"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.

Tuesday, April 7, 2015

Can a judge who orders attorneys to commit attorney misconduct and engage in ineffective assistance at a jury trial remain on the bench?

Since courts are created as an institution to maintain the rule of law in the country and prevent the country from sinking into chaos, unlawful decisions of judges are especially dangerous.

Here I will address two decisions of Judge Dowd (communicated to me through his law clerk Claudette Newman to whom Judge Dowd delegates a lot of his duties), in a case Mokay v. Mokay, Delaware County Supreme Court, Index No. 2007-695.

Judge Kevin Dowd recently issued an order that, if I cannot try the case, an attorney without any trial experience must then do it.

Of course, it is inappropriate for an attorney to try a case when coming to the team as a 2nd counsel only 2 weeks before trial, and against the wishes of the client who hired the 2nd counsel for a limited purpose of assisting the trial counsel, not trying the case.

Such conduct would subject an attorney to malpractice claims and disciplinary prosecution.

Yet, the court ordered exactly that.

The 2nd attorney had no choice but to request the client to release her on consent, which was done.

The court then ordered the trial counsel, despite her doctor-authorized medical leave, injury and pain, to still come and try the case, or else the court threatened to use "legitimate means" to "secure her attendance" at that trial.

Of course, making a counsel who is injured and in pain to appear and try the case, on top of violation of counsel's own constitutional rights, is a violation of the client's right to an effective representtion of counsel.

A counsel who is injured to the point of having a doctor-issued leave from work for 2 weeks because of injury, pain and medication, simply cannot provide an effective assistance of counsel in a jury trial.

Yet, that's exactly what the court ordered, and threatened to "secure attendance" of the trial counsel if she does not show up.

Of course, that threat put extra stress on me, shot my already high blood pressure even higher and prevented me from taking the medicine I need, because the medicine makes people drowsy and, in the event Judge Dowd uses his allegedly "lawful means" of "securing attendance" against me, today or during the next days, I must be non-drowsy to be able to oppose these unlawful actions.

So, in retaliation for my motions to recuse on behalf of my client, I am punished by the judge by not allowing me the most basic of human rights - to have doctor-prescribed treatment and to be able to get better.

I should not be put into this position, of course, but, since Judge Dowd so far was not disciplined no matter what he did, he thinks he can continue to disregard applicable law in whatever way he and his law clerk like.

Of course, this is not the rule of law, but that is what we have in our neck of woods in upstate New York.

Will the judge ever be disciplined for practically ordering two attorneys to engage in ineffective representation of counsel, simply because Judge Dowd could not accept that Americans with Disabilities Act compels him to grant a medical adjournment to my client, the same way as Judge Dowd already granted TWO adjournments of the same jury trial to the plaintiffs?

I do not know.

So far, NONE of my complaints against judges in New York who committed misconduct, complaints that were supported by irrefutable evidence (affidavits of witnesses, court records), resulted in discipline, and this is the fate of not only of my complaints, but of the overwhelming majority of complaints against judge in the entire country.

Usually, only criminal charges can unseat a judge, and a judge is charged with a crime only when the crime cannot be hidden any longer and is of extremely embarrassing nature.  

Yet, one never knows.  Maybe, at some point, the NYS Commission of Judicial Conduct will recall why it was created - certainly not for whitewashing judicial misconduct, but for investigating and prosecuting it to protect the people whose lives rogue judges ruin.

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