"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 4, 2016

Minnesota and Nevada federal judges are on the same bandwagon using occupational licensing of attorneys to deny counsel of choice to criminal defendants in high profile cases

I recently described on this blog how a federal judge in Minnesota did not allow representation of a criminal defendant by a criminal defense attorney of his choice because of the alleged disciplinary history the attorney had, even though the judge had no right to restrict right to counsel at all, or on such grounds.

In that particular case, occupational licensing (discipline from another state imposed upon the criminal defense attorney) was used by Minnesota federal district court judge Michael Davis to preclude criminal defense attorney Mitchell Robinson from representing criminal defendant Hamza Ahmed. 

Occupational licensing is used for the declaratory purpose of protecting consumers from bad service providers.

Attorney licensing is (supposedly) no different.

When an attorney is licensed - or his or her license is taken - that happens, supposedly because to allow the attorney to practice will hurt the consumers.

There are certain ways how an admitted attorney in one jurisdiction may be precluded from practicing in another jurisdiction - lack of automatic reciprocity of attorney licensing across jurisdictions.

If an attorney is licensed, for example, to practice law in the State of New York, his license may not permit him to practice law in a state which does not have mutual agreement with New York recognizing each other's state licenses without an additional bar examination and a separate licensing process.

Federal courts are usually less restrictive.

If an attorney is admitted in at least one federal court, they usually admit that attorney in their court, permanently or for a particular case (it is called a "pro hac vice" admission) without any problem.

Apparently, not so if the incoming attorney attempts to represent a criminal defendant in a high profile case.

In the case I described earlier on this blog, criminal defendant, Hamza Ahmed, who is charged with various counts related to ISIS, was denied representation by an attorney who is admitted in the State of Minnesota, so there was supposed to be no problem allowing him to step into a federal case in the same state of Minnesota.

In the Cliven Bundy case currently prosecuted in Nevada, after the famous ranchers' stand-off in Oregon where Cliven Bundy's son Ammon Bundy was involved, a criminal defense attorney who tried to enter the case and represent the defendant (and was denied that right by the judge on pretextual grounds) was not registered in that particular federal court, and filed a petition to the court for admission for that case only - a "pro hac vice" petition.

There is no question that Larry Klayman, the attorney who attempted to get into the criminal case on the criminal defense side, and was denied entry, is a seasoned, skilled and knowledgeable attorney.

Attorney Larry Klayman is skilled, seasoned, aggressive and courageous to get his point across, even if it does not coincide with the point of view of judges - and that may exactly be the reason why Larry Klayman was blocked from representing a criminal defendant charged with a list of serious felony counts.

Here is what Cliven Bundy was charged with:

 And, Cliven Bundy was represented by just one criminal defense attorney - who wanted Larry Klayman to join the team and be the SECOND criminal defense attorney on the team.

The Prosecution has FOUR prosecutors on their team across the defendant's current ONE.  

In Hamza Ahmed's case in Minnesota the prosecution had FIVE prosecutors against Hamza Ahmed's ONE public defender.
There was no question that Larry Klayman was the attorney of Cliven Bundy's choice.

As I indicated above, Larry Klayman was, undoubtedly (1) skilled and (2) wanted by his client.

And, these two conditions was undoubtedly enough to have representation by Larry Klayman mandated by the 6th Amendment of the U.S. Constitution that, under the Supremacy Clause, trumps any inconsistent state law.

Yet, Chief Judge Gloria Navarro, of the Nevada District Court, thought, as well as the U.S. Court of Appeals for the 9th Circuit, that there is a compelling interest that may allow her to preclude representation of a criminal defendant in an extremely high-profile case from being represented by a skilled criminal defense attorney of his choice helping the defense team.

The Nevada Chief federal judge Gloria Navarro would not allow representation of Cliven Bundy in his criminal proceedings by the well known conservative public interest lawyer Larry Klayman.

This is the decision:

The Sixth Amendment right to counsel in criminal cases does not have exceptions in its text.

So, any exceptions invented by courts - like the one Chief Judge Gloria Navarro cited - is amendment of the U.S. Constitution by the court, and is completely illegal, and unconstitutional, as is Chief Judge's Navarro's order denying an extra skillful counsel to a criminal defendant faced by steep charges and a prosecution team of 4 prosecutors against his one current criminal defense attorney.

 Of course, the particular attorney who is being blocked from entering the case, sued the federal government based on Edward Snowden's disclosure of NSA surveillance over American citizens through cell phone data.

Of course, Larry Klayman won a groundbreaking decision against the government on the basis of government surveillance.

Of course, discipline imposed upon him in Florida - that's why Judge Navarro blocked him from representing the criminal defendant who hired and chose him - had nothing to do with his ability to provide a quality criminal defense, and for Cliven Bundy, I am sure, that particular quality in a lawyer controls at this time.

Chief Judge Gloria Navarro, along with the U.S. Court of Appeals for the 9th Circuit, found an exception to the 6th Amendment right to counsel - which, in her view, trumps the U.S. Constitution that she is sworn to uphold.

The court-invented exception to 6th Amendment is like this:

 The 6th Amendment right to counsel in a criminal case is now, apparently, according to Chief Judge Gloria Navarro, a "qualified" (restricted) right.

And it is "qualified" (restricted) if satisfying that (constitutional) right will be too much of a burden for the court where counsel is "incompetent or unwilling to abide by court rules and ethical guidelines".

But - wait a second - if for any reason, Cliven Bundy chooses to represent himself, he cannot be blocked from doing so even:

  • if he is incompetent;
  • if he is completely unethical with the court; and
  • if he is completely unable or unwilling to follow court rules
 His right to self-representation cannot be denied then.

His right to representation by another cannot be denied either - there is NO such restrictions in the text of the 6th Amendment, and a federal court does not have an authority to amend the U.S. Constitution, the clear and unambiguous text of the 6th Amendment, through interpretation.

Chief Judge Navarro indicated that a criminal defendant's 6th Amendment right to counsel of his choice may be restricted only for "compelling reasons", meaning that the so-called "strict scrutiny" test is supposed to be applied.

But, first, the strict scrutiny test (invented by the U.S. Supreme Court to analyze whether the government STILL has authority to violate fundamental constitutional rights of individuals, even if the U.S. Constitution clearly says it doesn't give the government such an authority) requires also to go through an extra step - to verify whether the restrictions of the 6th Amendment right is "narrowly tailored" to that allegedly "compelling interests".

You saw in the order of Chief Judge Gloria Navarro (cited ) above the cited "compelling reason" to deny criminal defendant Cliven Bundy a counsel of his choice - "fair, efficient and orderly administration of justice".


To deny a federal constitutional right to counsel of his choice to a criminal defendant who, once again, has only one criminal defense attorney on his side, while the prosecution has 4 prosecutors on their team - satisfies the "compelling" interest of "fair, efficient and orderly administration of justice"?

And, what "orderly" and "efficient" has to do with "justice"?

There is no compelling interest by the government for "efficient" administration of justice, because the only "efficient" resolution for the government is a conviction.

There is no compelling interest of the government in "orderly" administration of justice either, because the only "orderly" way out is to kill all criminal defense and civil rights attorneys or permanently seal their lips (they are trying to do that through attorney discipline that disproportionately, if not solely, targets feisty criminal defense and civil rights attorneys).

There is no statutory or constitutional definition of "orderly" or "efficient" administration of justice, and what is a "fair" administration, is already set in the U.S. Constitution, its Amendments and federal penal and procedural statutes.

So, the strict scrutiny test, as illegal and unconstitutional as it is in itself, was not even followed by Chief Judge Gloria Navarro to the end, she did not prove:

(1) that "fair" administration of justice is a "compelling interest" OF THE PROSECUTION and the court that may be used to restrict a criminal defendant's 6th Amendment right to counsel;

(2) what "orderly" or "efficient" administration of justice is, why it is a "compelling interest" of the government, and what is the legal basis to allow that "compelling interest" to trump a fundamental constitutional right under the 6th Amendment (other than a decision by another court made without authority to make such a decision).

With such a drastic decision, made on such a contrived ground - a decision that very obviously stinks - I started to look what kind of background Chief Judge Gloria Navarro has to lead her to make such a decision.

Chief Judge Navarro, according to her official biography, worked previously both as a public defender, and as a prosecutor.

Apparently, becoming part of judicial establishment must go to people's heads.

Obviously, Judge Navarro's ruling may help her career should a Republican president be elected (even though she was appointed initially to the bench by President Obama).  And Chief Judge Navarro, who is just 48 at this time (very young for a federal judge) has some ways to go up the ladder - she can still become:

  • a federal appellate court judge;
  • a federal appellate court's Chief judge, and
  • a U.S. Supreme Court justice
And, these three extra steps to go may make the whole difference in whether Chief Judge Navarro wants to do "fair" administration of justice - or just "efficient and orderly" one.

One thing is also clear - that Chief Judge Navarro's order is unconstitutional, that it was a reversible error to deny counsel of his choice to a criminal defendant based on judge's contrived reasoning.

But, since Judge Navarro already relied on the 9th Circuit "precedent", it will be for the U.S. Supreme Court - if it would take the case for review should there be a conviction and appeal - to rule on this issue.

In this country the U.S. Constitution exists and becomes visible only if the Council of 9 (now 8) elders says so.

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