"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, February 24, 2016

On importance of quality criminal defense and funds for the indigent criminal defendants

This story is gruesome, and a lot of what allegedly happened in that story, happened only reportedly or allegedly, because no proof of it was or was allowed to be presented to the criminal court.

A stepfather who happened to be a billionaire allegedly disclosed to a psychological counselor in Arizona that he allegedly sexually abused his stepdaughter.

The counselor, being a mandatory reporter required by criminal law to report even a suspicion of sexual abuse of children on the threat of criminal prosecution (against the counselor) for non-reporting, reported what the stepfather said to authorities.

Criminal felony proceedings were brought against the stepfather in the State of Wisconsin.

In the criminal charges, the stepfather was accused of sexually assaulting a 15-year-old child about 20 times.

Yet, Johnson was allowed to plead to a misdemeanor, 4 months in jail only, with the so-called Huber privileges, meaning that he could be released as early as after 60 days' incarceration for good behavior.

Johnson was also ordered to pay a fine of $6,000 which, for a billionaire, of course, was not a burden or problem to pay.

There was a lot of indignation in the mainstream and social media as to how did this happen and how the billionaire was allowed to escape the charges.

Yet, in this particular situation, where no foul play is apparent, the only thing that is apparent is - lack of available proof on the one hand, and good criminal defense work and availability of funds for such works in several states, on the other.

The key was that the alleged victim fought against efforts to make her testify at the trial, and to turn over records of her own counseling sessions, which the defense required to use as potential impeachment evidence to attack truthfulness of her accusations. 

The defense team did its job, and the prosecution could not do anything without the key evidence, but agree to the plea bargain that the defendant agreed upon, under the circumstances, simply to stop the publicity circus.  It is a slap on the wrist - IF those crimes were, indeed, committed, for which we do not have proof.  Mr. Johnson will not even have to register as a sex offender...

Yet, a bitter aftertaste of this case remains because the same arguments that were considered favorably for this particular criminal defendant, whose family reportedly generously donated to various Republican PACs, likely would not have been considered as favorably by various courts in various states had the defendant not been a billionaire, and had his family not have the political clout it has and had his family not been such a generous donors to various election campaigns.

I do not have enough facts and cannot speculate whether the stepdaughter's disappearance to North Carolina and refusal to come to trial to testify, was caused by intimidation or payoff. 

Also, usually witnesses do not have enough funds, as the girl had, to legal advice and would not have funds to mount a legal defense against a subpoena to trial to testify, seeking reportedly to dismiss the action.

Once again, as an expert in criminal defense, I realize that the prosecution could not get a felony conviction at a trial (or any conviction) under the circumstances and opted for a misdemeanor plea, which was accepted by the court, but the court rejected a maximum jail recommendation by the prosecutor of 9 months and imposed 4 months with a possibility of early release after 60 days. 

Yet, had the family of the defendant not been super rich and influential, the scenario could have been very different, and I am not talking about bribes or promises of bribes, I am talking about a possible unwillingness of judges to displease an influential and rich family, thus harming their own careers in the future.

And, of course, an indigent criminal defendant who usually would be assigned an overworked and underpaid assigned counsel, not necessarily a good one, and no funds for experts, investigators or litigation spanning several states, would most likely plead to a much higher charge, a sex offense, and that is whether the allegations against him/her are truthful or not, simply not to risk the maximum sentencing after trial.

Just another example of what money and clout can do when they are available to fight a criminal proceeding.

This has happened in a country with jails overfilled where 95% or more of inmates are convicted on plea bargains (often coerced, and based on bluff or fabricated evidence) and being used by for - profit prisons as slave labor.

An example of what a good and well-funded criminal defense can do.

When such a disparity in prosecution and defense of serious crimes exists, where only the cost of criminal defense, and not the merits of the cases, define whether a person will or will not be convicted of a serious crime, especially a sexual crime against a child, and where inmates are predominantly those who pled guilty and inmates are used by for-profit prisons for slave labor, I wonder what we as taxpayers fund in funding law enforcement and prosecution of crimes.

Without a well-funded criminal defense for the indigent, prosecution of crimes appears to be just a measure of social control of the poor, and provision of slave labor to the for-profit prison industry. 

No comments:

Post a Comment