"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.

Tuesday, March 29, 2016

Janet DiFiore ceremonial fraternity swearing-in gathering at taxpayers' expense, Part III. All public officials in NYS are now judges, and all state prosecutors are now favored pets of NYS Court of Appeals

I continue publishing my own transcript (with comments) of the swearing-in ceremony of NYS Court of Appeals Chief Judge Janet DiFiore of February 8, 2016 (Judge Eugene Pigott of the NYS Court of Appeals presiding).

The official transcript is available here.  

The official transcript is not very accurate, it does not make notes of laughter, applause and other interesting reactions and body language of people in the video, that's why I am making my own transcript - AND, most significantly, it does not reflect that Judge Pigott calls numerous public officials who are NOT judges - judges 

(like, for example, Judge Pigott calls NYS Attorney General Eric Schneiderman "Judge Schneiderman", at 7:50 and 8:02 on the video, calls NYS Solicitor General Barbara Underwood (Schneiderman's appellate attorney) "Judge Underwood", at 8:18-8:20 - the transcript replaced the word "judge" with something else each time Judge Pigott called these attorneys appearing in front of the court /and representing the court in civil rights cases in federal courts/ "judges").

I reflected in my transcript each instance of the Court of Appeals calling non-judicial officers "judges" and applauding to it.


We left off in the transcript at 5:00 on the video, and now I continue the transcript from that point.

"We also have the Honorable Carmen Ciparick with us, Judge Ciparick (applause).  


Carmen Ciparick has long retired from the court and at the time of the ceremony, was a private attorney that works for a large New York City law firm Greenberg Taurig, LLP.  Look at the number of scandals and "controversies" the firm was involved in - with no attorneys disciplined, possibly, because they hire retired judges and other influential people and put money into the right kind of lobbying?

One of the firm's partners, by the way, is a referee on the NYS Judicial Conduct Commission - to keep judges in front of whom Greenberg Taurig litigates - in check.

Another way of connection to the courts in front of which the firm practices is to hire judges.  Like retired (in 2012) Judge, and now private attorney, Carmen Ciparick, who is also now a "Co-Chair, National Appellate Practice Group", and obviously has, through her personal connections and this "group", ex parte access to and influence upon judges in front of whom GT practices:

Attorney Ciparick (invited to the Court of Appeals) and recognized as one of the court's own, is handling appellate practice at her current employer Greenberg Taurig, and is obviously appearing in the lower appellate courts and in the NYS Court of Appeals.

Under the NYS Code of Judicial Conduct, Pigott's public recognition of Ciparick as a "judge" at the time when she was a private APPELLATE attorney appearing in New York State Appellate Courts was highly inappropriate.

End of comment, transcript resumes


And last... not last, but not least, we have two more... but the Honorable Robert Smith is with us today, Judge Smith (applause).

And last, but, certainly, not least, our latest or last Chief Judge, the Honorable Judge Lippman is with us today, Judge Lippman (DiFiore leans into Pigott and prompts him to introduce a "judge Traficanti").

Lippman was not at that time a judge, but a private attorney for Latham & Watkins LLP, as of January 7, 2016:

Moreover, at Latham Watkins LLP, "Chief Judge Lipman advises clients on appellate practice nationawide", and thus his appearance at the swearing-in ceremony and hearty welcome in the Court of Appeals as still a "judge" is highly inappropriate and constitutes endorsement and a sign of favoritism of his law firm and his clients over his opponents.

Joe! Good to see you (as Judge Traficanti stands up). 

The dust hasn't settled on the Lippman era yet. Jonathan hasn't been without us for very long. 

I did want to mention a couple things. There were a number of people who I had talked to who had applied for the chief judgeship and one of them had said to me, "When you think about succeeding Judith Kaye and Jonathan Lippman, you're talking about the gold standard."  And there are a lot of people who said "I just don't think I'm in that class", and I think they were right.  (Laughter starts).

It is very difficult (VERY LOUD laughter, 6:17-6:23)... it is very difficult to picture someone succeeding Judith Kaye and
Jonathan Lippman, but we have a candidate, thanks to the Governor.  (I continue to highlight Judge Pigott's flattery in pink).

want to say a word about Judith Kaye, also, with respect to the commission on nomination.  

You know, to get to this court, you have to apply to the Commission.  Commission does great work... They go through however many applications there are, they narrow it down, they interview an exhaustive number of people, and then they supply the Governor with a list that can be no fewer than four and no more than seven.

And when this last list came out, it was applauded all over the state (shakes his head) for the quality of the people that were on it that gave the Governor the opportunity to pick from a real gold standard bunch, and (a crooked smile) we all think he's done a pretty good job.

But, it was Judith Kaye who ran that Commission for a number of years. and was so successful (Andrew Cuomo makes grimaces as if he is bored, 

DiFiore is not listening, communicates by her eyes and nodding and raising her eyebrows 7:18-7:20 with somebody in the audience) 

in giving a number of Governors the people who ultimately ended up on the Court.

So, another Kudo to Judge Kaye and the great work she did.

And in addition to those I've introduced, we have a number of colleagues from the judiciary, from the Appellate Divisions, and from the trial courts that have joined us today and without... before your hands get too tired (makes a clapping jesture) without remembering each one of those - thank you all so much for coming.

Now, we have some state officials beside, and one of them is our great Attorney General the Honorable Eric Schneiderman, Judge Schneiderman (everybody applauds, including the entire Court of Appeals),  

As a point of personal - I don't want to say "pride", but - Judge Schneiderman has the Solicitor General Barbara Underwood who we see ALL THE TIME, who is simply outstanding as an Attorney General.

If you ever notice, we are live on the Internet, and we kind of sit a little bit closer to bench when Barbara Underwood is arguing.  I know she is here today - Judge Underwood (applause).

I don't know if this gonna happen this time, but it seems like every time the Comptroller of the State of New York is introduced, he gets more applause than anybody else (laughter - separate loud laughter of DiFiore).

But, I want to introduce our State Comptroller, Tom DiNapoli.  Judge DiNapoli. 8:35 on the video (redacted on the official transcript, p. 4) (applause).

(DiNapoli, as part of New York State executive branch of the government, is often or may be a party that is appearing in front of New York courts - inviting him and recognizing him as a "judge", especially with an indication that the presiding judge Pigott is on a first name basis with DiNapoli, was highly inappropriate - T.N.).

And also with us today is the Chair of the Assembly of the Judiciary Committee the Honorable Helene Weinstein, Judge Weinstein (applause).  I call her "judge" (that is unredacted in the transcript).

We should have a chair with your name on it, Helene, and I don't think we've ever had an occasion here when you haven't been here, and you are such a great member of the Assembly, and almost a member of our court.  Thank you so much for all that you've done for us ... over the years.

We also have a number of people from law enforcement here.  

We have, among others, the Acting District Attorney from Westchester County could James McCarthy stand and be recognized?

He is still smiling, that's a good sign (Pigott and Difiore shift in their seats, smile and turn towards one another as McCarthy is introduced - T.N.).

And we also have Thomas Zugibe, president of the DA's Association of the State of New York.  

Tom, could you stand and be recognized? Way in the back (Pigott is raising his hand, enthusiastically pointing at the end of the courtroom).  

Another point of personal pride, Mr. Zugibe, you know, we have we had that escape up at Dannemora in Clinton County 
and a lot of us watched that with great interest and concern.  I thought that the District Attorney of Clinton County, Andrew Wylie, did such an outstanding job. 

Every time I saw him or anytime he was on explaining things, I was so proud to be a lawyer, so proud to be part of the judiciary, so proud of how our law enforcement worked, that it was just a great tribute to all of the DA's, I think, all 62 of the district attorneys in this state. Thank you, all of you district attorneys who are here, for your great work. You can applaud them. (Applauds himself) 


Here is a description of a lawsuit naming the celebrated Thomas Zugibe, sued for prosecutorial misconduct in 2009 - prosecutorial immunity could have resulted in dismissal of the lawsuit, but that should not have affected attorney discipline.  No attorney discipline though, but an invitation to the swearing-in ceremony of the NYS Chief Judge and personal recognition in a live-streamed Internet session.

Here is a list of lawsuits against Thomas Zugibe in federal court (he is listed there as "dft" - defendant, or "pty" in appellate cases).

A distinguished career.

And there is no "record of public discipline", even though EVERY single civil rights case provides enough basis to investigate and prosecute the prosecutor - and prosecutorial immunity is allowed only because (at least this is the pretext) there is attorney discipline available for prosecutors.

Once again, here is the list of lawsuits against Zugibe - and no discipline. And admiration of NYS Court of Appeals Judge Pigott.

Criminal defendants in Rockland County, you are screwed, the NYS Court of Appeals clearly sent a signal to courts below who to favor.

Another object of Judge Pigott's admiration, Clinton County prosecutor Andrew Wylie, was also recently sued, and escaped liability only because of "absolute prosecutorial immunity" which exists only on condition that there is, as an alternative, prosecutorial discipline - which does not exist in New York.

Here is the list of lawsuits against Andrew Wylie off

Criminal defendants in Clinton County, you are screwed, too.  With a judge from the top state court expressing personal admiration for Clinton County prosecutor Andrew W


Another five minutes of the transcript.

Another five minutes of brown-nosing, praising attorneys for the government that appear in front of the court (no criminal defense attorneys were mentioned as invited there, or "recognized" by the Court of Appeals), calling NYS Attorney General and Solicitor General as "Judges", calling the State Comptroller a "Judge" (which was redacted out of the official transcript).

But, the most disgusting part is the open praise to ALL 62 District Attorneys in the State for "doing a great job".

Remember, the District Attorneys are the main source of judges in the State of New York and in this country.

Also, the district attorneys, including those in New York, are increasingly accused of knowingly drumming up wrongful convictions.  

That issue was raised in the press.

That issue was raised at the recent public hearings for the Statewide Commission on Attorney Discipline.

It was mentioned in that hearing (I wrote about it on this blog before) that the DA's Association "descended like paratroopers" upon NYS Senator DeFrancisco and tried to block legislation that is seeking to make DA's accountable for misconduct (while the existing attorney disciplinary system does has an unwritten policy not to prosecute prosecutors).

Here is the letter of the state DA's Association to the New York State Legislature asking to leave prosecutorial discipline as it is now (as non-existing).

Those are the "honorables" celebrated and openly recognized, with admiration by the New York State Court of Appeals, in a live-streamed court session.

Criminal defendants of the State of New York, you are screwed.

And, at the background of wrongful convictions, rampant and unaddressed prosecutorial misconduct, one of the judges of the top state court congratulates all prosecutors in the State of New York for the "job well done" and only prosecutors get to be invited to the swearing-in ceremony of the new Chief Judge?

And that's for the court that hears criminal cases all the time, with those same prosecutors appearing in front of the Court?

Not too crooked.

I will continue with my "annotated transcript" of DiFiore's swearing-in ceremony. 

Stay tuned.

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