"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.

Monday, November 9, 2015

The Anthony Pacherille story, Part 1 - for judge Brian Burns of Otsego County Court, NY, justice is for sale

I will start from the end.

In May of 2015, the New York State Court of Appeals upheld the conviction of a young man from Otsego County, Anthony Pacherille, for attempted murder in the 2nd degree and his sentence, on a plea, for 11 years in prison.

Anthony Pacherille was 16 at the time the crime was committed.

There was a strong dissent in the decision, and I encourage my readers to read it fully.

I will post two first paragraphs of the dissent by Judge Jenny Rivera:

Essentially, what Judge Rivera said is that youthful offender status (which converts the criminal conviction into a Family Court adjudication, provides for no criminal record and allows maximum incarceration until the person turns 21) cannot be waived in a plea bargain.

Not only the YO status in Anthony Pacherille's conviction was waived, but, as his father claims on his website Cooperstown Hall of Shame, Anthony Pacherille, a young man with a diagnosed mental illness, was coerced into lying about his alleged racial motivation to shoot at the victim instead of being driven by the victim's alleged bullying of Anthony Pacherille at school.

The father claims that the youth was coerced to lie by DA John Muehl and by judge Brian Burns, as a condition of giving him "only" 11 years in prison, with the alternative of the maximum of 20 years in prison.  The scared youth accepted the plea deal.  I wonder who was his defense attorney at the time to allow all of that.   

I believe what the father is saying of the son being coerced to lie in a plea, is true.  It happened to my own adult client - even though he refused to enter a false plea, but Burns was pushing for my client, in court, on record, to disregard issues in the case and to settle with the government while knowing there was no legally sufficient case against my client.

The problem that Jenny Rivera and Jonathan Lippman (another dissenter) saw in such a conviction and super-harsh sentencing is that children should not be held criminally responsible for their actions on the same level as adults, and that is especially applicable to mentally ill children, while Anthony Pacherille was diagnosed, at the time of sentencing of having a mental illness.

The maximum security prison where the mentally ill young man is held as an adult, the Clinton Correctional facility, certainly does not help treat such a mental illness.

 The case was resolved by a plea bargain, so the case was never tried, and any plea bargaining impairs truth-finding.

What is even more troubling is the reported insistence of DA Muehl, through a letter to the boy's defense counsel at trial level (see the same interlinked source), to prevent introduction of the evidence that Anthony Pacherille was bullied at school (as the father says, by the victim) as a factor of the boy's actions.

That is, my dear readers, preventing introduction of Brady material, of mitigating factors, and such letter in itself, as well as such a motivation, constitutes prosecutorial misconduct for John Muehl.

The question is - why did Brian Burns, the former assistant Otsego County District Attorney - followed what John Muehl wanted, even if what John Muehl wanted (preventing consideration as mitigating factors the boy's mental illness and being bullied by the victim) would be illegal at trial and abuse of discretion at sentencing on a plea bargain of a YO-eligible mentally ill boy?

Well, if what Anthony Pacherille's father reports of what the victim was doing to Anthony Pacherille is true, instead of coercing the boy into accepting a plea bargain for 11 years in prison, the boy could very well be entitled to a temporary insanity defense, especially based on his diagnosis for mental illness.

Why such a harsh treatment of a mentally ill 16-year-old whose victim survived, as opposed to an extremely lenient treatment of a rich old lady who killed a young woman and got 90 days in prison from the same Brian Burns?

Look at the comments of the victim's family about Bertsch' release from prison:

According to Pacherille's father's website, Sandra Bertsch is a rich old lady and a friend of the local rich lady Jane Clark, and that, and not anything else, is the reason for the lenient sentence.

According to my own research, Sandra K. Bertsch also was allegedly, according to the wedding announcement of her son in New York Times of all places, the executive vice president of Friends of Hyde Hall, "which operates a historic site in Cooperstown, N.Y." 

Friends of Hyde Hall apparently is a prominent local charity in Cooperstown, NY

Coffey was first appointed to the Commission in 1995 by the much embattled Bruno.

Coffey got booted off the Commission in 2011 when the controversy with the "blind truck driver" case and Coffey's illegal threats to have everybody who touches "his" bail money (which was not his as a matter of law) indicted for grand larceny - for which he had to have an agreement with Delaware County District Attorney Richard Northrup, now himself elevated to the position of a Delaware County Judge.

I wrote on this blog about Stephen R. Coffey's prior misconduct in coercing judges and bending them to his will, whether his demands were lawful or not, by apparent use of his position of the Vice-Chair of the Commission.

After he was fired from a job, Coffey sent letters to the Delaware County Treasurer, me, my husband, then an attorney, my client, the District Attorneys office and then Judge Carl Becker asserting his right to a criminal defendant's bail, to which he could not show entitlement since the bail receipt was not in his name - as the appellate court has ruled later.  Coffey plunged Delaware County into several years of litigation, Becker engaged in an ex parte communication with the then Delaware County Attorney Richard Spinney (Spinney's revelation was reflected in the record), and it was I who was sanctioned by Becker for pointing out potential corruption - and it is I who was turned by Becker into the disciplinary court for claiming corruption between Becker and Coffey in coercing Coffey's client to waive his right to sue Becker, Delaware County DA Northrup and state and federal law enforcement for their unlawful arrest and seizure of the defendant's property.

It is Coffey who had Becker accept such a plea and coerced his legally blind client to state, twice, that he was driving the truck where the alleged drugs were found, while another person was given a ticket for speeding as a pretext for stopping that same truck on that same occasion.

Very apparently, Coffey had Burns' fate in his hands, as he had Becker's before - he could allow complaints against Burns to proceed, or not to proceed, at his discretion, as he did with Becker.

And that implicit threat worked as a charm.

Coffey's position as the Vice-Chair of the Commission won his client Sandra Bertsch an extremely lenient plea bargain - something that Anthony Pacherille did not win, after all, he did not belong to a prominent and rich family, his father did not have rich friends, and his attorney did not hold the judge's fate in his hands.

So, the results of the two cases is different. 

Let's remember, Lippitt is alive.

One victim of Sandra Bertsch, Patricia Zacchagnino, a woman who will never be 38 and will never see her child grow, is dead.

Her 2-year-old child was gravely injured in that collision.

Burns did not allow to videotape the sentencing of Sandra Bertsch.

Yet, Patricia Zacchagnino's husband made a statement at that sentencing and reportedly said the following:

Doesn't seem like a lot of remorse to me from the defendant, and doesn't seem like she was entitled to any leniency.

Yet, Coffey made a speech asking Burns to consider Bertsch's participation in "good causes" - which Anthony Pacherille, due to his age and his family's financial status, was unable to participate in to earn Burns' similar regard.

And Bertsch's participation in Cooperstown Friends of Hyde Hall and Girl Scouts got her 90 days in jail for drunk driving and wreckage that killed one person, injured a young child and caused extensive damage to property.

Of course, Bertsch's request to tend her dogs first as a priority over tending to a young child injured in a car crash caused by Bertsch, trapped in a wrecked car with the body of her young mother killed by Bertsch, was not addressed by Burns in his sentencing to 90 days in local jail, and Bertsch was out in 60 days "for good behavior".

Of course, as Patricia Zaccagnino's grieving widower said that his family was poor and, apparently, did not deserve consideration such as the rich drunk killer did.

And Pacherille, a boy who was not from the local establishment, was reportedly, according to his father, first not protected by the school from bullying by Wes Lippit, and when, after the years of relentless and cruel bullying, he snapped, Burns and Muehl got to be "tough on crime" off the boy's misery.

Lippitt suffered a wound after, reportedly, he relentlessly bullied Anthony Pacherille, who was a boy of 16 at the time of committing the crime, and, according to the two top judges of the New York State Court of appeals, constitutionally children should be held to the same standard of criminal responsibility as adults.

Yet, for Judge Burns, the reverse is true.  

An adult who killed another adult and injured a child, is allowed to plea to an e-felony criminally negligent homicide, go to local jail for 90 days, have a 5-year probation and 500 hours of community service.  She violated even that, by drinking, but because of the lenient plea bargain, even such a violation garnered her no more than 2 1/2 years in prison.

A minor who wounded another minor after that minor reportedly taunted and cruelly bullied the minor defendant for years, with adults standing by and doing nothing to help, gets 11 years, from a judge who was pissed by the father's letter to him requesting compassion.

Because judge Brian Burns wanted his 5 minutes of fame and promotion of his career by making an example of an alleged hate crime by a white boy against an African American boy in a nearly all-white area?

That is, at the time when Brian Burns continues to convict a disproportionate number of minorities in that same nearly all-white community for felonies and pack them away to prisons?

And, how about the fact that Brian Burns refused to consider a YO status on personal grounds, in retaliation for a letter that the father of the young boy sent to Brian Burns' home?

So, Burns made the boy suffer for whatever perceived threat he felt in the letter of the father, while there was no threat in that letter at all - as determined by another court, where the father was charged with a crime based on Burns' deposition as a witness?

And, unfortunately, disqualification and bias of the judge were not mentioned as factors in the NY Court of Appeals decision interlinked above, while it is very clear that Burns should not have been anywhere near the boy's case if he felt the way he claimed he did - intimidated by the father's letter.

I will continue with a blog as to how Otsego County (NY) judge Brian Burns escaped responsibility through a civil rights lawsuit for using his power as a judge in pursuing his personal vendetta against Anthony Pacherille's father that cost the mentally ill young boy a YO status and landed him for 11 years in a maximum security adult prison, with a criminal record of a violent felon, instead of up to 4 years in a juvenile facility, with no criminal record.

I will continue with another blog about continued vendetta against the Pacherille brothers, father and uncle of the young boy Anthony Pacherille that Burns put in maximum security prison for snapping after he could not tolerate bullying any more, after adults from the school, the police and the DSS/Otsego County Attorney's office failed to protect him for years by failing to discipline Wesley Lippitt, or bring a PINs or juvenile delinquency proceeding against him.

Stay tuned.

1 comment:

  1. wow, these 2 Burns, and Muehl, are the 2 in my sons case-no wonder they wanted a plea bargain, after my son snapped, after living with a sociopath!