"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 17, 2016

The 92-year-old, possibly demented, much criticized, reversed and taken off cases for bizarre behavior federal judge Milton Shadur is still on the bench - why?

This is the continued analysis of the failure of the federal judicial system to address judicial misconduct, and especially misconduct of judges so old that their conduct appear clearly demented.

The judge who improperly dismissed the civil rights case for excessive use of force by an African American civil rights plaintiffs, the 92-year-old U.S. District Court Judge Milton Shadur, remains on the bench despite his continued misconduct and bizarre and incompetent behavior.

In this blog, I will cover the relentless pursuit by Judge Shadur of this African-American civil rights plaintiff, without any legal grounds, and apparently on the basis of the judge's personal racial bias.

That judge Shadur is cantankerous and "does not like to keep waiting", and likes to bash criminal defense attorneys - and now civil rights plaintiffs - is well known.

In July of 2015 Judge Shadur sanctioned a criminal defense attorney $200 because the judge disliked the contents of the attorney's legal argument.   That happened one month after the U.S. Supreme Court decided Reed v Town of Gilbert, requiring strict scrutiny for content-based regulation of speech by the government, and sanctions for content of a criminal defense attorney's speech is the ultimate content-based regulation.

Judge Shadur did not care about the 1st Amendment - and, obviously, the Above the Law blog did not, either, since the obvious unconstitutionality of that order was not pointed out while reporting the order of sanctions.  The report just said that Judge Shadur "does not like to keep waiting".

That would be an "F" to Judge Shadur and "Above the Law" author for knowledge of applicable law.

In the same July 2015, Judge Shadur imposed yet another $200 fee against a lawyer, with another "F" cast by the judge against the lawyer - while the "F" squarely belonged to the judge himself. 

In his 4-page decision the judge legislates from the bench, amending the notice pleading related only to claims by plaintiffs, Federal Rule of Civil Procedure 8, to now apply to defendants, and applies to defendants two federal cases, Twombly and Iqbal, addressed to sufficiency of plaintiffs' claims only.

Judge Shadur also established a rule that a hard copy of anything electronically filed should be delivered to his office on the day of filing, which is one day before the Local Rules require such delivery - so Judge Shadur obviously considers himself with authorities to change Local Rules of the court without public notice, comment or input.

Actually, Judge Shadur was thrown off a sex discrimination case by an appellate court in 2014 for his "tone of derision" alone - and yet Judge Shadur continued with the same while imposing his sanctions against attorneys in July of 2015.

And, in 2010 the same appellate court has ruled, removing Judge Shadur from a criminal case:

And in fairness to the government, which is entitled to the same consideration as other litigants, the resentencing should be by a different judge."

"One cannot read the 168-page transcript of the sentencing hearing, and the two memoranda attempting to justify the sentence that the judge issued after he had announced the sentence at the conclusion of the hearing, without sensing that the judge had committed himself irrevocably to a noncustodial sentence for the defendant".

The judge was "committed" to a "noncustodial sentence", in disregard of sentencing guidelines, in other words, the judge did not want to send the convicted criminal to prison - because of who the convicted criminal was, and that was Edward Vrodlyak, the "judicial kingmaker" who had long-time connections with Judge Shadur.

The prosecution asked for 41 months (that's nearly 3.5 years) in prison, in the case of public fraud against a prominent former Chicago Alderman - and Judge Shadur gave Vrodlyak no prison sentence at all, instead sentencing Vrodlyak to five years of probation, a $50,000 fine and 2,500 hours of community service - and was reversed and taken off the case for it.

In 2011, Judge Shadur issued a decision regarding a civil rights plaintiff who was an inmate, and who Judge Shadur thought was subject to the so-called Prisoner Litigation Reform Act, of 1995, PLRA.

I wrote on this blog about PLRA, and its unconstitutional restriction of civil rights litigation and access to courts by inmates.

PLRA substantially contributed to the human rights crisis that is ongoing in U.S. prisons at this time.

Yet, PLRA applies to "prisoners" - which means, the person subject to PLRA must be first convicted, so that the judge would engage in pre-screening review required by PLRA.

Yet, in the Fenton case, a case where the litigated events occurred during the chase and arrest of a person not convicted of any crime - and thus not subject to PLRA - Judge Shadur went out of his way

  1. Applying PLRA - which did not apply;
  2. Assessing illegal fees against the civil rights plaintiff, who was at that point a pre-trial detainee, not a convicted prisoner, and whose lawsuit addressed not prison conditions, but excessive force during arrest; and
  3. Raiding the pro se plaintiff's commissary account in pre-trial detention - apparently, Judge Shadur had time and resources for that.

It is, probably, not even necessary to mention that the civil rights plaintiff in question was African American, and that judge Shadur is white.

Joseph Fenton's lawsuit arose from a police chase and military-style apprehension efforts in Illinois in 2014 with attempted murder of a woman and a child in the State of Georgia, and had a bench warrant for his arrest from the State of Georgia.

Joseph Fenton waived extradition and was taken to the State of Georgia for trial, and his civil rights lawsuit was filed at the time of his pre-trial detention.

There were obvious facts pointing to excessive force during arrest in the plaintiff's complaint (such as the use of a flash-bang grenade during the apprehension that led to multiple injuries of the plaintiff), which should have been addressed at the very least by an Answer by the defendants or a defendant's motion to dismiss, and ultimately by the jury, if such a motion would be denied.

Judge Shadur, however, did not allow the case to proceed based on the non-applicable PLRA.

Here are some excerpts from Judge Shadur's decision that the the appellate court decision reversed :

"Smell test", "serious doubt" as to credibility - all of that is for the jury, and a judge reading a pleading MUST PRESUME the truth of factual pleadings.  That's the law.

I will provide excerpts from Judge Shadur's orders harassing Joseph Fenton and trying to get every last penny from his commissary, under the inapplicable PLRA, for court fees for allegedly frivolous conduct - which was also overruled by the appellate court.

At this time, I can only ask a question - what happened to Judge Shadur?

Is he all right upstairs?

He appears to turn from a fairly reasonable jurist, towards age 90, into a cantankerous tyrant who would not follow the law and instead creates some chases - against lawyers across the specter (civil attorneys, and even government prosecutors) and pro se litigants - while completely disregarding applicable law.

Maybe, there is a point to introduce an age limit for federal judges?

So that there is no question whether a certain ruling is made in sound mind, and is not a product of dementia?

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