"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, August 18, 2016

On lawyers and prayer

I often write on this blog about separation of church and state issues.

As an attorney, I opposed, on behalf of my client, a subpoena to have a deposition at a church, in other words, an exercise of state power compelling a person, under the threat of arrest and incarceration for contempt of court, to enter and remain in a house of worship, over the person's objection.

The attorney who wanted to compel my clients' appearance there was a part time New York State (Town of Denning) judge Jonathan S. Follender.

The person who spread the rumors that I am nuts for siding with my clients on the issue of freedom FROM religion in that case is the current Acting Delaware County District Attorney John Hubbard, who (without disclosure) was the law partner of the recently retired Delaware County Judge Carl F. Becker.

Hubbard contaminated all criminal and Family Court child abuse cases handled by Judge Becker from 2002 to July of 2015 when Becker retired - but he keenly followed the "deposition in a church" case, because he was previously involved in that case as a real estate attorney.

And, I opposed public officials advancing their religious beliefs in their public office.

And, I opposed consideration of attending church or singing in a church choire as a factor in granting any benefits by federal, state and local governments.

But, as to the recent Texas case where a lawyer is threatened with discipline for praying for the successful outcome of a case and posting his prayers on Facebook - I support the lawyer, even though I myself am not religious.

Work of an attorney is tough, and that is demonstrated by:

A lawyer's job is to deal, professionally, with conflicts, and a lawyer is supposed to, first, bring a conflict to court, then, crystallize the conflict for the fact-finder, and win the conflict for the lawyer's client.

People come to court to resolve conflicts when nothing else helps, and they pay the lawyer to win, therefore the stress.  Count in long hours of work.  Count in separation from family and what family is doing because you are buried in work.

If you are a believer, I can very well see a lawyer praying for a good outcome of a case.

The reasoning for the supposed discipline against the attorney is ridiculous. 

The prosecutor was concerned that jurors will violate their oath and will read the prayers.

First, it will not be the lawyer's fault.

Second, a prayer by a lawyer has no potential to contaminate the jury pool.

And, third, prosecutors contaminate the jury pools all they want with publicity about criminal cases from the time charges are brought - entitling the criminal defendant to counter-balance that negative publicity with publicity of his own.

Yet, in this particular case, the prayers quoted as posted by the lawyer online, did not contain details of the case.

It is also apparent that the disciplinary investigation against the praying Texas attorney were started at the urge of a prosecutor.

I doubt that any disciplinary investigations would be started on a complaint of a criminal defense attorney.

A prosecutor would need to be slapped with civil contempt of court (a very rare occasion) or convicted for a crime (an even more rare occasion) for any discipline to be considered against him, if any - and that is in any state, including the blessed state of Texas, which is a death penalty state.

If a prosecutor would be caught posting prayers on Facebook, there would be an avalanche of "God bless-ings" from the audience, because a prosecutor is presumed to be "on the right side" and is praying "for the right cause", while a criminal defense attorney praying for a positive outcome for his client is commonly perceived as a scumbag praying for another scumbag get away from his just punishment, no presumption of innocence exists in the mind of the general public.

And, as a contrast, if a criminal defense attorney would have a couple of trips to a mental health hospital, he would immediately be in front of disciplinary authorities questioning whether the lawyer is still qualified to practice law.

Not so if that same lawyer is a prosecutor.  For example, the Dallas, TX DA Susan Hawk is back from her THIRD trip to a mental health hospital and is handling criminal cases, including - since it is Texas, a death penalty case, death penalty cases, too.

So, a mentally ill prosecutor can make a decision whether to pursue taking a person's life through the power of the state, and a civilian attorney's license would be revoked if he shows just some mental h health disability, as it happened in New York to attorney David Roosa who was, without ANY prior mental health hospitalization (I reviewed his lawsuit challenging legitimacy of suspension) suspended for 7 years because of "mental disability".

It is apparent that a criminal defense attorneys are treated differently in the disciplinary process than prosecutors.

Texas should stop using attorney licensing process to take out criminal defense attorneys to suit the needs of the prosecution.

Texas should refrain from prosecuting a criminal defense attorney for posting prayers on Facebook at the request of his opponent, a criminal prosecutor. 

If a criminal defense attorney needs the help of the Almighty in his work - and in this country, criminal courts are extremely harsh and unfair, even judges themselves admit that - the state must not interfere.

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