"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, February 29, 2016

On the need of independently created records of court proceedings

I dedicated a lot of time on this blog to covering issues of preservation of records of court proceedings, not only as to what was said, but also the body language of participants.

I wrote about the fact that my own disciplinary proceedings were adamantly secret, even when it was illegal to close the courtroom after I opened it, by operation of law, through a written waiver of my privacy.

I wrote that I was criminally charged practically for violation of my own privacy, for blogging about judicial and prosecutorial misconduct in cooking the transcripts of my disciplinary proceedings, specifically, for posting both the transcripts and the audio-recordings of the same conferences that did not match the transcripts, including material issues (whether the proceeding was a hearing or a conference, who were the parties present, whether I waived any issues, whether I testified or not).

Judging by my own experience as an attorney, on what my clients and readers reported to me and on my research for this blog, preservation of the record of court proceedings is a problem across the United States.

Of course, fabrication of transcripts is a crime, and not only in New York.

Here is a question of a legal consumer asked on Avvo about fabrication of transcripts, and an answer by a California criminal defense attorney.

Thank you, attorney Marshall, even though I wonder whether the attorney and the court reporter will be prosecuted criminally if the opposing counsel is himself the state Attorney General, like it already happened in California - recently its Attorney General was criticized by a court for fabricating a transcript of confession in a criminal case.  

Yet, I completely agree with Attorney Marshall's determination above.   It is a crime to cook court transcripts, no matter how you look at it.

I will definitely ask disciplinary attorney Mary Gasparini to be disbarred - when the new attorney disciplinary rules will kick in in July of 2016.

I will also ask the New York court system to yank certifications of court reporters who cooked the transcripts, but I doubt that any of what you say will happen to the perpetrators of such fraud will happen.

Because the very court that such attorney Gasparini and two court reporters were defrauding for cooking the transcripts are aware of the fraud and refused to address it or sanction the fraudsters.  After all, that fraud was "for the benefit of the public" - brought in order to bring to heel the much-hated critic of judicial misconduct, so it is totally forgivable.

Here is a petition filed online at 2 months ago by a New York litigant.  The New Yorker is asserting that certain transcripts of a divorce proceedings were inaccurate, in order to protect misconduct of a judge:

I wonder if the alleged serious misconduct of the judge involved (there are two judges in New York by the last name of Cooper, so I do not know which one is meant here), was investigated and addressed.

If allegations are not investigated simply because they are not put together in a refined way, as an attorney would, that is not a good reason to deny investigation, because what is asserted is serious misconduct, that includes condoning fabrication of transcripts.

Reports of alterations of court transcripts were made recently in Pennsylvania (see also here, and see that the reporter in question sued the lawyer for even alleging the alteration of transcripts) and in New York, where, apparently, a whole code language exists indicating that the record should be "cleaned" and what needs to be done with it.

In the same Pennsylvania, the Supreme Court has removed a judge for alteration of transcripts (but did not take her off the bench, disbar her, nor was she criminally prosecuted) for alteration of a transcript in a death penalty case and removing her own disparaging remark from the transcript.

In Ohio, a judge would stop recording of a proceeding because - as the judge claimed - the recording equipment would, coincidentally, "not pick up", and - as the attorney claimed, because the judge wanted to fix the transcript as he saw fit (you will soon see a separate blog about how Delhi Town Court, NY judge Richard Gumo was doing the same - for years).

In Texas, an individual asked a question on Avvo, an attorney rating system where attorneys also answer questions of individuals in exchange for an increase for their rating.  

The question was pretty staight-forward:

Yet, the answers given by two Texas attorneys were anything but straightforward.

First, none of them were civil rights attorneys - one announced himself as a "criminal defense attorney" and the other as a "personal injury lawyer".

Yet, the question required an answer from a civil rights attorney, because it involved potential issues of quasi-judicial immunity.

And the answer is - no, there is no judicial immunity given to court reporters, there is, among others, a case on the subject, Antoine v Byers, decided in 1992 by the U.S. Court of Appeals for the 9th Circuit.

 Yet, one of the answerers concentrated on whether the person would be able to prove the alteration and "declined to comment" beyond that point, obviously fearing retaliation for giving a potential advice that the person can, in fact, sue a court reporter for alteration of records, and can even seek that the reporter's certification be yanked and that the reporter be criminally prosecuted (as the California attorney above suggested).

The second attorney who answered acknowledged that a "serious injustice" may have been committed against the asker, but tried to channel the asker's efforts first into an appeal.  

Yet, such an approach has two problems.

First, it did not answer the question whether a person can sue the court reporter or not - which is he can, for common law fraud and, possibly, for more.  Suing a court reporter and appealing a case where the court reporter committed a crime are two different things.

Second, appealing based on an altered transcript may make the problem worse and irreversible for the asker, making the advice truly bad and counter-productive.

I did appeal a lot, and I know that, at least in New York and in federal courts (and, I am sure, in any other court), a record on appeal must include a certified transcript of proceedings.

In this case, the certified transcript will have to be the altered transcript perjurously certified by the court reporter.

After the appellant submits such a transcript that the appellant him/herself obtained, while knowing the transcripts were altered, there is a distinct possibility that the appellant will have waived the issue that the transcript was altered.  After all, the appellant him/herself has submitted that altered transcript certified as good, to the court, thus committing the appellant's very own crime. 

Even federal judges were reported to have ordered alteration of transcripts, and retaliation against whistle-blowers who reported such misconduct.
Since in many jurisdictions, audio and video recordings of court proceedings are not allowed, or, to make an audio recording or a video recording of proceedings (security tapes) is made the exclusive right of the court, it is the court and its personnel who can do anything it wants with the transcripts and even with digital files.

See how #JudgePhyllisKeaty of Louisiana handled the issue of court recordings in which she did (her version) or did not (the attorney's version) disclose having a property interest in a real estate firm that handled the sale of the litigants' property.

Note that while what Judge Keaty did reads like a disciplinary or criminal proceeding against her, it is in fact a successful disciplinary proceeding against the attorney whistle-blower Christine Mire who found out and reported Judge Keaty's misconduct:

So, the attorney did what she is supposed to do - due diligence.  She asked for the audio recording.  

By the way, I myself and many of my former clients and of readers of my blogs asked for audio CDs of court proceedings from New York courts, with an invariable answer - NO.  That is not "our procedure".  Our procedure is that you pick a stenographer from an "approved list", agree with the stenographer on the price, tell the court the name of your "chosen" (or, rather, coerced) stenographer, and then the court will send the stenographer the audio-recording (possibly, with instruction of how to "fix" whatever "problems" in that audio tape).

As you see above and below, the stenographer in Chistine Mire's case became initially just "very defensive", and then sued to enjoin disclosure of the audiotape, but Respondent still obtained the tapes and was actually able to prove that the recordings were actually altered.

 So, did #ChristineMire get a Citizen of the Year award for her courage, perseverence and due diligence in looking for evidence BEFORE accusing the judge of any appearance of impropriety?

No, she was stripped of her ability to earn a living for a "year and a day", with 2 years "unsupervised probation" during which she should be a good girl and never try to do the same as what she did for which she lost her law license - never to try again to do a thorough job for her client and never again try to seek existing evidence of judicial misconduct and corruption.

And, the judge who should be stripped of her black robe, disbarred and put behind another kind of bars, testified against attorney Mire in her disciplinary hearing.

#JudgePhyllisKeaty testified like that:

So, in other words, Judge Keaty lied as to what was cut out of those court tapes.

While Christine Mire was charged with making "unfounded motions to recuse", thus "delaying litigation", "disrupting the tribunal" and making accusations against a judge that were "false or made with reckless disregard to truth or falsity", 

  • Christine Mire was right that the tapes were altered;
  • Christine Mire as right that Judge Keaty lied as to disclosure of her interest in the real estate firm;
  • Judge Keaty changed her disclosure firm after and as a direct result of Christine Mire's investigation;
  • Judge Keaty was ordered off the case, so Christine Mire's motions to recuse were not unfounded, after all.

I do not believe that any of this circus would be possible if one simple thing was done - if proceedings were public, and if any member of the public present at such proceedings, including parties and their attorneys, could videotape proceedings themselves or order videotaping from others.

Then, there could be multiple videotaped versions of the same events and a very good possibility to compare who doctored what, without fighting "very defensive" court reporters to see what exactly is in the record of the court proceeding where the attorney and her client was attorneys of record, and thus had an absolute right to the record of proceeding, in all forms, paper, audio and video, if those records existed.

And, while one of the dissenters in Christine Mires disciplinary case, Judge Weimer, said this:

So, for an attorney and a sitting appellate judge, what he just listed above (most scans above were from his dissenting opinion), was enough for a criminal investigation and charges against Judge Phyllis, he refuses to see the facts for what they were and insists that "the standard of review" "does not require [him] to question [his] assumption (he still cherishes assumptions, after reading that record! - TN) that all judiciary members involved are honest, eminently competent and motivated by the noblest intentions, an assumption applicable to each of the judges in this matter".

Judge Weiner (whose own law license, and thus judgeship and livelihood) was in the hands of the same "disciplinary council" that went after Christine Mire, stressed his solidarity with his own brothers and sisters, judges involved in using attorney disciplinary proceedings, designed to protect consumers of attorneys' services, into an institutional vendetta against a whistleblower of judicial misconduct.

Judge Weiner, even as he dissented and thus, tried to do "the right thing" for Christine Mire, stressed twice - at the beginning and end of phrase, I highlighted it in yellow, that he still cherished assumptions of honesty, eminent competency and noble motivations for all judges "involved" in the case, including the one likely engaged in criminal conduct and the ones who were covering her up and going after the whistle-blower.

There was a more honest dissent in Christine Mire's disciplinary case - short and to the point, by judge Hughes.

I applaud to Judge Hughes.

That one paragraph of Judge Hughes' dissent was all that was needed to dismiss the case against Attorney Mire.

The record of attorney Mire's disciplinary proceedings would serve wonderfully as evidence before the grand jury to indict Judge Phyllis Keaty and whoever else was participating in doctoring transcripts and court tapes. 

I guess, the feds need to step in there, as state system, the system of the "honorables" who do not want to see misconduct of their own "brothers and sisters" even when facing evidence of it, will only continue to do more of the same - pursuing not the perpetrators of court corruption, but the whistleblowers, and destroying their lives.

For that reason, I am all for the YouTube revolution.

Allowing any member of the public to video-record court proceedings will be a large step forward to clean up the courts.

It should be done now.  And people, through grass roots movements and through aggressively petitioning their legislators, or voting out of office those who are not responsive to requests for such legislation, can do it.

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