"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.

Saturday, May 14, 2016

When a judge decides his own motion to recuse, a party's shooting heroin with the judge's brother is not a basis for recusal

Here is federal Judge John Adams.

In February of 2015, the mayor of the City of Akron, Ohio, accused the judge in an open interview to the press, of displaying his long-standing bias against the city during a trial - and thus affecting the jury:

"Attorneys described your demeanor as “searing judicial temperament against the City.” You continuously used inflections in your voice and negative facial expressions to portray to the jury your obvious disdain for the City as we defended against the Plaintiffs’ unwarranted claims."

Then, in November of 2015, Judge Adams refused to recuse from yet another case where he was supposed to:  a criminal case where the criminal defendant told the judge that he must testify at a criminal theft case involving his girlfriend and the judge's own nephew, and that the criminal defendant in question was using heroin with the judge's brother, sometimes in the presence of his minor son, the judge's nephew, for the period of 14 months.

Here is the judge's order refusing recusal.

Here is the defendant's writ of mandamus.

After the writ of mandamus was filed, Judge Adams agreed to impose a stay on the proceedings in this court until the writ was decided, but held the defendant in pre-trial detention for several months.

When the time of pre-trial detention was about the same as the time that the defendant would have served if convicted by the guidelines, the defense counsel asked Judge Adams to turn the case over for a bond hearing.

Judge Adams immediately retaliated by removing the stay from the proceedings and scheduling a trial, over objection of defense counsel, and while the petition for mandamus was pending.

The defense counsel was forced to file with the U.S. Court of Appeals for the 6th Circuit a motion to speed up resolution of the writ of mandamus and to force Judge Adams' recusal.

The motion was filed on May 3, 2016.

It was nearly instantly decided and granted by the 6th Circuit.

The 6th Circuit removed Judge Adams from the case on May 9, 2016.

But, the damage was already done.

The defendant already spent time in pre-trial detention - which may not have happened had another judge presided over the case.

The defendant had to go through the stress and uncertainty of the writ of mandamus and expecting to be tried by an obviously biased judge with a personal, familial, interest in the outcome of the case.

The judge's claims that he did not see his nephew for a long time and that he was "estranged" from his brother really do not mean much when there is a mandate to recuse where close relatives of a judge are involved.

But, the case clearly shows how far the grounds for the so-called "duty to sit" and to "prevent judge-shopping" for parties can be stretched.

Judge Adams assumed the position of the "reasonable objective observer" and observed himself, as having no appearance of impropriety in presiding over the case of defendant who was using drugs with the judge's brother in the presence of the judge's nephew and who was supposed to testify, possibly against the judge's nephew, in an unrelated criminal trial.

And, of course, there will be no discipline upon the judge other than removal from the case.

And that is the whole problem - the judge will not learn his lesson and he will continue to do the same thing, and more, and worse.

The judge is young (for a U.S. judge - they "serve" well into the 90s), born in 1955, so he is "just" 61 now.

I am afraid this is not the last we have heard about this judge's misconduct.

I will follow this judge's future conduct and report it on the blog.

Stay tuned.

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