Some commentators are quick to reduce the rules of judicial disqualifications to the judge not being a prosecutor in the same case, and are even trying to deduce from the U.S. Supreme Court the ulterior motive of addressing Donald Trump's statements regarding appearances of judicial bias through an unrelated death penalty case out of Pennsylvania.
First, I doubt that the commentator read Williams v Pennsylvania thoroughly - because the court addresses there ONLY the problem of a judge acting as an advocate for the state in the same case, but also says that the rules of constitutional appearance of judicial bias are not fixed in stone and delineated (other than in the two incidents -
- massive financial donations to judicial campaigns, Caperton v A.T. Massey Coal Inc., 2009 and
- the judge acting as a prosecutor in the same case, Williams v Pennsylvania, 2016).
That means that the court has left the door open to raise other issues for constitutionally intolerable bias to be raised on a case-by-case basis.
I read Williams v Pennsylvania most thoroughly, as I am using it in my research for various purposes, and I am an expert on the issues of judicial qualification, having researched and litigated the issue for years.
Second, I doubt that the commentator did a thorough research of the background of #JudgeGonzaloCuriel before continuing to thump Trump regarding his comments about the judge.
Because, both Trump and his attorneys actually left out several major reasons why #JudgeGonzaloCuriel should not have been presiding over Trump University court case.
The commentator hints at "anybody with a wireless signal", and, in fact, a lot of information can be obtained by a thorough researcher of Judge Curiel's background using just two resources - time and the Internet. So, the commentator did not use her own wireless signal diligently - and that's a shame. On her as a journalist.
I am preparing a series of blogs (thorough research take time, so, please, bear with me) showing that - indeed - Judge Curiel not only should not have been on Trump University case, but should be (but - realistically - never will be) investigated regarding outcomes of ALL cases he decided, as a state judge, and as a federal judge, because he appears to be appointed just-in-time to fix court cases for his buddies from secret-membership organizations that he is a member of, and I do not mean La Raza or La Raza-associated organizations, and against those who he has a personal (or "life-story") grudge against.
But, of course, such a topic is just too incendiary for the "mainstream" commentators and talking heads to raise - it affects the livelihoods of too many "establishment" attorneys, their "connected" clients - and case-fixing judges at all levels.
And, as the last note - to use a case where the victim of sexual abuse Terrance Williams who killed his longtime abuser (from 13 years old to 18 years old) and was cheated out of his life by the fraud and criminal misconduct of the decorated "amputee" Vietnam veteran prosecutor-turned-judge who still remains a licensed attorney despite his CRIMINAL misconduct (because he is a decorated and disabled Vietnam veteran?) - and to do that simply to join a political campaign to undermine a presidential bid because of statements of the presidential candidate that have NOTHING to do with that case is beyond low, and to do that without doing thorough research on the subject, is low.
The prosecutor-turned-judge, together with his office, committed the following fraud in Terrance Williams' case:
1) did not disclose to the exceptionally inefficient defense attorney who did not see his client until 1 day before the DEATH PENALTY case trial that the victim in the case was his young client's abuser since Terrance Williams was 13 - and, naturally, when Terrance Williams asked the court to replace that defense attorney, and the court refused, there was no trust between the young man and the defense counsel required for effective representation in a death penalty case;
2) the prosecutor's office (Ronald Castille was the DA, so, even though he did not personally try the case, but signed the death penalty application, he was responsible for all actions of the trial prosecutor) struck 14 out 16 black jurors in the jury pool - a Batson v Kentucky violation;
3) the prosecutor's office non-disclosure to the defense that Terrance Williams was a victim of sexual abuse was strategic - because it was the second killing by Terrance Williams of his abusers, and in the first, prior, murder trial, the jury refused to find him guilty of 1st degree murder after hearing he was a child victim of sexual abuse at the hands of the middle-aged man who he killed when he turned 17.
And, there is an entire campaign going on with doctors, mental health professionals, sex abuse victim advocates fighting for Terrance Williams' life now.
And, there is an entire campaign going on with doctors, mental health professionals, sex abuse victim advocates fighting for Terrance Williams' life now.
The sentiments regarding victims of sexual abuse and sexual predators against children were no different at the time of the murder trial of Terrance Williams, as his 1st murder trial indicated, and the jury was willing to give leniency to the young man who killed his long-time abusers.
I am NOT expressing my personal view and I do NOT support vigilante justice, all I am saying is that the 1st jury gave Terrance Williams leniency because of his status as a sex abuse victim, and because he killed a pedophile, his own abuser.
And that is exactly why, in the 2nd trial, the prosecutor lied to the jury by concealing as a motive that the young man killed the perpetrator of egregious crimes against him since he was 13, and instead claimed that Terrance Williams killed "a good man because he offered him a ride in a car".
I am NOT expressing my personal view and I do NOT support vigilante justice, all I am saying is that the 1st jury gave Terrance Williams leniency because of his status as a sex abuse victim, and because he killed a pedophile, his own abuser.
And that is exactly why, in the 2nd trial, the prosecutor lied to the jury by concealing as a motive that the young man killed the perpetrator of egregious crimes against him since he was 13, and instead claimed that Terrance Williams killed "a good man because he offered him a ride in a car".
4) The prosecutor elicited perjury from Terrance Williams' co-defendant (who plead guilty and escaped death sentence) to say that the motive for the killing was not sexual abuse by the victim of Terrance Williams, but robbery.
5) The prosecutor elicited perjury from the co-defendant to say in his testimony that he received no benefit from prosecution in return for his testimony - while the prosecution promised him to write a letter to his parole board. That was revealed only in 2012, nearly 30 years after the conviction in 1984 that was based on that fraudulent testimony.
6) The DA's office did not disclose the exculpatory/guilt-diminishing/impeachment evidence called "Brady" material (as described above) to the defense.
All that time Terrance Williams sat on death row.
The prosecution - the very office that obtained a conviction and death sentence by fraud - aggressively sought Terrance Williams' death.
Several death warrants were issued over the years.
Several appeals, habeas corpus petitions and applications for stays of execution were issued over the years.
Judge Castille got elected through his statement to the voters of being "tough on crime", including a statement that he aggressively pursued the death penalty and put 45 people - including Terrance Williams - on death row.
So, Judge Castille used the fraudulently obtained conviction and death sentence for his personal (and financial) benefit.
And then, Judge Castille presided over FOUR habeas corpus petitions of Terrance Williams, rejecting them.
In the last one, Judge Castille not only participated in a decision that reinstated the death penalty of Terrance Williams, but also wrote a separate concurring opinion where he blasted everybody who stood in the way of the death penalty in a case he obtained by fraud:
1) the habeas corpus judge who ordered an evidentiary hearing when the co-defendant confessed to fraud by DA Castille's office, ordered testimony of the trial prosecutor, subordinate of Castille, and ordered the DA's office to turn over the case file for the judge's review;
2) the federal public defenders who fought for Terrance Williams' life, accusing them of having an "anti-death penalty agenda" and of engaging in scurrilous and frivolous litigation.
The State of Pennsylvania fought for its right to kill Terrance Williams, even after it was established that the verdict in a 1st degree murder case and the death penalty was obtained by fraud - and the only thing that so far saved Terrance Williams' life is a moratorium on death penalty imposed by governor Wolfe - and the State of Pennsylvania even took the right of the governor to impose such a moratorium to court, and, fortunately, lost - but the moratorium is only "temporary".
In Williams v Pennsylvania, the state of Pennsylvania shamelessly claimed that DA (turned judge in the future) Castille's signing off on request to the court to seek death penalty of Terrance Williams required no more thought and time than "reading a half page", and that it was "simply an adminsitrative decision" that did not truly involve DA Castille as a prosecutor in that case:
"According to Pennsylvania, [DA Castille's] approval of the trial prosecutor’s request to pursue capital punishment in Williams’s case amounted to a brief administrative act limited to “the time
it takes to read a one-and-a-half-page memo.”
The court stated to that:
"In this Court’s view, that characterization cannot be credited.
The Court will not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part.
Chief Justice Castille’s own comments while running for judicial office refute the Commonwealth’s claim that he played a mere ministerial role in capital sentencing decisions.
During the chief justice’s election campaign, multiple news outlets reported his statement that he “sent 45 people to death rows” as district attorney."
The mere fact that the government attorneys even asserted in court papers that a decision whether to seek the death penalty is for the elected public official, a District Attorney, no more than an administrative act requiring only time to read the application memo is a condemnation enough of how the death penalty is handled in this country.
But, Judge Castille's singular determination to have Terrance Williams' killed off, even by presiding as a judge over his 4 habeas corpus petitions - and to blast anybody who tries to prevent that from happening - combined with the fact that Judge Castille presided of the court that for years and decades handled attorney regulation and access to court for the litigants in the State of Pennsylvania - and suspended and revoked licenses of multiple criminal defense and civil rights attorneys while remaining a CRIMINAL who should have been DISBARRED and CRIMINALLY PROSECUTED for multiple FELONIES (and who still wasn't, and was not even adequately criticized in Williams v Pennsylvania by the U.S. Supreme Court) - is a condemnation to the attorney regulation system as it exists today.
Everything to kill a human being, even when the conviction and death penalty was obtained by fraud.
Imagine if the case of Terrance Williams was to be retried today.
Imagine the evidence of sexual abuse of Terrance Williams be presented to the jury today.
I doubt that Terrance Williams would have been convicted of any crime other than manslaughter - and will, probably, be sentenced to the time served and let out a free man.
How can a "legal commentator" and a journalist, with a straight face, use this case as an illustration that Donald Trump is wrong in raising appearance of impropriety of Judge Curiel presiding over a civil case of fraud against Trump University, is beyond me.
Yet, let's remember:
1) appearance of impropriety is a statutory and a constitutional threshold for judicial disqualification which is NOT set in stone and is decided on a case by case basis.
2) The statute providing a basis to seek such a disqualification is 28 U.S.C. 455(a), where it only states that a judge should disqualify himself if there is an appearance of impropriety for presiding.
It is for the party to bring up the facts, and cases are being decided on a case-by-case basis.
Which is, in my view, an unconstitutionally vague statute because it allows the courts to, basically, write the statutory law on a case-by-case basis, which is not allowed by the U.S. Constitution, Article III and I.
So, the statute needs to be re-written to provide a better guidance to the courts.
3) What constitutes a constitutionally intolerable appearance of impropriety or bias, is not set in stone.
Only in two U.S. Supreme Court decisions have so far carved out more or less definite rules of constitutional judicial disqualification:
Caperton v A.T. Massey Coal, Inc. (2009) - regarding major financial donations of a party's attorney to the presiding judge's election campaign; and
Williams v Pennsylvania (2016) where the presiding judge was also a prosecutor in the same case - the three dissenting judges (Chief Judge Roberts, Justices Alito and Thomas) actually tried to oppose even that issue claiming that it was not the same case since habeas corpus is technically a different, "civil" proceeding, and a collateral attack on the criminal proceeding - even though it reinstated the death penalty in the criminal case.
Neither Caperton v A.T. Massey Coal, nor Williams v Pennsylvania set a barrier for other bases of constitutionally intolerable judicial disqualification to be brought up.
By conflating the absolutely egregious death penalty case of Terrance Williams with the issues in Donald Trump's criticism of Judge Curiel and the backlash in the mainstream media against Donald Trump for such criticism (without proper investigation of Judge Curiel's background), the attempt is being made to impress upon the American public that judicial disqualification cannot be sought in majority of cases, and can be sought only when cases are absolutely egregious, such as a prosecutor turning a judge and seeking, as a judge, the death penalty that he first - and fraudulently - sought as a prosecutor.
That is not so.
Such an argument does a disservice to the Terrance Williams' case, as well as to the right of the public to publicly criticize the government, including judges - and to the right of litigants to raise issues of judicial misconduct and impropriety in and out of court.
Judicial misconduct is not reduced to death penalty cases.
You do not have to be on death row, fraudulently put there by a prosecutor-turned-judge - to be able to raise the issue of appearance of impropriety.
It is already a dangerous task to seek disqualification of a judge.
Attorneys are being sanctioned in this country left and right for challenging improper behavior of judges by jail time, contempt proceedings, handcuffing, financial sanctions and suspension of their law licenses. I am one of attorneys suspended for making a motion to recuse on appearance of impropriety basis for a pro bono client in a family court case.
It has been reported to me when I was still practicing, and it is reported to me now as the author of this blog by my readers, that it is practically impossible to find an attorney who would be willing to make a motion to recuse now, not because there is no merit for such a motion, but simply out of fear and self-preservation of attorneys who refuse to do that.
Law professors are telling law students, before they even become attorneys, that challenging a judge for misconduct is a "career suicide", so new attorneys are entering the profession, burdened with enormous debt, while knowing that if they fight for their clients and challenge a judge, they can be left blacklisted, and without a job or prospect of a good job - for life.
A good incentive not to make such motions.
It also "helps" instill the fear not to seek judicial disqualification because courts increasingly use their contempt power in criminal cases to exclusively punish defense attorneys and not prosecutors (because judges are predominantly former prosecutors).
And it "helps" to instill such fears because courts legislated across the country and established "court rules" allowing the to punish attorneys for "frivolous conduct" - for raising issues of appearance of impropriety or judicial misconduct.
So, where a criminal defense attorney is at least somewhat protected from such rules and can "only" be punished through a contempt proceeding (which nevertheless still happens), an attorney in a civil case, such as that of Trump University, runs the risk of being sanctioned by the challenged judge, and having to pay thousands of dollars of the opponent's legal fees if the challenged judge considers the challenge "frivolous".
Understanding that, the reluctance of Trump's attorneys to make a motion to recuse Judge Curiel is a matter of self-preservation and not of merits of the issue.
And, trying to portray Judge Curiel in a press as an angel with a halo who is attacked by a demented bully - while the judge appears from my research, I will post blogs about it separately, to be a relentless case-fixer for those who wine and dine him - is a disservice to the public.
Donald Trump - clumsily, as he does many things - introduced the issue of judicial disqualification in a presidential campaign.
THAT is what the legal establishment is afraid of.
THAT is why it has become the main topic for several days of media frenzy.
THAT is why the public needs to be brainwashed, so that it should lose even the idea of daring to file a motion to disqualify a judge on an appearance of impropriety basis.
The illustration as to how scared - or misinformed - the public is as to the issue of judicial disqualification and rights of litigants and citizens to raise that issue in and out of court is right on this blog.
This blog is DEDICATED to the issues of judicial misconduct and disqualification.
There is a definite public interest to those issues, as my blog has 1 to 4 thousand views per day on this blog.
In Russia, blogs with such number of views are required to be registered as "official", or mainstream, media sources.
Yet, I have very few public comments on the blog, and most of the comments I have are from anonymous commentators.
People are afraid to have their views on the subject known, under their own names.
People are writing to me, as my readers, and are complaining about certain actions of certain judges, and of their inability to find an attorney who would represent them.
I cannot represent them - I am suspended.
Yet, I can publish their stories.
Most people, when I ask them to send court documents to publish their stories, refuse to do that despite their complaints to me.
I honor their wishes for me not to disclose their identities, if they disclose their identities to me, but do not want to be known.
But, once again, this demonstrates the level of fear pertaining to the issue of raising to a journalist the issue of judicial disqualification. People are afraid to make that issue public.
Moreover, I have a petition as a featured post in the upper right corner of this blog, about opposition to judicial retaliation.
The petition did not even reach 100 votes yet, even though it has been around for 3 weeks.
Why?
Because people are either afraid to put their name on it,or are conditioned by the media frenzy to think that the majority of judges are proper and honest, or that they can only seek judicial disqualification in cases like Caperton v Massey or Williams v Pennsylvania, and all other people who are seeking to disqualify a judge are wrong.
People DO HAVE a right to raise appearance of impropriety of a judge - as THEY UNDERSTAND IT, RIGHT OR WRONG - PUBLICLY and in court.
That right is constitutional.
It is protected by the 1st Amendment and the due process to a fair trial and fair adjudication by a neutral and impartial judge.
Judges are public SERVANTS.
People in the U.S. are part of the popular sovereign - "We the People".
We, as taxpayers and part of the popular sovereign surely have a right to raise an issue if our sovereign is misbehaving - as WE understand it.
Every bad thing has a silver lining though.
The commentator who linked the case of Williams v Pennsylvania to Donald Trumps' allegedly improper criticism of Judge Curiel made a point against herself:
"Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias."
Watch the language.
The U.S. Supreme Court "waded into the murky discussion over judicial bias".
1) Not very respectful of the U.S. Supreme Court, is it? So, why Judge Curiel deserves presumptive respect and the U.S. Supreme Court justices don't? Because they discuss the issue of judicial bias in a cut-and-dried case of judicial bias?
2) Why "waded" into a "murky discussion"?
The only thing murky that the U.S. Supreme Court did was that it did not call a spade a spade and did not brand DA/Judge Ronald Castille - or his subordinate trial prosecutor, or the Pennsylvania state court that allowed participation of Judge Castille in the case, for years - for misconduct.
Otherwise, the analysis is strict and straightforward, and cleanly states that a prosecutor may not be a judge in the case pertaining to prosecutor's (or his office's) own decisions.
3) The commentator implicitly ascribes to the U.S. Supreme Court an ulterior motive - deciding a case not on its merits, but, by its timing, in order to influence public out-of-court debate that has become part of a presidential campaign.
And, the commentator claims that anybody "with a wireless connection" can discern that ulterior motive of the court.
Duh?
Is that the same commentator who claims that Donald Trump may not discern any ulterior motive from the actions of a judge whose parents were Mexican immigrants, and who is repeatedly deciding the case against Trump University, after Trump made offensive statements about Mexicans and Mexican immigrants?
Somehow, "nobody with a wireless connection" MAY discern an ulterior motive from actions from that judge - and Trump should be rolled into asphalt for raising the very issue that the U.S. Supreme Court justice raised 15 years ago claiming that a "wise Latina woman" can decide cases differently than a "white man".
But, at the same time, "nobody with a wireless connection" can MISS the ulterior motive in U.S. Supreme Court justices to connect a death penalty case to Donald Trump's statements in his presidential campaign?
How come "anybody with a wireless connection" are expected to do diametrically opposite things - discern ulterior motives in judges deciding a case for political reasons, where the case has NO connection with Donald Trump or his statements against Judge Curiel, but at the same time thrashing Trump for raising an appearance of an ulterior motive a judge based on his background?
And, this delightful lack of logic only reveals the ulterior motive of this entire JudgeCurielAnnointing/TrumpThumping campaign - to DIMINISH the importance of the CONSTITUTIONAL RIGHT of criticizing a judge, in and out of court, based on the party's PERCEPTION of APPEARANCE of impropriety.
PERCEPTION of APPEARANCE of impropriety is the basis of making a motion to recuse, and the barrier for constitutionally protected out-of-court speech is even lower.
Don't let your right to criticize the government to be eradicated by those who will judge how the modern-day "cattle", "anybody with a wireless signal" MUST perceive judicial decisions.
People must use their own brain, and not the brain-washing by the bought-up talking heads, to see what is proper and what is not proper for the government, including judges, to do.
Isn't that a valid question to the commentator of the Slate's article?
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