"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.

Sunday, April 10, 2016

Ticket fixing in justice courts in New York, dishonesty of attorney-judges and how to fix both problems

In 1951, reportedly, a ledger listing traffic tickets of New York City politicians disappeared during investigation into possible ticket-fixing.

It was later revealed by the investigation that NYC police officers sold to motorists $10 "courtesy cards".  You flash the card to the cop - you can speed all you want, it's paid for.

Naturally, it's not only cops who wanted to benefit by the traffic-fixing, judges pitched in, too.

Here is a hilarious public document - a report of the New York State Commission for Judicial Conduct from 1977, when the Commission was in its diapers.

This 39-year-old document states this (among other things):

The Commission states that "most" case-fixing were based on bribes "in kind" - up to sexual favors from friends of defendants.

The Commission - that is 39 years ago - also mentioned that when sitting judges are lawyers and are allowed to practice law on the side, and when they do or seek favors to their own clients or friends of clients appearing in front of them or their fellow judges, "the judge's private law practice is enhanced".

Now, how to trace whether a certain litigant is also a client of a certain judge who is also a private attorney?

How to verify whether, for example, any litigant who wins in Delhi Town Court is or is not a client - or friend of a client - of Judge/attorney Richard Gumo ( who was just adjudicated by assigned judge in Delaware County Court John Lambert as having lied under oath regarding an invalid arrest warrant that resulted in jailing a person and a 1.5 year-long felony litigation that was dismissed once Judge Gumo lie was ascertained).

Ask Gumo?

But he is lies under oath - that's what Judge Lambert just said.

What about Judge/attorney Jonathan S. Follender, of Town of Denning Court, Ulster County, New York?

How to ascertain that litigants appearing before him in Denning Town Court are not his clients or friends of his clients, and, if they win, that the "victory" was not a favor to them "to enhance the judge's law practice"?

By the way, Judge Follender received in 2015 a salary of $6,332.00

 (1/2 of federal poverty guidelines of $11,770 for 2015

and, according to E-courts, does not have a Family law practice, and has one (ONE) case with future appearance in the Supreme Court?

There is a lot of enhancing to be done here.

Ticket fixing by judges is an ongoing problem in New York, long after the release of the Baby Commission's report in 1977, while the whole idea that judges can be disciplined for misconduct, including ticket-fixing, caused a furor in New York when the Commission just started out and tried to be honest (it has changed its ways since then to a glorified shredder of complaints against high-ranking judges):

In 1973, a judge by the last name of Maidman was reportedly suspended for 4 months (the horror!), but not removed from office for being involved in 12 (!) case of ticket-fixing.

In 1976, a judge Jones was removed from office for ticket-fixing and an adamant scheme to fabricate evidence:

The hilarious part was that "because so many judges had been involved in ticket-fixing, they were censured" only - because, I understand, otherwise there would be no judges to handle cases.

I wonder if that's the policy guiding the Commission now - if all judges are involved in similar misconduct (like ex parte communications, blatant constitutional violations), there is nothing to be done, otherwise there will be nobody left to handle cases.

One ticket-fixing judge, Judge Richter, waged a whole war on the Commission and filed an Article 78 claiming that the Commission exceeded its authority for investigating him through reviewing public files.

Since Judge Richter has actually WON on that issue - and the precedent remains on the books - I wonder whether that is why the Commission fails to conduct any investigations of public records on complaints against judges.

It is not even funny, but I found another Ricther, in the modern-times, in 2011, who is a police captain, and who was similarly involved in a ticket-fixing scandal.  Was this Richter the same as that Richter, were they related?  Who knows.  The problem seems to be contagious.

In 1979, a Judge James Reedy was censured (but not taken off the bench) for "improper influence in traffic cases".

Judge Reedy was not an attorney.

In the same 1979, a Judge Horace C. Sawyer was censured, but not taken off the bench, for massive for ticket-fixing:

Judges involved in the Sawyer ticket-fixing scheme were (I only list judges who received favors from Judge Sawyer):

  1. Judge John O'Connor with whom Judge Sawyer traded ticket-fixing favors;
  2. Judge Joseph W. Dally;
  3. Judge Edmund V. Caplicki;
  4. Judge Edward E. Lahey;
  5. Judge Robert J. Bronner;
  6. Judge George L. Mapes;
  7. Judge Lyle McDowell

Of those 7 judges, 

  1. Judge O'Connor - is not an attorney;
  2. Judge Dally - is not an attorney;
  3. Judge Caplicki is an attorney "with no record of public discipline":

but with a record of sexist comments in court about female attorneys.

Judge Caplicki was censured in 1978 for ticket-fixing, and in 2007, for discussing in open court the "nice butt" of a female defense attorney.

4. Judge Edward E. Lahey - is not an attorney;
5. Judge Bronner is not an attorney;
6. Judge Mapes is not an attorney; and
7. Judge McDowell is not an attorney

In 1980, a Judge Hopeck was censured (but not removed from office) for ticket-fixing and more:

In 1985 Judge Wesley R. Edwards was censured, but not taken off the bench, for attempting to fix his son's speeding ticket.

Judge Edwards was not an attorney.

In 1985two judges were removed for traffic ticket-fixing - Judge William W. Seiffert of Nassau County District Court in Mineola and Town Justice Ronald Fabrizio of New Windsor in Orange County.

Judge Seiffert, removed for misconduct in 1985, died while being a licensed attorney with "no record of public discipline".

The second removed ticket-fixing judge, Judge Fabrizio, was not an attorney, so the public was spared representation by such an "officer of the court".

In 2004, the Commission censured, but did not remove from the bench, Judge Karl T. Bowers for insistent attempts at traffic-fixing, falsely representing the defendant for whom the fixing was sought as a relative and using the court stationary and status as a judge in seeking the special favor for the speeding ticket defendant:

Judge Karl Bowers was not an attorney.

In 2005, Judge Daniel LaClaire was kicked off the bench for ticket fixing.  

Judge Laclaire was not an attorney.

Some judges fix tickets based on their personal patriotic views - of course, when fixing tickets for a friend's wife.

In 2008, the NYS Commission for Judicial Conduct censured Judge Morris H. Lew for fixing a woman's ticket because of an e-mail he received that the woman's husband is deployed in Iraq.

The Commission noted:

I know a whole number of judges in New York who fixed criminal and child custody cases on the same "patriotic" basis, with no discipline imposed whatsoever.

Reportedly, Judge Lew fixed the ticket for Lori Gilmore fixed soon after he received an e-mail from her husband, Martin Gilmore, from Iraq wondering what could be done. The men had been in the Army Reserves together.

Usually, people come to the bench in their 50s or 60s, with a whole life and career behind them, and a whole host of people they've known, befriended or antagonized.

How would one know who a particular judge has been "in the Army Reserves together", who e-mails the judge?

How do you know?

You insist on an investigation of a judge in every single case?

And, as it happened to me, the judge will retaliate by sanctioning you - and then the sanction will be used to remove your law license and livelihood?

How to fix that?

In 2011, the Commission censured (but did not remove from the bench) Judge Kevin V. Hunt, for "seeking special consideration for a defendant" because the defendant was the judge's "friend whose family are 'good people'":

Judge Kevin V. Hunt was not an attorney.

In 2012, an East Greenbush judge Diane L. Schilling was kicked off the bench for attempting to fix a traffic ticket.

Diane L. Schilling, a former "special counsel" of upstate New York Chief Administrative Judge Michael V. Coccoma, is still gracing New York courtrooms as a licensed attorney with no record of public discipline.

She so far changed law firms though, when I pointed out - in this blog on September 17, 2014 and in court papers - that her law firm that prides itself on partners who are relatives of judges, engages in false advertising by mentioning that she was an East Greenbush judge, but not that she was kicked off the bench for ticket-fixing.

Schilling was never disciplined (possibly, because of protection of her former employer, the married Chief Administrative Judge for upstate New York Michael Coccoma who has an apparent weakness for pretty young female "special counsel")

and now toils as an associate (that was a bump down from a partner in Maguire Cardona) at the law firm of Napierski, Vandenburgh, Napierski & O'Connor, LLP in Albany, New York.

Schilling's new employer, as Maguire Cardona before that, 

similarly engages in false attorney advertising, a serious kind of attorney misconduct, by claiming that Schilling "served for 10 years" as a judge of East Greenbush town court, but not that she was kicked off the bench for ticket-fixing, which is a material misrepresentation of Schilling's integrity - a major omission amounting to fraud as to clients who hire Schilling, and her employer through that false advertising, in matters involving trust.

Schilling even continues to practice "in the area of Vehicle and Traffic Law".  Having been kicked off the bench for fixing a traffic ticket, she must know this particular area of law well.

It must be noted that, of all the cases that are readily available on the Commission's website and are discussed on the Internet in newspaper articles and scholarly reviews, in the overwhelming majority of cases judges were not removed - only censured.

While that is not a correct decision, in my personal opinion, because ticket-fixing shows a complete unfitness for judicial office, it draws attention to those cases where the Commission considered judges misconduct outside of the "ordinary" ticket-fixing cases, to warrant removal from office.

There are only 5 of such cases over 40 years of the Commission's existence that I've found so far:

1.  In 1976, when, as I stated above, a judge Jones was removed from office because he ordered his clerks to destroy evidence in the very next room to the room where the Commission was conducting its investigation:

2 and 3.  In 1985two judges were removed for traffic ticket-fixing - Judge William W. Seiffert of Nassau County District Court in Mineola and Town Justice Ronald Fabrizio of New Windsor in Orange County.

Judge Seiffert was an attorney, so his removal was dictated on the same grounds, as removal of Judge Schilling, see below.

4.  In 2005, Judge Daniel LaClaire was kicked off the bench for ticket fixing.  

Judge Laclaire was not an attorney.

5.  In 2012, an East Greenbush judge-attorney Diane L. Schilling, because, "as an experienced judge and as an attorney with expertise in providing advice, support and training to local justices, respondent should have recognized and avoided any taint of favoritism"

That in New York, it is acceptable to discipline, and even remove a judge from the bench for dishonesty, but it is acceptable to allow that same judge, as an attorney, to suffer no attorney discipline, as it is shown here in three cases of ticket-fixing judges, only shows that not only traffic ticket proceedings are ridden by favoritism, and that the whole puffed-up declaration that attorney licensing exists to protect consumers of legal services from dishonest people - like these, below:

is just a smoke screen to distract the public from what is really going on behind closed doors of courtrooms.

I believe, one step towards fixing this problem must be that judicial records, and especially e-mails of the courts must be disclosable subject to Freedom of Information Law - right now judicial records are an exception to that law in New York; in other words, New York Freedom of Information Law should be amended to expand and include judicial records.

Too many of case-fixing cases mention that cases were fixed on letters or e-mails from friends and fellow judges.

The second step towards fixing the case fixing problem and the problem of judicial misconduct that I see is - where attorney-judges are involved, New York State Court Administration, where it posts "public discipline" of attorneys, must be made to publish on attorney registration pages decisions regarding discipline of attorneys as judges, not only by attorney disciplinary authorities, but also by the Commission for Judicial Conduct.

This way, attorneys and their law firms will be prevented from doing what attorney Schilling's TWO successive employer law firms are doing - engaging in false advertising by glorifying Schilling's "service" as a judge, and thus drumming up their business by preying on public perception of a judge as an honorable and knowledgeable person, while concealing the fact that Schilling was actually kicked off the bench for dishonesty that the Commission considered egregious warranting removal from the bench - while usually the Commission only censures judges for ticket-fixing.

And, as a third step, there should be a body, an inquisition if you may, where members of the public - not connected to the judiciary system - should have access to the e-mail system of the courts in order to be able to check what is going on with the case-fixing.

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