"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.

Thursday, April 7, 2016

2nd Circuit joins other federal courts in discrimination against criminal defense attorneys

I wrote on this blog about the tendency of federal courts to start blocking certain attorneys of criminal defendant's own choice from representing them.

It happened less than a month ago in two high-profile cases, in Minnesota and in Nevada.

Now it is happening in New York, too.

The U.S. Court of Appeals for the 2nd Circuit banned an attorney from representing clients on criminal appeals because of alleged misconduct in "defaults" on appeals.

Given that the same 2nd Circuit is extremely forgiving to any defaults and mistakes by the government in the role of an appellee (opponent of an appeal), no matter how bad those mistakes are, and that is my own personal experience and my husband's experience with his appeals, going after a criminal defense attorney for alleged "defaults" (failure to meet strict deadlines imposed by the Court of Appeals) to the extent of banning him from court-appointed representation of criminal defendants, appears pretextual to me.

Moreover, research of orders referenced in the "banning order" turned my suspicion of judicial retaliation and discrimination against Mr. Castillo into a firm belief that Mr. Castillo was improperly targeted by the court for something that had nothing to do with his alleged "defaults".

This is Mr. Castillo's banning order, referencing two cases in which Mr. Castillo allegedly defaulted:

1) United States v Morgan, Case No. 12-3231, and
2) United States v. Morales, Case No. 15-438

This is the entire portion of the docket in U.S. v Morgan when Attorney Castillo represented the criminal defendant/Appellant:

There is no indication in Mr. Castillo's notice of appearance in U.S. v Morgan that he was a court-appointed attorney, so he must be a privately hired attorney, chosen by Mr. Morgan to represent him on appeal.

Here is the timeline of Mr. Castillo's participation in the Morgan case:

  • March 28, 2013 - Mr. Castillo enters the case;
  • April 1, 2013 - Mr. Castillo reports to the court that all transcripts in the case are ready;
  • August 16, 2013, September 27, 2013 and November 13, 2013 - Mr. Castillo repeats the report to the court that all transcripts are ready;
  • February 18, 2014 - Mr. Castillo is relieved from the case by court order claiming that he failed to submit the appeal despite multiple notifications from the court.
The docket does not reflect any notifications.

The counsel that succeeded Mr. Castillo on the Morgan appeal also filed a defective notice of appearance,

but was not sanctioned for it like Mr. Castillo was in the subsequent US v Morales case.

This is the ENTIRE docket of United States v Morales:

While the "banning order" mentions an order of October 2015 that Mr. Castillo allegedly failed to respond to timely, there is no such order listed in the case docket - the latest filing in that case is of 04/13/2015 - new case manager assigned.

If the rest of the docket in a criminal appeal is secret (which is completely unconscionable, since criminal proceedings must be open to the public), there is no way to discern what the order was about, whether it actually was made, and what did Mr. Castillo did wrong.

As to the "defective documents" that Mr. Castillo allegedly filed which caused the ire of the court to the point of banning Mr. Castillo from court-appointed criminal appeals, Mr. Castillo's problem was that his notice of appearances was not "text-searchable".

I included the full notification to Mr. Castillo in docket 9, about his notice of appearance not being "text-searchable" 

and docket 11, same claim, his notice of appearance is not "text-searchable".

Such "defaults" have, of course, nothing to do with Mr. Castillo's ability to provide effective assistance of counsel to a criminal defendant-appellant, which is all that matters on such an appeal.

Possibly, the reason is not that Mr. Gaspar Castillo is a bad attorney,  but that he is a good one - and the 2nd Circuit resents that criminal defendants would have a good attorney representing them on appeals.   

As a comparison, here is the docket of my husband's appeal of the anti-filing injunction, also in the 2nd Circuit:

 My husband filed a notice of appeal on December 29, 2014, and filed his Appellant's brief on April 8, 2015, on schedule.

The Appellee filed their brief only on December 2, 2015, which was late, late despite ability to file instantly, electronically, and was 8 months (!) after the filing date of the Appellant's brief.

The court still allowed the late filing - without any problem:

My husband asked, by motion, to allow him to file electronically, to be on equal grounds with the Appellee.

The motion was denied without an explanation.

Within 16 days of the late filing of the Appellee brief, the decision of the Appellee was affirmed, before Mr. Neroni had a chance to file a responsive brief.

When Mr. Neroni asked the 2nd Circuit to vacate the summary order entered BECAUSE the court did not allow Mr. Neroni's electronic filing, and because Mr. Neroni had to use the U.S. mail overnight service which "misdirected" his pleadings and caused them to arrive late (not Mr. Neron's fault).

Mr. Neroni's motion to vacate and allow late filing of the Reply Brief from him - as the court allowed the Appellee to do - because his delay was not even his delay, but mistake of the post office that "misdirected" OVERNIGHT mail that was supposed to arrive BEFORE the deadline of December 18, 2015, his request to allow late filing and to file electronically, to prevent "misdirection" of overnight mail and to equalize Mr. Neroni's right of access to court with that of his counseled Appellee - that request was denied:

In my own appeal, Neroni v Peebles, Delaware County Attorney Porter Kirkwood appeared on behalf of an unnamed "Appellee" - in a case where there were multiple defendants and no appellees.

Kirkwood's filing was not recognized as "defective" and he was not sanctioned.

It is Mr. Castillo who was sanctioned and banned from criminal cases for filing notices of appearances that were allegedly not "text-searchable" - the horror!

The policy is clear - to discriminate against attorneys and litigants who courts do not like to the point of punishing them for something that is not their fault, or for some petty irregularities that can be easily forgiven, and at the very same time to allow the government late filings, defective filings, filings on behalf of unnamed parties - you name it, the 2nd Circuit allows it.

Attorney Castillo (in the picture on the right, with his client):

 attorney who is now banned from criminal appeals in the 2nd Circuit for 2 years - was actually selected as a top criminal attorney, a "super-lawyer" in the Albany, NY area, for the years 2011-2016:

Maybe - MAYBE - attorney Gaspar Castillo did something wrong, and for that he was banned by the 2nd Circuit.

But, that "maybe" must be clearly identified from the court records, in order to ban a skilled attorney from representing criminal defendants on appeals.

Records referenced in Mr. Castillo's "banning order" refer to cases where there is nothing in official court dockets (that I published above) that would support such a ban.

Thus, the ban must be based on some - as they call it - "extrajudicial" grounds.

Which is illegal.

In case of U.S. v Morgan, the appeal was won by the attorney who came into the case after Mr. Castillo - which says nothing negative about Mr. Castillo, because there was no reason to remove him that I see, preparation of appeals after a jury trial, based on transcripts, may take a long time.

The appeal in U.S. v Morales still continues, and no attorney was substituted there.

Maybe, that case is the key why Mr. Castillo was removed - the government was afraid that he will do a good job on that one?

Because, filing a notice of appearance that is not "text searchable" is a laughable pretense to remove a criminal defense attorney.

No comments:

Post a Comment