Yesterday, on June 9, 2016, the U.S. Supreme Court reversed a case where a former prosecutor, after becoming a judge, refused to recuse from a case where he was a prosecutor and pursued death penalty (by conduct of his subordinates involving fraud upon the court and eliciting perjury) and rejected several habeas corpus petitions and reinstated the death penalty of a criminal defendant.
The name of the case is Williams v Pennsylvania, the name of the judge (now former Chief Judge of the Supreme Court of the State of Pennsylvania) is Ronald Castillo, and I will post a separate blog, or several separate blog about that case, it deserves a detailed issue-by-issue review.
The court relied, among other cases, upon the case In re Murchison, decided in 1955, that is, 61 years ago, where a judge acted in a contempt of court proceedings as prosecutor, judge and jury - accusing individuals of contempt of court, presiding over their contempt proceedings and sentencing them.
Such behavior, where the judge is both the accuser and the adjudicator, was ruled to be a due process violation.
The day before yesterday, on June 8, 2015, a federal district court in Ohio, a federal district judge Dan Polster did exactly what the U.S. Supreme Court just reversed the case for - and what the U.S. Supreme Court in In Re Murchison ruled to be a due process violation.
Judge Dan Polster:
1) started a contempt proceeding against an attorney John V. McDermott - who is not listed as the attorney of record in the case, I checked on Pacer.gov - for allegedly not appearing at court proceedings; and
2) has all intent to presiding over them as a judge - in violation of attorney McDermott's due process rights.
Once again, Attorney McDermott is not listed as attorney of record in the case where the bench warrant was issued.
Here is the letter Attorney McDermott sent to the judge that was filed yesterday.
In the letter, attorney McDermott indicates that he:
1) is not attorney of record in the case;
2) is not admitted in the state or federal court in Ohio; and thus
3) is not subject to jurisdiction of the court;
4) will not drop everything in New Jersey where he works and fly to Ohio at the last minute because the court simply wanted him to be there.
The letter was filed, according to the docket report, yesterday, on June 9, 2016.
On June 7, 2016 Judge Dan Polster granted Defendant Gary McDermott motion to dismiss the case against him.
At the same time, Judge Dan Polster was very upset that Defendant Gary McDermott did not appear at the case management conference held on the same date.
It is apparent that presence of defendant whose case was going to be dismissed was not needed, and the judge's ire about that was simply raw - and unreasonable - exercise of power.
Yet, the judge questioned Gary McDermott who told him not to appear at the case management conference on the day when the lawsuit against him was dismissed by Judge Polster.
According to Judge Polster's order issued the next day, on June 8, 2016, Gary McDermott stated under oath that "attorney John McDermott" advised him not to appear at the case management conference.
Attorney John McDermott was not, once again, attorney of record in that case, nor was he admitted to practice law in the state of Ohio, or in the Northern District Court for the District of Ohio - as attorney McDermott explained to Judge Polster, without waiving lack of personal jurisdiction, in his letter of June 9, 2016.
Judge Polster never had jurisdiction over attorney McDermott, and his order to appear was blatantly illegal.
Non-appearance of Gary McDermott on the date of the case management conference, June 7, 2016, did not make any difference and did not cause any prejudice to anybody because the same judge dismissed the lawsuit against Gary McDermott on the date of the case management conference.
It was clear that there was no point to order appearances in any show cause proceedings, and especially to do that in person, and to order an appearance of a person who was never an attorney of record, not admitted in that court as an attorney and lives and works in another state.
Judge Polster had even less grounds to order such an appearance the next day. He must have been aware that a busy attorney such as John McDermott could not simply drop everything he was doing in his large law practice and fly to Ohio on a one-day notice that was never served upon him personally or by mail.
Since John McDermott was not attorney of record in that case, he was not subject to electronic notifications.
There is no indication in the docket that attorney McDermott was even served with the order to appear.
It was a matter of courtesy by attorney McDermott - and, probably, a wrong move - to send any letters to the judge acknowledging that he knows about the order issued the previous day, with which John McDermott was never served.
Such a courtesy cost John McDermott dearly - Judge Polster issued a bench warrant when John McDermott, naturally, did not appear on June 9, 2016 at the "Order to Show Cause" hearing.
Moreover, Judge Polster, reportedly, said on Wednesday, that is, on June 8, 2016, before John McDermott's ordered appearance in court on June 9, 2016, that McDermott "will be arrested and he will sit for a good while until I see him," according to the transcript. "If he doesn't like that he can go to the Sixth Circuit or Supreme Court."
So,
- not only Judge Polster had no jurisdiction over John McDermott and had no authority to order him to appear in federal court in Ohio, especially the next day from the order;
- not only the order was never served upon John McDermott;
- not only Judge Polster had no right to preside over the contempt proceeding that he initiated as an accuser - as the U.S. Supreme Court ruled in In Re Murchison in 1955 and in Williams v Pennsylvania as of June 9, 2016, but
- Judge Polster certainly had no right to pre-judge that case by saying that he will first put John McDermott in jail, keep him there "for a good while" and only then review whether John McDermott should have been put in jail in the first place.
This as a very clear case of judicial misconduct.
Attorney John McDermott claimed he will file a complaint against Judge Polster because of it.
Yet, I doubt very much that the complaint will be reviewed, because the judge's misconduct is related to a court proceeding, and such complaints against federal judges are dismissed without review.
But, since a prominent member of legal community John McDermott is the victim of egregious judicial misconduct here, I wonder if he and his friends would pull some weight and have rules of judicial discipline in federal courts revised.
Because in this country only the law of connections work - for good or for bad.
I will continue to cover this story.
Stay tuned.
No comments:
Post a Comment