"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.

Sunday, February 22, 2015

New York State of the Judiciary 2015 - are the declared new "community justice centers" new "Ol' Boys' Club" business ventures or will they resolve any problems of the criminal justice system? Only time will show.

In his "State of the Judiciary 2015" address the Chief Judge of the New York State Court of Appeals Jonathan Lippman said the following:

Well,  Lippman keeps saying everywhere that we'd better close the door of our courts if we cannot bridge the justice gap - and the doors of the courts remain open, while the gap is not even close to be bridged, as Lippman acknowledges in that same State of the Judiciary 2015 address.

Now Lippman is saying "without trust there can be no justice" while public trust in all branches of the government, including the judiciary, is now at "all time low" according to the latest public opinion polls.

So, apparently, it is just some vacuum-filler words that our Chief Judge felt obligated to throw around in his State of Judiciary 2015 address about the non-existent "public trust" in the judiciary.

Jonathan Lippman indicates that the "rifts" between "some communities" and the government may be bridged by "working together" to deal with "low-level crimes", and "together" meaning between the "communities", the courts, the prosecutors and the probation departments.

Forgive my skepticism, but my experience as a defense attorney (including communication with prosecutors) prevents me from believing in this idyllic situation without seeing hard facts, reports and numbers - and none were provided in the State of the Judiciary 2015 address by Judge Lippman.

First of all, it is the prosecutor's job to prosecute crimes and not to "mend rifts with the communities".   If a prosecutor does his or her job, there should be no rifts.

The same refers to probation.

In my experience though, prosecutors are aggressively overcharging crimes to exert pleas, habitually withhold exculpatory evidence and habitually bluff about availability of support for often unsupportable charges.

As to probation, long time ago a "friendly" prosecutor admitted in private that the probation is the fastest way to prison, and it is better to call probation officers "violators", because that's what they seek to do - not to rehabilitate people convicted of crimes, but to violate them and pack them off to jail/prison.

That's not the law.  The law designed probation as a rehabilitative alternative to incarceration.  But that's how probation now works, in a large number of cases suggesting policy and collusion between probation and prosecutors.

And prosecutors wholeheartedly support such a policy, because it makes their job to pack of people to jail so much easier.

In probation violation proceedings, unlike the original criminal proceedings, hearsay is admissible, and acts of third parties are counted against the probationer toward violation of probation (think a bottle of wine belonging to your partner in your fridge at home that your probation officer found).

Probation has been known to violate people for most ridiculous of reasons, such as - taking a freezing animal, like a kitten, from out of the cold where, let's say, for a convicted sex offender, there is a condition prohibiting having pets (on the theory that ANY sex offender, including, obviously, those who are themselves under age or in a 16-22.5 situation, where the boyfriend is slightly above the 4-year age difference that can serve as an affirmative defense to a "statutory rape" charge).

Probation officers attempt to violate people for curfew for being in an ER and unconscious and failing to report to the probation officer being in an ER within 24 hours of getting there, whether the injured person can physically do it or not.

Lippman suggested to "bridge the rift" by "alternatives" to incarceration such as "drug treatment courts".

This alternative looks this way:

Drug courts are notorious for making it impossible for participating individuals to maintain a gainful employment, since at any time the individual may be called in for a random urine test, and it will be a violation not to abide.  Drug courts do not accommodate participants' work schedules.  Drug courts do not accommodate participants' lack of driver's licenses and the need to get to court, and that includes places where public transportation is non-existent and participants live at a great distance from the courts.

No employer, especially in these tough economic times, will keep a participant's job for long under the circumstances.

Remember, 49% of the 9 bln dollars New York spend on incarceration each year goes to post-conviction incarceration, including probation violations.

So, between judges who pledged to be "tough on crime" and can be best described not as "neutral arbiters", but as "convictors", and prosecutors who forgot long time ago their constitutional "dual" role to be tough on crime but at the same time fair to everyone involved in the criminal justice process, including the accused, and the probation officers who should better be described as "violators" rather than rehabilitators, 

With that said, maybe, my skepticism will be defeated in the future by the success story of the Brownsville Community Center announced by Lippman.  Maybe we will not learn in the future that the Center is yet another business venture of the "Ol' Boy's Club" and has nothing to do with the declared purposes.

Only future will show.

Until and unless I see real results of success of such pilot "community centers" claiming that they "re-engineered" response to anything, and provide alternatives to incarceration, job training etc., I will hold my breath as to any celebrations for opening such centers.

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