"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.

Friday, October 30, 2015

In Otsego County court, ex parte communications with prosecution/former boss is a norm

Criminal defendants have a constitutional right to be present at every significant stage of a criminal proceeding.

Every significant stage of a criminal proceeding must be held on record.

Yet, that's not what is happening in Otsego County Court (State of New York), where Judge John Lambert or Judge Brian Burns are presiding.

The usual "procedure" invented by these judges in felony cases is as follows.

The criminal defendant and his/her attorney are required to appear at endless pretrial conferences, whether they have anything to discuss with the prosecution or not.

Non-appearance is punishable by a bench warrant against the criminal defendant and as a contempt of court against the attorney.

This way these judges make sure that criminal defendant's funds are drained on legal fees before trial, in order to "secure" a plea deal where all factual inconsistencies in criminal charges are waived.

When the attorney and his client arrive for the conference, and many attorneys and clients are scheduled for conferences on the same day, Judge Lambert or Judge Burns (whoever is handling the cases) first ask into their chambers (1) the prosecutor; (2) officers from police and probation.  

Defense attorneys are not called into the chambers immediately, and the DA and his witnesses do not leave the chambers with every criminal defense attorney called into chambers.

Later on, at trial, the same witnesses may be called to testify, yet, instead of being sequestered, they sit in the judge's chambers and have a potential to communicate with the judge behind closed doors before the criminal defense attorney is called in.

After a period of communication behind closed doors between the judge, the district attorney and the DA's witnesses, defense attorneys - without their clients, criminal defendants - are called into the chambers.  

No stenographers are present and conferences are  held off record, in the absence of criminal defendants - which is a reversible error already.

Probation officers are present notwithstanding whether, in accordance with state law, criminal defendants did or did not sign a written waiver to communicate with probation officers as part of a pre-plea investigation.

I know from an attorney who suffered a harsh rebuke from Judge Lambert that judge Lambert verbally lashed out at an attorney who tried to put on record what the attorney discussed in chambers.   The attorney was shaken up since Judge Lambert, who was much younger than the attorney, yelled at the attorney (I won't disclose the gender here, to protect the attorney's identity from retribution).

So, instead of carefully preserving all communications with the court at important stages of criminal proceedings on record, Judge Lambert and Judge Burns hold ex parte communications in chambers with the DA (their former boss), the DA's witnesses, probation officers - without written waivers from criminal defendants agreeing to talk to probation officers - and where criminal defense attorneys are invited while the DA and his witnesses are already sitting there, while criminal defendants are never invited and record of such proceedings is not kept.

These conferences happen, as I mentioned above, often, and it is my belief that such conferences are meant to drain criminal defendants of funds to be able to go to trial, because all of their funds are spent on paying their attorneys to appear at such unnecessary and unlawful conferences.

As I mentioned above, both Judge Lambert and Judge Burns are former employees of Otsego County District Attorney John Muehl, both are former Assistant District Attorneys of Otsego County, Judge Lambert is the former Chief Assistant District Attorney of Otsego County, which makes their "familial" interactions with John Muehl an even more egregious misconduct.

And, despite the fact that unlawful practices of Judge Lambert and Judge Burns are well known in the court system, both of these judges were promoted by the New York State Court Administration.

Judge Lambert was made a supervising judge in upstate New York over DWI cases in the 6th Judicial District, and Judge Burns has been promoted to supervise town and village courts in upstate New York in the 6th Judicial District.

It appears that for New York State Court Administration judicial misconduct such as Judge Lambert's and Judge Burns' in criminal proceedings must be not prosecuted, but instead must be rewarded.

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