"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, October 17, 2014

Right to a jury trial in New York is opt out, not opt in

Oh, those checks and balances.

Sometimes, it appears that our Founding Fathers put too much faith in branches of the government to check one another instead of helping one another to take away people's civil rights.

A shining example is New York state constitutional right to a jury trial.

The New York Constitution requires a written waiver of the right to a jury trial in cases where trial by jury existed before the State Constitution was adopted.

As a practicing trial lawyer, I can affirmatively state that this right is routinely violated by the courts in criminal cases, and violated by the Legislature and the court in civil cases.

In criminal cases, I have yet to see a written waiver of a jury trial signed by a criminal defendant.  I raised that issue in an appellate court, but the appellate court, as it usually does, ignored the constitutional issue and affirmed the appeal despite a glaring constitutional violation.

In civil cases constitutional violations of the right to a jury trial are no less glaring.  Many scholars consider motions for a summary judgment as an.unconstitutional encroachment upon the right to a jury trial, since only the jury can determine facts in a civil case and whether there are outstanding issues of fact.

Yet, if that issue is open for a scholarly debate, the issue of whether the right for a jury trial in civil cases is an opt out (a written waiver of the right to a jury trial is required before such a jury trial is waived, and a civil litigant must be provided a jury trial in a civil case by default) or an opt in (no jury trial unless civil rights litigants ask for such a right and pay a fee for such a right) is not open for debate.

The New York State Constitution clearly says it is an opt out right.

The New York State Legislature, sworn to uphold the New York State Constitution, clearly says it is an opt in right.

A cuvil litigant will not get a jury trial unless he or she asks for it in writing, within a short period of time after a plaintiff's trial note of issue is filed, if the litigant is a defendant in a civil action, and when the litigant is filing a trial note if issue if he or she is a plaintiff in a civil action. In both cases, a fee is charged by the New York state court to have a jury trial.

In view of the fact that over 80% of New York litigants cannot afford an attorney, and would not know to ask for a jury trial, which is supposed, under the state Constitution, to be provided by default, this legislative amendment of the New York State Constitution undoubtedly results in the majority of pro se litigants not asking for a jury trial, especially that for many people, having to pay extra $65.00 for such a right makes a material difference.

I wonder - will New York courts ever start to honor the New York State Constitution they are also sworn to protect and stop depriving people of their right to a jury trial, in civil and criminal cases, by default, unless litigants file a written waiver of such a right after being explained by the court what they are doing?

Cheating people out of their constitutional right to a jury trial, no doubt, is intentional.

It saves counties and the court system money and hassle to handle jury trials, it relieves congestion of the court calendar, it steers litigants not knowing of such a right into settlements, and it gives a practically absolute power to judges to decide cases that should have been decided by juries, with less predictable results than with judges.

A jury trial is one way to fight potential judicial corruption and fixing cases.  Such a default right exists for a reason, and it is a gross excess of power for both the New York Legislature and the state courts to make such trials an opt-in right, and an opt-in at a fee in civil cases, rather a right by default, with the constitutional requirement of a written waiver strictly adhered to.

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