"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.

Saturday, September 17, 2016

On dangerously stupid legislative acts and judicial decisions: Arizona legitimized touching children's genitals through a statute, and then criminalized changing baby diapers by interpreting that statute

Stupid judicial decisions can cause a lot of havoc in people's lives.

Stupid judicial decisions that enforce stupid legislative decisions are no different.

Comes in the Supreme Court of the State of Arizona with a stupendously stupid decision dated September 13, 2016 which, as concerned commentators claimed, made it a crime to change a baby's diaper.

Only the mess is worse than that.

The decision makes no sense on many levels, raises questions of competency of all judges who authored the majority, as well as the concurring opinion, and throws into turmoil lives of parents and child caregivers of the entire state - thus warranting a serious review of how it came to life.

The judicial decision involved a conviction of a step-grandfather for sex crimes against an 11-year-old child, under two statutes: for child molestation and for sexual abuse.

Here are the texts of these two statutes, as quoted in the Arizona Supreme Court decision.

So, the first statute under which the defendant was convicted, says that "intentional or knowing sexual contact with a child under 15, except with the female breast" is a crime.

In other words - touching the breast of a young girl under 15 is NOT a crime, but touching the young child under 15 sexually in any other way IS a crime.

A strange exception - why is it ok to sexually touch the breast of a girl under 15 which can be quite developed?  Raises all kinds of questions as to the legislators who created that exception, and their "wisdom".  But, let's go on to the second statute.

The second statute of conviction is:

I double-checked the child sexual abuse statute, it was not misquoted.

Once again - a person is convicted under TWO criminal statutes.

One statute says that you may not sexually touch anything on a child under 15 BUT her breast - that you MAY touch the breast, but nothing else.

The other statute says you may not sexually touch a child's breast, everything else you may touch.

And, a man is convicted under BOTH of those - diametrically opposite - statutes, and the highest state court affirms, claiming that it is not for the court to question "the wisdom of the legislature".

Yet, the case is a clear case for a jury nullification - for, a person may not be convicted under two statutes where one of the statutes makes a crime exactly what the other doesn't.

If the defendant inappropriately touched the child on the breast, under one statute it would not be a crime, while under the other it would.

If the defendants inappropriately touched the child anywhere other than the breast, under one statute it would not be a crime, while under the other it would.

Does it make sense?

Of course, not.

Does it look like "wisdom" of the Arizona State Legislature to issue such statutes?

Of course, not.

Yet, a man was convicted and sent to prison for 10 years under these two statutes.

But, the complete inconsistency of the two charges was not even the issue before the court.

The issue before the court was - who bears the burden of proof as to whether the touching was done with sexual intent: the prosecution or the defendant.

Both statutes have the same elements:  "knowingly or intentionally engaging in sexual contact".

By rules of statutory interpretation, as every law student is told in his 1st year criminal law class, when the attribute defining intent is positioned in the sentence before certain words, the element defines all those words.

Thus, if there is an element of the crime of "knowingly or intentionally engaging in sexual contact", the prosecution must prove that defendant knowingly or intentionally engaged in contact that is sexual.

In other words, the proof that the touching was done with sexual intent, is on the prosecution.

That's pure logic and general rules of statutory interpretation.

Not so fast, said the Arizona Supreme Court.

Instead, the Arizona Supreme Court put the burden upon the defendant, as an "affirmative defense", to DISPROVE that contact was NOT sexual in nature - thus violating the criminal defendant's constitutional right to remain silent throughout the proceedings and shifting the burden of proof from the prosecution to the defense, a clear due process violation.

The shift of the burden of proof is what worried the commentators, because, as interpreted by the Arizona Supreme Court, a person in Arizona may first be charged with a crime for ANY touching of the child - since prosecution do not have to prove that touching was made with sexual intent.

You accidentally rubbed off a child's body when walking in a crowd - you are chargeable.

You hugged a child - you are chargeable.

You are teaching the child in the gym and necessarily touched the child's body to show a move - you are chargeable.

You are changing the child's diaper or giving the child a bath - you are chargeable.

You are treating a child's wound, or doing or allowing to do a medical exam on a child (the statute has a clause "or causes the sexual contact") - you are chargeable.

The Arizona Supreme Court not only affirmed a conviction under two statutes where one statute allows what the other prohibits, but added insult to injury by making all physical education teachers, dancing teachers, parents, caregivers - instantly criminals.

Committing crimes of "touching" children every day.

Because, after the State v Holle decision in Arizona, the law in Arizona works the following way:  first, the prosecution CHARGES you for touching a child, and THEN you have to, the right to remain silent be damned, prove your innocence by trying to prove that you did not do anything with sexual intent - while at the same having to acknowledge the fact of touching the child (even though it is covered under the right to remain silent).

And, this "invention" by the Arizona Supreme Court was made in arrears, so, naturally, defendant Holle's attorneys did not know that Defendant Holle had an affirmative defense to prove what the statute indicates is an element to prove for the prosecution.

The Arizona Supreme Court, in the same decision where it created an affirmative defense in arrears, claimed that:

1) Arizona abolished all affirmative defenses;
2) Arizona legislature has to create statutes defining both criminal charges AND affirmative defense; and
3) criminal defendants must have PRIOR notice of charges and affirmative defenses.

Of course, if Arizona abolished affirmative defenses, why the Court invented an affirmative defense.

Of course, if Arisona allows only its legislators to create affirmative defenses, what is the Arizona Supreme Court doing creating one instead, while talking separation of powers and "respecting the wisdom of the legislature".

Of course, if a criminal defendant has a right of PRIOR notice (before the touching) that a certain action is criminal, and a certain aspect of the charge is only an affirmative defense - which defendant in State v Holle, of course, did not get.

So, the statutes under which charges were made were screwed up.

And, the whole legal theory was screwed up by the Arizona Supreme Court - with the only purpose of affirming a 10-year prison conviction of an elderly man for touching and kissing an 11 year old - which is not a crime under the mutually cancelling out provisions of the charging statutes.

So, what is a parent, a teacher, a doctor, a caregiver - to do after this monument to learned stupidity?

To wash your baby or just leave it screaming and covered with feces - to save themselves from a 10-year prison sentence and sex offender registration for life, with the attendant circumstances, such as a complete destruction of life, being prohibited to have a normal job, live in a normal neighborhood, vote, lead a normal life?

Of course, if you DO NOT touch your baby's genitals in cleaning her out - you will then be charged with child neglect, and your baby will be taken away from you anyway.

Judges want to be recognized for their zeal dealing with pedophiles.

Fighting pedophiles is the topic that gets people elected to high-paying positions of power.

Yet, judges are supposed to be neutral, and they are supposed to be educated in law, and they are supposed to think.

All of which is sorely missing from the decision in Arizona.

Now, as to the "heroes" who authored that decision and who unanimously concurred with the result - to affirm a conviction, while two judges dissented only as to some issues that they considered minor and not affecting the result, that the 10-year-conviction must be left intact.

Here is Judge John Pelander, the author of the opinion.

Judge Pelander not only has a law degree, but an advanced law degree, a L.L.M. in "Judicial Process".

He has a Juris Doctor degree with high distinction, was on Editorial Board of the law review, and clerked for a federal judge.

Judge Pelander is admitted and is practicing law since 1977, that is, for 39 years.

And, with all those distinctions, he cannot read what he wrote?

Here is Judge Ann A. Scott Timmer who "joined" judge Pelander in his monumentally stupid and intellectually dishonest opinion that denied elementary due process rights to the criminal defendant and plunged so many people in the State of Arizona into a havoc.

Judge Timmer is also a very distinguished legal scholar - supposedly at least, as can be judged from her biography on the court's website.

Judge Timmer is a magna cum laude law school graduate, and her honorary awards and civic activities deserve publishing them here in full.  Because, there are so many awards that it is a shame for Judge Timmer to produce a decision that a 1st year CrimLaw student would get an F for, and it is a shame for Judge Timmer to engage in so many activities that distract her from doing her direct duties as a judge properly.

Here are the awards of judge Timmer:

Note that Judge Timmer has an award in 2016 by a bar association (while the court regulates attorneys - just a little bit of a brown-nosing helps, I guess); and, in 2015, from the Arizona Association of Defense Counsel.

While Judge Timmer showed her glaring incompetence in criminal law.

And here are the activities of judge Timmer:

Note that Judge Timmer was, until 2015, a Chair of the Arizona Commission for Judicial Education and Training.  So, if the best of the best of the state judges cannot produce a decision that will get more than an F in law school, where did all legal talent go in Arizona?

The next author of the infamous decision is Judge Clint Bolick,
who also has a trail of awards and a history of public service, such as a Commissioner of the U.S. Commission on civil rights - of all places. 

The list of awards, public offices and publications does not explain the lack of elementary competence in the law displayed in the State v Holle decision produced by this judge, together with his colleagues.

And here are the two dissenters on the issues who nevertheless concurred in the result - to affirm the clearly unconstitutional conviction.

The Chief Justice Scott Bates who dissented/concurred in the result.

Judge Bates is a magna cum laude graduate of an Ivy League Law school, the Harvard Law School, a former law clerk to the U.S. Supreme Court Justice Sandra Day O'Connor, a law professor.

Judge Bates is handling attorney licensing at the state level.

Judge Bates also has many other "obligations" that obviously take so much of the judge's time that no time is left for doing his job properly, and, as part of those other obligations, Judge Bates, as a member of the Accreditation Committee of the American Bar Association, defines requirements to legal education in this entire country.

While, judging by his concurrence, he would benefit from another trip to law school, as a student.

Here is Judge Robert M. Brutinel, another dissenter/concurrer.

Judge Brutinel, together with judge Bates, completely missed that the wording of the statutes of conviction made convictions impossible and unconstitutional.

Instead, Judge Brutinel engaged in constitutional analysis of affirmative defenses, lamenting about the fate of parents and caregivers changing diapers.

Yet, out of 5 pages, single-spaced, of the dissenting/concurring opinion, Judge Brutinel and Judge Bates dedicated just ONE SINGLE SENTENCE to the actual case in front of him:

When judges of many years, practicing law for decades, having publications, teaching law, claim that shifting the burden of proof from the prosecution to the defense on one of the main element of the charged crime is a "harmless error" beyond the reasonable doubt - while looking at a case where the jury specifically asked specifically whether they need to consider the question that the prosecutor never proved,

that is not incompetence.

That is deliberate intellectual dishonesty and judicial misconduct warranting removal from office of all judges who authored this unconstitutional and shamelessly stupid decision.

Let them pursue their "service" of sitting on various boards to their hearts' desire.  At least, when they will do it after removal from the bench, these numerous activities will not interfere with their direct job duties.

On the other hand, who would want them on any boards after their removal?  But, that's a whole separate problem.

Let's see whether this case will wind up in the U.S. Supreme Court and whether the U.S. Supreme Court will consider it important enough to take it, review it and reverse it.

In the meantime, parents, caregivers, doctors and teachers in Arizona, since September 13, 2016, engage in daily felonies, and Jerry Charles Holle continues to sit in prison as a child molester based on two diametrically opposite criminal statutes and non-sensical lawmaking from the Arizona Supreme Court bench.

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