"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, March 23, 2016

The #BeckerSyndrome in a federal criminal case in Minnesota: "a counsel of one's choice" is not allowed when the judge has a grudge against private criminal defense attorneys, seeks to control the scope of advocacy for the criminal defendant, and to help prosecution win the case

In a high-stakes federal criminal case where the suspect was accused of helping ISIS, the judge refused to agree to the change of counsel requested by the defendant because of the disciplinary history of his new counsel.

And, as to the criminal case that was the reason for disciplinary history, "coincidentally", both attorneys in that case were disciplined, for different reasons - one was reprimanded and the other was disbarred.

The reprimanded attorney Mitchell Robinson, the one who was denied entry into the ISIS-suspect case, allegedly did not do investigations in a drug-trafficking case in 2014 which resulted in invalidation of the conviction, instead, relying on investigation by the co-defendant's counsel, and reportedly did not utilize potentially exculpatory evidence to absolve his client of charges, instead entering a stipulation that helped the government secure a conviction.

Yet, Mitchell Robinson was not suspended or disbarred, he has a valid law license, and thus, the court had no right to interfere into a criminal defendant's choice of counsel.

Nor was there any indication that the PROSECUTION in the same case where the prosecution pushed for conviction - and convicted - Mr. Robinson's client, despite having exculpatory evidence indicating that she was not guilty, was disciplined.

Two criminal defense attorney out of the same case disciplined, and no prosecutor - how typical.

As to ineffective assistance of counsel because of failure of the defense counsel to hire investigators, in some areas, like our God-forsaken Delaware County, New York, failure to order investigations, including to make a motion to the court by an assigned counsel for funds for experts and investigators - is simply a new standard of representation.

I know of several botched-up criminal cases in Delaware County, NY and in surrounding counties, both assigned and private, where a lot of money was paid to local attorneys, where attorneys hired no investigators whatsoever and did no investigative work of their own, instead pushing their clients into pleas or into unprepared trials, with no discovery or motions made before the trial.

Actually, being on the list of assigned counsel in Delaware County, New York is conditioned on:

  • doing no discovery,
  • making no motions, especially motions to recuse a judge or disqualify a prosecutor;
  • asking for no money for investigators or experts.
Actually, attorney David Roosa (who lost his license for several years because of his criticism of Judge Becker) claimed in a federal lawsuit that if an attorney does any work as an assigned counsel, the attorney won't be assigned again.

By the way, I included David Roosa's statements about Judge Becker into my disciplinary motions - which were ignored and denied without an explanation, reasoning or grounds.  I suspect that they were never read, based on courts' principle of "too long - did not read".

In fact, I had at least three occasions when a certain judge, now retired - Carl F. Becker -  gave my private clients a "choice", either they fire me and choose an assigned counsel, and then you will have a "right" to experts and investigators, or you choose Tatiana Neroni (who made all those discovery requests, motions to dismiss, recuse and disqualify when she finds conflicts or appearance of conflicts of interest).

In fact, being entitled to funds for experts and investigators has nothing to do whether your counsel is private or assigned, but that was "the choice".  Yet, "the choice" was not a choice, and was false,  because an assigned counsel in Delaware County never asks and will never asks for such funds, for fear of being booted off the assigned counsel list.

Here is a portion of attorney David Roosa's federal lawsuit specifically on the subject of assigning judge's control of the level of advocacy provided to the criminal defendant:

So, according to policy established by Becker (who is such a close personal friend of the current judge, former District Attorney Richard Northrup that Richard Northrup allowed Becker, after he retired from the bench, to swear Northrup in, which Becker had no right to do as a private attorney and not any kind of public official, so you may be assured Northrup will follow Becker's policies like a puppet), assigned counsel in Delaware County will be denied payment - and then assignment to cases - if they do not allow Becker to "control the degree of advocacy" by the assigned counsel, and in fact when they do ANY work for their clients other than pushing them into plea bargains or providing a luke-warm representation at trial.

Assigned counsel in Delaware County, according to my information and belief and personal knowledge (not about my own cases, I was not assigned after a couple of cases assigned by lower justice courts where I provided as good a representation as in my private cases), either push their clients into pleas, or go to trial unprepared, with no prior motions, or discovery, and thus exposing their clients to the extreme uncertainty of the jury trial.

My readers can check the truth of my words by simply filing a Freedom of Information Request with Delaware County as to any records of money paid for experts and investigators in criminal cases for the past 10-20 years, and as to assigned counsel's vouchers where the assigned counsel puts in the number of hours worked on the case and what kind of services were provided. 

I doubt that any "responsive records" for a request exist for payments by the County to experts and investigators in criminal cases of the indigent exist, in other words, that any such motions were made by assigned counsel - or won, at the same time when the District Attorney's office has a STAFF investigator Jeff Bowie, on salary, and while the District Attorney's office routinely hires experts for criminal trials.

Going back to the ISIS-suspect case, any criminal defendant has a right to a counsel OF HIS CHOICE, whether that choice is right or wrong, and a judge has no authority to deny a criminal defendant his choice of counsel.  I believe, the judge's denial of the choice of counsel to the criminal defendant, because the counsel requested was Mitchell Robinson, previously reprimanded and disciplined for "ineffective assistance of counsel", is a constitutional violation and a reversible error.

Mr. Robinson's failure to hire investigators in the previous case has no bearing on his ability to TRY a case.  Once again, his license was not suspended or revoked, and he was not prohibited to handle more criminal cases.

I will follow this case, as the judge apparently made a reversible error, depriving a criminal defendant, in a high-stakes case, of a trial counsel of his choice.

I am not making any judgement calls about Mr. Robinson.

I am only indicating that when a criminal defendant chooses his private counsel in a criminal case, a court has no authority to interfere with that choice.

By the way, here is the list of counsel for the criminal defendant in the matter, Mr. Hamza Ahmed, and the list of prosecutors, just for comparison.

The list of criminal defense counsel (this is as of today, where Mr. Robinson was not allowed to be substituted, but is still listed as Mr. Ahmed's defense attorney):

So, at this time, Mr. Ahmed is represented by ONE ASSIGNED defense attorney.

Here is the prosecution team:

The prosecution team counts FIVE prosecutors against ONE assigned defense attorney.

Now - why wouldn't the court assign FIVE defense attorneys to counter FIVE prosecutors?  And while denying Mr. Ahmed representation by a private attorney of his own choice?

Here is the decision of Judge Michael J. Davis denying Mr. Ahmed's right to a retained counsel of his choice.

Judge Michael J. Davis claims concern about alleged lack of experience of attorney Mitchell Robinson in a "high stakes case".

The case is a "high stakes case", just look at the number of counts against Mr. Ahmed:

Yet, a retained attorney of Mr. Ahmed's choice is denied to him, and an assigned counsel, ONE against FIVE prosecutors, is forced upon Mr. Ahmed, even though Mr. Ahmed has FIRED her, HIRED ANOTHER ATTORNEY, and the fired assigned counsel consented to the substitution:

While the judge claims concern about the criminal defendant, that concern whether a retained attorney will be able or willing to look through thousands of pages of discovery, is undermined by the judge's failure to equalize resources of the defense to resources of the prosecution by assigning as many attorneys to the defense team, as the prosecution team has, and by providing extra resources for review of those thousands of pages of documents by the assigned counsel.

It is more that I sense in this case the same motivation as Becker had not assigning David Roosa to the case and insisting on assigned counsel - in order to be able to control the amount of advocacy provided to the criminal defendant in a "high stakes case".

I must note here that Judge Davis' biography shows an extremely scant time that he worked as a private criminal defense attorney, while he did work for a considerable time as a public defender.

In his order denying representation by a private retained counsel, after the public defender (one) appointed by the court to counter a team of five prosecutors, was fired, Judge Davis wrote this:

Ok, so Judge Davis, based on his alleged own personal 40 years' experience with the criminal justice system, makes a judgement call, as an advocate for the criminal defendant, that the new retained attorney chosen by the criminal defendant is not good for him.

That's a violation of the Mr. Ahmed's constitutional right to counsel of his own choice, especially that the attorney who he is forced to accept representation of the attorney who he just fired - and it makes no difference whether he, as the court noted, did or did not have arguments or irreconcilable differences with that attorney.

Nobody denies Mr. Ahmed's assigned counsel JaneAnne Murray her credentials as a criminal defense attorney.

Yet, in this case, she is a FIRED attorney, FORCED upon the client who FIRED and REPLACED her.

A fired attorney can, at least theoretically, hold a grudge - and that is a problem in a "high stakes case".  That's as one problem.  

The other, main problem, that the currently assigned attorney is not Mr. Ahmed's attorney of choice.  Mr. Ahmed's attorney of choice, Mr. Robinson, a criminal defense attorney of 30 years of experience and only 1 reprimand (not matched with reprimand of the prosecutor in the same criminal case, which screams selective enforcement of laws), was not allowed - because of Judge Davis' personal dislike of private criminal defense attorneys who charge a flat fee,  and that statement spells jealousy of the judge, and requires, in my opinion, removal of the judge from the case, because:

  • the judge attempted to pretend to be an advocate for the criminal defendant;
  • the judge substituted the defendant's choice of counsel by the judge's choice of counsel;
  • the judge assigned an inadequate - in number - criminal defense team as opposed to the existing prosecution team and did not provide to that defense team adequate resources to deal with the "high stakes case";
  • the judge forced upon the criminal defendant a just-fired criminal defense attorney as his only counsel in a high-stakes criminal trial
  • the judge denied the criminal defendant a retained counsel of his choice because of the judge's dislike of private criminal defense attorneys charging a flat fee for trial.

It seems to me that we see in Mr. Ahmed's case a Becker syndrome Mr. Roosa described in his lawsuit, where a judge prefers to have on the case a just-fired assigned counsel whose "scope of advocacy" the judge can control (by future assignments) instead of a retained counsel who the judge simply disliked and had jealousy about because of his "flat fee".

Here, Ms. Murray's scope of advocacy will be controlled not only by the waiving of the "carrot and stick" by the judge - the express intent to satisfy the billing of an outgoing assigned counsel before the final resolution of the case while banning from a case the hired retained counsel because of his "flat fee" retainer agreement that the judge did not like.

Ms. Murray's scope of advocacy was and is clearly controlled by her lack of resources.  One assigned criminal defense attorney faced with about 60,000 pages of discovery against a team of five prosecutors, with the supporting resources and power of the U.S. Attorney's office has little, if any chance of effective representation and successful defense.

It is clear that Judge Davis sends signals to the assigned counsel "to be good", at least by expressing a touching concern for the assigned counsel bills - before the criminal case even concluded:

Satisfying billing of an outgoing counsel before the final resolution of the criminal case seems strange.

And, the retainer agreement of Mr. Robinson was irrelevant to the decision of the judge whether to allow his representation, and should not have been even requested or considered by the court.

One other problem is that the judge required from the defendant to "provide to the court justification for substitution of counsel at this time".

The court is not entitled to an explanation on this subject.  A criminal defendant, especially in a case with stakes as high as here, has an absolute right to an attorney of his choice at ANY stage of litigation.  He can change his counsel, if he feels the counsel does not represent him to his satisfaction, in the middle of the trial, and the court has no right to inquire as to why.

The amount of discovery "turned over to date" is irrelevant as to whether Mr. Robinson could or could not step in to represent Mr. Ahmed.

It was clearly unfair to expect Mr. Robinson to review 28,000 pages of discovery BEFORE he was allowed to step into the case.  Usually, the new counsel does it AFTER he steps into the case, and the court provides him an adjournment to do that.

Mr. Robinson did not state to the court that he WILL NOT review discovery.

Mr. Ahmed's previous attorney had a year to review those thousands of pages, and Mr. Robinson should not have been put on the spot because he did not do in the short time after he was hired, what the previous counsel did over a year's time.

Judge Davis' claims of protecting the criminal defendant from an allegedly bad retained lawyer Mr. Robinson do not fly very far because the judge himself did not assign enough defense attorneys and resources to provide effective representation of counsel.

It is clear that Judge Davis was seeking to prevent a retained counsel to step into the case and see what may have been done wrong there - and in that, Judge Davis is clearly helping the prosecution.

My expert opinion is that the case is going towards a reversal on appeal full swing, because of Judge Davis' refusal to allow Mr. Ahmed to have a criminal defense attorney of his choice - and that is a huge waste of money for the taxpayers, not only injustice to Mr. Ahmed.

Stay tuned for the continued coverage of this case.

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