"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, June 24, 2016

Clarence Thomas on the right to due process: in "real" civil cases - yes, in criminal and related habeas cases - never

Judge Clarence Thomas is an interesting judge.

His confirmation was tainted with accusations of sexual harassment of a female attorney - while presiding over no less than the Equal Employment Opportunity Commission.

He is the only black judge on the U.S. Supreme Court - it is relevant, as you will see below in this post.

He is also the only judge who did not pronounce one word during oral arguments for 10 years - until the death of Judge Antonin Scalia whose decisions Judge Thomas always supported and joined with.

Therefore, Judge Thomas's post-Scalia opinions are most interesting.

I've analyzed so far three opinions of Judge Thomas made in June of 2016 - two dissents and one majority opinion.

Case No. 1.

Dissent in Williams v Pennsylvania - Judge Thomas opposed a reversal of a decision reinstating death penalty in a case where one of the judges participating in reinstatement, who was the Chief judge of the top appellate Court of the State of Pennsylvania and who killed 4 habeas petitions of the condemned defendant, was actually the prosecutor in the same case who made the decision seeking the death penalty and whose subordinates obtained the conviction by fraud, withholding of Brady material, eliminating black jurors from the case (the defendant was black, and a victim of sexual abuse since the age of 13 at the hands of the person who he killed when he turned 18) and repeated solicitation of perjury.

In Williams v Pennsylvania, Justice Thomas claimed in his dissent, among other things, that:

  • when judge Ronald Castille (who was the DA authorizing the seeking of the death penalty of Terrance Williams) presided over habeas corpus proceedings, that was not "the same" case,
  • the post-conviction proceedings - even where Judge/prosecutor Castille reinstated the death penalty he sought as a prosecutor - do not provide the same level of due process as criminal proceedings (even though criminal conviction was obtained by fraud by DA Castille's office), and
  • common law does not justify reversal of a death penalty reinstated by judge-prosecutor.
In support of his "common law does not justify" line of argument, Justice Thomas said, among other things, the following:

"Most jurisdictions required judges to recuse when they stood to profit from their involvement or, more broadly, when their property was involved. ... see also Jim v. State, 3 Mo. 147, 155 (1832) (deciding that a judge was unlawfully interested in a criminal case in which his slave was the defendant)."

Now, this "argument" takes the concept of "disgusting" to a whole new level.

Think about it.

  • A black judge who would have been a slave had his ancestors not been liberated during the Civil War,
  • whose whole life and career would have been impossible without passing of the 13th and 14th Amendments,
  • rules in favor of upholding reinstatement of death penalty against a black defendant
  • who was convicted and sentenced to death because the white prosecutor's office excluded 14 out of 16 black jurors from the jury pool, withheld exculpatory evidence, elicited perjured testimony from their star witness on two key issues, and, where the prosecutor became an appellate judge refused to recuse from the defendant's case - FOUR times and reinstated his death penalty when another court reversed and remanded it based on testimony about misconduct of prosecutor/judge's own office.
And, under THESE circumstances, Judge Thomas considered it appropriate to cite, on the issue of whether the 14th Amendment Due Process was violated, a pre-14th Amendment case, from 1832, where a judge had to recuse because his own slave was a defendant in front of him - and had to characterize that case as a case of judge owning "property".

The judge owned the defendant.

That's the most disgusting ruling that can be expected from a black judge and from a person whose life and career would not have been possible without the 14th Amendment.

The question is - WHY?

Out of a great number of cases, WHY would a black judge pull an irrelevant case, predating the enactment of the constitutional amendment that is being litigated, and put in black and white that a white judge owned a black defendant as a slave, and because of that he could not preside - and that is supposedly the ONLY due process restriction for judges presiding over criminal cases and related cases?

All in all, Judge Thomas would have left the death penalty intact, allowing the white prosecutor to first obtain the death penalty, through criminal conduct of his office, get elected based on that death penalty conviction, and then block reversal and habeas corpus petition as a judge.

Such behavior of a prosecutor/judge does not, in Judge Thomas' view, create an appearance of impropriety and does not constitute judicial or prosecutorial misconduct in violation of the 14th Amendment.

Case No. 2

Majority opinion in Utah v Strief, June 20, 2016

Justice Thomas authored a majority opinion reversing the UNANIMOUS decision of the Utah Supreme Court and allowing police officers to engage in the following practice:

1) conduct an illegal stop;
2) obtain, through the illegal stop, information about identity of the stopped individual;
3) check that identity through the electronic system verifying whether the stopped individual has outstanding warrants, including for unpaid traffic and parking tickets, and
4) then arrest the individual and legitimize the illegal stop by the later-discovered outstanding warrant, and legitimize the results of the search.

Judge Thomas indicated that the police officer was not engaged in "flagrant misconduct", and that circumstances of the case are "attenuated", thus "curing" the initial illegality of the stop.

That was a criminal case.

The end justifies the means.

Case No. 3

Dissent in Dietz v Bouldin

In this case, a civil case, Judge Thomas said all the right words as to the possibility and presumption of taint where a jury is recalled after being dismissed.

Yet, once again, that was a civil case.

So, for Justice Thomas a presumption of taint - and thus due process violation - exists in a civil case, while the same Justice Thomas argued in Williams v Pennsylvania that there is no presumption of taint and appearance of impropriety where the prosecutor who sought and obtained the death penalty presided over the habeas corpus appeal by the prosecution and reinstated the death penalty, with a separate concurring opinion blasting the defense as "having an agenda" and engaging in frivolous (death penalty) litigation.

And, in Williams v Pennsylvania, Justice Thomas argued specifically that a post-conviction case is a CIVIL case and, consequently, less due process is allowed in such cases.

Which then raises a question, why Justice Thomas thinks that more due process should be allowed in a civil litigation over a car accident than in a death penalty case.

One "rule of Justice Thomas" is clear though - he favors finality of criminal convictions over fairness and constitutionality, and believes that fairness should be afforded only in "truly civil" cases. 

So, Justice Thomas' when making claims in his dissent in Williams v Pennsylvania that post-conviction habeas corpus relief is a "civil" case, the claims were pretextual, and Justice Thomas himself did not believe in such a designation of post-conviction habeas corpus cases.  He considered them criminal, because in the "regular" civil cases, like a car accident common law negligence case, he argued for higher level of due process than he would afford a condemned death penalty prisoner, a habeas petitioner.

I posted two blog articles about opinions of judges "on the left" and "on the right" of the U.S. Supreme Court, but displaying the same problem:

they act on their personal convictions and not the law, and they believe in the end of litigation justifying the means as to how the end is achieved.

That is, in and of itself, a result-oriented jurisprudence and a due process violation.

Which brings me to the big question - do we really need the U.S. Supreme Court?

Do we really need 9 people acting on their whims when taking a small number of cases out of an ocean of cases and issues that need to be decided, and when they decide cases and then imposing upon the entire country based their personal opinion about the law, irrespectively of what the U.S. Constitution that they are sworn to uphold, says?

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