"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.

Thursday, June 2, 2016

#JudgeAlexKozinski, "crusader" against wrongful convictions, misrepresents the record to uphold a wrongful conviction

In April of 2016, an article appeared on "" portraying judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit as a "crusader" against prosecutorial misconduct and wrongful convictions.

Yet, on May 27, 2016, Alex Kozinski authored an eyebrow-raising decision that legitimized a conviction so wrong that a 1st year law student would see that it must be overturned.

AEDPA has been strongly criticized as gutting the federal writ of habeas corpus and blocking the way to release to individuals wrongfully convicted in violation of federal constitutional rights.

The statute has two most infamous provisions which help sustain wrongful convictions:

The language "shall not be granted" is jurisdictional, blocking a federal court's authority to grant a writ of federal habeas corpus, and a release of the prisoner - even if the prisoner is held in prison based on violations of his or her constitutional rights.

The provisions, both 28 U.S.C. 2254(d)(1) and (d)(2), are blatantly and facially unconstitutional, and any court has a right to sua sponte refuse to comply with them - because in this country the U.S. Constitution, with its Supremacy Clause, controls, and the U.S. Congress, also bound by the U.S. Constitution, may not give the U.S. Supreme Court power to determine what is the Supreme Law of the Land - as it was done in (d)(1).

Under (d)(1) it is easy to have an unconstitutionally held prisoner to remain locked up, because review of constitutional issues by the U.S. Supreme Court is discretionary, and the U.S. Supreme Court refuses to review the overwhelming majority of petitions raising civil rights issues.

It is one thing to absolve a public official of liability to a victim of his misconduct in a civil rights lawsuit (which is bad enough) based on the judicially created concept of "qualified immunity" which "requires" (courts invented it this way) to determine whether the federal constitutional right that the public official was sworn to uphold was "clearly established" - by courts, of course.

Such a "test" puts judicial determinations above the Supremacy Clause and above the text of the U.S. Constitution, which no-one - NO-ONE - in this country has a right to do.

Judicial decisions are, by the text of the Supremacy Clause, are not part of the Supreme Law of the Land.

The Supremacy Clause, Article 6 Section 2 of the U.S. Constitution, says the following:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Supremacy Clause makes it clear that only laws (statutes and regulations) made "in pursuance" of the U.S. Constitution are the Supreme Law of the Land, binding upon judges.

If a statute is made not in "pursuance" of the Constitution, in violation of the Constitution, it is not the Supreme Law of the Land, and is not binding upon judges.

Moreover, it is the separate and independent duty of each judge sworn to be obey, uphold and enforce the U.S. Constitution to refuse to obey any law that is contrary to the U.S. Constitution, according to the judge's OWN determination.

Section (d)(2) is even more tricky.

It requires (the mandate is that the writ of habeas corpus "shall be denied")

Any 1st year law student knows that the words "reasonable" or "unreasonable" in a statute are signals that that is an issue of fact to be tried before a jury.

Any seasoned lawyer who has practiced for some time in American courts, knows that it is futile to try to argue that to judges who decide what is "reasonable" or "unreasonable" without any jury - and sometimes completely contrary to common sense and the record.

For some reason, the celebrated crusader against wrongful convictions, Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, recently decided to misrepresent the clear record of a case in front of him to uphold a wrongful conviction under section (d)(2) - and while claiming that AEDPA "controls" and prevents him from doing what is fair - reversing the wrongful conviction.

In the case in question, Kozinski wrote the majority opinion, but the decision was by the full court, with just a SINGLE dissenter, a single honest judge. 

The issue in front of Kozinski's court  was exceedingly simple - even for a person without any legal training, and especially so for a longtime judge:

should a conviction for murder and a life sentence be vacated because it was obtained through the state court's dismissal of a holdout juror?

You do not have to have a law degree to know that criminal convictions in the United States in jury trials should be by a unanimous jury of 6 (for misdemeanors) or 12 (in felony cases).

A murder case is a felony case, so all 12 jurors must agree to convict.

If a single juror does not agree to convict - and jurors have an obligation only to deliberate in good faith, not to agree with fellow co-jurors - a mistrial must be declared.

That's criminal procedure 101.

The interesting part is that in 2011, the same 9th Circuit court, a panel with the same judge Alex Kozinski in it, reversed the same conviction of Tara Sheneva Witness claiming that it is was wrong for the state court to dismiss a "known holdout juror" and replace that juror with an alternate juror.

First of all, jury deliberation MUST be secret - as to the judge, too.

A judge has no right to know which juror holds which position, and in cases of a hung jury (with at least one holdout juror) the only thing that a judge can do when told that there is a holdout juror is to declare a mistrial.

The holdout juror in Tara Williams' case was expressing concern whether there was "sufficient evidence" to convict her - an issue of fact that is the authority of that juror to decide.

The judge actually questioned the juror as to his motivations in deliberations - which violates the secrecy of jury deliberations right then and there.

The juror did not display any biases and did not indicate that he is not going to follow the law.

The judge still dismissed, on request of the prosecutor, the holdout juror, but the state judge's determination as to why he is dismissing the holdout juror was, specifically, "not because he’s not
deliberating and not because he’s not following the law".

Yet, 5 years down the road, in deciding the very same issue, Judge Kozinski says the following:

Well, the 9th Circuit, Judge Kozinski argued the same as Williams did in 2011.

In 2016 Kozinski says that AEDPA "requires" him to rely on state appellate court's finding, made for the first time on appeal, and contradicting the lower court's finding of dismissal.

First of all, AEDPA "requires" no such thing, whatever the U.S. Supreme Court says, and no federal court has authority to amend a federal statute through interpretation.

Second, the state appellate court had NO AUTHORITY to decide that the judge correctly dismissed a holdout juror for NOT FOLLOWING THE LAW, when the judge clearly stated on record that he is NOT dismissing the holdout juror for not following the law.

A state court has no right to decide in retrospect what was the basis of the state judge's decision.

That's what the same Judge Kozinski said in 2011, didn't he?  In the same case?  Reversing the same conviction?

Actually, in 2011, Judge Kozinski and his court claimed that the appellate court did not rule that the holdout juror was not following the law, but quoted from the record of that court that the state Court of Appeal decided that the holdout juror was "biased" - a determination that only the trial judge could, and did not, make:

So what drove the "crusader" against wrongful convictions #JudgeAlexKozinski to rule contrary to his own prior ruling in 2011?  In the same case?  On the same issue?  Based on the same record and the same federal statute? Regarding a conviction for murder and a sentence for life?

For a detailed analysis of two decisions of Judge Kozinski, as well as other decisions in this mind-boggling case, as well as for the analysis of the strong dissent by judge Stephen Reinhardt, the only honest judge in this situation who lashed out against his colleagues stating that judges are not Humpty Dumpties, and should follow the record as it is written, not as they want to see it -

stay tuned.

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