"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.

Saturday, April 11, 2015

In the Greene Village Court, Chenango County, criminal defendants do not have a right to remain silent, on the opposite, they "need" to talk to the prosecutor before every appearance, at the direction of the court

Here is a document I recently received in one of the criminal cases I handle from the Greene Village Court, Chenango County, New York (the presiding "acting" judge is Judge Alta R. Martin).

Those of you who have experience with the New York local justice court will immediately see several problems.

First, in all justice courts clerks use standard software to generate scheduling orders of the court.

That technology, obviously, somehow did not reach the Greene Village Court, so I wonder whether the court keeps records of proceedings properly.

Usually, pro se parties or counsel do not receive "Next Appearance Date" sheets of paper bearing no identifying information to the case.

Instead, what they receive is scheduling ORDERS which must bear the following specific information:

  1. Name of the case.
  2. Assigned number of the case.
  3. That it is a scheduling order.
  4. The scheduling order must be signed or name of the judge who issued the order shown.
  5. The order must state what the appearance is for - scheduling conference, hearing etc.
  6. The order must be addressed, by name and address, to the pro se party and the prosecutor, or to the defense attorney and the prosecutor.
  7. The order must list charges for which the defendant must appear.

None of what HAS to be in such a scheduling notice/order IS in the Greene Village Court "Next Appearance Date" paper.

Yet, what absolutely CANNOT be there, is included.

At the very first appearance in the criminal case, the criminal court MUST advise the criminal defendant of his or her right to remain silent throughout the criminal proceedings.

This right is guaranteed by the New York State Constitution and by the U.S. Constitution.

Instead of advising the criminal defendant that he has a right to remain silent, the Greene Village Court advises the criminal defendant, whether represented or unrepresented, that the defendant "need[s] to contact the ADA before [his/her] next appearance", meaning that the court EXPECTS and practically DIRECTS the criminal defendant to waive his or her right to remain silent and talk to the ADA before every appearance in the case.

I have never in my entire career as a criminal defense attorney and my prior career as a paralegal for a criminal defense trial lawyer seen anything like that.

Once again, by law criminal defendants DO NOT "need" to talk to the prosecutor before any appearances unless they decide to waive their right to remain silent on advice of counsel or on their own accord.

By law, criminal courts MAY NOT direct criminal defendants to talk to the ADA, because, first, it is giving criminal defendants (represented and unrepresented) legal advice, which the court is not allowed to do, and, second, such an advice is directly contrary to criminal defendants' constitutional right to remain silent and to the court's duty to advise criminal defendants' of such a right and to see that that right is observed in that court.

And that brings me to the next issue - are criminal defendants in justice courts provided, as a point of due process and equal protection of laws guaranteed by the State and Federal Constitution, with competent judges?

Read my next blog about it.

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