"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.

Friday, February 19, 2016

#VideoRecordingCourtProceedings and bodily carrying attorneys in and out of courtrooms, the Russian and the American way

I wrote a lot on this blog about the necessity to video-record court proceedings in order to create a truthful record, about court transcripts being falsified and the challengers, rather than the falsifiers, being disciplined for that.

I've wrote about the necessity of the "YouTube" court reform - where a lot of court problems can be eliminated or at least better addressed when judicial and prosecutorial misconduct are at least shown to the worldwide public.

I also wrote (yesterday, in fact), about two diametrically opposite criminal statutes in New York where one statute makes it a crime punishable for up to 1 year in jail to "knowingly publish false or grossly inaccurate report of a court's proceeding", while the other makes it a crime, also punishable for up to 1 year in jail to video-record those same public court proceedings and thus create the truest possible record of those proceedings.

The point of existence of both statutes is clear - only courts have the right to create a "truthful" record of the court proceedings, even, if that record is falsified, it is the challenger who will be prosecuted for claiming it is falsified, because it is the challenger's account, in the absence of video-taping, that will be claimed to be "false or grossly inaccurate" and not the cooked court transcript.

For example, after the audio recording of a court conference - which differed greatly from the transcript of the same conference - was published on this blog, I was charged with criminal contempt of court (a charge that was quietly dropped by the court later, but the disciplinary prosecutor Mary Gasparini who took offense with being caught red-handed in cooking court transcripts and who brought a criminal charge against me, not only as a criminal prosecutor (which she had no authority to do), but also as the sole witness of criminal prosecution, thus disqualifying herself from both the criminal proceeding she illegally brought, and from my disciplinary proceeding, was still allowed to remain on the case - and was given a gift of my suspension, as a reward for dismissing her fabricated criminal charges against me).

By the way, Mary Gasparini, as far as I know, was promoted after my suspension.  So, bringing fraudulent charges and committing fraud on the court by cooking court transcripts pays off career-wise for attorneys working for the government in New York.

That was just an audiotape.

A videotape, showing the body language and the sign interaction between the judge, the prosecutor, the witnesses and the jury, is a priceless piece of record, where appellate courts routinely "defer" on appeal to determinations of trial courts precisely because the trial court can see the body language of witnesses, and the appellate court cannot - because it was not reflected in the record, AND it is a crime to reflect that in the record.  Makes no sense, but that's what the "law" in New York as to preservation of the record of court proceedings is at this time.

Recently, I had a chance to compare the impact of publishing a videotaped record of a judicial misconduct committed during a court proceeding in Russian and in the U.S.

As to the U.S. story, I recently wrote (here, here and here) about a female attorney who was strapped to her wheelchair, her shoes, glasses, notes, pens and pencils were taken away from her, and she was wheeled into the courtroom, in the absence of her client, and was forced by a judge to conduct the hearing this way, or forfeit her client's rights.

Hers and her client's lawsuit against the judge was tossed on judicial immunity grounds, and the U.S. Supreme Court denied certiorari - while generously granting such certioraries to governmental parties, labor unions and corporations, likely in exchange of hunting trips or such-like pleasures for judges of the court.

So, there is a most definite injury - videotaped and published on YouTube, see here - which, in this country, remained without a remedy.

In New York, even videotaping what is occurring in the courtroom would be a crime, so a judge can commit any outrage against you and do absolutely anything to you in a New York courtroom and it will be your witness account (subject to a criminal contempt punishment for providing a "grossly inaccurate report of a court proceeding") against accounts of court employees afraid for their job security.

Don't count on courtroom security videotapes - they usually disappear in New York when you ask for them through Freedom of Information requests.  I tried.  One of my readers is fighting New York State Court Administration and Delhi Town Court right now to get security camera footage.  New York State Court administration reportedly tells her that the footage is in the hands of the Delhi Town Court, and the Delhi Town Court reportedly cannot provide any coherent explanation as to what happened to the footage or if it ever existed.

So, the only video footage that you can reliably get of court proceedings is the footage that you create yourself, and it is a crime in New York to create such footage, but also a crime in New York to misrepresent contents of a court proceeding, and without such a footage showing that you are telling the truth, nobody will believe you, and court transcripts will be cooked.

Of course, on the other hand, security cameras, and videos from those cameras, are available for judges to watch what is happening in the interview rooms, thus monitoring privileged communications between attorneys and clients, but remember - judges can do anything to you, and they are absolutely immune from any liability.

A friend has recently alerted me of a story in Russia where a criminal defense attorney was bodily carried out of the courtroom, with a piece of the desk he was sitting at and was holding on to.

The attorney was a privately retained lawyer representing a defendant in a criminal proceeding.  Apparently, the court and the prosecution wanted to squeeze the private and independent attorney out of the criminal case (happens in the U.S. also, all the time, courts and prosecutors invented many tricks to reach that "goal"), but the court and the prosecutor could not do that under the Russian law by any legal means, and the attorney Denis Viatkin was a stickler of legal ethics and insisted on following his duty to his client.  

So, here is how the situation developed.

An attorney was sitting with his client in a courtroom, the prosecutor is sitting at his desk, the judge is not in the courtroom yet.

The court security officer approaches the attorney and tells him that the judge ordered him to leave the courtroom (the whole situation is being secretly videotaped).

The attorney tells him, repeatedly, that he is not allowed to abandon his client without a written court order.

The attorney is told repeatedly by the court officer that it was the judge's oral order ordering the attorney to leave the courtroom.

The prosecutor tells the security officer finally to use force.  Force is used and the attorney is bodily carried out of the courtroom.  Since the attorney was holding on to his desk, part of the desk was carried out of the courtroom, too.

All of that is being videotaped.

After the attorney is carried out of the courtroom, a judge enters the courtroom and brazenly claims that on his way to the courtroom he say that the attorney left the courthouse for reasons unknown to the judge, and thus the attorney made the court proceedings impossible, and the judge will refer him to his professional association for punishment.

Both stories - in the U.S. and in Russia - were published on YouTube, see also a video and audio account of what how representative of the American female attorney was seeking public records from the County about what occurred in that court, in the holding cell and in the jail.

Both stories caused considerable outrage in the respective press and social media, here is one of the articles in Russian media, with a transcript of what occurred in the tape.

There is a distinct difference though as to what happened in Russia to the judge who was caught on videotape ordering an attorney to be cast out of the courtroom without a written order, and then misrepresenting on record that the attorney voluntarily left the courtroom for unknown reasons and thus made it impossible for court proceedings to go forward and to an American judge who ordered strapping the female attorney to a wheelchair for making a photograph of a court proceeding.

And there is a distinct difference as to what has happened to the attorneys abused by judicial misconduct.

Attorney Michele McDonald was not provided with any remedy.  Judge Knutson was not ordered even to extend to her a public apology.  It is as if what was done to her was ok.  And, since it was "ok", it can be done to her, and to any of us, again.

In Russia, the Russian judge Alexander Shur had the audacity to file a complaint against attorney Denis Viatkin whom he first orally ordered to leave the courtroom, and when Attorney Viatkin refused to do so without a written court order and was bodily carried out of the courtroom by security officers instigated to do so by the prosecutor, the judge walked into the courtroom, claimed that Attorney Viatkin just left the courtroom and courthouse without the court's permission.  Attorney Viatkin was initially stripped of his attorney status based on Judge Shur's complaint.

But-for the videotape that was published on YouTube and caused resignation of Judge Shur, Attorney Viatkin would have remained disbarred.

Now, Attorney Viatkin is a celebrity in Russia - unlike attorneys disbarred or suspended in the U.S. based on fraudulent complaints and fraudulent sanctions of American judges.  There is no right to appeal, and courts universally refuse to review disciplinary action against attorneys who dared to criticize judges.  Such attorneys are blacklisted and remain unemployed and unemployable.

As to the fate of the Russian judge and the American Judge.

Judge David Knutson happily remains on the bench, without any discipline.

Here is our bright and sunny Judge Knutson, the gross and disgusting abuser of women in the courtroom.  The "honorable" family man.  The mysoginist and domestic terrorist who turned the courthouse into a torture chamber, and who is fully protected by our glorious Elder Council, the U.S. Supreme Court, the court that has better things to do, like book-writing, book tours, lectures and hunting trips, than to review the lawsuit about a judge's torture of an attorney in the courtroom and to protect her and all of us from the likes of Knutson (see the petition for a writ of certiorari here, order denying review of the petition without an explanation here).  

I guess, Attorney Michele McDonald had no clout with the court and could not invite Scalia to a hunting party, ghost-write books for any other judges, or invite them to luxury resorts, all expenses paid, and have them meet rich sponsors.

Our bright and sunny Judge Knutson remains on the bench and is thus allowed to continue to do what he did to attorney Michele McDonald and her clients and to other lawyers and their clients.  Good luck expecting justice in his court.

The Russian judge Alexander Shur responsible for the videotaped misconduct was forced to resign, and his request for reinstatement was denied.

Attorney Viatkin's attorney status was restored and he is celebrated in Russia as a hero that he truly is.

When we claim that Russia is a dictatorship under Putin and democratic freedoms in Russia are being grossly and increasingly violated (and I agree with that), we appear to be worse, and Judge Knutson's criminal order to assault, commit battery and abuse attorney Michele McDonald, with complete impunity, is only one of many examples, the situation that the U.S. Supreme Court refused to review, is only one of examples that 

(1) judicial misconduct in this country is out of control; 

(2) anything can be done to you in the courthouse and in court proceedings, 

(3) there is no rule of law in court proceedings in this country,  

(4) there is no remedy for victims of judicial misconduct in the U.S.

*   *   *

Today and tomorrow, when the United States, or at least its official establishment, is "honoring" the dishonorable and disgusting executioner of the innocent, the racist and mysoginist #AntoninScalia (see a great piece about mourning Scalia by Katie Halper "In Defense of grave dancing: it's true that Scalia was a human being, but I still refuse to mourn a-holes like him politely")  we need to rethink our priorities in what we allow to do to ourselves in the courtroom, who we put on the bench and how we keep our heads in the sand even when we have irrefutable proof that those who are on the bench must be off that bench and behind bars.

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