"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, March 25, 2016

On the right to life and to protection of the laws of human rights defenders

Yesterday, the United Nations' Human Rights Council issued a resolution reaffirming its commitment to protection of the rights of human rights defenders, after political assassination of environmenta rights activists Berta Cáceres and Nelson García in Honduras and of indigenous leader Walter Manfredo Méndez Barrios in Guatemala.

Here are faces of the murdered activists, and their reported stories.

Berta Caceres

Nelson Garcia, and the community he was reportedly helping when he was murdered

Walter Manfredo Méndez Barrios

The UN Human rights council, in its resolution, stated that 

" in most places, persons who defend communities against development projects are attacked or assassinated with almost total impunity. They are routinely accused of being 'criminals', 'traitors', 'terrorists' or 'enemies of development'. Accessing justice largely remains an illusion for the victims."

The resolution also "condemns attacks against human rights defenders and their widespread impunity, within the global context of shrinking space for civil society."
For civil rights attorneys and for criminal defense attorneys for "unpopular defendants", identifying them with their clients, accusations of being a "traitor", discrimination against them and even direct assassination of attorneys, as human rights defenders, is a routine occurrence throughout the world.

In Turkey, recently 9 attorneys belonging to the organization of Association of Lawyers for Freedom were reportedly arrested, their houses raided by police, and the lawyers are charged with belonging to a terrorist organization.

Their names are:  Ms. Ayşe Acinikli, Ms. Ayşe Gösterişlioğluİrfan Arasan, Hüseyin Boğatekin, Şefik Çelik, Adem Çalışçı, Tamer Doğan, Ramazan Demir and Mustafa Ruzgar.

According to the press report, "during their interrogation, they were questioned about interviews they gave in the media, complaints they lodged before the European Court of Human Rights (ECtHR) and visits to their clients."

In the same Turkey, a human rights attorney, Tahir Elçi

who was reportedly previously discriminated against, detained and who received threats because of his political statements, was murdered in November of 2015, during a press conference.

His funeral turned into a protest demonstration where thousands attended.

Political assassination of attorneys for their work is nothing new.

In July of 1979, the Italian attorney Giorgio Ambrosoli was murdered, after he found and turned over evidence of criminal activity of a sicilian banker Michele Sindona.

In February of 1989, an Irish human rights lawyer Patrick Finucane, was killed.

The murder, reportedly, involved collusion of the Irish and the British government.

This is Pat Finucane and tribute to him on the website of the law firm he has founded.  

27 years after Patrick Finucane's death, his law partners remember him and try to do him justice, at least by spreading information on their website.

In August of 1985, a South African nurse, midwife and human rights lawyer Victoria Mxenge was assassinated, right before the Pietermaritzburg Treason Trial of the United Democratic Front and Natal Indian Congress (see coverage of the trial by the Los Angeles Times in 1985).

In May of 2014, a human rights lawyer from Pakistan, Rashid Rehman, was assassinated.

In 1985, a Canadian lawyer Frank Shoofey was murdered, reportedly, shortly after he started an action against a physician for providing an abortion.

He was also warmly remembered as a lawyer for the people who did not turn down as clients average "people from the street", not just social elite.

Whatever side of the divide we are on the pro-life/pro-choice issue, to murder a person for his point of view should not ever be an option.

Frank Shoofey also reportedly represented "unpopular" defendants, such as drug dealers.

In the U.S., in 1954 attorney Albert Patterson was assassinated after he has won a nomination for the office of Alabama State Attorney General on the pledge that he will fight corruption in Phenix City, Alabama.


"A special grand jury in Birmingham handed down 734 indictments against local law enforcement officers, elected officials and local business owners connected to organized crime. Three officials were specifically indicted for Patterson's murder: Chief Deputy Sheriff Albert Fuller, Circuit Solicitor Arch Ferrell and Attorney General Si Garrett. Of the three, only Fuller was convicted; he was sentenced to life imprisonment, but was released after 10 years. Fuller died within the same year as his parole; claiming his innocence until his dying day.[4] Ferrell was acquitted and Garrett was never brought to trial, as he was convalescing in a mental institution for most of the year after Patterson's murder."

Also in the U.S., a prosecutor Thomas C. Wales specializing in prosecution of bank fraud was assassinated in 2001.

The death toll of human rights defenders, non-attorneys and attorneys, continues to toll.

Just hours ago, news appeared of the confirmed murder of a Ukranian attorney Yuri Grabosky 

who represented, in the Ukraine, Russian soldiers charged with trespassing into the Ukraine and participating in the war on Donbass and who reportedly was doing his job very well, finding inconsistencies in the government's case against his clients, as unpopular in the Ukraine as they are.

Here is the tribute to Yuri Grabovski published on Facebook today by Nadezhda Savchenko's attorney Ilya Novikov:

Here is the translation:

"Attorney Yuri Grabovski who went missing several days ago, was found murdered.  During the last several months he defended in court a Russian citizen Alexander Alexandrov.  I did not get to know him personally, even though I and my colleagues were constantly asked whether we keep in touch.  We had mirror working situations:  we, Russian attorneys, defended in a Russian court a Ukranian citizen, Nadezhda Savchenko, and it was expected by many that our clients may be exchanged after the verdict.

Solidarity among attorneys is something more than formal belonging to one organization or one state.  My situation in this regard differs from that of other Russian attorneys, I am formally a member  of The National Association of Attorneys of the Ukraine, and can call Yuri a colleague in all possible senses.  But I know for a fact that my Russian comrades, having no relation to the Ukraine, feel the same as I do.  A large seminar of RUssian attorneys just concluded in Prague.  Our guild leader Henry Reznik, Karinna Moskalenko, Vadim Kluvgant, Konstantin Rivkin and many others are here.  We discuss this news the whole morning today.  The Federal Chamber of Attorneys of the Russian Federation will make a specific statement about the murder of our colleague Yuri Grabovsky.  There will be the right and appropriate words in the statement, but I would like to add some words of my own.

An attorney who works on a sensational and sensitive case, easily acquires in his country a status of an enemy of the people, a stranger among his own people.  I do not know whether Yuri Grabovsky received as many threats and insults from the Ukranians for defending Alexandrov as we receive from Russians for defendant Nadezhda Savchenko.  I think he did.  This is part of our profession.  Those who cannot handle it should not enter the profession.  Every attorney knows it, every true attorney perceives a murder of his colleague, even a foreign colleague, as a strike against him personally and as his personal loss.  Our clients may be enemies to one another, but we are not enemies.  We are comrades in arms.  It is believed that our weapons are not lethal, but sometimes it kills ourselves.

Tonight I will be in Kiev.  I am bringing words of support from Russian attorneys to the Ukranian legal community, to all friends and relatives of Yuri Grabovsky.

We are with you, colleagues."


It is wrong.

It is wrong to kill people for their own political views.

It is wrong to identify people, attorneys, with their clients and to kill them because they do too good of a job for an unpopular client.

One of the Founding Fathers of this country, John Adams represented British soldiers standing trial for the Boston Massacre.

What those soldiers did could be, and most likely was contrary to personal beliefs of John Adams.

So why did he undertake that defense?


Adams "clearly knew that taking on this case was dangerous. An angry mob could threaten his family, and should his reputation be tarnished, his ambitions and economic future would be endangered. On the other hand, Adams strongly believed that the men were entitled to a fair trial and thought that history might view him as a man who put principle above his personal beliefs. One historian, Hiller B. Zobel, has suggested that Adams agreed to defend the soldiers in exchange for a legislative seat. (Three months after the trial, he was Boston's first choice for the position.) Many years later, Adams would recall his role in the trials in this way: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”

And, John Adams did not do his defense job perfunctorily, for the sake of publicity, or as it is alleged, in exchange for a legislative seat.

He did his job well:

Results of the Trials

Preston’s trial took place between Oct. 24 and Oct. 30, 1770. Adams argued that Preston had not given the order to fire, and that Preston's soldiers were provoked by the crowd. The jury ultimately acquitted Preston on the basis of “reasonable doubt” -- notably, this was the first time a judge had ever used that term. The soldiers went on trial in November. Here, Adams argued that they acted in self-defense. The jury in that case acquitted six, but found two guilty of the lesser charge of manslaughter. Finally, in December the four civilians went to trial, and all were acquitted.

Out of 13 clients, enemies of his own country who, without a doubt, killed many Americans, with tremendous odds and animosity against his clients, John Adams obtained acquittals for 11 out of 13 and convictions on lesser charges for two.

That was a tremendous result under the circumstances.

11 out of 13 acquitted, 2 convicted on lesser charges, lives of all of John Adams' clients spared.

He did his job.

As Yuri Grabovsky, Thomas C. Wales, Albert Patterson, Frank Shoofey, Rashid Rehman, Victoria Mxenge, Patrick Finucane, Giorgio Ambrosoli, Tahir Elçi were doing theirs.

And, with due respect to Ilya Novikov's heartfelt tribute to Yuri Grabovsky, I disagree with Novikov's statement that every attorney should be prepared to be killed for doing his job, or not enter the profession.

People should not be killed for their views and political activity.

People should not be killed for doing their jobs.

People should not be preparing themselves for martyrdom when entering a profession.

The society cannot expect such a high price from their court representatives.

If we allow human rights defenders to be discriminated and killed, if we allow attorneys to be discriminated and killed, simply because they do a good job for an "unpopular" client, then we, all of us, the remaining living, are unprotected from the same risks that we expose human rights defenders and attorneys by not standing by them.

This article is a tribute to all human rights defenders who gave their lives for defending other people, and a tribute to all attorneys who have been murdered for doing their jobs.

No comments:

Post a Comment