"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, May 20, 2016

A Tennessee story: a judge will never rat on a judge - even if it is his duty to report judicial misconduct

Ok, so a judge arrives to her job late.

To her job presiding over a criminal court.

To the pre-trial detention hearing of people, presumed innocent and held in jail before trial.

Where witnesses are summoned.

The judge is late for the hearing scheduled by the judge herself.

So, if an attorney is late for the hearing, the attorney will be sanctioned, and the judge would have ruled against the attorney.

But the judge can allow herself to be late.

And, shortly after she arrived (late), the judge has to leave.

Why does she have to leave?

She has "to teach a class".

But, isn't the judge's job is - well, to judge?  Not to teach a class?

Obviously, to teach a class was a priority.

A PERSONAL priority for a Tennessee judge Rachel Bell .

That personal priority of judge Rachel Bell prevented several people from having their detention hearing within 10 days, as required by law.

Since the judge was in a hurry to teach a class - did she release those people because she did not have time, for personal reasons, to hold the detention hearing within 10 days, as required by statute?

Of course, not.

She simply delayed their stay in jail and went to teach a class at a local high school.

And, did the other judge - who vacated her unlawful decision - report her misconduct?

Of course, not.

Judge Mark Fishburn found it not appropriate "to report a colleague".

Judge Fishburn is himself a member of various extra-judicial associations and organizations.

Was his reluctance to report the obvious misconduct of judge Rachel Bell a reflection that he may be in need of the same leniency from her in the future, if he gives priority to his own extra-judicial activities and "community involvement", other than his direct job that taxpayers are paying him for - TO JUDGE?

And - by the way - did Judge Bell appreciate the leniency of Judge Fishburn in not reporting her to disciplinary authorities?

Did she "accept responsibility"?

Did she "express remorse"?  Those are the usual cliches in disciplinary proceedings where leniency is afforded to people committing misconduct.

Oh, no, quite the opposite.

Here is what was reported by The Tennessian as Rachel Bell's reaction to Judge Fishburn's rulings overturning adjournment orders of Judge Bell and releasing the defendants pending trial - which is what Judge Bell was supposed to do if she did not have time for a hearing within time limits required by statute.


"Fishburn's orders infuriated Bell, who went to talk to Fishburn on Thursday morning".
So, a judge talks to an appellate judge expressing her displeasure with the appellate ruling - that is an act of misconduct in itself.
"In an email response to The Tennessean, Bell raised concern not about Atchley's release from jail but about Fishburn's first order and footnote to it.
That order granted Atchley a bond hearing after Mollenkof, the defense lawyer, raised concerns including that Bell lowered Atchley's bond without properly holding a hearing. Bell sent The Tennessean a handwritten court order from April 29 justifying her reasons for lowering the bond and citing a case that says people cannot be held in jail beyond 30 days without a preliminary hearing.
The footnote said Bell does not appear in court before 10:30 a.m. "due to sleep issues related to her Type II diabetes."
Apparently, Judge Fishburn did not take this information out of the thin air, obviously, the judge shared her reasoning for late appearances with somebody.  Usually, judges are quite open about their health issues in chambers with attorneys and with the judge's own secretaries and clerks, so the disclosure, likely, came from the court personnel or an attorney appearing before the judge in chambers.
"Bell told The Tennessean that was untrue. She said cases are typically not ready until 10 a.m. and thus it is better to start late.
"The start time is best for me including but not limited to my health and the best time for the courthouse," Bell wrote to The Tennessean on Thursday, saying she would not discuss her health."
But, if it is "the best time for the courthouse", then hearings must be SCHEDULED for that "best time", too, right?

For 11:00 am?
Apparently, the hearing was not scheduled for that time, it was scheduled for an earlier time.
The judge was late.
Many people were waiting for her to show up at her job.
A police officer who was supposed to be on the streets protecting people's safety (and paid to do that) was waiting for the judge, unnecessarily - and the judge made him wait even more and come another time, because of judge's personal appointments that day.
I wonder if Judge Bell collected her pay for the full day that day, too - while coming late and leaving within 1.5 hours of coming, for a personal reason.
If Judge Bell has health reasons for not being able to come and do her job, the remedy for it is resignation.
Not keeping people in jail longer than the statute allows.
Not wasting the time of taxpayer-paid personnel, utilities, maintenance cost of the courthouse, supported by taxpayer money, by coming to her job late.
Why cases are ready only by 10:30 am? 
Isn't it the job of the judge then to come EARLIER and make sure that cases are ready on time?
Isn't it true that, if cases are ready late, they may be geared to the judge's habitual late-shows?
And, the biggest problem, of course, is Judge Rachel Bell's attitude.
She accuses other people for addressing her misconduct in a court decision.
Which means - she thinks she is in the right, will continue to disregard the law and put her private affairs ahead of her job duties, and, there is a likelihood of retaliation against litigants and attorneys who raised issues of her misconduct.
And that is a very big problem.
So, while Judge Fishburn would not report Judge Bell because he "would not report a colleague", he also puts his personal interactions with the colleague as a priority over his duty to the people who elected him.
And that is an unfitness issue for Judge Fishburn, too.

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