"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, April 11, 2016

Criticizing a judge in New York is worse than a federal felony conviction

Many of my readers who send me feedback, wonder why the mainstream media does not pick up and cover stories of judicial misconduct and corruption which are out in the open.

This mainstream media story may answer this question - why, showing mentality of the mainstream media regarding criticism of judges by attorneys.  It has become an ultimate taboo not only in the legal profession, but also in the mainstream media.

I wrote on this blog about a case in Florida where a protestor of judicial corruption, who worked as an investigator for many years, approached journalists who were heading to a press-conference held by a prosecutor at the courthouse, and asked them to take his information, documentary evidence, of court corruption.

They declined and walked right past the person offering them documents about court corruption, some heads down, some explaining to him that he should "speak to their manager". 

I recalled that episode when, yesterday, I read an article about Sheldon Silver, New York's former longtime Assembly Speaker and one of the most influential people in the State, now a convicted federal felon and a disbarred attorney.

OK, now that Silver is convicted and disbarred, it is in vogue to kick Silver, who is already on the ground - while the press was timid to reveal his corruption for years and decades that he was in power and was "honorable" (but still involved in corruption).

The article contained information that an individual by the name of John Aretakis, who dealt with Silver as an attorney and victim advocate at the time of sex abuse scandal in Catholic church, reportedly sent a letter to Silver's sentencing judge, detailing how Silver has killed the legislative bill aiming to aide sexual abuse victims after the Catholic priests hired his lobbyist friend.

Ok, I get that, too.

Sentencing judges can consider additional information, aggravating and mitigating, for purposes of verifying what kind of sentence to impose.

What Mr. Aretakis did was entirely appropriate.

Mr. Aretakis is described in the article as a "victim advocate".

So, he advocated for victims of sexual abuse before, and he is fighting corruption in the government now, by his letter to the sentencing judge.

That's good, right?

Not so.

The Catholic church establishment, of course, was not happy with such an exposure - and started to badmouth Mr. Aretakis as allegedly "having a longstanding animus" against the Catholic Church.

And, you know what else is piled up against Mr. Aretakis?

That he was suspended in New York - you know why?

For criticizing a judge in a motion to recuse.

Mr. Aretakis is my male twin.

Of course, in June 18, 2015, the U.S. Supreme Court issued a decision in Reed v Town of Gilbert, 576 U.S. __ (2015) declaring that content-based regulation without strict scrutiny (a test that cannot be met in Mr. Aretakis' case - or mine) is presumptively unconstitutional.

That made Mr. Aretakis' suspension unconstitutional - just on the basis of what the article said his suspension was about.

But, when I read the order of suspension, I was amazed - and not much can amaze me these days:

Here is the main charge against Mr. Aretakis in his order of suspension:

"...respondent engaged in frivolous conduct by making false accusations against judges, which accusations were prejudicial to the administration of justice, engaged in conduct that adversely reflects on his fitness as an attorney, asserted positions which served to harass and maliciously injure, knowingly made false statements of law and fact, and engaged in undignified and discourteous conduct degrading to the court, in violation of Code of Professional Responsibility DR 1-102 (a) (4), (5) and (7); DR 7-102 (a) (1) and (5); DR 7-106 (c) (6); and DR 8-102 (b) (22 NYCRR 1200.3 [a] [4], [5], [7]; 1200.33 [a] [1], [5]; 1200.37 [c] [6]; 1200.43 [b]). "

All of those charges, especially those about judges, are forbidden by the 1st Amendment, prohibition on content-based regulation of speech, especially speech criticizing public officials such as judges.

It gets merrier though.

"In 2005, Christian F. Hummel, Acting County Judge of Rensselaer County, sanctioned respondent for his frivolous conduct in making a recusal motion in a criminal matter."

The decision of Judge Hummel was "ultra vires" - outside of Judge Hummel's authority - because the rule of frivolous conduct is INAPPLICABLE TO CRIMINAL PROCEEDINGS.

Note the words "any CIVIL action".

Not in criminal proceedings.

With stakes as high as in criminal proceedings, a defense attorney cannot do anything frivolous by making a judge to recuse, even the New York State Court Administration that invented the rules of frivolous conduct, with their cave mentality, excluded criminal proceedings from the text of the rule of frivolous conduct.

So, what happened in 2005 with judge Hummel, who presided in Rensellaer County (near Albany, NY, the capital of the State of New York) over a criminal proceedings where Attorney Aretakis was, I understand, a criminal defense attorney?

In 2006 Attorney Aretakis made a motion to recuse judge Hummel in a criminal case - where he was unreachable by the rule of frivolous conduct.

That motion to recuse was not the first that Attorney Aretakis made of this particular judge, Judge Christian Hummel. 

Attorney Aretakis made motions to recuse previously, in civil lawsuits where he sued the Albany Catholic Diocese for sexual abuse of priests, on behalf of the victims and where Judge Hummel was the third assigned judge - after recusal of two judges in a row.

The previous judge, Judge Teresi, was accused of an ex parte communication with the church's attorney Michael Costello before his recusal.

Judge Hummel, reportedly, "was elected Surrogate's Court judge in November 2001, previously served on the Family Court bench. He was East Greenbush town justice from 1986 until 1993 and was a member of the East Greenbush Board of Education for nine years.

In private practice, he was a member of the Albany law firm Carter, Conboy, Bardwell, Case, Blackmore and Napierski from 1982 to 1993. "

In his motion t recuse, Attorney Aretakis accused Judge Hummel of criminal conspiracy, as he did previously, in his motions to recuse in civil cases involving sexual abuse by Catholic priests.

The criminal conspiracy that Attorney Aretakis was accusing Judge Hummel of is conspiracy to pre-judge cases with the Catholic Diocese.

Knowing that no evidence is good enough for New York (and not only New York, see also here) courts when a judge is accused of misconduct, and knowing that the threshold standard for an attorney to be able to bring a motion to recuse is "appearance of impropriety", I believe that Mr. Aretakis, having appeared before Judge Hummel in several prior cases, may have a basis to move to recuse him.

Judge Hummel punished Mr. Aretakis for frivolous conduct - illegally, since it was in a criminal proceeding, where the rule of frivolous conduct does not apply.

The Appellate Division 3rd Department - the same court that in 2008 imposed a suspension based on Judge Hummel's sanctions, in a criminal proceedings, FOR FRIVOLOUS CONDUCT - REVERSED the "frivolous conduct" sanctions in 2006, two years prior, and gave Judge Hummel legal advice how to sanction Mr. Aretakis better - under a contempt of court statute.

Judge Hummel followed the 3rd Department's legal advice, " [u]pon remittal, Judge Hummel held a hearing, found respondent in contempt of court pursuant to Judiciary Law § 750 and imposed the maximum allowable fine".

Let's remember - Judge Hummel was an alleged VICTIM here, pissed off that HIS integrity was criticized in the motion.

So, he had a disqualification problem right there, to preside over a contempt proceeding where he was a victim, a witness, a prosecutor, a judge and a jury.

Later, Judge Gary Sharpe - the one that cannot read, I wrote about him on this blog, he looks like a permanently drunk person, and punishes people for CORRECT reading of the U.S. Constitution.

By the way, after my repeated criticisms of Judge Sharpe on this blog, Judge Sharpe first was demoted from his Chief Judgeship, and then quickly assumed a "senior status".

So, THIS Judge Gary Sharpe awarded in favor of Catholic priests and against civil rights attorney John Aretakis attorney fees in a civil rights litigation, in 2008 - and such sanctions were used against John Aretakis in his 2008 order of suspension which remains in force until today!

Of course, in 2002, 6 years prior to the sanctions of Judge Gary Sharpe in favor of Catholic Diocese, that same Catholic Diocese has settled a lawsuit with a man alleging sexual abuse by priests for $1 mln.

The lawyer for the settling victim, predictably, was John Aretakis.

At the time of the settlement, back in 1999, the following statements were reportedly made by Mr. Aretakis about his client, and by another attorney about the character of the case:


''This was a client I had to take the gun out of his mouth once,'' Mr. Aretakis said. ''He wanted to kill the priest, and he wanted to kill himself.'' 

"Settlements in the range of $1 million for a case that never went to trial are ''clearly the exception'' said Jeffrey R. Anderson, a lawyer in St. Paul who has handled hundreds of sexual abuse cases against the Catholic Church. He said that such large settlements usually result when the crime falls within the statute of limitations, when it can be proved that the diocese was negligent or when the victim suffered profound damage."

So, after that outstanding settlement, charges of "frivolous conduct" were piled up upon Mr. Aretakis from different judges in different courts.

It can be very easily arranged, as the standard for imposition of sanctions is "discretion" (choice, whim) of judges, and what is "discretionary" is always affirmed on appeal.

And, this is the official reasoning for suspension of Mr. Aretakis, who obtained a $1 mln settlement from Albany Catholic Diocese for his client, a victim of sexual abuse at the hands of a Catholic priest:

"In mitigation, we have considered that respondent has no public disciplinary record and that his misconduct has already been punished to some extent by sanctions.

However, we find that this record clearly shows that respondent has repeatedly crossed the line separating zealous advocacy from professional misconduct.

Accordingly, we conclude that, to protect the public, deter similar misconduct, and preserve the reputation of the bar, respondent should be suspended from practice for a period of one year. "

To protect the public - from an effective protector of the public?
To deter what - effective protection of the public?
To preserve reputation of the bar as protecting Catholic priests and being shamefully silent as to corruption in New York courts?

Well, what was declared to be meant as a 1-year suspension, without automatic reinstatement, turned out to be an indefinite suspension - it's been 8 years, more than required for reinstatement after a disbarment, and Mr. Aretakis is still suspended.

He was too good.

He protected his clients too well.

He stepped on too many powerful toes.

Now, what has happened since then to the judges who sanctioned him?

Judge Christian Hummel, from an assigned Rensellaer County judge, became a magistrate judge in the U.S. District Court for the Northern District of New York, the same court where Judge Sharpe was the recent Chief Judge.

Judge Hummel was not disciplined for punishing an attorney for contempt of court for making a motion to recuse in a criminal proceeding.

Instead, Judge Hummel was promoted to a federal court judgeship.

Judge Teresi, who was accused of an ex parte communication with attorney Michael Costello, was not disciplined, neither was attorney Costello.

The only person who was disciplined - for protection of the public, no less - was the attorney who was the most ardent protector of the public, John Aretakis.

His "crime" (criticizing judges for misconduct) was so bad that even his family ties to the judiciary and the political and financial prowess of his extended family did not help - 

On the opposite, John Aretakis' stance against the Catholic church may have nipped the budding judicial career of his wife - who, as of 2003, was running for a judicial seat in Rensellaer County Court, but, as of 2005, reportedly joined a homebuilding company as its corporate counsel:

where she works until now.  

No judgeship for a judge's niece - because of her controversial, and now suspended, attorney husband?

When John Aretakis wrote a letter to the sentencing court of the convicted felon Sheldon Silver - all of the dirt was dug up and thrown at Aretakis claiming that he is incredible.


Because he was suspended for criticizing judicial misconduct in motions to recuse, trying to secure for his clients their constitutional right to impartial judicial review of their claims.

And was sanctioned for suing Catholic priests for sexual abuse.

And was made to pay attorney fees of the Catholic priests he was suing.

Don't laugh, it's not funny.

And, maybe, all sanctions against John Aretakis, including his order of suspension, happened BECAUSE Silver's friend was hired by the Catholic church establishment?

Will Preet Bharara, the federal prosecutor who took down Sheldon Silver, care enough to investigate this one - or, will John Aretakis be left holding the ball, and suspended, the ardent and effective victims' advocate in the sex abuse scandal involving Catholic church who was suspended from the practice of law BECAUSE he was an ardent advocate for sex abuse victims - and BECAUSE a federal judge ordered him, the victims' attorney, to pay the Catholic church's attorney fees?

Because if this happens, it will appear to the whole wide world that criticizing a judge in New York is equal to or worse than a federal felony conviction - it "warrants", in the eyes of New York judicial establishment, a de facto disbarment.

Even your pedigree and family connections to the judiciary - which usually absolves attorneys in New York of discipline for most egregious fraud - will not help you if you criticize a judge.

Criticizing judges is an absolute taboo.  Worse than the worst crime.

Remember that.

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