"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.

Friday, April 1, 2016

#JudgeOluStevensNeedsPublicSupportInHisFightAgainstRacismInCourt. Does a judge have a 1st Amendment right to call a prosecutor a racist (in social media) - updated?

I updated and corrected this blog since yesterday, after reading in-depth Judge Stevens' federal lawsuit, and included some information about potential conflict of interest of the members of Kentucky Commission for Judicial Conduct to judge Judge Stevens.


A Kentucky judge, his name is #JudgeOluStevens, has reportedly filed a federal civil rights lawsuit trying to block the local Judicial Conduct Commission from prosecuting him for public comments on issues of public concern.

Judge Stevens (who is himself black)

was reportedly removed from a criminal trial this past January because he previously dismissed two juries as having too few black people on them, and who made comments on Facebook reportedly indicating that a certain prosecutor wanted all-white juries.

The accusations against Judge Stevens are that 

  • Judge Stevenst took an issue that the prosecutor in question appealed his decisions and, in those appeals, allegedly "impugned" the judge's integrity, and was reportedly not shy expressing those feelings about it at public meetings at a bar association, and that
  • Judge Stevens went to Facebook to discuss the case that was being appealed and called people to action, to "stand up" and prevent impaneling all-white juries.

The accusations, while factually correct, are incorrect as a matter of judicial ethics.

According to Judge Stevens' federal lawsuit, the so-called "appeal" that Judge Stevens discussed, was not an appeal, but a "motion for certification of the law" by the Commonwealth Attorney Thomas Wine - made after an ACQUITTAL of a black defendant, James Doss, by a racially diverse jury (8 white jurors, 4 black jurors).

In criminal law of this country, acquittal by a jury ends a criminal case - as Judge Stevens correctly pointed out in his federal lawsuit.

Here is what Judge Stevens said in his federal lawsuit on the subject:

The Commonwealth Attorney apparently took an issue, after the acquittal, that Judge Stevens replaced a jury panel with no African-Americans (the defendant James Doss was black), and Judge Stevens agreed.  The Commonwealth Attorney - a white guy Thomas Wine - who represents ALL people of the Commonwealth of Kentucky, not just its white residents, had the audacity to make a motion to the Kentucky Supreme Court, practically in lieu of an appeal, for "certification of the law", whether Judge Stevens' dismissal of the all-white panel was valid.

Such a motion was, most likely, jurisdictionally invalid, because, once again, the defendant was acquitted - and that ends jurisdiction of all courts on the subject.

That's why Judge Stevens stated in his federal lawsuit that Commonwealth Attorney's motion "for clarification" should have been named not Commonwealth v James Doss (a case that was already over and finished), but "Commonwealth v. All Black Defendants".

The ONLY discernible motivation for such a motion "for clarification" is racial.

It is quite apparent that filing of such a motion indicates Thomas Wine's desire to be able to do what he did (but what Judge Stevens stopped him from doing) - selecting all-white juries for black criminal defendants - in the future, with the support of the State Supreme Court of the Commonwealth of Kentucky.

While making his motion, Thomas Wine must have known - as a seasoned attorney - that:

1) the criminal case ended with an acquittal, and there is no criminal case "Commonwealth v James Doss" to appeal or make motions in; and that
2) even if theoretically, hypothetically, there would be jurisdiction in the Supreme Court of the Commonwealth of Kentucky, the question that Thomas Wine was asking was already answered - against him - by the U.S. Supreme Court in the case named Batson v (gasp!) Kentucky, 476 U.S. 79 (1986), 30 YEARS AGO!

The Kentucky Commonwealth Attorney Thomas Wine clearly knew that the state Supreme Court of the Commonwealth of Kentucky cannot overrule the U.S. Supreme Court on the issue that has been conclusively decided 30 years ago, so his unlawful and out-of-wack motion "to clarify" or "to certify" the law was - what?  why? for what reason?

Even asking this question 30 years after Batson v Kentucky was proof of Wine's racism, incompetence and bias against black defendants.

And - after the case was finally decided, with no possibility for appeals for the prosecution, and with the motion that was made, being completely ultra vires (made without authority) by Thomas Wine, NOTHING precluded Judge Stevens from making comments wherever he wanted, from rooftops, if needed, raising the issue of grave public concern - ADAMANT and OUTRAGEOUS RACISM of the Commonwealth Attorney whose current "accomplishment" is that the current Kentucky inmates are 55% black while only 21% of Louisville, Kentucky residents are black (see excerpts from Judge Stevens' federal lawsuit).

In other words, 30 years after Batson v Kentucky, a black person in Louisville, Kentucky has a 2.6 TIMES more chance - that's 260%, ladies and gentlemen - than a white person, to be put in jail, even if, as Judge Stevens' lawsuit says, black defendants are not the majority.

That means that the rates of convictions by jury - and the rate of leniency of prosecutor Thomas Wine in plea bargains, by the way, is different in Kentucky between white and black criminal defendants.

THAT must be the issue of grave concern for the Commonwealth of Kentucky.

Yet, it appears, instead, that the grave concern for the Commonwealth of Kentucky was that Judge Steven said that Thomas Wine is a racist (and his actions as a prosecutor show that he sure is), and that what he is doing in criminal proceedings is illegal.

Did Judge Stevens have a right to dismiss juries because they did not represent a racial cross-section of the community, and when they were all-white when the community was not all-white?

I think he did, based on the "Batson" challenge to the racial composition of the jury.

Did the judge have a right to discuss the prosecutor the way he did - that the prosecutor is "impugning" the judge's character in Thomas Wine's "appellate" motion?  

Absolutely he did - because, after the acquittal, the prosecution very obviously had no right for any "appeal" or motions to "clarify" what was clarified by the U.S. Supreme Court 30 years prior - against the prosecution.

That judge Stevens is serious about race, is a grave understatement.

It was reported in January of this year that Judge Stevens sentenced a man to 60 more days in jail for contempt of court, when the man whose bond Judge Stevens just revoked used a racial slur after he left Judge Stevens' courtroom.

Was Judge Stevens justified in doing that?

I actually think he was.  To cast a racial slur at a judge during, or right after, a court proceeding, while still in the courthouse, is unacceptable.

There are issues in such situations though, of impartiality - where the judge acts as prosecutor, judge and jury, and where the judge is also the victim.

I would say that Judge Stevens was unwise doing the contempt proceeding and the sentencing himself, but that racism is alive and kicking in Kentucky, and Judge Stevens wouldn't have it in his courtroom, and especially directed at him himself - is only commendable.

The controversy with the jury composition resulted in an escalating open war between the judge and the local prosecutor Thomas Wine.

In December of 2015 the Kentucky Chief Judge reportedly refused the request of prosecutor Thomas Wine to remove Judge Stevens from all criminal trials.

Then, in January of 2016, Judge Stevens was removed from two criminal cases, on a motion from Thomas Wine, because Judge Stevens discussed Thomas Wine's behavior in the CLOSED case of James Doss on Facebook.

Yet, earlier than he was removed from two cases, an investigation by the Kentucky Judicial Conduct Commission of Judge Stevens started - with  catch: that the Commission is itself all-white.

Here are the list of members of the Commission whom Judge Stevens sued - with their respective pictures showing their race:

1) meet the Chairman of the Kentucky Commission for Judicial Conduct, Stephen D. Wolnitzek, sued by Judge Stevens in his federal 1st Amendment lawsuit.

Stephen D. Wolnitzek, a white attorney and director of an insurance company - he must know a lot about criminal law, and especially about Batson v Kentucky.

Steven D. Wolnitzek's race is abundantly clear - white.

2)  Janet Stumbo, the next member of the Commission sued by Judge Stevens, a white Kentucky Court of Appeals judge

Let's note that, according to Judge Stumbo's official biography, her husband Ned Pillersdorf is an attorney (why judges and their attorneys spouses so often have different last names - so the connection would not immediately pop up in cases of potential conflict of interest?) - so, Judge Stumbo must rule "in line" with the establishment not only for her own sake, but for her husband's business's sake, too.

By the way, Judge Stumbo's white husband Ned Pillersdorf actively advertises that his wife is a judge on his law firm's website - which is an obvious appearance of impropriety:  see, my wife is a judge, courts will rule in my favor because of it.

So, Judge Stumbo who obviously allows her husband to run her name around in support of his advertisements and promotion of his law firm's business, must know a lot about ethics in general and judicial ethics in particular.

Shouldn't Judge Stumbo's Commission investigate her own behavior for allowing her husband to use her name and judicial office in private advertisements and drumming up business for his private law firm?

By the way, Judge Stumbo's husband is a criminal defense attorney fighting "for the rights of the underdog".

It will help his business in front of white judges tremendously if his wife would help to put down a black judge a little bit - don't you think?

3)  The next sued member of the Commission, Eddy Coleman - a circuit judge in Pike Judicial Center, Kentucky, see also here.

Judge Coleman is very obviously white.

Judge Coleman's LinkedIn profile showing 500 connections (I wonder whether those "connections" appear in Judge Coleman's court and, if they do, how Judge Coleman rules in their regard), also shows that Judge Coleman has been a judge in Kentucky for 21 years.

Judge Stevens' lawsuit indicates that until 2009 there were no black trial judges in the Commonwealth of Kentucky, Judge Stevens was the first one.

So, Judge Coleman - who is about to judge and, possibly, discipline or oust Judge Stevens, one out of three black trial judges at this time in the Commonwealth of Kentucky, has been part of the state's racist judiciary that disproportionately puts in jail black people, and approves all-white jury panels for black defendants.

Judge Eddy Coleman (I love those diminutive names - "Eddy" for a judge, like "little boy Eddy", a cute little angel) must be a true expert to decide the issues of Judge Steven's alleged ethical violations.

Judge Eddy Coleman's LinkedIn profile also shows endorsements of the Judge's "Skills" - it is interesting, does Judge Coleman reward the endorsers for their praise in his court cases?  

Shouldn't his Commission for Judicial Conduct investigate that?

 4) The next sued member of the Commission, Karen Thomas "is a district court judge for the 17th District Court, which presides over Campbell County in Kentucky."

Judge Thomas is very obviously white.

Judge Thomas was elected in 2009 as the president of Kentucky District Judges Association.

Judge Thomas is a member of the "Salmon P. Chase Inns of Court"

see link to that organization here, which is part of American Inns of Court, a secret membership organization where attorneys wine-and-dine judges behind closed doors on a monthly basis, have an unlimited potential for ex parte communications (you can word-search this blog, there is a lot of information as to how American Inns of Court operate and how they influence judges, from trial level to the U.S. Supreme Court) .

I wonder whether attorney Thomas Wine (no pun intended) wined-and-dined Karen Thomas in the Inn of Courts meeting to influence her decision regarding Judge Stevens.

Judge Thomas' membership in the Inns of Court, as well as her activities their, her contacts there, general membership there and Judge Thomas' case outcomes for members of that Inn and of other Inns should be investigated by her own Commission, and that includes an investigation whether attorney Thomas Wine is a member of that organization, and used it to influence Judge Thomas in her disciplinary decision about Judge Stevens.

Since the meeting schedule and membership of the Salmon P. Chase Inns of Court are secret, the possibility of Thomas Wine wining-and-dining Judge Thomas through Inns of Court cannot be excluded, and raises grave issues of public concern.

5) Diane E. Logsdon is another member of the Judicial Conduct Commission about to "investigate" and judge Judge Stevens' statements against racism of Kentucky Commonwealth prosecutor Thomas Wine.

As a business person, Ms. Langdon has an interest to rule in a way that will not cause retaliation of the predominantly white, and racist, Kentucky judiciary against her company.

6)  The next (sued) Commission member, Joyce King Jennings is from Louisville, Kentucky, the town where Judge Stevens presides.

Joyce King Jennings is white, here are two pictures of her from her Facebook page, the picture with the chicken leg is Joyce Jenning's own most recent choice of her profile picture.

Joyce King Jennings is a Louisville, KY business owner, 

with a distinct interest to stay on the good side of the judicial establishment - which is the white judicial establishment.

Joyce King Jennings is reportedly the founder of an annual charitable gala for the American Lung Association - a worthy cause.

Yet, pictures advertising this "worthy cause" have very few faces of black people - they are overwhelmingly of white people.  The message sent by Jennings is what - that black people are not really interested in engaging in charitable pursuit?

Jennings very obviously would like to keep on the good side of racists in the Kentucky business establishment - otherwise how will she be able to get money for the "gala" and advertisement for herself and her business?

And, judging by the pictures, Jennings is doing her job just fine - there are hardly any black individuals featured in her advertisements - only enough to duck accusations of open racism.

So, this white businesswoman from Louisville, Kentucky, is, of course, perfectly suited to judge whether Thomas Wine is a racist, whether the black Judge Stevens said the truth about the white prosecutor Thomas Wine that he is a racist, and whether to discipline the black judge Stevens for speaking out against racism in criminal proceedings in Kentucky.

7)  The next sued member of the Kentucky Commission of Judicial Conduct is Jeffrey Walson.

Jeffrey Walson recently sued Kentucky Ethics Commission for a determination whether a Kentucky judge can sit on a board of directors of a financial institution, including the one in which the judge has a personal stake - the answer of the court was "no". 

I did not find Walson's picture on the Internet, but Judge Stevens' lawsuit indicates that the Commission for Judicial Conduct is "all-white" and I did find comments on Judge Walson's campaign to be elected from the Family Court to the Circuit Court, in order to hear criminal case - he is called "Whitie Watson" and is being accused of "gang politics".

Judge Walson was also accused of lack if integrity in playing politics and smearing his opponent in a judicial election race - by a person who received an election flyer from Judge Walson's campaign.

Judge Walton is, apparently, a very fair choice to judge Judge Steven's anti-racist stand against Commonwealth Attorney Thomas Wine.

8)  The next Commission member Judge Stevens sued is Kent Westberry.

R. Kent Westberry is white, 

and a private attorney, a senior partner at Landrum & Shouse LLP, according to his LinkedIn profile.

Attorney Westberry's area of practice is, according to his law firm's website:

While practicing in federal courts:

Here are attorney Westberry's professional associations and affiliations:

To be successful in the white judges' criminal court - one has to trump on the "black sheep" of the family who stepped out of line and spoke about racism in the criminal proceedings, especially if he is also a black judge - doesn't one?

After all, attorney Westberry is part of the white old boys' club for a very long time and must know the rule of the game well.

 9) The next Commission member sued by Judge Stevens is David Bowles.

David Bowles is white, and is "a district court judge for the 30th District Court, which presides over Jefferson County in Kentucky- this is his younger picture, when he was running in judicial elections.

Judge Bowles is also a retired police officer who, according to his own information in his election campaign, "retired at the rank of Lieutenant from the Jefferson County Police Department".

A white veteran police officer who participated in putting a disproportionate number of black defendants behind bars is a perfect choice to decide issues before the Commission in Judge Stevens case.

10)  Jeff Taylor concludes the list of members of the Kentucky Commission for Judicial Conduct sued by Judge Stevens in federal court.

Jeff Taylor is a judge of Kentucky Court of Appeals, and he is white.

These white people are who Judge Steven is up against.

I am not sure whether Judge Stevens removed his disciplinary proceedings to federal court, but I know that the law allows him to do that.

There is a federal statute, 28 U.S.C. 1443, that allows a state litigant to remove a proceeding to a federal court because he does not expect fairness in state court.

I used that statute to remove my attorney disciplinary proceeding to a federal court.

It was remanded back because, as the federal court reasoned, the statute could only deal with racial unfairness.

While that was not true, in Judge Stevens' case that is exactly the point:

  • a black judge who tries to follow the U.S. Constitution, and
  • who tries to ascertain the proper racial composition of criminal juries, is opposed
  • by a white prosecutor 

  • who has a tendency to pick all-white juries (Judge Stevens dismissed two) in a non-all-white community, and
  • who has filed a frivolous motion, post-acquittal of a black defendant by a racially diverse jury for a "clarification" whether he can still select all-white juries to preside over criminal trials of black defendants - even though this question was decided in the negative 30 years ago by the U.S. Supreme Court in Batson v Kentucky (the prosecutor's own state); and
  • the judge is about to be investigated and prosecuted by an all-white Commission for Judicial Conduct, where members have a wide array of conflicts of interest and in-built biases.

Looks like the stage is set up for a racial slamming of Judge Stevens and, 

unless the federal court intervenes - as it obviously should under the circumstances, and, 

unless Judge Stevens is given public support for his brave stance against racism in court proceedings, the gang of all-white old boys - and girls - may succeed.

I encourage my readers to write petitions to the Kentucky Commission for Judicial Conduct in support of Judge Stevens.

Judge Stevens did not commit any misconduct.

He is fighting to right the wrongs in the judicial system - and did it the legitimate way.

Judge Stevens deserves and should be given full public support in his stance against racism in courts.

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