"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.

Monday, June 27, 2016

Privileged kids of Stanford Law support Stanford alumni Judge Persky's right to support privileged rapists from Stanford U

Exactly one day after law professor Michele Dauber posted a letter supporting #TheRecallofJudge Persky, 53 (allegedly) graduates of the elite Stanford Law School published their own letter, opposing the recall.

The law graduates were just the last ammunition used by defenders of the biggest privilege of the American judiciary (to be able to rule on a whim) to preserve that privilege.  I discussed the efforts of other defenders to preserve this privilege in my previous blog here.

Here is the entire 2016 Stanford Law Class - predominantly white kids.

The math of how many of Stanford Law Graduates of 2016 have signed the letter and who exactly signed the letter remains fuzzy.

"Stanford Daily" says 53 graduates signed the letter.

The "open letter" itself was signed by just EIGHT (8) named graduates who claimed that 48 more graduates also signed, without disclosure of their names, that makes the total 56.

I guess, law school education or journalism does not require to be current on elementary school level math.

So, we do not know who are the alleged 48 additional students who allegedly signed the "open letter" of Stanford Law Students to Law Professor Michele Dauber asking her to halt her POLITICAL activity in appealing to California voters to recall Judge Persky in accordance with the process provided by the California State Constitution.

Since the 48 additional names remain undisclosed, it is safe to assume such signatures never existed.

Otherwise, neither Professor Dauber nor anybody else should be persuaded or impressed by appeals from anonymous sources to halt their political activity to recall a judge.

And, it is a shame for the 8 named graduates to employ "strength in numbers" by adding anonymous votes to their open letter.  Surely after graduating from an elite law school such graduates would know better than to impress the public with conjured votes.

The timing of the graduates' appeal is no less suspect.

The "open letter" was penned and published in June of 2016, when the only thing the "most recent graduates" of any law school are concerned about is the bar-prep course.

To engage in a coordinated campaign of creating a very carefully worded letter and to go around and obtain 56 signatures of people who are scattered after graduation (unless conveniently kept together in a Bar-Bri bar-prep course where they have to come to law school every day) is a job a bar-prep student can ill afford.

Moreover, what is also extremely suspicious in how the "open letter" came about is:

1) the background and racial/ethnic composition of the "drafting group";

2) refusal of the drafters of the letter to address the issue of abuse of discretion as judicial misconduct and to address "discretion" as potential source of corruption; and

3) focus of the drafters only on the borderline legality of Judge Persky's decision (even though it can still be abuse of discretion, which drafters refused to address), and

4) speculation on public feelings regarding racial discrimination in the criminal justice system, and needs for leniency to prevent mass incarceration.

First of all, let me address the background of the drafters.

I would understand if the issues of race discrimination, the need of mercy to criminal defendants would be raised if the person given mercy was an African American defendant, a defendant belonging to the class of defendants disproportionately targeted by the criminal system, disproportionately convicted and disproportionately incarcerated.

I would understand if NAACP or Al Sharpton would be raising the issue, but they don't, because the issue is actually of "white privilege", of a white judge, athlete-alumni of Stanford U giving an inappropriate break to athlete-alumni of Stanford U.

6 months, 3 months for good behavior, for raping an unconscious woman.  Because of the rapist's youth, no prior criminal record and intoxication.

The Stanford Law graduates who have signed the open letter, or who were forced to sign the letter, or whose identities were used to sign the letter (and I will provide their own information revealed by them in their own LinkedIn profiles or revealed by various programs awarding to them different fellowships and other awards), are no novices in the law or in the criminal justice system.

They MUST know from their criminal law course that:

1) intoxication is an affirmative defense for the jury;
2) that the jury already heard the case and convicted the rapist, which means the defense of intoxication was rejected; and
3) they must be aware that at sentencing, the sentencing judge may not defy the jury's findings.

Moreover, a judge is in no way bound by probation report, and probation officers, who are not attorneys, have no power to impose their wishes upon the judge in sentencing decisions.

And, they must be aware that the judge's "discretion" at the sentencing is severely circumscribed by the severity of the crime and by the jury finding of "guilty", rejecting the defense of intoxication.

If the jury rejected the defense of intoxication, the judge could not overrule the jury and award a lenient sentence BECAUSE of intoxication as a guilt-diminishing factor.

Let's also consider the fact that all of the signing graduates are one month away from the bar exam and several months away from being admitted to the bar BY THE JUDICIARY, and thus have a very heavy interest in PLEASING THE JUDICIARY in order to succeed in their profession.

Let's consider also the fact that people who go and are admitted into Stanford Law are looking at careers as judges themselves, and thus have a future self-interest to protect their own future privileges, the biggest one of which is the "discretion" of ruling in favor of one party over another where a judge cannot be openly accused of corruption, even though corruption is screaming from the way "discretion" is applied.

Of course, "judicial corruption" is a taboo word combination in law school courses, for law students, law professors of ethics, and for lawyers.

It doesn't help removing the distinct sour taste from reading the letter to learn that the group includes the daughter of the former (until 2013) Attorney General of Washington State Rob McKenna, Madeleine McKenna, who has experience in handling a "statewide voter outreach program" in her father's recent run for a Governor.

Not only McKenna the father (a licensed attorney with apparent high political ambitions) will benefit in having his daughter brown-nose the judiciary and add support judicial discretion, but a State Attorney General's position is usually a stepping stone for something higher - the Governor, a Senator, or - a state or federal judge.

So, the daughter is arguing for the well-being of her father, and NOT about well-beings of minority criminal defendants who will not be given mercy or leniency by the likes of Judge Persky anyway.

And, Madeleine McKenna's friends are standing in line to support her campaign and, through that support, to put caviar on their own meal ticket, for years to come.

Here are the name of the drafters of the letter and some of their background information that I was able to find online.

  1. Akiva Freidlin,
  2. Emi Young,
  3. Ginny Halden,
  4. Jeannie Lieder,
  5. Madeleine McKenna,
  6. Michael Skocpol,
  7. Nick Rosellini, and
  8. Vina Seelam

Akiva Freidlin

Here is Mr. Freidlin's experience, as stated by himself on his own LinkedIn profile:

    Emi Young's experience, as listed on her own LinkedIn page:

    Jeannie Leider, a Public Interest Fellow in Stanford Law School 2015-2016

    Here is Jeannie Lieder's description from her Public Fellow award announcement:

    Madeleine McKenna, daughter of Washington State Attorney General Robert McKenna who ran for Governor of the State of Washington in 2012;  Madeleine McKenna, according to her LinkedIn page, ran a "voter outreach program" for her father

    Madeleine McKenna's education and experience as described on her LinkedIn page:

    Here is education and experience of Michael Skocpol, as posted on his own LinkedIn page:

    The racial composition of the "drafting" group (even though a more adult drafter's hand is all over the "open letter") appeared to have been very carefully arranged.

    Same as appointments for courts, same as partnerships in large law firms, a small number of dark-skinned individuals are thrown in to be able to call "diversity".

    That strategy was clearly employed in the "drafting group" where out of 8 "drafters", 7 are white and only 1 is of Indian (not Native American) origin - where Indians are not the discriminated minorities the letter drafters are using to achieve the results desired by the judiciary, to eliminate the precedent of constitutional recall of a judge for abuse of discretion screaming of corruption and "white privilege" racial pre-judgment.

    Of course, in this particular situation, careful attention was paid also to the gender composition of the group.  Out of 8 of the alleged "drafters" of the open letter, the majority, 5 of them, are female.

    5 females, future lawyers, possibly, future judges, graduates of an elite school, oppose recall of a judge who defied the jury verdict of a white man who raped an unconscious woman and gave him a lenient sentence based on the factor (intoxication) that the jury rejected as a defense at trial.

    As I mentioned above, the main focus of the "open letter" is "judicial independence", the judge's right to exercise "discretion" and that the recall of a judge because he made a decision that was within his discretion to make will undermine not only judicial independence, but will jeopardize the much needed mercy to indigent and minority defendants.

    In fact, judicial mercy at sentencing MUST be severely circumscribed.

    First, because a wide latitude of sentencing choices (the prosecution asked for 6 years, Judge Persky gave 6 months, 3 months for good behavior), when such discretion is exercised in the matter of white privileged kids and not exercised in the matter of minority and/or indigent defendants, the public has a legitimate reason to treat such decisions as having an appearance of being corrupt.

    Second, the 8 drafters must know (and especially Madeleine McKenna, the daughter of a former prosecutor from 2004 to 2013) that judicial discretion at sentencing after a jury trial is usually exercised the other way - judges usually PUNISH criminal defendants for going to trial instead of entering plea bargains, often with maximum prison sentences.

    Since in this case, the discretion that Judge Persky exercised was contrary to the general trend of how that judicial discretion is usually exercised towards indigent, non-white and non-moneyed/privileged defendants, such smart people as 8 Ivy League law school graduates, one of them a son of an accomplished Harvard University professor, most of them also with Ivy League undergraduate degrees, cannot play dumb by claiming that giving a break to a white privileged kids was a proper exercise of "judicial mercy" that should not be restricted.

    A sentencing judge should not be allowed to COMMUTE the sentence - that kind of MERCY is the authority of the GOVERNOR, in rarest of cases.

    The sentencing judge should apply strict, equal sentences after the jury has reached the verdict of guilty, and should not have the power to cancel the jury verdict.

    One of the most piece in the "open letter" is:

    "[m]any of us, like you, believe that justice called for a stiffer sentence in his case.  But we think humility requires us to recognize that we won’t always be able to distinguish between legitimate and illegitimate exercises of judicial mercy."

    Well, everybody has their own right to think the way they want to think, California voters included.

    And, the established democratic procedure, a recall, will show whether the public is able or not able to distinguish between legitimate and illegitimate exercises of judicial mercy.

    At this time, the public obviously thinks that the prosecutor, the attorney for the People, failed them by not filing an appeal, as well as that the judge is racist and corrupt in favor of wealth and privilege and should not be allowed to decide cases requiring NEUTRALITY.

    Why not let the public decide, as is allowed by the California Constitution - whether to recall the judge or not?

    And - why try not to influence the public directly, but to direct their letter to the influential law professor asking her to withdraw her support of the recall campaign?

    Is it because those powerful adults who apparently pulls the strings of the 8 alleged "drafters" of the "open letter" are actually afraid that they will not like what the public vote is going to be?

    Then, why not try to start their own campaign - to change the California State Constitution to remove the recall provision from it?

    All in all, the "open letter" leaves an aftertaste that it was a career-enhancing opportunity for the 8 alleged drafters that they could not pass by, and that all 8 of them are looking to receive material, monetary and non-monetary benefits, in their immediate and remote career, from jumping into the fray defending judges' right to act on a whim.

    Because, as I said above, these graduates of an elite law school will derive their financial wealth and political influence from such "judicial discretion" in the years to come, and may exercise that discretion themselves when they become judges (which is the career goal of many Ivy League-educated attorneys).

    Of course, we have freedom of speech (supposedly) in this country, and the Standford Law School graduates are entitled to their own opinion.

    But, when they use the prestige of their education, the numbers of unidentified co-signors in their plea to support the most treasured boon of judicial position - judicial discretion - at the time when judges' associations are lobbying against recall of Judge Persky in order not to lose that coveted privilege (and source of corruption) and at the time when they are just about to be licensed by the very judiciary whose privileges to act on a whim they are supporting, the totality of how they expressed their opinion - stinks and makes their arguments less than good faith, to put it mildly.

    I will continue to follow the legal careers of these 8 aspiring brown-nosers of the judiciary with keen interest and will report it on this blog.  I am very much interested to see what was - likely - offered to this group in exchange for the "open letter".

    For news about this group of 8 - stay tuned.

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