"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 2, 2015

Porter Kirkwood and his incompetence regarding sex offender laws

Judicial candidate Porter Kirkwood boasted, throughout his campaign, that Family Law is a "separate kind of law", and that his knowledge is superior to that of Gary Rosa who "only" presided over Town Court matters (civil and criminal) for 23 years.

I already wrote about Kirkwood's incompetence in many blogs, and would like to concentrate in this blog on one important issue - Kirkwood's absolute incompetence in regards to sex offender laws:

  • what constitutes a sex offense;
  • whether a certain person may be legally considered a sex offender;
  • whether a certain person may be subjected to involuntary treatment as a sex offender;
  • whether a certain person may be punished for refusal to be subjected to sex offender evaluation and treatment.

In 2010, Porter Kirkwood won a child neglect proceeding in front of his buddy, the case-fixing judge Carl Becker (now quickly retired 3.5 years before his mandatory retirement deadline) because a non-sex offender violated sex offender-related conditions (thus, illegal conditions) of probation by (the horror!) communicating with his own children.  Appellate court rubber-stamped the illegal child neglect finding - that was one of Porter Kirkwood's "appellate victories' he was so boastful of.

Here is an excerpt from the "winning" (and illegal) appellate decision.

My husband and I were representing Respondent in the neglect proceedings, and my husband was representing him in criminal and probation violation proceedings.  

I know for a fact that the appellate court LIED by omission in putting in the section, BUT NOT THE SUBSECTION of the law under which Respondent was convicted.

In fact, the court did refer in the above case to the case where the same appellate court reversed a prior child sexual abuse adjudication against the same father, Matter of Kayla F., 39 AD3d 983, 984 [2007]).

Yet, Kayla F. was reversed, and petition dismissed, with the court specifically stating that the father was not convicted for a sex offense, so nothing from that petition could be used as a basis for the sex offender evaluation.

Respondent was convicted under subsection 1 of the 2nd degree unlawful surveillance law, CPL 250.45(1).

Pursuant to Corrections Law 168(a)(2)(e), such a conviction is NOT a conviction for a sex offense.

Even a conviction under subsections (2), (3) and (4) of CPL 250.45 are not NECESSARILY sex offenses - and Respondent was convicted under subsection (1) which was strictly NOT a sex offense, by the statutory definition - a definition that the court had NO RIGHT to change.

Yet, the indigent Respondent (I was an assigned counsel on his neglect appeal) went to prison for not undergoing a "forensic sex offender evaluation" - while not being, as a matter of law, a sex offender.

Only persons convicted of a "sex offense" as defined in Correction Law § 168-a (2) are subject to the provisions of the Sex Offender Registration Act (Corr. L. Art. 6-C). 

Yet, Coccoma (now elevated to the position of Chief Administrative Judge of upstate New York) unlawfully took away his liberty, sending him to jail for not having money to undergo Hamill's sex offender snake-oil "treatment", while Respondent was not even a sex offender.

Yet, Becker, with the help of Kirkwood, unlawfully took away Respondent's contact with his own children.  

Porter Kirkwood knew that Respondent was not a sex offender when he brought the child neglect petition against Respondent.  

Appellate court knew it was unlawfully rubber-stamping 

NYS Judicial Conduct Commission refused to sanction judge Coccoma for unlawful incarceration of Respondent for violating conditions of probation that branded him as a sex offender, even though he never was convicted for a sex offense.

Moreover, I personally found out, through a FOIL request to the State Probation agency, that Delaware County department of probation, together with Porter Kirkwood's agency, participated in a survey where, in answers, they revealed a "policy" of Delaware County (not disclosed in any FOIL requests filed by me ever since with the county) of taking children away from "sex offenders".

That's what Kirkwood was doing - trying to separate Respondent from his children, even though Respondent was NOT a sex offender.

Once again - Respondent was convicted of unlawful surveillance in the 2nd degree.  No matter what is your personal perception of what the Respondent did, the crime for which he was charged and convicted, was ONLY unlawful surveillance in the 2nd degree.

In New York, a sex offense is a crime defined as a sex offense by statute - once again, no matter what you personally may believe Respondent's actions actually were, if we want to live in a nation of laws, Respondent was never charged, tried or convicted of a crime that constituted a sex offense.

Involuntary medical treatment is not authorized in New York under Mental Hygiene Law 9.60.

To overcome statutory and constitutional prohibition for forced medical treatment, the court has to have very good legal grounds to order such a forced medical treatment.

Courts did not have any authority to treat a non-sex offender (a person who has never been convicted for a sex offense, which is the legal definition of a sex offender in New York, whether anybody likes it or not - it's the law) as a sex offender. 

So, Michael Coccoma, Carl Becker, Porter Kirkwood and the Appellate Division 3rd Department, judges Cardona (Chief Judge, now deceased), Peters (current Chief Judge), Kavanagh, McCarty and Egan, acting in concert, misrepresented the law of Respondent's conviction in order to deprive him of his constitutional right of care and control of his children.  

Respondent's constitutional parental rights were revoked because Respondent did not undergo treatment with "Dr." Hamill, because he, an indigent (and my assignment to his appeal proves it) did not have $600 to pay for the illegal sex offender treatment of "Dr." Hamill who told Respondent to "go rake leaves to earn some money to pay for the treatment", and then turned around and complained to his probation officer that he willfully refused to undergo the treatment, which was an outright lie.

After probation was revoked, Respondent was actually coerced into the illegal sex offender treatment where Hamill found "significant sex offender issues" in a non-sex offender:

So, we now know that Porter Kirkwood does not give a fig about people's constitutional parental rights or the law when unlawful secret "policies" of his agencies are concerned.

Yet, Respondent was an adult who committed a serious crime - which does not mean that judges or DSS or Kirkwood had a right to   change Respondent's conviction for a non-sex offense to a sex-offense and treat him accordingly under the law.

What Porter Kirkwood is talking about here are "juvenile sex offenders".

Listen to what Kirkwood says - boastfully - at the meeting with voters in October of 2015:

To see what is wrong about Porter Kirkwood's boasting about luring "Dr" Hamill to Delaware County to mastermind an experimental program to treat "juvenile sex offenders" in foster care - read in my next blog.

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