"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, March 14, 2016

No, we cannot have a U.S. Supreme Court judge with a background of a courageous federal public defender. It will break with tradition.

I've frequently pointed out on my blog that judges in the U.S., in both state and federal courts, predominantly come from prosecutorial background.

I also wrote on this blog that, with the rising issue of wrongful convictions caused by prosecutorial misconduct, most likely many such convictions will not be overturned because too many of prosecutors responsible for those wrongful convictions have since made it to the bench, and it will be too embarrassing to reveal such a dirty page or chapter of judges' careers.

Prosecutors like to talk about themselves as being "on the right side", the side of justice, while pointing a finger at criminal defense attorneys as "sleazy", "scum", ready to do "anything" for money etc.

First of all, such claims are done with a wink and a nod - "yeah, we know about presumption of innocence, don't tell us, we know that a criminal defense attorney is representing a person ACCUSED of a crime, and presumed innocence - but STILL".

Still - what?

A person ensuring constitutional right to counsel to a criminal defendant, and doing it properly is somehow bad?

Consider also the cost of prosecutorial mistakes, not to mention misconduct, as opposed to "wrongful acquittals", if there are such, as a result of a criminal defense attorney's work.

If a person who committed a crime was acquitted, or charges against him or her got dismissed, that means that the prosecution did not obtain enough admissible evidence and did not work hard enough to do their job.  In a criminal proceeding, the role of the defense is just that - the defense.  The burden of proof (burden of production of evidence and the burden of persuasion of the fact-finder) is entirely upon the prosecution.  If the prosecution has failed their job, don't blame the defense attorney for doing his.

Once again, if a person who committed a crime is acquitted or the charges have to be dismissed, that is the prosecutorial mistake and not to be blamed on the defense attorney.

If, on the other hand, the prosecution convicted an innocent, especially in a case where there is an ascertainable victim of a heinous crime (a murder, a rape), conviction of an innocent, a grave error and injustice in and of itself, is aggravated by two more grave problems:  the true perpetrator of the crime remains at large, and the surviving victims of the crime, as well as the public, are falsely assured of their safety and put their guard down.

That's what happened in a heinous crime of child rape in Arizona where a wrongfully convicted person spent time in prison, while the true perpetrator remained at large and committed more crimes. 

Such mistakes can be the result of sloppy work of the police and the prosecution, or such mistakes can be the results of deliberate misconduct of police and/or prosecution to drum up their conviction rate and get elected to the judicial office on the claims of "fighting crime".

So, when prosecutors claim they are "on the right side", I beg to differ.  When 95% of criminal cases are resolved through guilty pleas, most of them forced by threats of maximum punishment against the overcharged, mostly poor, criminal defendant, there is no assurance whatsoever that what happened in Arizona is not repeated many times, and that the true perpetrators of crimes do not roam our streets in droves while the innocent scapegoats are doing their time in prisons while those who put them there ascend to the judicial office based on their statistics of convictions, wrongful or not.

You can call me partial to criminal defense attorneys, but, having been one, and knowing how prosecution of crimes work in American courts from the inside, I will be always suspicious of integrity of any prosecutor and of any judge who came to the bench from prosecutorial office.

Yet, the majority of suspended and disbarred attorneys are civil rights and criminal defense attorneys - suspended and disbarred by disciplinary committees and judges who predominantly do NOT have a criminal defense background and a lot of whom have, instead, a prosecutorial background.

In other words, it is very likely that attorney disciplinary process is used by the legal establishment (prosecutors aspiring to be judges, judges who were prosecutors) to disbar defense attorneys to eliminate opposition and to enhance their statistics of convictions as career builder.

My position is that when civil rights and criminal defense attorneys are targeted for suspension and disbarment of their law licenses, not only the attorneys, but the public loses out, especially at the time when there are less and less skillful and zealous civil rights and criminal defense attorneys prepared to work at reduced rates or pro bono.

But, when being a criminal defense attorney, and a good one, is considered somehow as a disqualification for a high public office, this is the outside of enough.

Yet, that is exactly what is happening in the U.S. now.

In 2014, the Republican Senate blocked a President Obama's nominee Debo P. Adegbile to be chief of the Justice Department’s Civil Rights Division.

Mr. Adegbile's point of disqualification?

Mr. Adegbile, when he worked for the Legal Aid division of NAACP, he "contributed to the filing of a 2009 court brief that argued that [a person convicted of killing a police officer] faced a discriminatory jury — an appeal found to have merit by a judge"

So, Mr. Adegbile's disqualification was not only that he a civil rights attorney and criminal defense attorney, but also that he was a good one - his post-conviction brief raising issues of racial discrimination on the jury was actually found to have merit, and that was the point of ire and filibustering Mr. Adegbile for nomination to a position to which he was apparently pre-eminently eligible.

A good civil rights attorney prevented from nomination to a civil rights attorney position because he is a good civil rights attorney?

That particular filibustering required a lot of logic, didn't it?

But portraying participation in criminal defense as a disqualification from public office continues now, and now against a U.S. Supreme Court nominee who is a federal appellate judge and who was confirmed for her current position as a federal appellate judge by the U.S. Senate, the same senators who are smearing her now, without any objections.

The name of the judge is Judge Jane Kelly.

Now, a conservative "Judicial Crisis Network" is trying to filibuster nomination to the U.S. Supreme Court of Jane Kelly, Judge of the U.S. Court of Appeals for the 8th Circuit.

Her point of disqualification?

Attorney Jane Kelly, as a criminal defense attorney, represented "a child molester".

The interesting part is that the same Judge Kelly was unanimously confirmed by the same Republicans for the seat of a federal appellate judge in 2013, bypassing the usual lower district court judicial position.

Judge Kelly's prior work FOR NINETEEN YEARS, from 1994 to 2013, as a federal public defender, which included the work as a defense attorney in the case now targeted by the "slugfest" ads, was not a problem.

Only now, as part of the deliberate "slugfest" campaign, Judge Kelly is being smears - simply because President Obama nominated her to the highest court in the country.

One can understand why there is such an opposition to nomination of Judge Kelly.  She is apparently a person of uncommon courage and principles.

While working in the federal public defender's office and being reportedly a supervising attorney in its Cedar Rapids, Iowa, office, in 2004, Judge Kelly was viciously attacked while jogging.  Her attacker was never found.

Judging by the fact that assistant public defender Jane Kelly was not killed, but was severely beaten and left "going in and out of consciousness and unable to call for help", the purpose of the attack was likely intimidation.   It is very likely, under the circumstances, that an attack on a federal public defender was caused by her work as a federal public defender.  And, the attacker, once again, was not found.

Violence upon criminal defense attorneys is a real thing.  

Just several days ago a criminal defense attorney who was successful in not only defeating the Orange County (California) District Attorney's office, but causing a major media scandal by exposing the improper use by the DA's office of jail snitches - suffered a vicious attack by one of District Attorney's investigators, of all people.

I remember a time when my husband, a trial criminal defense attorney at the time, was requested by the police to wait until the irate supporters of the alleged victims go away, after his successful presentation in a criminal defense preliminary hearing that caused a dismissal of the case.  I remember walking to the car in the parking lot that day, together with my husband, under the protection of the armed police. 

I remember threats mouthed at him in and around the courthouse, and on the phone.

Judge Kelly, after being viciously attacked in 2004 by an attacker who was not found, continued to work as a federal public defender for 9 years.  One thing you cannot deny this woman is her courage in doing her duty.

She is a judge with "unusual" background for a judge - a federal public defender.  She knows, from her NINETEEN years of experience, in detail, what problems an indigent criminal defendant faces in the American "criminal justice system".

Here is what Judge Kelly reportedly said in her confirmation hearing for the seat of a federal appellate judge:

"As a criminal defense attorney, I am often representing someone who, shall I say, is not the most popular person in the room. ... So I, as much as anyone, know how important it is to be fair and impartial and make decisions based on things other than bias, favor, or prejudice."

 Oh, no, we cannot have a U.S. Supreme Court justice like this, Judge Kelly could be fair and not prejudiced in taking and reviewing the cases of criminal defendants, and possibly, be a swing vote to end the disgraceful death penalty.  No, we cannot have that.

The director of the "Infinity Project", an organization that promotes women for positions as federal judges on the 8th Circuit, stated in an interview at the time of her appointment as a federal appellate judge, that it has been difficult to get in women with Jane Kelly's background.

The ad campaign smear, by the way, completely distorts what Jane Kelly did as an attorney in representing her client.

The ad said that Jane Kelly was arguing that her client was not a threat to society - and immediately paired that up with sexual molestation and murder of a 5-year-old child by the same client.

What the ad missed is that at the time Jane Kelly represented her client on charges of possession of child pornography, he was not convicted of molestation and murder yet, those were crimes for which he was charged and convicted in another court, state court, later on.

Moreover, Casey Frederiksen as convicted of sexual molestation and murder of a child in 2015, two years after Jane Kelly was no longer a federal public defender, but was already a federal appellate judge.

Therefore, it was physically impossible for federal public defender Jane Kelly to foresee the future conviction of her client when she may have claimed to the sentencing court, sentencing her client for possession of child pornography only (a heinous crime, but not a violent crime with an ascertainable victim).  

At the federal sentencing of Casey Frederiksen in 2006, attorney Jane Kelly was justified as a zealous advocate on behalf of her client in claiming at sentencing that her client, without knowing more, was not a threat to society just because he possessed child pornography.

It appears that the smear ads put upon public defender Jane Kelly a duty to be a clairvoyant, and to predict a 2015 conviction of her client in her 2006 sentencing arguments.

By the way, the lies in the smear campaign stretched as far as claiming that Jane Kelly, when trying to negotiate in 2006 a plea deal for possession of child pornography for her client Casey Frederiksen, knew that he was PREVIOUSLY convicted for sexual molestation of another girl

Yet, the link about Attorney Kelly's knowledge as of 2006 about the "other girl" conviction leads to a story not to a conviction, but of a disappearance of a girl, for which Frederiksen was convicted only in 2015.

The techniques of the smear campaign are obvious - toss in enough lies, so that people become easily inflamed and will not check out the dates, and equate a criminal defense attorney with her client.  If she is defending him and arguing for leniency for him, she is as bad as him.

And, of course, a criminal defense attorney should "know" what kind of other crimes her client may have committed, even if not charged.

How should she know about that, is anybody's guess.

What the smear campaign also does is, as legal commentators note, it shoos young attorneys away from criminal defense, portraying it as a career destroyer.  

Which, at a time when skilled criminal defense attorneys are very much needed, and especially in the field of indigent criminal defense, where Judge Kelly worked for 19 years, is a disservice to the public.

All to preclude a President Obama nominee?

Imagine the shock - a fair judge who knows from experience as a criminal defense attorney the problems of indigent criminal defense, to take the place of, quite likely, the most corrupt judge in the history of the U.S. #AntoninScalia, that's the judge with hundreds of hunting trips - and God only knows what other sweet deals - with litigants and interest groups who turned up dead during Valentine's Day weekend in a luxury suite of a hunting lodge some place in Texas where he came without his spouse and mother of his 9 children, in a suite paid for by a litigant who got benefits from Scalia's court.

No, we cannot have a fair, impartial and incorruptible judge on the highest court of this country.

We must tolerate intimidation of any candidate who would dare to be nominated by President Obama in his last year.

We must tolerate the "slugfest" campaign against this courageous woman, a white woman who, after being viciously beaten, continued for 9 years her service as a public defender in a system where minorities are predominantly targeted for criminal prosecution.  

We cannot have a judge on the bench who knows through her work for indigent, mostly minority, defendants, what racial discrimination in the American "justice" system is like.

A judge that cannot be bought?  Or even intimidated physically?

Can we withstand such a wonder in this country? 

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