"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, October 29, 2014

In the view of Judge Gary L. Sharpe people are "genetically predisposed" to view child pornography. Is something seriously wrong with this judge?

In 2011 Judge Sharpe, the Chief Judge of the U.S. District Court of the Northern District of New York, was reversed by the Court of Appeals for the 2nd Circuit because the judge considered in imposing a sentence upon a criminal defendant his own personal genetic theory that people are genetically predisposed to view child pornography.

The Court of Appeals for the 2nd Circuit reversed and remanded the case to a different judge in view of apparent inability of Judge Sharpe to be fair.

Even though objections to unreasonableness of sentencing were not preserved for appellate review, the court still reviewed them for "plain error".  The appellate court noted: "we may exercise our discretion to notice the forfeited error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings".

At sentencing, the judge made a ruling that was stunning in its logic (or, rather, a complete lack thereof).

Rejecting reports from psychologists that the defendant was of low or moderate risk to reoffend in the future (which, to be fair, the judge could be correct about, because psychology is not an exact science), the judge made his own scientifically unsupported claim that 50 years in the future a gene will be discovered which governs defendant's uncontrollable urge to possess child pornography.

This comes from a judge who has been on the bench for a long time, has practice law for decades, and has been a prosecutor for some time.

The judge had to know that in this country people are not punished for "uncontrollable" behavior.

When the judge pronounced that defendant's behavior in possessing child pornography was uncontrollable, the judge just as well said that the conviction should be tossed.

Yet, the judge used his unsupported personal opinion that possession of child pornography may be uncontrollable behavior not as a mitigating factor, but as an aggravating factor for sentencing, which is completely illogical and begs an answer - did Judge Sharpe start to have mental health problems back in 2011 when he offered his "forensic geneticist" opinion in U.S. v. Cossey?

It sure looks like that to me because recently Judge Sharpe sanctioned me for correctly reading the 11th Amendment to the U.S. Constitution...  To me, that is a sure sign that something may be wrong with the judge.

Appellate court, while reversing Judge Sharpe's decision, stated the following:

"It is undisputed that it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics. For Cossey’s challenge to survive, there must be error and it must be plain. Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted

The court’s belief that Cossey was genetically incapable of controlling his urges affected the court’s decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey’s substantial rights. " 

Was Judge Sharpe sanctioned for his unsworn testimony as a forensic geneticist on behalf of the prosecution?  Not at all, and that's the problem.

Federal judges are supposed to serve for life "on good behavior".  Mental health problems cannot be considered "bad behavior", because, once again, it is behavior that a person cannot control.

Yet, there should be some way to suspend or take off the bench judges who start to act in a bizarre way, unreasonably hurting people.

If such behavior is just plain malicious and vicious, it is even worse.

Federal rules of judicial discipline declare that a complaint against a judge will not even be accepted if the complaint is against the judge's behavior in a certain case - it is allegedly an appellate issue.

I already wrote in this blog about federal appellate courts rubber-stamping the lower court's decisions, and it is especially hard to have a judge recognize that a another judge not only acted "unreasonably", but committed an outright judicial misconduct.

Yet, the concept of absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS ON THE BENCH was invented by the judiciary specifically because judicial discipline is available.

So, the concept of absolute judicial immunity refers to a judge's behavior in a court proceeding and cloaks the judge with immunity from lawsuits BECAUSE judicial discipline is available as an alternative to such lawsuits.

On the other hands, federal judicial discipline for whatever the judge did in court proceedings is NOT available specifically BECAUSE it was done in a court proceedings.

See the logic?  There is no logic.  There is only a desire of the judiciary to protect itself from accountability for ANY acts, no matter how malicious and how corrupt, no matter what.

As an example, if a federal judge imposes, for a kickback, illegal criminal sentences (as it happened with juvenile sentences in the "Kids for Cash" scandal in a state court in Pennsylvania, Luzerne County), simply to fill privatized prisons, then the following happens:

(1) appellate courts will never find misconduct in whatever the judge is doing;

(2) disciplinary authorities will reject complaints about the judge BECAUSE judge's conduct complained about happened during a court proceeding; and

(3) and the judge is covered by absolute judicial immunity BECAUSE his conduct, again, happened during a court proceeding and because PRESUMABLY judicial discipline is available as an alternative means to a lawsuit (although we know it is not available).

The result - there is no legal remedy for malicious and intentionally incorrect judicial decisions, as well as for corruption on the bench.

I am far from accusing Judge Sharpe of corruption on the basis of the described case, there is nothing in the case indicating corruption.

Yet, there is something in the case indicating malice - and the court, although it ruled that the court was "unreasonable" and although the appellate court remanded the case to another judge, Judge Sharpe was not disciplined and remained the Chief Judge of the U.S. District Court for the Northern District of New York.

Yet, Judge Sharpe's claim about "genetic predisposition" to possess child pornography is disturbing, at least because it can be used to completely eliminate possession of child pornography as a crime - if people have uncontrollable urges to possess it.

And the other disturbing question of public concern that clearly arises would be - is Judge Sharpe's personal opinion as to uncontrollable urges to possess child pornography based on personal experience?

I wonder whether there is authority in the United States who runs regular psychological analyses of judges, like they, no doubt, do in FBI, CIA and in any other governmental jobs presupposing high-stress, fast-track work environment requiring split-second ability to react.  

Even though Judge Sharpe does not believe in such evaluations, probably, only such evaluations will be able to reveal judges who are unfit to remain on the bench - and that will save people who appear in front of them a lot of grief.

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