions against whistleblowers by the culprit judge and by federal judges, if the victim goes to federal court to seek any kind of remedies, not even necessarily monetary remedies against the culprit judge. Federal courts refuse to even pronounce (declare) that another judge violated the victim's constitutional rights - and instead often award against the victim attorney's fees of the wrongdoing judge, to deter the victim from further trying to vindicate his or her constitutional rights through a civil rights action.
The absolute judicial immunity for malicious and corrupt acts for judges exists in the United States for less than 40 years.
Yet, during this period of time, several generations of judges - and their family members - grew up knowing that they are absolutely immune for corrupt acts - and who will prosecute them?
In the atmosphere where judges are rarely disciplined, and even more rarely prosecuted for corrupt acts on or around the bench (including their election campaigns), judges, as well as their relatives and friends may feel that donning a black robe protects them completely from any reach of the law.
Fortunately, that was proven wrong in Pennsylvania.
The state, obviously, started a crackdown on courtroom corruption. After all, Pennsylvania is the "home state" of the despicable "kids for cash" scandal where two judges were trading illegally obtained sentences of juveniles for kickbacks from private owners of the juvenile detention facility which the judges were filling, for a hefty fee.
Unfortunately, these judges escaped civil liability based on the concept of "absolute judicial immunity for malicious and corrupt acts". The quote on top of this blog about the Ciavarella case spells it all out. The judge-created law that has nothing to do with the U.S. Constitution that every judge is sworn in to protect when he or she dons the black robe operates this way: the moment you say the words of the oath of office and pledge to protect the U.S. Constitution, the very next moment you can break that oath and violate that same U.S. Constitution - and you will be immune of your malicious and corrupt acts.
This warped logic bred many a judicial monster, and only a few of them get caught, disciplined and prosecuted.
Judge Joan Orie Melvin is known as a plaintiff in a lawsuit Melvin v. Doe, where she sued to uncover identity of an anonymous employee who claimed the judge committed misconduct by trying to orchestrate who is going to take a judicial vacancy by lobbying the state governor.
Judge Melvin lost on that lawsuit (fortunately for the county employee) on 1st Amendment grounds. One can only imagine what would have happened had the "employee" been an attorney and had the judge won her lawsuit. Obviously, retaliation would have followed, otherwise why would a judge even seek to reveal identity of a blogger.
Recently, Judge Melvin was convicted, along with her two sisters, one of them a state Senator, of various crimes connected with using legislative and judicial staff in political campaigns.
Of course, the Orie sisters vigorously claimed that the family of the District Attorney who prosecuted him has a financial interest in expansion of legalized gampling in Pennsylvania, while the sisters allegedly took a strong stand against that, and thus the criminal prosecution by Mr. Zappala, according to the sisters, was politically (if not financially) motivated.
It appears that, unless large financial interests are involved among "powers that be", misconduct of public officials does not see the light of day and is not addressed.
But - here is the worst part.
The sentence that the judge was given (and sentences are meted out by judges, not by juries) is, let's say, mickey-mouse, as compared to what a "Joe the plumber" would have gotten for much less. Judge Melvin got 3 years of house arrest, probation, $20,000.00 in fines and to write letters of apology.
It is arguable not a big deal for a prominent family counting doctors and 5 lawyers, to come together and pay the fine.
Yet, nobody actually required Judge Melvin to do hard time in prison and be subjected to the same indignities other felons are subjected to. And why the leniency? Because she was a judge and the sentencing judge felt sorry for her as a "member of the pack"?
Yet, the PA public records show that Judge Melvin's law license was only "suspended", on a request to suspend her license "temporarily". So, the disciplinary board did not request Judge Melvin's disbarment. What she did was not enough to warrant disbarment?
Yet, when a PA attorney Wrona claimed that a judge suborned perjury (a political claim fully protected by the 1st Amendment), that somehow warrant a disbarment in the same state?
I wrote recently about yet another judge who simply had sex with a witness in his chambers, repeatedly, and, in text messages, consulted with his paramour as to what kind of punishment to mete out in a criminal case against her husband.
The State of Michigan took him off the bench, but allowed him to continue to have a law license, and he is listed in the Michigan State bar as a "member in good standing".
I wrote here about two sons-of-judges and two retired judges in New York (ret. judge Robert Harlem, his son Richard Harlem, ret. judge Frank Getman, his son Michael Getman, all of Oneonta, NY) who were not disciplined at all, even though they got investigated by the New York State Attorney General for fraud.
Judge Harlem was actually investigated for actions very similar to what Judge Melvin in PA was convicted - using court personnel for personal gain, even though not in a political campaign, "only" to help the sitting judge illegally practice law while on the bench, see my blogpost on this subject, here, see some of my blogposts about misconduct of other politically connected attorneys here and here.
I wrote about a judge who used a county employee, who was also a personal friend and a party in an action from which he only recently recused without any disclosures, after rendering decisions favorable for that employee, to lie for him in his political campaign flyer.
I wrote about misconduct of attorneys out of the New York State Attorney General's office, of attorneys affiliated with judges, employing their relatives and escaping investigation and discipline for misconduct through such protective employment.
More on that topic will be posted shortly.
I wrote about attorneys who participate in behind-the-scenes communications with judges and who quite literally treat judges to lavish monthly dinners, international and national free travel through the American Inns of Court and God only knows how many more similar organizations.
More on that topic will be posted shortly.
All of the above descriptions involve some form of corruption of attorneys ,judges or both (in New York, some judges are attorneys and some are not). And yet these attorneys escape discipline and, if an attorney criticizes a judge, discipline follows immediately and most viciously.
None of individuals whose misconduct I described were disciplined.
This permissive culture throughout the United States encourages judges to violate the law and to raise children who violate the law when they become judges in their own right. Such permissive culture destroys public trust in the integrity of the judiciary, and the only way to restore that trust is to bring real accountability against errant judges.
And, not surprisingly, real accountability comes only with a private cause of action, in other words, if members of the public, victims of judicial misconduct, are given a real right to sue and get a remedy against a judge who intentionally or corruptly violated their constitutional rights.
Otherwise we will have to wait until the hell freezes over - or until the judge crosses some powerful financial interests - or until some really bad publicity scandal erupts - to bring the rogue judges to accountability, and even then, with a felony conviction, they will get from their fellow sentencing judges only "a house arrest" and from their fellow disciplining judges no disbarment. Because the sentencing and the disciplining judges have their own vested interest to create the law that would be lenient to them, if their time comes. Sweet.
Multiple people knew of Judge Melvin's wrongdoing going back years. Yet, until the criminal investigation, nobody dared to report it, much less to bring a lawsuit against a powerful judge, sister-of-a-Senator.
There must be laws introduced that will put an end to immunity for corruption in office of high-standing public officials with tremendous power. Until then, presumption of integrity of judges will remain a bad joke.
Really, Judge Melvin should have been removed from the bench long before she was convicted of felonies. Let's make the rule of law work.