"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.

Wednesday, August 31, 2016

So, how many criminal convictions did Williams v Pennsylvania actually invalidate? Looks like ALL of them - especially all of those involving violations of probation

While I practiced criminal law for years in state courts (New York), I never practiced criminal law in federal court, so the discovery I made today - unexpectedly - about federal criminal "justice" system, while doing something completely unrelated to that "justice" system, was completely stunning to me.   

I was preparing today my administrative appeal of the 2nd Circuit's denial of my FOIA request about records of the so-called New York State-Federal Judicial Council - a shadow organization with secret membership (unless members self-report) where members (state and federal judges) and their advisors (private attorneys appearing in front of those judges) are appointed by the Chief Judge of the New York State Court of Appeals on the State side and by the Chief Judge of the U.S. Court of Appeals for the 2nd Circuit on the federal side, an organization whose goals are, if we quote the Council's less secretive brother from California:

Once again, the goal of a secret membership organization of state and federal judges is to provide a vehicle for direct and personal communication between judges of the California state and federal courts concerning matters of mutual interest and concern.

So, given that state judges are defendants in civil rights actions in federal courts, what can be the "matters of mutual interest and concern" between state judges (potential defendants in civil rights actions in federal courts) and federal judges (who are supposed to be neutral adjudicators of those cases and have no ex parte contact with the defendants)?

According to the  California State-Federal Judicial Council, those "matters of mutual interest and concern" are:

(a) elimination of actual or potential conflicts between the two judicial systems (and what is more of a conflict than when a state judge is sued and has to appear and ordered that his actions are unconstitutional by a federal judge?);

(b) development of methods to improve the operation of the two systems;

why the two systems together?  Imagine if a defendant in state court works with the presiding judge (behind closed doors) to "improve operations" of defendant's agency and the judge's court.  Sweet.

(c) improving the quality of representation and ethics of attorneys practicing in the two systems;
            quality of representation is totally improved through ex parte communications - for one side, for sure, and during such ex parte communications attorney ethics simply soar, and that is especially true that attorneys "appointed" (by whom, when, how, on what grounds) to "advise" judges of both state and federal court (possibly, their own clients, or judges in whose courts they appear and practice) is completely and totally ethical

(d) exploring and developing methods to utilize scarce judicial assets so as to benefit the two systems and the citizens of the state;

            please, note that first and foremost, state and federal judges
            and private attorneys advising them and appearing in front
            of both state and federal judges and in front of
            federal judges while representing state judges, "explore and
            develop methods" how to utilize "scarce judicial assets"
            (or, rather, the taxpayers' scarce resources), so as to benefit
            "the two systems" first - and "citizens of the state"
             as an afterthought and a lip service.

            Of course, secret case-fixing benefit citizens of the state - at least, some of them.

(e) sharing materials and information that may have application or impact on the two systems;

This one is extremely interesting and may indicate that "materials and information"
shared by this crew behind closed doors pertain to extrajudicial sources upon which
cases are decided in court.  So, don't get excited when you see a judicial decision
that goes contrary to everything in the record and the applicable law - it may be based
on "sharing materials nd information" through this "Council", to "benefit the two systems" and to use "scarce JUDICIAL asserts" (I wonder what those "assets" are, and, if "assets" means "resources", why not just say that judges of two court systems financed from two separate budgets meet behind closed doors to decide how to use those combined budgets for mutual benefit - when state judges, once again, are defendants in federal judges' courts).

(f) fostering closer cooperation on resolution of joint problems”,

This one is the best.  How closer can be the "cooperation" than a joint body WITH SECRET MEMBERSHIP (see that my FOIA request as to membership records was denied) between state judges (defendants in civil rights actions) and federal judges? 

But, there is more.

In fighting my FOIA request, the Chief Judge of the 2nd Circuit Court of Appeals Robert A. Katzman, a former and present professor of law

and the U.S. District Court (Northern District of New York) Judge Mae D'Agostino, an experienced attorney, judge and a lecturer in the Continued Legal Education courses,

relied on a case from the U.S. District Court for the Eastern District of New York, Chandler v United States, No. 06 CV 2481 NG LB, 2006 WL 2806383 (E.D.N.Y., Sept. 28, 2006), for the proposition that ANY records created by judges are judicial records exempt from disclosure under FOIA.

Even the New York State Court Administration known for its stalling of FOIL requests and bizarre reasons given for that stalling, confirms on its webpage that there are two classes of records retained by the court administration:

court records, records of court cases, not subject to Freedom of Information law, and

administrative records (including appointments of judges and records generated by judges that are not records of specific court cases) which are subject to Freedom of Information law:

And, state judges or private attorneys who are participating in a "blended body" with federal courts are not part of "federal judiciary" - or are they now?  Article III of the U.S. Constitution is silent on it - or did they change it while we all slept?  Appears that way based on denial of access to records of lists of membership containing state judges and private attorneys.

But - to rely on Chandler in support of the 2nd Circuit's and NDNY's claim that a secret-membership organization between state and federal judges which also includes private attorneys appearing in front of both state and federal judges while also advising them behind closed doors is somehow part of "federal judiciary" really required a law professor's mind.

If that law professor, Judge Katzman, before coming to the bench, sat in an ivory tower and had no clue about criminal law - while now deciding appeals from criminal cases.

Here is the Chandler case, in its entirety - it is just 2 pages.

The case was decided in 2006, by U.S. District Judge Nina Gershon, also a professor of law.

The case involved a plaintiff convicted, obviously, in Judge Gershon's court, because otherwise the case for denial of access to the plaintiff's federal probation records would not have been brought in that court.

So, Judge Gershon issues a decision, in answer to a Pro Se (without a lawyer) lawsuit for access to the plaintiff's own probation records, claiming that:

and Judges Mae D'Agostino (NDNY) and Robert Katzman (2nd Circuit) agree that the decision was correct and claim it in support of their own denial of access to their own records which has nothing to do with legitimate activities of federal judiciary, see my full administrative appeal of denial of access to records under FOIA here.

So, now according to three judges and law professors, probation is part of the judiciary.

Probation is actually listed as part of federal courts - make no mistake.

And this is how the U.S. probation services describe themselves - as part of federal courts:

Please, note that the U.S. Probation services' description of "who they are and what they do" does not CLEARLY describe their MAIN function: EXECUTING CRIMINAL SENTENCES OF PROBATION.

Probation, if ordered by the court, is part of a criminal sentence.

Violation of probation lands a convicted criminal back in front of the court.

If probation is part of the court, violations of probation then involves the court as a witness, the accuser, the prosecutor and the adjudicator - a situation prohibited by due process, see the recent case about it, Williams v Pennsylvania.

You can call anybody anything.

You can call probation as part of the judiciary, but the FUNCTION that it is carrying out is executive.

Prisons are not part of the judiciary - and they are ALSO executing criminal sentences.

Probation execute other portions of criminal sentences - which is the same, executive function, see that probation departments in New York State, for example, are part of the executive branch, the Criminal Justice Department, Division of Alternatives to Incarceration.

Probation does not become a judicial function if it executes an alternative-to-incarceration portion of a federal, rather than state, criminal sentence.

You can call a pile of manure a flower, but I doubt you will want to give it to your girlfriend.

Actually, in the same New York State, local probation departments are part of the executive branch of the local governments, not of courts, a definite executive branch of the government.

But anyway, if federal probation OFFICIALLY is part of federal judiciary, then all sentences involving violation of probation are officially unconstitutional, as decided by accuser-adjudicator courts in violation of due process (see Williams v Pennsylvania).

And I keep thinking - with the constitutional defect being so obvious and glaring, why is it still there?

This situation is very much similar to attorney disciplinary proceedings where investigators and prosecutors (disciplinary committee) are part of the adjudicators (the disciplinary court) - and federal court so far support that system as constitutional.

No wonder.  They have the same thing with probation as "part of courts".

So - where is the "leadership", "scholarship", and whatever else federal judges are discussing and deciding in Judicial Councils and Judicial Conferences if elementary stuff in how their own courts are composed and structured is blatantly and unapologetically unconstitutional?

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