"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.

Tuesday, April 19, 2016

On the discipline of Judge Olu Stevens of Kentucky

I wrote on this blog that an African American judge out of the State of Kentucky, Judge Olu Stevens, was targeted for discipline for doing his job - for striking panels of all-white jurors in cases of African American defendants where a 100% white jury does not reflect the racial composition of the community, and where statistically, African Americans are disproportionately appear as criminal defendants and are disproportionately convicted of crimes, as compared to their presence in the population of the State of Kentucky.

Judge Stevens is also targeted for discipline because he allegedly discussed the criminal case - after its jurisdictional conclusion for all purposes - and criticized the prosecutor who insisted on picking all-white juries as racist.

Judge Stevens' criticism of the prosecutor, a public officer, on issue of grave public concern, racism in the criminal justice system, was clearly speech with content protected by the 1st Amendment of the U.S. Constitution.

Yesterday, with regret, I wrote on this blog that for some personal reasons I am not aware of, Judge Olu Stevens has reportedly agreed to a paid suspension while his disciplinary case is pending.

Since Judge Stevens' disciplinary case is still pending, I would like to point out that the federal court handling constitutional civil rights cases out of the State of Kentucky, the U.S. Court of Appeals for the 6th Circuit, already decided a case on point - whether discipline of an officer of the court (an attorney) is constitutional for criticism of a public official.

In 2012, in its decision in the case called Berry v Schmitt, the 6th Circuit ruled that discipline, or even a threat of discipline, of an attorney for criticizing conduct of a public agency, the Legislative Ethics Commission for the State of Kentucky, is unconstitutional as violating the 1st Amendment of the U.S. Constitution.

The full decision in Berry v Schmitt can be viewed here.

In that case, the U.S. Court of Appeals for the 6th Circuit, a mandatory authority on constitutional issues for the State of Kentucky, has ruled as follows:

In that case, as the decision goes on, the lawyer criticized a "quasi-judicial" entity:

This is the letter for which the attorney was warned he will be sanctioned if he persists in his similar criticisms - the letter criticized the Commission's actions in convening behind closed doors to review fund-raising conduct of a legislator, excluding the public, excluding the complainant, but for a brief moment, but including the subject of the complaint.

  By the way, in New York State, disciplinary proceedings against public officials are conducted in the very same mode as was criticized by the Kentucky attorney - even more so, because the public and the complainant are completely excluded from the disciplinary process.

The "problem" with the feisty Kentucky attorney John M. Berry, Jr., who has been a Kentucky State Senator himself, was that he not only criticized the way Kentucky State Committee on Legislative Ethics operated, but also went public with his criticism:

Attorney Berry was no shrinking violet before his criticism of the Commission either, nor was he an outsider not knowledgeable of the ways of the Kentucky State Legislature.

When attorney Berry was a Kentucky State Senator (see the list of current Kentucky State Senators where Senator Berry is not included), he reportedly opposed what was called a "Succession Amendment", a proposed change to the Kentucky State Constitution by which the State Governor would be allowed to succeed himself.

To be fair and for purposes of full disclosure, there was, in my opinion, a murky episode of questionable ethics of Senator Berry himself when, during his public opposition to the succession of the Governor by himself (while the Governor was Senator Berry's personal friend), Senator Berry appeared to speak in front of a Rotary Club about the proposed Succession Amendment, and, for the sake of "fairness" and presentation of "all sides of the debate", reportedly spoke about the advantages of the Succession Amendment, while maintaining that he is still its opponent.

Nevertheless, despite former Senator Berry's argument for his friend the Governor while pretending to oppose the Succession Amendment, the Kentucky voters did defeat the Succession Amendment in 1981 - and that defeat may have hurt Senator Berry's friend the Governor's chances to become U.S. President.

Friendship or no friendship, Senator Berry has possibly "fell from grace" of the Kentucky establishment and acquired powerful enemies by his opposition, open or fake, of the Succession Amendment since those far-away times. 

Former Senator Berry, a white man, was represented in his federal civil rights lawsuit - for free, I presume - by the Kentucky chapter of ACLU.

I wonder where the Kentucky chapter of the ACLU is when an African American judge Olu Stevens is targeted for discipline, on the exact same issue as was already decided by the mandatory constitutional authority for the State of Kentucky, against the State of Kentucky, in John M. Berry Jr.'s case, 4 years ago:

The lack of expressed position on behalf of the Kentucky chapter of ACLU as to the investigation of Judge Olu Stevens is even more alarming, as in former Senator Berry's case there was only a letter of warning, not real disciplinary proceedings which Kentucky ACLU considered worthy and warranted to defend on behalf of the white attorney Berry.

In the case of African American judge Olu Stevens, a real discipline, and now a real (no doubt, forced) "temporary" suspension during pending disciplinary proceedings that can very well result in Judge Stevens' removal from the bench, the way things are going and the way the racist "criminal justice" system is against Judge Stevens for doing what's right and what had to be done long time ago - cleaning the court system of institutional racism.

Suspension of Judge Stevens, even a temporary suspension, means, for criminal defendants, that an honest judge who was courageously protecting them from racist jury-picking by the State prosecutor, is no longer there to protect them.

Judge Stevens' suspension also sends a message to the people of the State of Kentucky that it is what Judge Stevens did was wrong by exposing racism of state prosecutor Tom Wine, and not what Tom Wine did by picking white-only juries for African American criminal defendants in a criminal justice system where African Americans are already disproportionately targeted.   

I wonder why Judge Stevens' plight is not worthy enough for Kentucky ACLU to look at.

Of course, after seeing the picture from the front page of Kentucky ACLU, one starts to understand the lack of position in defense of an African-American judge whose constitutional rights are violated because of his constitutionally protected speech on issues of public concern.

This is what interests Kentucky ACLU:

Helping an African American judge fight unconstitutional disciplinary proceedings and restore to the bench a jurist who was cleaning the Kentucky State criminal justice system of racism, obviously doesn't interest the Kentucky ACLU as a priority of any kind.

By the way, it is interesting to see the concurring opinion in the Berry v Schmitt case where Kentucky ACLU did feel they have to intervene:

In essence, the concurrence says - yes, I concur because the law is on the plaintiff's side, but the controversy is old and unlikely.

I bet, had the case not been litigated by a former state Senator and not by ACLU, sanctions would have been imposed for litigating an "old and unlikely" controversy.

ACLU did a good job in the Berry v Schmitt case, by setting an important 1st Amendment precedent in attorney disciplinary cases.

Yet, ACLU somehow does not want to make one step further and apply its victory towards helping a judge who is, similarly as Mr. Berry, but with a lot more vigor and with a lot more consequences up to date (forced suspsension) pursued for protected speech about issues of grave public concern.

I note an activist with a rainbow on his or her shirt in the Kentucky ACLU's front picture:

Yet, after the U.S. Supreme Court decision legalizing same-sex marriage last year, it is not an act of courage to support the gay rights movement any more.

Defending a judge who went against the nearly all-white judicial establishment in the state, is not mainstream, and does require quite a bit of courage.

I guess, Kentucky ACLU has yet to find that courage to defend Judge Olu Stevens.

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