"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 15, 2016

When a criminal defense attorney runs for public office, how do we assess the record of her success?

I posted a blog yesterday about a smear campaign against #JudgeJaneKelly, nominee to the U.S. Supreme Court, who was a federal public defender before she came to the bench of a federal appellate judge in the 8th Circuit.

I also covered in that blog the filibustering of President Obama's nomination in 2014 of a civil rights attorney who was blocked from taking a position of chief of Civil Rights Division in the U.S. Department of Justice because he was too good of a civil rights and criminal defense attorney.

One thing needs to be pointed out that is overlooked when a criminal defense attorney is running for or being nominated for a public office - an equally rare occasion.  Unlike a prosecutor who can boast convictions (even wrongful convictions, even convictions on coerced pleas and while using false and fabricated evidence) as the prosecutor's "record" of "fighting crime" when running for or being nominated for the bench.

As my professors and mentors always taught me, a criminal defense attorneys does not "win" the case - the prosecution loses, because the burden to put the case together, and the burden of proof are entirely upon the prosecution.

Criminal cases rarely come to trial.

Most of them are resolved through either plea bargains, dismissals, or resolutions reducing a crime to a non-crime.

I would like to talk about the latter.

When a criminal charge is dismissed before trial, that is a big win for the defense, but in that case, the criminal case disappears, the record is sealed, and the criminal defense attorney does not have a right to brag about the case.

I clearly remember how surprised (at first) I was when I saw that clients for whom my husband, a criminal defense attorney at the time, won dismissals of cases, sometimes would not recognize my husband in the street, walk right by him.

And then some of them called him, apologized and explained that they did not want other people to know that they know my husband, a leading criminal defense attorney in the area.

So, criminal defense attorneys have no bragging rights about dismissed cases, even though such dismissals before trial saved the client money and especially the stress and heartache of the trial, the stress of possible conviction at trial and the uncertainty and expense of the appeal.

When a criminal charge is reduced to a non-criminal charge, the case is similarly sealed, and thus, again, an attorney loses bragging rights for the attorney's "win", as opposed to a prosecutor.

In New York, such a situation will arise if, for example, a charge for a misdemeanor or a felony (a crime) is reduced to a violation (not a crime), or if an eligible young defendant is given a youthful offender (YO) status.

Often criminal defense attorneys also represent people in child abuse/neglect cases and in domestic violence/"family offense" cases in Family Court.

Wins in such cases are also sealed, as all Family Court records, and there are, similarly, no bragging rights when such an attorney would consider running or being nominated for a high public office.

I just want the public to be aware that when a criminal defense/family court defense attorney is running for office, most of his or her wins and accomplishments may not be revealed to the public simply because they are sealed.

Thus, the balance is between sealed accomplishments of criminal defense attorneys and known record of convictions of prosecutors, likely created by drumming up coerced pleas.

The public needs to be aware of this imbalance, especially where the majority of judges in this country came from prosecutors, and where judicial misconduct may be the natural continuation of a prosecutor's mentality - just charge and intimidate, and you will be immune for anything false and criminal you are doing during the trial.

Unlike a prosecutor, a criminal defense attorney is not given as many resources, must fight against tremendous odds for his or her client, including the unfair publicity that the police and prosecution often create before the case is heard by the court, and must be a quick and effective thinker.

For a prosecutor, given that most judges are former prosecutors, too, a victory is often presumed, and a loss is usually the result of either the prosecutor's or the police's extremely sloppy work, or the result of an outstanding work of the criminal defense attorneys where even a judge cannot help but rule against the prosecutor despite the judge's usual bias against the defense.

I think, we need more of criminal defense attorneys in public office, not less, and I think, we need to be extremely alert to smear campaigns against criminal defense attorneys who run for public office - like the one going on now against the U.S. Supreme Court nominee #JudgeJaneKelly.

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