"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.

Wednesday, September 2, 2015

The overwhelming majorities of honorable people - until the next arrest

I come across this phrase time and again, in public speeches, in law review articles and even in law books that pretend to be serious treatises.

"Of course, the overwhelming majority of judges are men and women of honor".

"Of course"?  Even though those same "men and women" allowed themselves to be free, with immunity, from the very constitutional oath of office that allows them to draw their salary and benefits?

And when judicial discipline is virtually non-existent, and what exists is secret and does not allow for any independent review of statistics of the actual number of complaints filed against judges and of validity of those complaints?

It is easy to brand people who complain about judicial conduct in litigation as "disgruntled litigants", and after branding them so, dismiss their complaints as incredible.

Yet, judicial immunity was given BECAUSE judicial discipline was (allegedly) available for improper conduct in court proceedings.

And, judicial discipline for judges' actions in the court proceedings is adamantly NOT available BECAUSE an appeal is available (a very expensive and technically complex endeavor that not many people can afford).

And during the appeal judicial misconduct is always endorsed or dismissed as "discretion" of the judge to do whatever he wants.  The circle came around.

Of course, the majority of men and women who come to the bench and know that they are protected by those rules, are honorable?  

As well as the majority of the prosecutors, similarly covered by absolute immunity and similarly unreachable by discipline, to the point that in New York the Legislature is trying to establish a whole separate disciplinary body to discipline prosecutors, separately - as a confirmation that the existing disciplinary bodies would not touch prosecutors for discipline, no matter what they do.

So, district attoney's offices, those people who 
  • routinely put police officers on the stand and knowingly elicit perjury from them, to the point that lawyers invented a term "testilying" characterizing testimony of police witnesses;
  • routinely withhold exculpatory evidence, even in death penalty cases;
  • routinely prosecute in order to pursue personal and political interests, their own, their families', friend's or political or financial sponsors people - 

The majority of these people who, statistically, make the majority of judges, are honorable?

Where is the statistics of complaints, where are the REASONED decisions of disciplinary bodies as to the merits of those complaints, so that such a claim would have any basis?

The same applies to the "overwhelmingly honorable" legislatures, such as the New York Legislature where first the head of one chamber, and then the other, were charged with federal crimes of corruption, within months from one another, and yet, the new Speaker of the Assembly that replaced the arrested one claims that - again - the overwhelming majority of men and women in the Assembly are honorable people.  

But, rules of per diem travel must be changed because of those who are not that honorable, and right after the arrests of the leaders of both chambers of the New York legislature for federal crimes of fraud and corruption.

Given the fact that lawsuits against these honorable people are routinely dismissed on legislative immunity grounds covering, once again, malicious and corrupt acts, and discipline of legislators - other than efforts of the U.S. Attorney General's office - is unavailable, such claims of honor makes one clutch one's pocketbook closer.

But New York taxpayers will clutch their pocketbooks in vain.

This is what are the "revised" rules (makes me wondering what was before that).

Wait a second.

30 trips a year, when the Assembly is NOT in session, with reimbursement of transportation costs without ANY control, and trips over 30 under control of one person - the Speaker?

What is an "off-session trip"?

A vacation with family and friends?

A dinner party with a buddy pretending to be a meeting with the constituents?

Good job, legislators.

I will take out popcorn and watch who is going to be next on Preet Bharara's list of honorable men and women.

With all these honorable people doing all of those honorable things, what are my co-citizens, Americans, doing at this time - well, apart from fighting for survival, of course? 

They are, actually, doing something.

With great admiration I see that more and more people take a stand - in the social media, on the streets, in letters to the government, in petitions on, against misconduct on all levels of the government.

Change is actually coming, in some branches of the government quicker, in some - slower, but it is coming.

It is extremely sad to see people who are badly hurt by the government, being blocked from access to courts to get any remedies - by yet another bunch of "honorable men and women".

This has to change.

We the People - the sovereign of this country - should be able to make sure that we are able to discipline or get rid our "public servants" of any branch and any level ("servants" is the key word), if they err.

To make this happen - a suggestion.

If anybody claims that "the majority of men and women", members of the XYZ governmental entity, are allegedly honorable, demand from the claimers, statistics of misconduct amongst the ranks of those honorable men and women and proof that disciplinary processes are set that are transparent and handled by neutral citizen panels, and not by members of the same class as the disciplined "public servant".  

Otherwise reject those claims as a bad joke and continue to demand cleaning the stinking mess that this country's government has become.

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