"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 28, 2016

By ruling that forcible sodomy laws do not apply to intoxicated or unconscious victims, Oklahoma was turned into a dangerous place for residents and visitors

In a disturbing ruling, the Oklahoma Court of Criminal Appeals declined to "enlarge the statute" for forcible sodomy, and declined to apply the forcible sodomy statute to victims who are intoxicated or unconscious.

Here is the decision.

Here is the statute:

The court claimed that none of the 5 factors enumerated in the statute are applicable when the victim is intoxicated or unconscious.

It happens rarely, but my personal opinion here is that the ruling is incorrect, and not just on the emotional level.

Subsection (B)(2) clearly includes into the crime of forcible sodomy a "sodomy committed upon a person incapable through mental illness or any other unsoundness of mind of giving legal consent regardless of the age of the person committing the crime".

Both or either intoxication and unconsciousness can be argued to be temporary unsoundness of mind. 

What was created in Oklahoma is a dangerous precedent encouraging rapists to get their victims drunk in order to escape criminal liability.

And that's definitely not the legislative purpose of the statute.

Oklahoma has become a dangerous state.  With just one 2-page decision by these five judges:

Here are the judges who made the decision.

 Judge Clancy Smith:

Judge Gary L. Lumpkin:

All of these 5 people unanimously concurred in ruling that intoxication or unconsciousness does not fall under temporary unsoundness of mind preventing consent to sodomy - that's oral or anal sex without consent.


I understand the concept of judicial restraint and unwillingness to legislate from the bench.

Yet, here this concept was completely uncalled for.

These 5 people left residents and visitors of Oklahoma unsafe to sexual assaults if they are in a helpless condition.

These 5 people also gave an opportunity for really sick crimes to be committed - because such an approach does not take into consideration as to who rendered the person intoxicated or unconscious.

These 5 judges put together a defense for really sick individuals to first lace the drink or get a person drunk, or beat the person unconscious - and THEN rape him or her.

The sick birds on the street are no thinking - "we've got a free ride" out of prison.

Think about it - with those shining biographies.

Those careers.

A high school.

A college.

A law school.

Career as a lawyer.

Career as a judge.

FIVE PEOPLE, all educated as lawyers and judges - could not READ and understand that "unsound of mind" applies to unconsciousness or intoxication.

Unanimously they could not read that?

Or, another, more sinister explanation may be that they know there is some pervert in their ranks who is afraid for the statute to be - soon - applied to him and her, and they unanimously protect that pervert by their decision?

It is not very often that I think prosecution in a criminal case is right.

Here - at least as a matter of law, without going into the case's facts - it is.

The prosecutor stated that the court's decision is "insane, dangerous and offensive".    I couldn't agree more.

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