The U.S. Supreme Court accepts a case on propriety of sanctions against a party and attorneys

In a historic move, the U.S. Supreme Court accepted, first time in decades, a case raising the issue of propriety of sanctions against an attorney and a party, using the so-called "inherent powers of the court".

Here is the certiorari petition that was accepted.

The issue presented for review of the U.S. Supreme Court is, reportedly, whether sanction of attorney fees imposed upon a party (and attorneys) under inherent powers of the court, without criminal procedural protections, must be tailored to the harm directly caused by misconduct, and whether attorney fees can be awarded for actions of attorneys not directly attributable to subjective bad faith of clients.

Of course, the petition was filed by a party, not by its attorneys, and thus the focus of the petition is on the rights of the parties in view of alleged misconduct of their counsel.

Yet, since attorneys were also sanctioned in this case, and since rules distinguishing whether certain awards are compensatory or punitive/criminal, will equally apply to attorneys and parties, the case is important for both litigants and the legal community.

The mere fact that the U.S. Supreme Court took such a case, coming from the 9th Circuit (of course, sanctions were very high - $2.7 million) indicates that the Court, finally took an interest in the issue of the court sanctions.

It should be noted, too, that, before imposing sanctions, the court did hold an evidentiary hearing - which is rare.  Usually courts impose sanctions under their "inherent power" without any hearings.

And, even though in this case not criticism of a judge (which is a constitutionally protected conduct of an attorney and party), but a non-disclosure in discovery (which is attorney misconduct, if attorney knew of the discovery item subject to disclosure and did not disclose it), the issues are:

1. the propriety of use of "inherent power of the court" to sanction,
2. whether there must be a connection between harm caused and the amount in sanctions, and
3. whether procedural protections similar to those in criminal proceedings must be provided -

and these issues apply to all sanctions imposed by courts against parties or attorneys.

I will need some time to read through the 9th Circuit's opinion and dissent and through the certiorari petition, and will provide more comment on them in the future.

Stay tuned.

Federal appellate #judgeIlanaRovner is "subconsciously" "guided" by her "Jewishness" in her decision-making

Meet the 79-year-old judge Ilana Rovner, of the U.S. Court of Appeals for the 7th Circuit:

In reaction to president Obama's nomination of a Muslim to a federal bench (possibly, a first in the United States), this Jewish judge stated that "she believes judges are guided in their decision-making by every facet of their lives, 'maybe even subconsciously.'”

I wonder what is that supposed to mean.

A Jewish judge is "guided" by her Jewishness, a Muslim judge will be guided by his Muslim culture, as the U.S. Supreme Court justice Sonya Sotomayor will be a "wise Latina woman", guided by the "richness of her experiences"? And, a white judge will be guided by his or her white culture, and a black judge will rule based on his black culture, etc. etc. etc.

What about principles of neutrality, equality under the law and objectivity?

This is what Judge Rovner thinks when she decides a case:

Now, did Judge Rovner's "Wait a minute, I'm Jewish" thinking caused her to claim at the end of July, 2016, that gay people are not protected against discrimination in the work place under the civil rights law?

Did Judge Rovner tell the U.S. Congress at her second confirmation hearing in 1992, for the position of a federal appellate court judge, that she was GOING to be "guided" by her ethnicity or religion in her judicial decision-making?

Or in 1984, at the confirmation hearing for the position of a federal district court judge?

Apparently, not.  Otherwise, she wouldn't have been confirmed - because "Jewishness", or any other cultural, ethnic, or religious "background" may not influence judicial decision-making.

Actually, Judge Rovner's confirmation was, according to her own admission, "a breeze", with no "litmus tests" -

so nobody actually asked (or dared to ask?) Judge Rovner a question whether she will be guided by her being Jewish, and if she was so asked, there would have been a storm in the media about anti-Semitism against a Jewish judicial candidate.

While all along the question was very reasonable and real - because, according to her own admission now, Judge Rovner IS "guided" in her judicial decision-making by her Jewishness.

Or, did Judge Rovner tell the U.S. Congress that she is going to practice medicine on the bench without a license?  That she and her colleagues will "diagnose" a lawyer as "lying" because he did not come to a hearing because he was vomiting from a stomach bug - the only confirmation of that "lying" being that the lawyer, who was sick and vomiting, did not go to a doctor to confirm that he was vomiting?  And was suspended because he was vomiting and sick, because the court deemed it as lying and failure to properly represent his client.

What bothers me is also the timing of Judge Rovner's revelation that she uses her Jewishness in her decision-making - at the time when President Obama nominated a Muslim to the federal bench.

The following questions spring up because of this revelation, and the timing of the revelation by Judge Rovner:

1) Does Judge Rovner consider being guided by her Jewishness as proper for purposes of judicial decision-making?

2) Does she assert, by the timing of her revelation, that:

    a) all judges are guided by their ethnic and/or religious backgrounds in the judicial decision-making?

    b) the Muslim judge, if nominated, will be so guided by his Muslim background and cultural and religious heritage in his decision-making?

Because if she does, that looks as a not-so-subtle inciting against such a nomination, at the time when the country is swept by divisive comments of irresponsible politicians, and when Muslims Americans already do not feel welcome in their own country.

I see a lot of anti-Muslim sentiments on Facebook, for example.

Some people, and intelligent people, too, are openly making anti-Muslim statements.  One person demanded to unfriend that person if that person's anti-Muslim sentiment's are not shared.  (I did.  I do not accept bigotry of any kind.)

So, now Judge Rovner, after having been confirmed "as a breeze", without any questions asked whether she was going to use her Jewishness in her judicial decision-making (as she admittedly does now), is actively hinting to the public and authorities in charge of nomination and confirmation of the first Muslim judge that judges do use their background in their judicial decision-making.

To me, it is an active hint at a "legitimate" double-standard that exists in American courts - certain type of biases, but not others, are legitimate.

A judge is ok to consider her "Jewishness" in her judicial decision-making - or else the press will scream Anti-Semitism.

A judge is ok to consider his Latino roots and experiences of himself and his family members as possibly illegal immigrants, in his judicial decision-making against a person who criticized illegal immigration from Mexico, the judge's parents' native country (whether the criticism was fair or unfair, and especially when it was unfair) - or else the press will scream impropriety, racism and bigotry.

But, it is dangerous to appoint a Muslim judge who may - theoretically, hypothetically - consider his Muslim heritage in his judicial decision-making?

That's what Judge Rovner is hinting at in her ripe old age?

Apparently, Judge Rovner needs to retire.  Yesterday.

It is my firm belief that NONE of ethnical, cultural, or religious background MAY be considered in judicial decision-making.

It is the law, and the facts - and that's it.

It is not about the judge's OWN background, the judge is not a party, or a witness in the case, and the judge's background should have NOTHING to do with the case or the judge's decision in that case.

Whether the judge is Latino, Muslim, African-American, Caucasian, Native American, Chinese or of any other ethnicity.
That said, nominating a law partner from the giant firm Latham & Watkins,

a law firm that is practicing all over the country in federal courts, whether he is Muslim or not, is a very questionable move for the President.

Because, naturally, Latham & Watkins will not stop practicing in their own law partner's court - and there will be a big problem with appearance of impropriety.

Well, at least judges - when they become old and senile, at least - start coming out of the closet and give people a retrospective views of what they are guided by in their decision-making.

How many parties and attorneys will come forward now to make motions to vacate Judge Rovern's decisions and to recuse Judge Rovner because they were guided by her "Jewishness"?

I won't hold my breath.

"When a federal judge gets angry, he must be placated"?

I wrote this week about misconduct of federal judge Garaufis who had the audacity of claiming that when a law firm sent a 3rd year associate to a conference with him instead of a law partner, that was disrespectful and even insulting to the judge.

It was, once again, judicial misconduct pure and simple - as a judge does not get to say which one of the attorneys from a law firm hired to represent a client gets to appear in court, it is for the client and for the law firm to decide.

Moreover, the judge who was unhappy that an associate appeared in front of him, is not unhappy when the government sends recent law school graduates in criminal or civil rights cases, and, where the same court has licensed the associate in question as qualified to practice law in that court, no judge could find it "insulting", as a matter of law, when the attorney licensed by that court actually came to practice in that court.

After a storm of unfavorable comments in the media about Judge Garaufis, the following, reportedly, transpired:

1) Facebook (the client) and the law firm APOLOGIZED to the judge who committed misconduct;

2) the, judge, reportedly, partially apologized - sort of, only that he did not mean to criticize the associate:

and yes,

3) "everybody are friends again".

Yet, what Judge Garaufis said as part of his "apology" is a prime example of the judge's (intellectual) dishonesty, a big issue of public concern:

An "inference" "achieved through the media" that the judge was ever "upset at" the associate was "totally unfounded"?

Please...

One needs a lobotomy to take this kind of bogus at face value.

What kind of "inference" anyone, including "the media", needs to interpret these words:



And, it is definitely not only the matter of being "upset at" the associate, it is the matter that the judge behaves as a cantankerous and spoiled brat in need of appeasing by treating the "court" as another type of "court" - as in "King's court", and requiring lawyers to be "courtiers" required to appease the judge.

That is all that is wrong with the U.S. judicial system - the "culture of quiescence", the "scraping and bowing" of attorneys in front of judges, "or else".

The "friendship" cost Facebook to the tune of $3,000 per hour per each of 3 (by other accounts, 5) partners who appeared at the "apologetic" conference.

So, Judge Garaufis' self-respect apparently has a price-tag on it - $15,000.00 per hour for conferences (for 5 lawyers), plus travel expenses for lawyers to come to a conference in front of Judge Caraufis from as far as California.

Or, does Judge Garaufis have behind-the-scene agreements with law firms to throw tantrums when associates, with cheaper hourly rates, and not the more expensive partners, appear in front of him?

Maybe, Facebook can afford such a costly - and unnecessary - apology, but a usual American litigant who cannot afford an attorney in the first place, surely cannot.

But, what I find the most alarming of it all is the conclusion that a supposedly reputable legal blog "Above the Law" draws from all of it - maybe, with a "tongue in cheek", maybe not so much: "when a federal judge gets angry, he must be placated".

Really?

A federal judge should be treated as a capricious prima donna when he throws a tantrum?

Not impeached and taken off the bench for misconduct - if that anger is as displaced as Judge Garaufis' was?

One interesting thing is - that the judge who is supposed to be independent from the outside influence, even mentioned the "inferences by the media", and apologized nearly immediately after a storm of criticism in the media and social media.

But, the criticism continues.

Here are some more comments about the situation:

and, in a more "courtly" language:

When a client sends a lawyer to court, it is the client's not the judge's choice who the client sends.

No apologies for the choice of lawyer needed.

What is needed is discipline - or, better, removal of Judge Garaufis.

He forgot one portion of his oath of office - that there are no titles of nobility in the United States.

Not even for cantankerous federal judges.

Oregon follows Alabama in trying to remove a judge from the bench for not following a U.S. Supreme Court precedent

I wrote yesterday about a trial in Alabama against Alabama Chief Judge Roy Moore who refused to obey the U.S. SUpreme Court precedent regarding same-sex marriage.

The State of Oregon prepares the same fate for state judge Vance Day who refused to perform same sex marriages based on his religious beliefs.

Regardless of whether Judges Roy Moore and Vance Day are right or wrong in their positions, disciplinary proceedings against them for disobeying a U.S. Supreme Court precedent set a precedent that for a judge to disobey a U.S. Supreme Court precedent - any precedent - is a violation of his or her oath of office warranting removal.

And such a precedent is extremely important for civil rights litigation across the country where judges, both state and federal, pick and choose which of the U.S. Supreme Court precedents to obey and which to ignore and punish for even mentioning.

I will continue to cover the Vance Day and the Roy Moore stories.

Stay tuned.

While the "justice gap" in Kentucky widens, Kentucky unlawfully prosecutes #AlmaRosaBonillaOlmega for unauthorized practice of law - for legal lay representation in federal administrative proceedings

I wrote on this blog that the U.S. Supreme Court allowed an unlicensed individual to provide legal services without a license where the state fails to provide the needed legal services for the poor and the illiterate.

And, I also wrote on this blog about decisions in three states ruling, in criminal cases no less, that representation by an unlicensed individual has nothing to do with ineffective assistance of counsel.

And, I wrote a lot on this blog about the fact that all 168 jurisdictions regulating law licenses in the United States:

1) The U.S. Supreme Court acting as a regulatory agency for lawyers appearing in that court;
2) 13 federal appellate court separately regulating attorneys appearing in front of them;
3) 94 U.S. district courts, separately regulating attorneys appearing in front of them, and
4) 50 states separately regulating attorneys appearing in front of them

ALL 168 of courts acting as regulatory agencies and populated by people highly educated in the law, so far have not defined what exactly constitutes the practice of law - and since the practice of law is not clearly defined, criminal prosecution for unauthorized practice of "nobody-knows-what-it-is" is not legal.

Nevertheless, the blessed state of Kentucky now found resources to obtain a grand jury indictment against a woman (with a law degree) for unauthorized practice of law - while it cannot find resources to provide more legal services for the poor.

The individual in Kentucky, #AlmaRosaBonilla, also known as #AlmaRosaOlmedo, was charged with unauthorized practice of law, theft-by-deception and other crimes after she accepted $1,000 from an undercover officer for representation on immigration issues.

Representation in immigration proceedings, which are administrative proceedings, is first, not practicing law in state courts, and, second, does no require a law license.

All that an individual has to have to represent individuals on immigration issues is a Federal Board accreditation, and that can be given to unlicensed "reputable individuals".

So, the charges are illegal to begin with - because representation on immigration issues is not a state practice of law, but a federal issue - where a state law license is not required.

But, there are more issues in the Kentucky criminal charges.

Here is the Kentucky unauthorized practice of law (UPL) statute:

What is problematic with this statute?

Problem # 1.  Judge-legislator problem, denial of impartial judicial review

There is a reason for separation of powers, why a legislator may not adjudicate or enforce the laws - because that creates an issue with impartiality.

If the court created a rule that it is then enforcing, the court may not be receptive to claims that the court-created rule is unconstitutional, and the court may not be impartial in enforcing its own rule.

Here we are dealing with the main material element of a criminal statute, what constitutes the practice of law.

First of all, the Kentucky UPL statute does not actually define what constitutes prohibited conduct, the practice of law, but instead, the legislature delegates that definition to a "rule of the Supreme Court" - making courts both legislators and adjudicators on the issue of UPL, which is an impermissible violation of separation of powers doctrine destroying criminal defendants' fundamental constitutional right to impartial judicial review.

If the Supreme Court of Kentucky both issues the law upon which criminal charges are brought, courts cannot then adjudicate such charges.

Well, in Kentucky, they do adjudicate such charges - and thus UPL defendants in the State of Kentucky, as in all other states where the definition of the "practice of law" is delegated to courts, are deprived of their right to impartial judicial review.

Problem # 2.  No rigorous legislative procedure

Since the statute is based on a "rule" of the state Supreme Court, and rule-making is not subject to as rigorous a procedure as legislative acts, in Kentucky, as in all other states, definition of the practice of law is done at a whim.

Problem # 3.  Delegating legislative authority to a special interest group

I doubt that the Kentucky State Legislature has authority to delegate its legislative authority to special interest groups.

That the Supreme Court of the State of Kentucky is a special interest group in regards of what does or does not constitute unauthorized practice of law, is unquestionable, because it is also a licensing agency regulating state law licensing, and consists in its entirety of licensed attorneys.

Thus, the State Legislature of the State of Kentucky entrusted foxes to guard the chicken coop, and to legislate in a way to punish their own competitors.

Legislating on subjects of personal interest is misconduct for any public official - as is delegating such legislating to a special interest group.

So, UPL statutes - across the nation - in states that allow the definition of what constitutes the "practice of law" to be governed by a court rule and not a legislative provision, may be invalid as based on the definition of the practice of law invented by a special interest group in its own favor, to punish competitors.

Problem # 4.  Definition of the practice of law is vague and overbroad

Here is the actual rule of the Kentucky Supreme Court defining "the practice of law":

So, the Kentucky Supreme Court defines the practice of law as:

• any service rendered
• that involves legal knowledge or legal advice,
• whether of representation, counsel or advocacy in or out of court,
• rendered in respect to
• rights,
• duties,
• obligations,
• liabilities, or
• business relations of one requiring the services

Why this definition is unconstitutionally overbroad?

It covers anything from being an accountant or business partner to a parent.

First, there is this "any service" clause.

"Any service" involving legal knowledge can be ANY service at all.

A law professor, teacher or tutor (including a public school teacher or a homeschooling parent) may be teaching students about the law, and teaching law involves legal knowledge - so teaching law is practicing law without a license under Kentucky Supreme Court rule.

The restriction of "any service" to "whether by representation, counsel or advocacy in or out of court" does not cure the problem since what constitutes "counsel" is in itself an unknown.

"Counsel" can be provided by a neighbor, a teacher, a doctor, a therapist, a parent, a friend - who now all need law licenses if their "counsel" involves "legal knowledge".

So, when a parent talks to a child and counsels him or her against certain behavior that involves "legal knowledge", such as "do not do drugs/ do not speed/  do not have non-consensual sex with girls - that is a crime", a parent provides to the child "a service" for which the parent must either be licensed as a lawyer - or go to jail on UPL charges.

Next, many administrative boards, including federal boards, as we have in this particular case - the woman was charged with accepting money for representation on federal immigration issues - allow lay representation that does not require a law license.

Such representation unquestionably requires legal knowledge, though, and, thus, the service that Alma Rosa Bonilla was charged with providing "unlawfully", does fall within the definition of the UPL law, as per Kentucky Supreme Court Rule - even though such service is completely legal under the federal law.

So, here we may have a federal pre-emption issue, and an issue of being criminally charged for legal conduct.

Next, UPL in Kentucky makes it a crime to provide any out of court advocacy involving legal knowledge.

Representation by Alma Rosa Bonilla in front of a federal immigration Board is an out-of-court representation and advocacy, involving legal knowledge - but allowed by federal law.

Lay advocates are allowed in a variety of settings - including special education, health, representation in tribal courts, disabilities, advocacy for victims of crimes. 

Such advocacy necessarily involves legal knowledge, and, often, advice about rights, making any lay advocacy in Kentucky  a criminal offense.

So, Kentucky legislature, in its infinite wisdom, delegated legislating as to what constitutes the practice of law to a special interest group, the Supreme Court of the State of Kentucky where all legislators of the rule had a material interest in fending off competition since judges of Kentucky Supreme Court are licensed attorneys not elected for life.

And, that special interest group legislated in such a way that, theoretically, it is possible to charge anybody in Kentucky for unauthorized practice of law, from a parent to a teacher to an accountant to a customer service representative to a business partner.

Moreover, Kentucky made lay representation and advocacy criminal, even as to representation and advocacy in federal administrative proceedings, which is expressly permitted by federal law.

Why is it so?

Did Kentucky satisfy all legal needs of the indigents that it can clamp down so upon lay advocates, and immigration representatives?

No, quite the opposite.  

Six years ago Kentucky, with much fanfare, joined "two dozen other states" by forming the so-called "Access to Justice Commission" citing the increasing inability of Kentuckians to pay for necessary legal services.

The Legal Aide in Kentucky turns away thousands of callers per year, unable to meet the demand for services for lack of funding.

And, while Alma Rosa Bonilla was charged for accepting money for her services in immigration proceedings (which is legal under federal law without a law license), the Kentucky UPL statute prohibits lay advocacy regardless of whether it is paid or pro bono.

Under such circumstances, criminalizing lay advocacy runs contrary to the declared purpose of attorney licensing - protection of the consumer - and runs contrary to the U.S. Supreme Court case, Johnson v Avery, a 1969 case, which held that:

"In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners".

So, for 48 years, according to the U.S. Supreme Court decision, the State of Kentucky MUST allow unlicensed individuals to provide legal services in the areas where it cannot ensure provision of affordable licensed legal services.

There is no such provision in the Kentucky "practice of law" rule created for lawyers by lawyers, or in Kentucky UPL (unauthorized practice of law) criminal statute criminalizing everything that moves.

In the case of Alma Rosa Bonilla, the State of Kentucky has no AUTHORITY to handle immigration proceedings - that is a federal issue, and thus, by definition, cannot interfere into how advocacy is handled in federal administrative proceedings.

Moreover, as to criminalizing ANY services requiring legal knowledge, representation, counsel or advocacy, Kentucky very clearly does not make an alternative (same as the State of Tennessee back in 1969) "to assist illiterate or poorly educated" - or poor - Kentuckians in their needs for in and out of court services involving legal knowledge or advice, and involving representation, counsel or advocacy.

If Kentucky openly admits, by forming the "Access to Justice" Commission, to a wide "justice gap", then, under Johnson v Avery, Kentucky "may not validly enforce a regulation which absolutely bars" Kentuckians, for lack of money, knowledge and/or education or literacy, from obtaining the legal remedies they need and are entitled to.

Of course, membership in that Access to Justice Commission is another issue.

There are 30 members in the Kentucky Access to Justice Commission.

Note that NOT ONE member of the "Access to Justice Commission" is a representative of the class to be served - the indigent, the illiterate, the poorly educated Kentuckians.  Not one.

Instead, out of 25 voting members of the Commission, 21, an absolute super-majority, are lawyers, judges or court employees, 3 are top government officials and one is a law librarian.

And, out of 5 non-voting "ex officio" members:

• one member collectively represents three law schools in Kentucky,
• one member represents the Kentucky Sheriff's Association - which has absolutely no relevance or connection to access to justice for the poor and illiterate;
• one member represents the Administrative Office of court,
• one member represents the Kentucky Justice Association, and
• one member represents the Kentucky Defense Counsel.

The most telling "membership" is the one of the Kentucky Sheriff's Association, the organization that is interested in the poor and illiterate criminal defendants to NOT have good representation, advocacy, information and legal advice - in or out of court, because otherwise, how will Kentucky fill its quotas in private prisons and feed its corrections officers and police officers, members of that association?

So, while the members of class to be protected are NOT included into the "Access to Justice Commission", all members, voting and non-voting, are members of special interest groups. 

Once again, even amongst the non-voting "ex officio" members there are NONE who would be allowed to discuss the issues of access to justice who are actually members of the class allegedly sought to be protected - by the very interest groups that prevent such access to justice, partially by making legal education an expensive privilege, and criminalizing cheaper lay advocates and representatives.

And imagine - the representative of the Sheriff's association meets behind closed doors, as part of the "Access to Justice Commission" for the poor and illiterate, no less, and discusses court cases with judges - members of the same association. 

Potential for corruption is poetic.

So, Kentuckians can be assured that under the existing scheme of things, the justice gap will not be getting any narrower.

As to the criminal case against Alma Rosa Bonilla, I hope she can get it thrown out as completely unconstitutional - but then, to whom will she or her counsel be arguing the constitutionality of the UPL statute based on the "practice of law" rule created by the court?

To the same court, the same special interest group that created the rule, and enforces it in order to keep privileges for members of its class intact.

I will follow this case with great interest and report it on this blog.

Stay tuned.

Alabama is to decide today whether it is judicial misconduct to disobey precedents of the U.S. Supreme Court

In June of 2015 the U.S. Supreme Court decided the case Obergefell v Hodges, a case from Ohio, ruling that same sex couples have a right to marry.

Alabama State Chief Judge Roy Moore instructed the state judges not to issue state licenses for same-sex marriages because (1) it is a matter of state law, and because (2) the U.S. Supreme Court precedents are not the law of the land.

The U.S. Supreme Court precedents are not the Law of the Land under the U.S. Constitution, on this Judge Roy Moore is right - the court's decisions are not included into the Supremacy Clause of the U.S. Constitution.

Chief Judge Roy Moore is suspended for disobeying the U.S. Supreme Court precedent, pending trial seeking to remove him from his position completely.

Today, Judge Roy Moore is on trial in the disciplinary action.

If the State of Alabama suspends Judge Moore for disobeying the U.S. Supreme Court precedent, it creates its own precedent for other states to follow.

It is important because, left and right, state and federal judges disobey the U.S. Supreme Court precedent on a variety of constitutional issues concerning civil rights - and usually no discipline follows for such disobedience because disciplinary authorities claim that such a disobedience is a matter of "judicial discretion".

So, Alabama's decision against judge Roy Moore can have a long-reaching consequences in judicial accountability.

Let's see what happens in Judge Roy Moore's case today.

I will continue to cover this story.

Stay tuned.

The raving lunatic, #JudgeNicholasGaraufis of the U.S. District Court for the Eastern District of New York - outrageous, irresponsible and insulting

Meet judge Nicholas Garaufis of the U.S. District Court for the Northern District of New York.

Here is Judge Garuafis' official biobraphy from the court's website:

Judge Garaufis is an Ivy League educated lawyer, and has been a lawyer for 42 years, since 1974.

Judge Garaufis has a Bachelors and a Juris Doctor degree - BOTH rom Columbia University.

So, Judge Garaufis is a highly educated and intelligent person.

With all that, Judge Garaufis, reportedly told attorney Thomas Aulden Burcher II who appeared in front of Judge Garaufis in a court conference - this:

So, what was wrong about attorney Thomas Aulden Burcher II appearing in front of Judge Garaufis?

Was the attorney unlicensed?

Obviously, the attorney was admitted - otherwise he would have been criminally charged for practicing law without a license.

And, we have this sticky situation that federal district courts act as regulatory agencies for attorneys practicing in that court.

So, if the U.S. District Court for the Northern District of New York admitted attorney Thomas Aulden Burcher II to practice law in that court, that means that the U.S. District Court for the Eastern District of New York thus proclaimed to the public and the world that attorney Thomas Aulden Burcher II is competent to handle ANY legal issues in that court.

Yet, for judge Garaufis attorney Thomas Aulden Burcher II was not good enough.

But, that attitude turns into a real problem.

Is licensing by the Eastern District of New York two-tiered - a "better quality" license for partners and a "second best" for associates?

Is sending an associate a sign that the case is treated as not important?

Should clients know that?

What about solo attorneys?

At what time after admission does their license become "good enough" where they are neither associate nor a partner, but just a solo attorney?

Or is a solo attorney appearing in front of pre-eminent judge Garaufis insulting the judge by his presence?

Does Judge Garuafis just have a bad case of a black robe disease, or is he clinically demented?  Is he a danger to other attorneys and the public?

Some bloggers considered it just a bad case of judicial misconduct.

And some bloggers (on Twitter) pointed out Judge Garaufis double-standards, because he does not require the government to sent the U.S. Attorney General where they send just-admitted prosecutors:

and Judge Garuafis does not have the "send the partner only in front of my pre-eminent eyes" in his personal rules:

And fellow Twitterers had a couple of suggestions about what needs to be done with the judge:

1) take him off the case for bias and

2) "kick his belligerent ass"

I am all for #1 - but you know what happens to attorneys who criticize judges in motions to recuse, so it is unlikely a motion to recuse will be made.

And, I am all for #2 in terms of judicial discipline - but, that is not going to happen because the U.S. Congress does not allow discipline of judges for misconduct in court cases.

So, the raving lunatic and bully, federal #JudgeNicholasGaraufis is there to stay - unless we ask the U.S. Congress to impeach him, and change rules of impeachment to allow REAL accountability of federal judges for misconduct IN COURT cases.  Because, where else does misconduct of federal judges matter?  In their kitchens?

How many people have been convicted - and how many were executed - based on the "voodoo science"?

The President's Council of Advisors on Science and Technology issued a report this month where, as Judge Kozinski of the U.S. Court of Appeals for the 9th Circuit (member of the council) a large part of "science" used in the courtroom to obtain criminal convictions was exposed as having nothing to do with science.

If that is true, when will we get an accounting from our government, how many wrongful convictions were obtained, how many people were executed, and how much of taxpayers' money was wasted on investigating, prosecuting, incarcerating, medically treating in prison, funding criminal defense and - yes, it costs money - executing people, all based on "voodoo science"?

It is a 174-page report, and I will need time to read it to report on it more thoroughly, which I am planning to do in the future.

Stay tuned.

An armed-to-the-teeth Houston lawyer was shot dead after he engaged in a shooting rampage at a Houston mall

Attorney Nathan DeSai, who reportedly had a degree in psychology from a Houston University and a J.D. from Tulsa Law School, was shot dead today by police after he wounded 9 people in a Houston mall, see another report here.

Nathan DeSai recently split from his law partner, and was reported to have brandished assault-type weapons at roofers in his apartment complex, yet no action was taken against him at that time.

Fortunately, nobody was killed - save for DeSai himself - but people were wounded.

The level of anger of this man highlights once again the problems in the legal profession where an extremely high number of attorneys are prone to drinking, drug abuse, depression and suicide.

Lawyers reportedly rank 5th among occupations as to their levels of depression.

And, depression may lead not only to suicide, but to homicide, too, apparently.

Let me mention that DeSai had no record of public discipline.
DeSai was a seasoned attorney practicing in Texas for 17 years.

But, he lost it and went on a shooting spree with assault type weapons when he had a falling out with his law partner.

So, if you are going to a lawyer's office, you may be entering a lair of a dangerous, and armed, psycho.

But - the most dangerous offenses the regulators of the legal profession continue to see are criticism of the government by attorneys.

So, let me ask you a question - how many more dangerous armed maniacs are waiting for you out there in their law offices across this blessed nation while the regulators of the legal profession are increasingly busy spending your money to remove law licenses of attorneys-whistleblowers?

And how many of these dangerous maniacs are prosecuting cases and are on the bench judging you?

Judicial review turned clerk review. Does the public need to know about the health of our public officials - at all?

The prominent legal blog "Above the Law" said "no", we don't need to know about the state of health of our U.S. Supreme Court Justices.  And did it in a playful way.

It says that nothing is to be gain from the knowledge of frailing health of our U.S. Supreme Court justices, 9 (now 8) people who wield tremendous power in this country.  And that somehow we will undermine public trust in the judicial system if we get to learn about the state of health of those who de facto rule this country.

Justice Ginsburg had two bouts with cancer and has a coronary stent? Doesn't matter.  She did surgery and chemotherapy without stopping to work.  She can do more push-ups than you can.  Of course, nobody saw that, and these "push-up" thingies are self-reported by Justice Ginsburg.  The same justice who recently lost herself so much that she lashed out at a presidential candidate and claimed she will emigrate if he is elected.  And that was in anticipation of a possible tie in presidential elections coming in front of her to hear.

So, when Ruth Ginsburg is not vetted by her law clerks, she can say pretty bizarre things - and that is exactly why the public should know about her real, and not self-reported, state of health.

And the same relates to other justices with coronary stents, not to mention those with grave chronic illnesses and on medications.

We recently learnt that the U.S. Supreme Court Justice Antonin Scalia had grave chronic illnesses, but we learnt about that only when his corpse was located in Texas under suspicious circumstances, and when his list of chronic illnesses was used to justify his instant "peaceful" death of natural causes, and deflect a murder investigation.

But, disclosing the list of Scalia's illnesses opened quite another can of worms - if he was that sick that he could instantly die at any time, how could he work as a judge, dealing with about 10,000 petitions coming to the court every year?  He wasn't reviewing those petitions, was he?  His clerks did his work for him, isn't that true?  So, the "decisions" by our septuagenarian, octogenarian and nonagenarian justices of all levels may be not THEIR decisions, but the decisions of their law clerks - people who were never appointed by the president and never confirmed by the U.S. Congress.

And that is an issue that is not so funny, as Above the Law is trying to portray it.

As to Scalia's diabetes, this country denies diabetic truck drivers a driving license - because sudden changes in sugar levels can cause hallucinations and visual distortions that can lead to deaths and injuries on the road.

According to the U.S. Center for Disease Control and prevention, 48% of Americans from all age groups. on average, use prescription medications.

Researchers from the Mayo Clinic, reportedly, put that use higher, at 70% across all age groups.

According to a nurse I talked to recently, who works for Medicare, practically ALL people of Medicare age, and that is 62 plus, are on prescription medications, one or more, and the nurse necessarily "surveys", through her work, a large cross-section of that population, and I have no reason to doubt her. 

Prescription medications always mean a possibility of side effects.  Often grave, and mind-altering side effects.

U.S. Supreme Court justices, and other state and federal judges, deal not only with driving their personal vehicles (if they do), but with death penalty cases, long terms of incarceration and other issues of people's constitutional rights.  How it is not important enough to know whether judges are healthy at the time they are making their decisions?

How is it possible that people in their 70s and 80s defy the reality of reduced energy natural for their age, defy the reality of physical and mental frailty that may be the result of their illnesses and medications necessary to treat those illnesses and keep soldiering on and dealing with a volume of work that is not possible for a young physically capable people in their prime to handle?

I will tell you how.

It is only possible when a person claimed to be working does not actually do the work the person is claiming to be doing, and when somebody else is doing that work.

Like law clerks.

But wait - we submit our petitions, as a matter of last resort, hoping against hope that it will be subject to JUDICIAL review, not to CLERK review by privileged youngsters handpicked by "committees" of prior law clerks.

Right?

So, yes, I would like to know whether the judge deciding my fate, and the fate of others, is sick, demented, weak, frail, or on mind-altering medication.

After all, the question whether a person is on mind-altering medications is a standard question in plea allocutions in the United States.

If a person cannot legally waive his constitutional rights when he or she is on mind-altering medications, a person surely cannot decide constitutional rights of others being on the same type of medications - or physically frail, or mentally unstable, or demented, or senile.

Not only we the People, the employer of the U.S. Supreme Court justices, DO have a right to know about their health, but we have a right to know minute details about their health.

Contrary to the brazenly dismissive letter that the Chief Justice of the U.S. Supreme Court sent to the public recently, stating, in one paragraph, that if judges think the public need to know, they will disclose the state of their health - otherwise they won't.

That's not their choice.  It is ours.

As to Chief Judge Roberts' behavior - try answering a question related to your ability to do your work to your employer like Chief Judge Roberts answered our question.

Remember, WE who pay Judge Roberts' salary, are his employers.

If this country has the rule of law and equal protection of laws, the same thing as would happen to you when you defy your employer, should happen to Chief Justice Roberts.

Right?

#IStandWithJacobHafter. Yet another attorney, #JacobHafter in Nevada, is targeted with a disciplinary proceeding for criticism of #JudgeValorieVega well-known for her outrageous misconduct

I wrote on this blog about the trend in this country to punish attorneys for criticism of the judiciary, listing cases of attorneys so disciplined from across the country.

My petition for the writ of certiorari that is currently pending in the U.S. Supreme Court, specifically raises the issue that removal of competent criminal, family court and civil rights attorneys through disciplinary process for doing their job, criticizing the judiciary in motions to recuse, is contrary to the declared purpose of attorney licensing (protection of consumers) and is widening the already-wide "justice gap" where the majority of Americans cannot afford an attorney.

At this time, two more cases in addition to the statistics of attorney discipline for criticism of judges I published earlier, are pending - one in D.C. and another in Nevada - where attorneys are targeted by the government for criticism of the judiciary.

In D.C., Texas attorney Ty Clevenger is targeted with a disciplinary proceeding after he single-handedly caused the forced retirement of a sexual predator/federal judge Walter Smith whom the federal system protected and refused to hold accountable for years, the same as the federal judicial system protected and refused to hold accountable another sexual predator/judge Samuel Kent.

Ty Clevenger obtained and published the testimony of  the victim of Judge Smith's sexual crimes, published it, caused reopening the disciplinary investigation against Judge Smith, which initially resulted in a slap on the wrist, requested Judge Smith's impeachment, requested an FBI investigation of Judge Smith about Judge Smith allegedly illegally accepting free legal services from an attorney who appeared in front of him in court cases, and wrote to the Chief Judge of the U.S. Supreme Court asking to speed up the investigation.  Then he was targeted for disbarment.

Interestingly enough, the Chief Judge Richard Warren Roberts, of the D.C. District Court, the court that is now "coincidentally" prosecuting Ty Clevenger on the same charges that were dismissed by the Texas disciplinary authorities as meritless, has recently also "retired" - quickly - after reports of his confession to sex with an underage (16-year-old) girl appeared in the press.

Here are the three federal judges - sexual predators, where two out of three were not prosecuted in disciplinary or criminal proceedings, and escaped with their law licenses and their huge taxpayer-backed pensions intact.

The now-retired Judge Walter Smith, the drunk stalker and sexual harasser of female court employees:

The now-retired Judge Richard Warren Roberts, an accused pedophile who is being sued for statutory rape committed against her by the judge when the judge was an attorney with the U.S. Justice Department and the woman was a 16-year-old witness against a white supremacist on trial.   Even though Judge Roberts "retired" when the U.S. Congress threatened an investigation into the claims of rape, the judge was not investigated or prosecuted criminally or as an attorney after his "retirement".

The convicted felon judge Samuel Kent who repeatedly forced sex upon unwilling court employees, forced one employee out of her job, caused the other to lie against the first one in order to keep her job, and tried to coerce and intimidate a witness to the grand jury against him.

Before:

After:

Once again, Ty Clevenger, an attorney who was instrumental in removal of one of these sexual predator federal judges from the bench and protecting federal court employees from their unlimited power and control,  is targeted with a disciplinary proceeding.

And another case of attorney criticism of a judge is unfolding in Nevada, against attorney Jacob Hafter for criticism posted out of court against Judge Valorie Vega:

In 2010, a blogger wrote about Judge Vega as the most corrupt judge in the United States, citing a motion to recuse her from a habeas corpus petition that pointed out her conflicts of interest, prejudgment of the case, presiding over a case where she had personal knowledge of disputed facts, and where she conducted a hearing without giving a party a notice of that hearing - in other words, the judge held an ex parte hearing.

In the same 2010, it was reported by the local TV station that Judge Vega kept a jury sequestered (locked up) and deliberating overnight - in a MURDER trial - to force them to produce a verdict faster so that she would be able to go on a vacation.  Of course, the criminal defendant was black. 

So, the judge did not care whether the verdict in a murder trial would be rendered out of mere exhaustion and desire to go home.

I know of one other such forced verdict, and also, coincidentally, in 2010 - in New York, in People v Quentin Tompkins, in Delaware County County Court, where the now-also-retired Judge Becker told the jury, after they were out for 2 hours in the courtroom re-hearing evidence on tape and drinking water on a hot summer day, that the judge just received a phone call from a crew working on the water main feeding the courthouse, that the water main is severed and shut off and that there is "just one flush left in the restrooms".  Judge Becker did not adjourn the trial, did not move it to another location, with working restrooms.  He simply forced the jury to reach the verdict fast - and they did.  They returned a "guilty" verdict within 15 minutes, not willing to pee and poop into each other's pee and poop.

The case for 1st degree rape against a young man with no prior criminal history could very well result in an acquittal - because there was evidence presented that the alleged victim, the defendant's fiancé who just broke up with him while keeping the expensive ring he worked hard to buy for her, was jealous after she called his mother and learnt that he was out with other girls.  Otherwise, there was no physical evidence of rape, and there was an egregious video of a 2-hour-interrogation when the young man was forced to sit on his hands with plastic handcuffs eating into it, was crying, and the police officers were using his still-remaining love for the girl by pressing him to confess so that "the love of his life would not have to face a courtroom full of people".

Here is information from New York Department of Corrections about Quentin Tompkins.

This young man worked hard, respected his parents, earned money to buy a ring for his fiance, took care of her ferrets after she split up with him and dumped her animals on him and wanted to go into the Armed Forces.

Instead, he is branded as a rapist, will have to register and undergo restrictions and indignities as a violent sex offender for life, was sentenced by the same corrupt judge for 10 years in prison, and has been incarcerated for 6 years so far, because a corrupt judge Catrl F. Becker and a corrupt prosecutor (now Delaware County Judge) Richard Northrup who was employing (without disclosure) the judge's former law partner, which rendered the whole proceedings against Quentin Tompkins tainted, and his conviction and sentence unlawful. 


This is a young man who fell victim to the misconduct of Judge Carl F. Becker of Delaware County, New York, who forced the jury to deliberate in a room without a working bathroom, in antisanitary conditions, in order to coerce a guilty verdict in favor of the prosecutor's office that employed (without disclosure by the prosecution or by judge Becker) the judge's former law partner John Hubbard - who is now the Acting District Attorney, is running unopposed for the position of the elected District Attorney, and is appearing as a prosecutor in front of his former boss Richard Northrup, who is now the Delaware County Judge, and who obtained the conviction against Quentin Tompkins by conspiracy with the presiding judge to force the jury to deliberate in antisanitary conditions.

Here is the happy face of Carl Becker who retired without judicial or attorney discipline and was not criminally investigated despite his legendary misconduct:

And here is the other "hero" of the wrongful conviction of Quentin Tompkins, Richard Northrup, being sworn by the same Carl Becker as the new Delaware County Judge - while at the time of the swearing-in ceremony, Becker was a retired judge, a private individual, and had no authority whatsoever to swear-in a new judge.  But, so are the ties of friendship that Becker habitually broke the law to unlawfully and without authority swear in another judge, and Northrup, habitually, unlawfully accepted Becker as a swearing-in officiant.

Judge Valorie Vega forced the jurors to deliberate overnight in a murder trial, in order to force a verdict, so that she would be able to go on a vacation.

Judge Becker, in a similar situation, only where there was no jury and the judge was the only fact-finder, in a child abuse case where I was an attorney of record and present in the courtroom, Judge Becker made a statement that the trial in a child neglect case (a statutory priority on a court schedule) will not go into another day because he needs to depart on a vacation - just like that.  Whatever it takes, the trial will end today, he said. 

At the same time, I know of an attorney whose vacation, with airline tickets and hotels paid for - for a family of two adults and three children (I am not talking about myself or my family, but will not disclose the lawyer's name) - was thwarted by a New York judge who forced the attorney to cancel everything and attend a hearing that could be very well adjourned, because it was scheduled after the lawyer bought his tickets.

Back to Judge Valorie Vega, of Nevada.

In 2013, Judge Vega accepted a public reprimand for adjourning trials on 6 occasions in order to attend her daughter's soccer games.

In the same 2013, Judge Vega announced she will not seek re-election for the next term, after 25 years on the bench.

In June of 2014, attorney Jacob Hafter accused judge Vega of racism and anti-Semitism - because she refused to adjourn a trial schedule to accommodate a Jewish holiday.

Remember that the same judge adjourned trials to go to her daughter's soccer games, and kept the jury overnight in a murder trial in order to force a verdict earlier, so that she would be able to go on a vacation.

Attorney Hafter's explanation that his religion does not allow him to work on Wednesday and Thursday during Shavout, fell on deaf ears of Judge Vega.  Adjournment for her daughter's soccer games - yes.  Keeping the jury locked up overnight to force a verdict in a murder case so that the judge could timely depart to a vacation - yes.

Allowing a trial lawyer an adjournment so that he would not work when his religion prohibits him from doing so - no.

Maybe, it was not racism of anti-Semitism.  Maybe, it was simply bias and desire to help attorney Hafter's opponents - because judge Vega's husband is reportedly Jewish, and Judge Vega should have known then that she is scheduling a trial on a Jewish holiday when one of the attorneys could not work for religious reasons.

It was misconduct nevertheless.  And, attorney Hafter said it exactly the way the issue was supposed to be raised - that it appears that either the judge was anti-Semitic, or she was biased, but in any event, she should not be on the case.

So now, with all her shenanigans - and especially with locking up the jury in a murder trial of a black man in order to go on a vacation on time - Judge Valorie Vega is listed as an active judge on Nevada State Bar's registration website.

Let's note that, despite her public reprimand as a judge, she has no matching disciplinary record as an attorney.  As an attorney, she has NO disciplinary record.

Instead, the attorney who raised issue of her obvious bias, is now in hot waters and is subject to a disciplinary proceedings - for being too "outspoken".

And, remember, we are talking about the blessed state of Nevada that did not prosecute - as a judge or as an attorney - judge Conrad Hafen who handcuffed a public defender for making a constitutional argument on behalf of her indigent client.

And, Judge Hafen has a record showing that he is willing to go an extra way to humiliate not only female attorneys, but male attorneys as well:

"When Las Vegas Township Judge Conrad Hafen became a judge in 2011 and noticed some attorneys weren’t wearing ties, he went to a thrift store and picked up a few funky ties from the 1960s and ‘70s along with two children’s clip-on ties. He then gave attorneys who showed up without ties a choice: wear one from his thrift store collection, or have their case heard last or even moved to a different day."

One thing is to require a certain type of attire in the courtroom - which I don't believe courts can do, short of prohibiting dirty clothing - and quite another is to force the judge's choice of clothing, chosen specifically to humiliate the person, for disobeying the judge's prior choice of clothing for an adult man and an attorney.

To put adult men in front of a choice - wear a funky tie or have your client's case heard last or on another day (adding to billable hours for the client, or having the client to appear at a different day, with a respective loss of work time, and additional arrangements to be made for daycare of children, for example), is not funny.   It is judicial misconduct that should have been, but never was addressed as such.

Same as judge Vega, Judge Hafen has no record of public discipline as an attorney.  He is good to continue doing what he did to public defender Zohra Bahtary, and he is good to practice law once he is off the bench (he was recently voted off the bench after the handcuffing episode - thankfully, people of the State of Nevada has more honor, sense of fairness and common sense than the Nevada court officials, criminal officials and disciplinary authorities).

So, these two individuals, who, judging by their reported actions (and I am sure, that is only the tip of the iceberg of their misconduct), should not be on the bench and should not have a law license, have no record of public discipline as attorneys.

Here are their happy faces.

Valerie Vega.

Conrad Hafen.

Instead, an attorney who criticized a judge with a documented record of EGREGIOUS misconduct, is sought out for discipline - for stating the truth, in and out of court, for the sake of getting fairness for his clients.

We, as taxpayers, must come to a realization that these cases not only MULTIPLY injustice and undermine people's already rightfully eroding trust in the so-called rule of law in this country.  Such cases also COST US MONEY, a lot of very real, hard-earned money that can be used for our common good.

When a capable attorney is removed or silenced and cannot do his or her job - the entire society and each taxpayer pays.  Pays in unnecessarily increased fees to house the wrongfully convicted.  Pays for inflated budgets of social services when attorneys who can represent parents in child protective cases are targeted and washed out by discipline, and parents are routinely assigned "yes-men" (and women) who help social services inflate their budgets through wrongful child neglect and abuse adjudications even more.

So, if an attorney working for the people is wrongfully removed - not only your chances of getting justice through good representation in court are shrunk, but you will be paying, as a taxpayer, for the resulting injustice against others.

Look once again at the self-complacent faces of people whose pictures I posted in this blog.

All of them are highly educated, privileged and vested with tremendous power.

All of them used that power for their own personal gain - with no real accountability, with the exception of Judge Vega who was publicly reprimanded, but was not taken off the bench and did not lose in salary or power, and judge Kent who was convicted and sentenced for a very short amount of time in prison, on a plea bargain, despite engaging in unwanted sexual touching of employees of the years and intimidating a witness in a grand jury proceedings - for which any other "lay" person would be incarcerated for a very long time. 

Judge Kent is not even convicted as a sex offender, so he does not have to register as a sex offender, and had the audacity to complain recently in an official motion that he was treated in prison as a sex offender.

Judge Samuel Kent was brought to justice only because of the courage of two women, Cathy McBroom and Donna Wilkerson, both non-attorneys, in coming forward and seeing it through, despite tremendous odds, pressure, humiliation and intimidation, that the powerful judge was indicted and convicted for at least something.

Attorneys were afraid to touch that case.

Because of what is usually happening to attorneys in this country if they criticize a judge or raise issues of judicial misconduct - no matter how right they are.

Until the rule of law starts to be equally applied - with a real bite - against judges and prosecutors, and stops being applied against critics of governmental misconduct, we cannot claim, as a country, that we have the rule of law.

I stand with #JacobHafter.