"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, October 14, 2015

The U.S. Supreme Court: actual innocence is not a good reason to stay an execution

We saw it with Richard Glossip - whose recent execution was stayed only because the State of Oklahoma suddenly found (minutes or seconds before the execution) that they had a food additive instead of a poison in their lethal poison cocktail.

Which did not prevent the State of Oklahoma to kill another prisoner, before Richard Glossip, with just the same cocktail containing the wrong drug.

And, given that pharmaceutical companies increasingly refuse to provide their drugs for executions, it is very possible that the alleged "mishap" was not a mishap at all, but a deliberate act of Oklahoma government to use that defective cocktail on condemned prisoners at executions - only in Richard Glossip publicity was running too high, and it was very likely that even more publicity would have ensued if the "mishap" was to be discovered after the execution - and it was a second-in-a-row execution like that, using the food additive.

I wrote on this blog about a federal judge out of Nebraska who has devised the whole of three reasons as to why he would KNOWINGLY allow execution of a person about whose actual innocence the judge would KNOW before the execution.

The three reasons are:

  • a "binding" court precedent that would allow to execute an innocent (of course, no such thing can legally exist or be constitutional, because execution is the ultimate punishment, and there is nothing to punish an innocent for);
  • clemency is available, and
  • the condemned person sat on his rights for too long, and it is untimely to raise the issue of his ACTUAL INNOCENCE just before the execution.
Here is the "binding precedent" that has led to an actual execution of a human being while the U.S. Supreme Court rejected his plea of actual innocence, while agreeing that, given an opportunity to present to the initial criminal jury the evidence available at the time of his request for a habeas corpus before the execution, there was a chance of a not-guilty verdict.

Herrera v Collins, some of the judges who voted for the execution to proceed (and it proceeded) despite the claims of actual innocence and without giving Leonel Torres Herrera at least an opportunity to present the new evidence in a new evidentiary hearing - these cannibals are still alive and some of them are still on the bench.

Of those who voted to continue execution of Leonel Torres Herrera who was 46 at the time of death:

  1. Chief Judge Rehnquist - died in 2005 at the age of 81, see his main opinion here;
  2. Justice White - died in 2002 at the age of 85, see his concurring opinion here;
  3. Justice O'Connor - retired and is still alive, she is 85 now, see her concurring opinion here;
  4. Justice Kennedy - alive and on the court, he is 79 now, see his concurring opinion here;
  5. Justice Scalia - alive and on the court, he is 79 now, see his concurring opinion here;
  6. Justice Thomas - alive and on the court, he is 67 now, see his concurring opinion here;

There were three dissents, by justices:

  • Blackmun,
  • Souter;
  • Stevens.
See the joint dissent here.

I already wrote on this blog already about U.S. Supreme Court justices getting free rides for their law clerks from private attorneys, from within the U.S. and from foreign attorneys.

I already wrote on this blog about influence of law clerks upon the elderly U.S. Supreme Court judges, which, all in all, makes it impossible to discern, who and for what actual reason, and based on whose paid-for and lobbied agenda, directed this or that U.S. Supreme Court decision, including death penalty cases.

It is disgusting when a bunch of elders send a young man to death, inventing miles of "opinions" as to why the government can rob him of his breath at 46, while they can continue to breathe well into their 80s, despite ordering a state-orchestrated murder, refusing to listen and precluding a human being from even presenting the evidence that could have saved his life.

Three of the Herrera v Collins cannibals, Kennedy, Scalia and Thomas, are still on the court.  And several death penalty cases are coming in front of them.

If they do not care whether a person they send to death is actually innocent, what do they care about any other issues...

Yet, I have a question, especially after reading Justice Breyer's recent book "The Courts and the World" indicating that certain forces in the U.S. Congress wanted to introduce legislation allowing impeachment of the U.S. Supreme Court judges for the contents of their rulings, especially, for striking the death penalty as unconstitutional based on evolving international norms of human decency ( (Kindle edition, location 5165).

If impeachment was considered for abolishing the death penalty, why 

  • Rehnquist;
  • O'Connor;
  • Kennedy;
  • Scalia;
  • Thomas and
  • White
were not actually impeached for allowing execution of a, likely, innocent man, while REFUSING TO LOOK whether he is innocent or not?

Isn't that an ultimate "bad behavior" for a judge?

You know that the U.S. Supreme Court can "work wonders".

It made racial segregation disappear.

It made interracial marriages not a crime.

It made contraception and abortion legal and not a crime.

It made same sex marriage legal and same sex not a crime.

It was very much within its power to create an opinion to give Leonel Torres Herrera - and many other condemned prisoners, life.

They did not do that.

Not for Herrera, not for many more prisoners executed since Herrera.

Not for Richard Glossip, whose claims, similar to Herrera's, of actual innocence and availability of evidence of such innocence, the U.S. Supreme Court rejected as ruthlessly and carelessly, as it did Leonel Herrera's.  Only Richard Glossip was saved by the rage of public opinion that made the Governor, in order to save face, to claim a last-minute botch-up of the lethal cocktail.

But nothing saved Leonel Torres Herrera, and the "precedent" allowing to kill an innocent remains on the books.

It is not too late to impeach the remaining group of cannibals - Kennedy, Scalia and Thomas and take them off the bench.

It will not bring Leonel Torres Herrera back.

Yet, it will at last give his family a sense of justice and restored confidence in the "justice" system.

Let them write memoirs, off the bench.  

It will make the world safer for a lot of people.

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