"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, September 21, 2016

A black career prosecutor turned judge upholds the "right" of the racist NYPD to prosecute criminal charges NYPD generated against Black Lives Matter protesters. Corruption in New York is poetic.

If you are issued a traffic ticket in New York, in some municipalities, an attorney from the county District Attorney's office is prosecuting the ticket, and in others - the police officer who issued the ticket.  Such a police officer will then violate the police's own "no plea" policy, and will give the defendants legal advice - all illegally, on top of being an interested witness and a prosecutor at the same time.

When police officers give legal advice to those they arrest and prosecute, not only that is the crime of unauthorized practice of law (that the police officers will not prosecute against themselves, naturally), but is also a violation of the defendant's constitutional right to an impartial investigator and prosecutor.

Because, of course, the "legal advice" that the police officers are giving to those they arrest is - just go ahead and plea to whatever police officers arrested them for, or for a "lesser offense", even if the original ticket was completely bogus.

And, when the arresting police officer is prosecuting the case, while also being the main material witness in the case, such prosecutions undermine the defendants' constitutional right to an impartial prosecutor.

And, while there may be at least a theoretical possibility of a disciplinary action against a lawyer-prosecutor, with resulting public discipline, disciplinary records of a police officer/ prosecutor remain sealed, as required by New York Civil Rights Law 50-a.  Such records, even in case the officer is discharged and is not subject to protection of NY Civil Rights Law 50-a, are still zealously guarded by police departments, and the New York Governor Andrew Cuomo has recently stated his position that it is within the NYC Mayor's authority to withhold records of discipline against police officers from public access.

But - why is allowing arresting police officers, or police officers at all, to prosecute cases such a bad idea?

The problem is that a defendant in a criminal case (and in a traffic ticket case) has a due process right to an impartial prosecutor who is not interested in the outcome of the case.

That right surely disappears when the prosecutor is actually the arresting officer.

81 years ago, the U.S. Supreme Court decided a case, Berger v United States, where the court has outlined a "dual role" of a criminal prosecutor:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

The case is about a federal prosecutor, but is equally applicable to state criminal prosecutor, since federal constitutional right of criminal defendant to an impartial criminal prosecutor remains the same, whether the defendant is prosecuted by the federal or state government.

Yet, when a police officer receives a bonus if the summons he issued "sticks" and results in a traffic ticket fine, or a criminal conviction, fine and surcharge, part of which goes to the municipality that employs the police officer, the "two-fold aim" that "guilt shall not escape or innocence suffer" goes out the door and is replaced by the principle that guilt or innocence does not matter - obtaining fines and escaping liability for the police officer/prosecutor does.

NYPD reportedly settled lawsuits against itself and its police officers for $837 million dollars in the last five years.

Moreover, in protest cases in NYC, NYPD lawyers, reportedly, are at the scene of arrest advising police officers what charges they should bring.

Then, the same lawyers for NYPD prosecute those charges - and put into their plea bargain offers a condition that, in exchange for a reduced charge, defendants must waive their right to sue the police - a direct conflict of interest.

I am very well aware of such conflicts of interest - but thought that it was a freak thing that sprang up in the neck of woods of Delaware County only - where the then-District Attorney Richard Northrup (who now has been elected the Delaware County judge) obtained from a LEGALLY BLIND criminal defendant, without reading to him the agreement he was signing without seeing it, a waiver of the right to sue himself, the judge, and all law enforcement authorities, from local to County to federal, in exchange for a "reduced" charge (A-1 felony was reduced to A-2, which was not a beneficial reduction for the defendant at all).

My husband and I raised the issue of impropriety of that "arrangement".  My husband did it on an assigned criminal appeal, and I did it in a motion to vacate the plea and in a civil action challenging improper exoneration of bail that landed $17,500 of defendant's bail money in the hands of his prior defense counsel, "coincidentally", the then-Vice Chair of the New York Commission for Judicial Conduct Stephen R. Coffey.

The Chief Assistant District Attorney John Hubbard who was, without disclosure, the presiding judge's former law partner and who was opposing the criminal appeal, "privately" threatened my husband not to "burn the bridges" by raising issues of judicial misconduct in that case.

When my husband did not back down, he was disbarred, I was sanctioned for raising those same issues, and suspended without a hearing based on those sanctions.

The participants in the illegal scheme obtaining waiver of the right to bring a civil rights lawsuit:  Northrup, Judge Becker, and Stephen Coffey, who was at that time, "coincidentally", the Vice-Chair of the New York State Commission for Judicial Conduct, were not disciplined.

Instead, Northrup was elevated from District Attorney to County Judge, and Becker swore him in, while being at that time retired and having no authority to swear Northrup in - making Northrup's judgeship illegitimate.

John Hubbard is now the "Acting District Attorney" and is running to be elected as District Attorney of Delaware County - unopposed.  Hubbard is now appearing in front of his former boss Northrup, as a judge - and, I bet, no attorneys have filed motions to recuse, for fear that their licenses will be yanked.

And, since Hubbard is running unopposed, he will surely be elected, and rewarded with a 4-year seat of the District Attorney, the salary matching that of a Supreme Court justice, and a path to judgeship in the future, similar to Northrup's career.

After all, Hubbard did his job well - both by intimidating my husband on behalf of Becker and refusing to charge Becker with filing a forged certificate of election when I asked him to do that, and both of those jobs he did without disclosure that he was the former law partner of Judge Becker.  And, after the job well done, which also included criminal prosecution of my friends and clients who sued Becker, on bogus charges, John Hubbard now deserves a boon - the seat of the District Attorney.

So, in Delaware County the waiver of a civil rights lawsuit was obtained in a felony case.

In other, more "visible" counties, and in New York City, corruption is a bit more modest - it allows police prosecutors to seek such lucrative plea bargains only in "minor offense" cases, such as traffic tickets and misdemeanors.

For example, recently in New York City, a judge, Guy Mitchell, denied challenges of two women to constitutionality of New York Police Department and its lawyers prosecuting summonses instead of the District Attorney.

The challenges were made because police officers issuing summonses are interested in the outcome of the case, and that is especially so when New York City settled over $800 million of claims against its police departments over a short period of time.

And the summonses Arminta Jeffryes and Cristina Winsor were challenging were not traffic tickets either - those were arrests during a Black Lives Matter event.

Arminta Jeffryes was arrested and kept in jail for several hours for "jaywalking", and Cristina Winsor was arrested for allegedly "stepping off the sidewalk into the street".  Her summonses - for jaywalking - were issued by a police captain, a very high-ranking figure in NYPD, which begs a question whether the prosecution was politically motivated.

Here are Cristina Winsor (left) and Arminta Jeffryes (right):

The "hero" of a judge who rejected the obviously meritorious challenge to the practice of the police acting as prosecutors of their own summonses, was the former prosecutor Judge Guy Mitchell, recently sworn in by NYC Mayor DiBlasio:

Here is Judge Guy Mitchell:

An interesting political move to assign a black judge to handle arrests in "Black Lives Matter" cases.

Obviously, loyalty to the system in Judge Mitchell overcame his oath of office to uphold the U.S. Constitution - and provide to the two women who are currently prosecuted by witnesses against them their constitutional right to impartial prosecutors.

But, after a black judge in Kentucky, Judge Olu Stevens, was suspended for doing his job and fighting racial discrimination in criminal justice system, black judges obviously will be extra-careful not to be fair, and to bow to the system low, no matter how racist it is to African American litigants and litigants fighting racial discrimination.

Judge Mitchell is a career prosecutor, and has been a prosecutor for 20 years before he came to the bench.

Of course, to him, whatever a prosecutor does is Gospel.

And, if the District Attorney's office has a "Memorandum of Understanding" with NYPD, delegating to NYPD to prosecute criminal cases NYPD generated - that is Gospel to Judge Mitchell, too.

Actually, NOTHING in New York law allows that delegation.

New York County Law 700 gives an absolute discretion only to the County District Attorneys to prosecute crimes and says nothing about allowing District Attorneys (elected public officials) to delegate their powers to anybody else.

But, judges in this country have a history of brazenly changing statutory law through interpretation, so Judge Guy did just that - if a prosecutor does something, like delegation of duties not allowed by statutory law, then the prosecutor can do that, and the U.S. Constitution that Judge Mitchell is sworn to uphold be damned.

"Seeing friends of mine who went to prison and some have died,” said Mitchell. “[I thought] once I’m in a position to make a difference, this will be an obligation for me to move forward. That has motivated me—the fact that I can make a difference and have someone look and say, ‘If he can do it, I can do it.”

Now that Mitchell is in that craved position of power and can make a difference, and when his brothers and sisters are in the streets protesting against racial discrimination and racial profiling - which is what NYPD does regularly to African Americans, even to African American police officers - Judge Mitchell is "making a difference", and is helping, but he is not helping that justice be served, only that the law enforcement establishment is protected from liability.

Yet, the denial of the challenge is going to be taken further through the court system, since it goes to people's absolute fundamental right that the government does not allow interested witnesses to act as prosecutors in criminal cases.

I will eagerly follow this case and report on it.

Stay tuned.

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