"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.

Sunday, October 25, 2015

So should we boil those criminal defendants - slowly? To save our tax dollars?

I wrote on this blog about a judge from Mississippi who thinks that all criminal defendants are criminals while they are still covered by the presumption of innocence.

If judges are that illiterate as to the concept of the presumption of innocence, what can be said about the public, especially during our Internet and especially social networking age. 

Here are some comments from Facebook as to what needed to be done immediately to criminal defendants accused of crimes and covered by presumption of innocence.

The defendant in the case was accused of allegedly burning children by allegedly bathing them in water that was too hot.

The defendant's picture, name, age and accusations/charge were published in the newspaper article.

Here are the suggestions of the public, the potential jurors:

That is quite a range of options.

Remember, children are alive, and the criminal defendant is only ACCUSED of committing a crime at this stage.

Yet, we can:

  1. boil him;
  2. boil him specifically in oil;
  3. kill him without a trial or death row if he intentionally hurt a child - how that can be verified without a trial, is not suggested;
  4. "do the same thing to him";
  5. allow a commentator to run the defendant's next bath since prison is too good for him - with the obvious results that he will not survive that bath;
  6. "eye for an eye" - whatever that means in this context;
  7. hang him by the neck until dead;
  8. shoot them between the eyes on the date of publication of the accusation;
  9. throw him in a pot;
  10. put him in a cauldron over open fire;
  11. let 25 Moms corner him, and put him in scalding water, till he goes to the regional burn center;
  12. burn him at the stake;
  13. torture him and then hang him.

Once again, quite a range, and imaginations and creativity run wild of how exactly to torture and kill the defendant (an identified specific person, whose name, age, face and location are described in the publication).

Here is another set of comments, about a mother accused of having neglected her children or having caused burns on her children because ALLEGEDLY burns were found on children - and in a string of comments to that publication, a voice of reason appeared, a person who knew about the case who said that not only the children were alive, but that social services misrepresented insect bites on children as burns - and such misrepresentations, I can attest to it as an attorney representing parents in cases brought against them by social services - happens ALL the time.

So, here are the comments about the mother following a publication stating that the mother is ACCUSED of allegedly having caused the burns on the children - while the mother remains presumed innocent:

Once again, the commentators got creative and suggested that:

1. that the defendant's "smirk" should be beaten off her face;
2. that the defendant's face must be burnt;
3. that the defendant should be given a life sentence in prison;
4. that the defendant's children should be taken away from her;
5. that the defendant should be sterilized for free, "no more babies";
6. that the defendant should be set on fire;
7. that the defendant should be burnt with cigarettes "and keep burning her";
8. that the defendant should be instantly sentenced to death without wasting taxpayer dollars on her;
9. that the defendant should be burnt slowly and let to suffer, then she will burn in hell;
10. that the defendant should be burnt at the stake on live TV, and that her children - who are very much alive and only suffered insect bites (certainly not from their mother) - should "RIP".

Of course, all of these commentators should be spotted and taken out of jury pools, for cause, permanently, and such publications provide a galore for criminal defense attorneys in OTHER cases in creating a whole database of potential jurors to be stricken for cause.

Yet, for the particular defendant about whom the comments are made, publicity turns in a nightmare.

Of course, there is not even a hint of possibility for a fair trial left for such a defendant after just one publication, and there is no point telling anybody that the publication is just "local", not when all local media sources are on the Internet - and specifically, on Facebook, and not when Facebook has recently introduced search inside Facebook by keywords.

What is the remedy?

A radical solution is to prohibit ANY pre-trial publicity and to RIGOROUSLY punish police and prosecutors for making press-releases about charges being filed.

That is an especial necessity because such publicity triggers the need for the defendant and his attorney to try to undo the harm caused by such publicity - which may be impossible once the publication is made, since first impressions (from the publication and what was fed to the newspaper by the police and prosecution) may have the most lasting effect on the public.

Part of the solution is, of course, education of the public.

Drilling from kindergarten about the meaning of presumption of innocence.

Of course, that will make the work of the police much more difficult, with less people to be duped about their rights, but otherwise criminal defendants cannot have the right to a fair trial, and may be steered into plea bargains, especially in really bad cases in death penalty states, simply to avoid execution IF convicted - by a biased jury where, from the time the person was accused, and the accusation was plastered all over Facebook, the verdict was already there - burn him.  Slowly.

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