"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 27, 2016

An acquittal of murder from the bench - the extraordinary verdict in Cal Harris' case

Recently a criminal defendant charged with murder of his wife was acquitted of that charge - after the 4th trial.

What is significant in this case is that, even though the first 3 trials were trials by jury, the defendant chose to have his 4th trial be decided by a judge - an extremely dangerous decision, even though it played out well for the defendant.

Judge Richard Mott, 

a former public defender and defense attorney, who had a vast experience in defending murder cases

 did acquit him of all charges.

The case was, from the very beginning, circumstantial.

No body of Michele Harris and no murder weapon were ever found.

Cal Harris maintained his innocence for 15 long years, through 4 murder trials.

My take is that it was natural for the court to conclude that circumstantial evidence, where there was no body, no murder weapon found, and where the first conviction was set aside because a witness claimed he saw Michele Harris hours after her alleged murder with somebody else, suggesting that Cal Harris was being framed.

The evidence in the case was, in fact, not so strong, since the previous, 3rd, jury deliberated for 11 days, and were still deadlocked.

Apparently, the judge had every reason to conclude that the "beyond the reasonable doubt" standard was not reached.

And, in a bench trial, as opposed to the jury trial, People are at a disadvantage (if the judge is not pro-conviction), because they cannot engage in their usual theatrics meant for lay jurors.

*  *  *

It was definitely a big gamble to let a judge to be a fact-finder in a murder case, because judges are usually pro-conviction, because usually judges come from prosecutors.

But, in this case, by whatever chance, the judge's background was that of a public defender and a criminal defense attorney, and there was so much publicity that the defendant had no way of having an impartial jury that would not know about the case and would not be contaminated by 15-year publicity calling Cal Harris a murderer.

For example, in 2012 the New York State Court of Appeals, while reversing the conviction and sending it back for a new trial, said the following:

"Given the high-profile nature of the case, there was significant media coverage in local newspapers and on television, including two national broadcasts, covering Michele's disappearance and defendant's first trial.  Defense counsel made two change of venue motions prior to the retrial, citing "prejudicial publicity." Each motion was denied, as was a third motion made by defense counsel during jury selection."

Moreover, the prosecution made sure it pointed out the family's wealth as Cal Harris' motive to commit murder.

Cal Harris' family wealth comes from selling cars, and a "car salesman" is a derogatory tag in this country, whether you like it or not.

When a politician is called a "used car salesman", that is already a cliche presupposing that all used car salesmen are crooks and inherently unbelievable.

When many people are hurting from bad economy, having a criminal defendant parade one private attorney after another, can cause resentment in the jury just because his family could afford it.

Where the overwhelming majority of population in rural counties in New York is uneducated and poor - Cal Harris' gamble in having a judge preside over his murder trial does not seem so unreasonable, after all.

I cannot end this post on a positive note.

I cannot say that - see, justice was served.

The acquittal was a result of years of work of multiple private - and expensive - criminal defense attorneys and privately hired experts.

That's where the wealth of the family came in handy, to pay for qualified criminal defense, appellate counsel and for qualified experts.

I will run a separate blog describing the list of criminal defense attorneys who represented Cal Harris in this case, they were all private attorneys,  and all not cheap attorneys.

An average criminal defendant in the same position, especially a poor criminal defendant, with an assigned counsel, would have had no chance.

And it is sad that justice hinges so heavily on money.

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