"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.

Monday, February 16, 2015

On sexual harassment of females in American courts - let's breed sexual predators on the bench?

I've recently come across two episodes, from two different states, which I felt compelled to cover, as I see so much harassment of female personnel and attorneys going on in the American court system.

In Kansas - a female lawyer was disciplined for her actions in her own divorce case where she perceived that the judge was masturbating, as well as using profanities and asking her personal questions of sexual character, requiring her to answer those questions in front of her ex-husband.

The female attorney reported the judge to the judicial disciplinary authorities.

You know who was investigated and disciplined?

The female attorney.  For making false claims against the judge. 

As a criminal defense attorney, I know how plea bargains are often obtained.  Sometimes the defendant claims innocence, but realizes that, if he goes to trial and loses, he or she will get a lot of years behind bars, while he or she is offered no jail time - and the defendant agrees, even though he/she is innocent.

The female attorney claimed mental problems during the disciplinary proceeding and thus was "only" suspended for 2 years, instead of disbarred, for allegedly "making false claims against a judge".

Knowing how unfair and biased attorney disciplinary proceedings usually are, and I researched this issue in other states, too, and how slanted they are against an attorney who dared to criticize and report judicial misconduct, I fully understand that an attorney who wants to preserve her livelihood and license could have been forced (this is my personal opinion, and I do not claim knowledge that she was in fact forced) to claim mental health problems in order to get a more lenient disposition of the disciplinary case.

Was there a jury trial these pseudo-defamation charges?  No, of course not.

Was the attorney protected by immunity for reporting judicial misconduct?  Appears that she wasn't.

But, it is a constitutional right in American courts not only to receive justice, but also appearance of justice.

Thus, the standard of reporting judicial bias and misconduct is "appearance of impropriety", which is based only on the reasonable perception of the individual.

Yet, in all American jurisdictions that I researched, including, apparently, Kansas, attorneys instead are required to provide "hard proof" of judicial misconduct when reporting it.

Please, tell me, what may be the "hard proof" in the Kansas case?  Should the attorney have caught the judge with his hand "you-know-where"? How was she supposed to do that?

Of course, it is her words against words of other witnesses.

And of course, the court personnel sided with the judge for fear of their own job security.

And of course, the judge would probably have lost had he sued the female attorney for defamation directly, because then she would have been able to call that judge to a deposition, ask, possibly, for his medical records, subject him to examination under oath before a jury.

It is easier for the judge to abuse his power and to use the disciplinary process as his advocate against the complainant.

Yet, let's look at the second episode.

In Oklahoma a judge was convicted for indecent exposure, for using a penis pump while on the bench during public trials.

He was reported by a police officer who, while testifying in front of the judge, saw a plastic pipe sticking from under the judge's robe and, during lunch time, took pictures of the penis pump under the bench.

Once again, those were police officers, they could do that.  A "lay" complainant cannot just barge onto the bench, delve under it and start making pictures of judge's personal effects left there or make a forensic sweep of the scene for semen.

A court reporter testified that she heard a "wooshing sound" and saw the judge actually put the penis pump on his penis "ten times" during a given trial.

That was happening, ladies and gentlemen, for years, sometimes every day!  And the court reporter kept mum, possibly fearing for her job.

Only when the police officer reported it, and when tangible evidence of the use of a penis pump on the bench (semen under the chair, on the judge's robe) were found, only then the judge was charged and convicted.

What is the conclusion from these two episodes?

That the only time attorneys can report judicial misconduct, even if it is sexual misconduct, is when there is "hard proof" to be found, and since there is never an assurance that such proof will be found - then it is safe not to report the judge at all than report him and face suspension of your livelihood and destruction of your reputation when the judge retaliates with a disciplinary complaint for "making false claims", without any lawsuit for defamation that the judge might know he cannot win?

So, let us have a potential sexual offender get more and more bold in view of his complete impunity?

Let us make courthouses a breeding ground of sexual offenders, because judges know they are untouchable?

That's what the absolute judicial immunity and lack of accountability and discipline for judges, as well as the use of attorney disciplinary system as a sword against whistleblower, has come to.

Is the public well protected now that the Kansas lawyer is suspended?

Will any other attorney report a judge masturbating on the bench?

I bet you know the answer.

Do you feel safer when attorneys are THAT MUCH intimidated?

And why the court system is still called a "justice system" if victims of sexual misconduct must remain mum for fear of potential retaliation by the high-and-mighty offenders?

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