"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.

Saturday, September 6, 2014

"TASC assigned". Fast-paced courts and flighty rights of criminal defendants going up in a puff

I often hear this phrase - "a fast-paced court".

This or that judge "runs a tight/fast-paced court", and usually it is said as an approval of the judge's skills.

I've been to fast-paced courts.  It is always instructive to see how a "fast-paced court" operates especially when you do not know the judge and you are in that court for the first time.

I've been to such a court recently.  It is a criminal court close to New York city.

Boy is it a fast-paced court.

The prosecutor rattles off, the attorneys rattle off, criminal defendants obviously do not even have time to realize what is happening before their rights are taken away.

What "fast-paced courts" do not afford to a criminal defendant and sometimes even to his attorneys is time to THINK or make objections.

As an example, in the "fast-paced court" in question, there is a key word exchange regularly pronounced by the prosecutor and the court as a mantra, and I've been in that court several times by now:

PROSECUTOR:  People ask to assign "TASK"
JUDGE:               "TASK" assigned

This is how I heard it the first time when I appeared in that court - because in the local courts where I practice there is no such thing as "TASK assigned".

When I've heard this "TASK" thingy and did not react, because it was a "fast-paced court", it moved like a fast conveyor, and every attorney before me did not stir when hearing it, I immediately learnt what exactly this "TASK" thingy is.

It is not "TASK", it is "TASC" - a mental health program requiring your client, often at his own expense, to talk to a mental health professional ABOUT THE CASE and about his alleged drug or alcohol problems, whether there are such problems are not, as long as the client is charged with a crime associated with drugs or alcohol.

I've learnt about it when I was directed to approach the clerk of the court who gave me a "TASC" form to be filled out where the judge's approving signature was PREPRINTED!!!! 

Well, I had an issue with this whole TASC thingy and asked for the case to be recalled, because I never agreed to that and it definitely violated my client's right to remain silent, especially that it was a local court, my client was charged with a felony, the local court had no authority to handle any plea bargaining in a felony or conduct any investigations in lieu of a pre-sentencing or pre-plea investigation, and that is by statute.

The judge initially simply bent over from the bench (the clerk handing out the TASC forms was sitting close to the judge) and asked me what's the problem.  I explained to the judge that I never realized that what I perceived as a "task" was a "TASC" and that assigning the "TASC", at the request of the People, is violating my client's right to remain silent.

I also asked the judge whether the "TASC" disclosures of my client will be made available to the People.  The judge said "of course", and I felt that it was a routine procedure in that particular court.  I said that it violates my client's right to remain silent.  The judge became visibly perturbed and initially said that "your request is denied".

I asked to recall the case, because I said there is no way I will have my client comply with a court order, in a criminal proceeding, to make statements available to the People, over defense counsel's objection.  As you understand, I ran the risk of being found in contempt of court and thrown into jail for simply saying to the court that I will not have my client comply with a court order - and that is, possibly, the reason why other attorneys ambushed into the "TASC assigned" situation may let it slide, at their client's expense.

The situation was becoming hotter because it was, once again, a "fast-paced court", the courtroom was packed both with the public and with attorneys, regularly appearing in the court (as I later realized after several appearances) and I was creating a precedent disrupting the "fast-paced court" because all attorneys before me agreed to "TASC assigned" without a peep.

The judge then said reluctantly that he will allow me to make my arguments on recall.

I sat and waited for the recall, "TASC" form in hand. 

After hearing some cases, the judge called a break.  It was a long, 15-minute break.

After the break, the judge called my case and the following exchange occurred.

The first thing the judge did is to ask me to give him back the "TASC" form (with his pre-printed approval on it).  I had to comply - so I did give it back.

The second thing the judge did is grant my request to cancel "TASC assigned" for my client without a necessity of an argument in front of the public and other attorneys.  Apparently, the judge consulted somebody during that break and did not want me to elaborate on the unconstitutionality of the situation and to make the public aware that what is a routine procedure in that "fast-paced court" is in reality a major constitutional violation.

My client's right to remain silent was protected.

As to other criminal defendants in that court, I appeared in that court several other times, and each time I appeared, in all cases where the use of alcohol or drugs was charged, even, as I  understand, in felony cases, the prosecutor continued to rattle off "People ask to assign TASC", no objection from attorneys followed, the judge would immediately say "TASC assigned", and the attorney would proceed to the clerk of the court for the TASC form.

Each time I wondered if criminal defendants in the "TASC assigned" cases realized they were waiving their right to remain silent and, forgive my French, were potentially screwing their cases.

And, by the way, the felony charges against my client in that particular court were dropped by the People voluntarily and substituted by misdemeanor charges.  After all attempts of the court ("TASC" was not the only one) to tell me that because how serious the charges are, I'd better "cooperate" with the prosecution.

As a bottom line - when you see a "fast-paced court", there must be something amiss, because people are not given enough time to think what kind of rights they may be losing when the court is quickly steering them through the "regular routine" of the court.

In a fast-paced court, before you agree to anything you are being steered into, take a time-out.

Actually, instead of challenging the court-ORDERED TASC as an unconstitutional violation of their clients' 5th Amendment rights, local Westchester County attorneys advertise knowledge of the TASC program as their local "know how":

In that advertisement, please, note that the attorney says that TASC will (not "may") be "assigned" (ordered" by the court in certain cases at the stage when the defendant is still "accused" - or, in other words, covered by the presumption of innocence.

Such "assignments" are, of course, possible - ON CONSENT of the defendant, because such an assignment, as any pre-sentencing evaluation, involves a waiver of the defendant's right to remain silent THROUHGOUT the criminal proceeding.

In Harrison Town Court where I was the witness of how TASC is "assigned", nobody asks consent of the criminal defendant - TASC is simply ordered, and the judge tells the attorney point-blank that the defendant MUST undergo the evaluation, MUST provide to the evaluator, therefore, potentially self-incriminating information, and the results WILL be turned over to the court and to the prosecutor.

Update as of 2016:  The District Attorney in the case where TASC was assigned in a FELONY case in the JUSTICE court (justice courts in New York do not have authority in felony cases beyond holding a preliminary hearing, or, if the hearing is not held, holding the case over to the grand jury) and whose office I asked to disqualify and punish - became the New York State Chief Judge and retaliated against me by tossing the appeal of my disciplinary suspension "as of right" as if it was her discretion to do that - and the suspension was for, guess what, criticizing judges, activity fully protected by the 1st Amendment, where punishment for such activity is regarded as presumptively unconstitutional content-based regulation Reed v Town of Guilbert (2015).

And, please, note that this program unconstitutionally used by the local courts, is "sponsored" by the Westchester County, home of Governor Cuomo and presidential candidate Clinton, former president Clinton and the now-Chief Judge of the New York State Court of Appeals Janet DiFiore.  In fact, Janet DiFiore participated in stripping criminal defendants of their 5th Amendment rights - for years.

And Janet DiFiore punished me for:

  • making a motion to disqualify her DA's office in the Harrison Town Court because of misconduct in 2014;
  • opposing her confirmation as New York Chief Judge by written testimony in January of 2016 (oral was not allowed to me) submitted to the New York State Senate where I asked to investigate DiFiore for possible criminal conduct; and
  • making a motion to recuse her in New York State Court of Appeals in 2016;
  • filing a complaint against her with the NYS Commission for Judicial Conduct where I asked to get her off the bench for misconduct and to investigate her for possible criminal conduct

How appropriate.

No comments:

Post a Comment