"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, October 5, 2016

California #JudgeEdmundWClarke admonished for mistreating prospective jurors in a murder trial - Part I, juror 7122

California judicial disciplinary authorities just imposed discipline - admonishment only - upon Judge Edmund W Clarke, for mistreating prospective jurors in a murder trial.

Here is the description of Judge Clarke's misconduct in the disciplinary decision.

The judge first excused juror 7122 on the basis of severe anxiety - and then ordered her to stay behind in the hall and wait for him to discuss things with her (against her will) after she added, in a public proceeding, that the judge's clerk was disrespectful with her.

Surprise!  Court personnel disrespectful with lay people with no power?  Does not ever happen.  Right?

And, when it does happen, and the victim of that disrespectful conduct has the courage of challenging that disrespectful conduct openly in front of a judge - the judge lashes out.  Against the victim, of course.

The judge made FORMER juror candidate 7122 to wait in the hallway for an hour, until the end of the session.  The woman obeyed, crying.

Here is the exchange between the judge and the woman after she was already excused - but still ordered to wait for the judge's tongue-lashing.  For an hour.

At the very proceeding the woman felt so intimidated by the ordered detention in the hallway for an hour that she started to communicate with the judge with an apology - which was the effect the judge, apparently, sought.

Since the woman was deposed at the end of the session, most likely, the public was excused at the time of the tongue-lashing.

So, public criticism of misconduct of a public official is now "going after her like that".  And, the judge is very obviously bullying the women, is putting her on the defensive.  For criticism of a public employee, the judge's long-time clerk (of 7 years, as the judge disclosed later on).

"Attacked her in open court in front of a judge with your criticism" - that is the gravest of offenses for the judge, apparently.  And, since the judge was merely "admonished", and remains on the bench, the people of the State of California can expect more of the same from this judge, as well as from other judges.

Now, this is beyond mean.

Criticism of a public official, open criticism, was and is the prospective juror's right as a citizen.  The judge had absolutely no right to go into the person's employment background and not-so-thinly threaten her to complain to her employer, in retaliation for the woman's complain about rude behavior of the judge's clerk.

Let's note that the judge engaged in tongue-lashing of a critic of his clerk's RUDE behavior without any investigation of that behavior.  So, for the judge, the mere facts that:

1) the clerk worked for the judge for 7 years, and that
2) this was the first complaint about her behavior in 7 years - means that the complaint is untruthful.

The judge, without an investigation, on record, in open court, accuses a woman who has an anxiety problem and who was already a victim of his clerk's rude behavior, of a lie.

 Let's count.

The judge

1) accused the woman of "going after" the judge's clerk;
2) accused her of lying - without an investigation, and based on his own unsworn character testimony on behalf of his clerk;
3) accused the woman of "no longer [able to see] that other people are struggling and doing their best";
4) accused the woman of "looking immature and selfish and not contributing to the society that we're supposed to support".

And, the judge let the woman go with a final branding her that her "accomplishment" is to be the only one out of thousands of prospective jurors to ever complain against the judge's clerk. 

Let's remember that at all times after the judge excused prospective juror 7122 he no longer had the power to detain her, and detaining her, forcing her to come in front of him in open court and abusing her verbally was all illegal conduct and conduct without authority.

Let's remember that the judge already excused the prospective juror 7122 because of a severe anxiety problem, which would bind the judge to treat that woman as a person with disability suffering from a severe anxiety, not trying to aggravate that problem, as he did.

But, the clerk was, in fact rude:

Yet, for the judge what actually occurred did not matter.  He steamrolled through a woman with anxiety and accused her of wrongful criticism of his clerk without verifying whether the clerk was actually rude with the woman or not.  For the judge, his personnel is simply above reproach - and above the law.

And, as it often happens when judges are themselves challenged with disciplinary proceedings, Judge Edmund Clarke lied to the disciplinary panel.

First, Judge Clark lied that he did not see anxiety in juror 7122 - even though he excused her on that basis.

Second, Judge Clarke lied that he did not excuse the juror 7122 when he sent her to the hallway - because otherwise he would have to have known his conduct was illegal, so he tried to backtrack.

Third, Judge Clark lied that he detained juror 7122 because he had an "ethical obligation" to investigate her complaint - while Judge Clark did nothing to actually investigate, and instead assumed juror 7122 is lying, ordered her to sit and wait (for an hour) for being called back into the courtroom, and when she was called, used that time not to investigated, but to bully her for criticizing his clerk.

There was a squabble between the special master, the examiner and the disciplinary panel in the disciplinary proceeding where the  special master and the disciplinary panel tried hard, in different ways, to save Judge Clarke's sorry ass:

Now, if judge Clarke did excuse juror 7122, he should have known that his conduct in ordering her to wait, then calling her back into the courtroom for a tongue-lashing was outside of the judge's authority - and the woman did believe that she was called back in not to be heard, but to be chided for criticism of the judge's clerk:

And, of course, if Judge Clarke lied to the commission that he did not excuse the juror when he did, that would be a severely aggravating circumstance for the outcome of his case - which means, the issue whether the juror was or was not excused, was of utmost importance and required a factual finding by the disciplinary panel.

Here is what happened.

The special master found - against the record - that Judge Clarke first excused juror 7122, and then reversed the excuse after she criticized the clerk.

The significance of this finding is to protect judge Clarke giving at least a semblance of legitimacy to his order to the juror 7122 to sit in the hallway, keep her there for an hour and then order her back into the courtroom for a tongue-lashing.

The honest examiner disagreed with the special master's finding as not supported in the record.  In other words, the examiner pointed out that the special master lied.

What disciplinary panel, instead of resolving the conflict of findings between the special master and the examiner, on the MOST important issue involved - whether the judge acted illegally, and whether he lied to the commission about it - chose to claim this:

So, the disciplinary panel, consisting of "market players" (attorneys and judges) preferred to protect Judge Clarke's ass and make no findings on the most significant issue, whether judge Clarke knowingly acted illegally, and whether he lied to the disciplinary panel about it.  Moreover, the disciplinary panel claimed that the issue in question is not necessary in their determination of misconduct.

I just bet that if the disciplinary panel consisted of LAY CITIZENS, judge Clarke would have been taken off the bench - for mistreating that one juror and for lying to the disciplinary panel about it.

Nevertheless, as to juror 7122, the disciplinary panel concluded this:

But, juror 7122 was not the only one bullied by Judge Clarke in jury selection for that case.

Judge Clarke was disciplined - by admonishment only - for misconduct regarding 4 prospective jurors, and I will continue to analyze the disciplinary decision, juror by juror.

Stay tuned.

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