"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.

Wednesday, September 24, 2014

The jeopardy of a judge who is at the same time a practicing attorney

I wrote in this blog about judges of local justice courts in the state of New York who are not attorneys and what a disaster it is to deal with the judge whose educational level may be several classes of school and who listens to every word of what the prosecution tells the judge to do.

Yet, I could not even fathom what kind of danger a judge of the local justice court who continues to practice law can be.

There is such a judge, judge Richard Gumo of the Delhi Town Court.
On Monday, September 22, 2014, I brought before him a motion to dismiss for lack of jurisdiction because of invalidity of the underlying document from a Family Court.
The proceeding in front of Judge Gumo was a criminal proceeding.
The criminal defendant was not a party in the Family Court proceeding from which the invalid document originated.
Thus, my client could not have access to the records of that court, or to appeal the Family Court decision.
Yet, the judge denied the motion without reading and stated specifically that he is not the appellate court and cannot "reverse" the Family Court, and that my client needs to appeal.
What bothers me is that Judge Gumo continues to be a practicing attorney in the State of New York and I know for a fact that he appears in Family Court.
Why do I know that?  Because earlier this year Judge Gumo tried to delay a scheduled jury trial in a criminal case by claiming that he has an appearance as an attorney in a child neglect proceedings which take precedence over the criminal proceedings.
I demanded to provide another judge instead of the one who appeared to be engaged on the day of the jury trial, the prosecution withdrew the case since they knew very well they did not have their main witness, but were trying to pressure me for a plea bargain rather than drop the charges.  
The e-courts show that Judge Gumo has open and active cases in the Supreme Court where Family Court judges are also presiding as Acting Supreme Court Justices, so reversing any rulings of a Family Court judge in a criminal proceedings in Delhi Town Court may very well hurt Judge Gumo's client's chances in the Supreme Court before a judge upset with such "overruling". 
As an attorney for a criminal defendant who suffered an adverse ruling from Judge Gumo despite the fact that the case was obviously jurisdictionally invalid, on many well-briefed grounds that Judge Gumo refused to read - did Judge Gumo refuse to declare a decision of a Family Court judge invalid for purposes of the criminal proceedings against the criminal defendant because Judge Gumo was afraid to hurt his own law practice and rattle a Family Court judge in front of whom he appears now or can appear in the near future for one of Judge Gumo's clients?
There is at least an appearance of financial interest here, and at least an appearance that justice was not done.  

That appearance, in my view, invalidated Judge Gumo's decisions and destroys public trust in impartiality of a practicing attorney who is also a judge.  
Of course, Judge Gumo should have recused, but, of course, it is futile to ask for that.  I know it from personal experience.
If we are talking about judicial independence and impartiality, we must demand that no judge can continue to practice law while on the bench, to avoid situations of conflict of interest as described here.

Criminal law is not for the faint of heart - not for the prosecutors, not for the defense attorneys and not for the presiding judges.

You hold somebody's liberty, fate, in some states - life in your hands (New York does not have death penalty).

And because the stakes are so high, criminal law should not be viewed, as it is now, as a game, because it is then a game played with somebody's life, and, of course, the lives of people who depend on the defendant - financially or emotionally.

If the judge lacks the guts to rule the way the applicable law and fairness to the defendant clearly dictate, for fear of ruffling the feathers of another judge before whom he practices, that means that the judge has considerations other than criminal litigation in front of him as the key factor determining the judge's decisions.

And when that starts happening, the judge simply should choose another path and get off that bench.

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