"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, October 15, 2016

"Don't believe the plumber!" - or, on constiutionality of mandatory alibi disclosure to the prosecution and whether the California #JudgeEleanorHunter will be investigated for helping the prosecution obtain a wrongful murder conviction

Murder is the most heinous of known crimes.

We all have only one life, and there is no adequate remedy for taking it.

From time immemorial investigation and prosecution of murders were given by all kinds of governments the utmost serious consideration..

In our country, which is founded upon the U.S. Constitution - there are several principles, in view of the gravity of charges in murder cases, which protect all criminal defendants charged with murder - throughout the country, in all states.

I will name only a few of those federal constitutional principles, which are relevant to the case I am going to describe today.

The 5th Amendment to the U.S. Constitution grants to the criminal defendant the right to remain silent (the right against self-recrimination) - throughout the criminal proceedings.

The burden of proof is at all times in the criminal proceedings upon the prosecution.

It is the prosecution that has to produce evidence and persuade the jury that:

1) the defendant, identified by incriminating evidence and/or witnesses
2) was at a certain place
3) at a certain time, and
4) caused the death of the named victim
5) in a specific way.

Being at the time of the crime at the place of the crime is part of the proof that the person committed the crime of murder.

Yet, the accused may not have been there at the time of murder, or at all, which is called an "alibi".

It is obvious that, under the 5th Amendment, a criminal defendant does not have to prove anything - including that he was not there, and that, instead, it is the burden of the prosecution to prove, instead, that the criminal defendant was at the place of killing at the time of killing (and that he actually killed the victim).

Yet, several states, including, unfortunately, the State of New York, requires the criminal defendant, to notify the prosecution of the defendant's intent to raise the alibi defense and to provide to the prosecution with the alibi information. 

For example, New York Criminal Procedure Law 250.20(1) requires the defendant to provide the following "Notice of Alibi":

Note that in New York - as in any other state - there may be a considerable time from arraignment to the actual murder trial, including discovery, pre-trial motions and pre-trial motion hearings.

Yet, the defendant in New York must provide to the people "within 8 days of service" all information about his alibi defense - in violation of the 5th Amendment right to remain silent.

So, for example, if the People in a New York case serve upon a criminal defendant (as prosecutors routinely do) a Demand for the Notice of Alibi Defense at arraignment, the defendant must provide to the people the alibi information within 8 days of service - or lose ability to raise the alibi defense (the defense of ACTUAL INNOCENCE) at trial.

Once again, if the criminal defendant in New York does not agree to violation of his 5th Amendment right to remain silent, he must face a possibility of a wrongful conviction, because he will be PRECLUCED, procedurally blocked, from presenting the defense of actual innocence, the alibi defense

- while the proof that the defendant was at the time and place of the crime is actually part of the prosecution's burden of proof.

Yet, while criminal defendants in New York must produce to the prosecution information pertaining to their alibi defense within 8 days of service of the demand, the People are not obligated to provide to the defendant the names and addresses of witnesses who will testify that the defendant was at the scene of the crime at the time of the crime - even though People have to provide to defendant 10 days before trial (!) the list of rebuttal witnesses.

First of all, it makes no sense to claim that, when the defendant says he has a witness who can testify that the defendant is not at the place and time of the crime, while the prosecution will, after reviewing that evidence, present at trial a witness who will testify that the defendant was at the place and time of the crime, such prosecution's witness is somehow not a "rebuttal" witness - as a matter of law.

A rebuttal witness is usually the witness that testifies after the witness for the defense and rebuts what he defense witness says.

Yet, since the defense, according to the 5th Amendment, has a right to remain silent and present no witnesses at all, NORMALLY the prosecution cannot even prepare rebuttal witnesses - because, under the 5th Amendment, demanding ANY discovery from a criminal defendant is unconstitutional.

In New York though (and in all other states that require an alibi defense), since the defense is forced to disclose its alibi witnesses as early as 8 days after arraignment (if the demand for the notice of alibi is made at arraignment, which is usually the case), the witness the prosecution puts on in its direct case (not rebuttal) is factually a rebuttal witness of the alibi defense provided to the prosecution in the required notice.

Also, note the discrepancy in time - the defendant must provide the alibi disclosure to the People 8 days after arraignment if served with notice at arraignment. 

On the other hand, the People must provide the names of rebuttal witnesses to the defendant only 10 days before trial (where pre-trial preparation may take months if not years - a huge advantage improperly given to the prosecution), or not at all, because the prosecution will not disclose the identity of the de facto rebuttal witnesses who will testify that the defendant was at the time and place of the crime.

Note also at least two problems that may arise with timely production of alibi witnesses or evidence:

1) a defendant may be inable to identify such witnesses, even though he knows there are plenty of witnesses - such as, defendant's alibi is, for example, that at the alleged time of the crime he was in a crowded public place, but did not know the names of people surrounding him who saw him;  if the defendant later on learns names of such witnesses, he may be precluded from presenting them;

2) the prosecution often does not clearly identify time or place of the crime, making it impossible for the defendant to provide an alibi defense for the particular time and place - as an example, a defendant may drive through a certain place on a daily basis, but had an alibi of being at another place at a certain time of the day for a certain day, but the time and place of the crime are given within large margins (on or about 1st through 31 of October, in the town of X, without the exact location within the town of X).

As unfair as it is though, if a criminal case is tried in New York, one thing you know - since the Notice of Alibi is not only served upon the prosecution, but is also filed with the court, the judge, from early on in the proceedings, knows the identity of the defense alibi witness.

Not so in California.

In California, the notice of alibi was required, for a short time, but then the requirement was removed as unconstitutional.

So, one needs to look into the circumstances of a particular case to see whether, at the outset of a criminal trial, the judge actually knew:

1) that the defense is going to present an alibi witness; and
2) the identity of the alibi witness.

In California, an appeals court this month has reversed a murder conviction and a 114 year prison sentence of a black man, Vincent Tatum

convicted by a jury and sentenced by a white judge Eleanor Hunter,

a career prosecutor appointed by Governor Schwarzenegger in 2005.

Like the robe-tossing judge McBain I wrote about yesterday, Judge Hunter, as a career prosecutor, was raised and bred on the notion of impunity for whatever she does on the job.

So, what she did at the murder trial of plumber Vincent Tatum looks like a prosecutorial stint she learnt on the job as a prosecutor (and she prosecuted many murders, and now there is a question as to how honest were those prosecutions and convictions obtained by her).

When addressing the jury candidates at the time of voir dire (jury selection), Judge Hunter, under the guise of an explanation as to what constitutes a pre-judgement, pointed to her own personal views of pre-judgment - that she would never believe a plumber because of her own personal experiences with plumbers.

The defendant was a plumber.

The defendant's alibi witness was a plumber.

The case rested upon credibility of the alibi witness.

The prosecution - improperly and apparently without control from the judge - vouched to the jury that the alibi witness is lying.

The jury did not believe the plumber - because the judge didn't.

And convicted the defendant, also the plumber.

For murder.

And Judge Hunter - who dislikes plumbers because of her personal experiences with plumbers - sentenced a defendant plumber for 114 years in prison.

Now that the appellate court has reversed this "plumbing conviction" - and sentence of 114 years, California taxpayers, no doubt, will be asking its government, and the federal investigating authorities, the 10-million-dollar question:

  • Did Judge Hunter know, before she made her extraordinary disclosure about her personal pre-judgment of credibility of plumbers - while presiding over a case where a plumber was charged with murder - that (a) the defendant was a plumber, and that (b) the defendant's alibi witness was a plumber?

It appears highly likely that she did, otherwise it is really extraordinary for a judge to, on the one hand, instruct the jury to be impartial and not to pre-judge, and, on the other hand, lead the jury by personal example and tell them that the judge herself does prejudge credibility of a certain class of people.

Actually, if Judge Hunter disbelieves ALL plumbers because of her personal experience with some of them, Judge Hunter should be taken off the bench - because otherwise litigants appearing in front of her will be forever in the dark figuring out whether Judge Hunter, because of some other personal experiences, automatically disbelieves other people, simply because they belong to certain professions, or maybe classes, or are joined by other factors uniting them with those who personally offended judge Hunter in the past.

Moreover, it is just too much of a coincidence when a judge, who was a career prosecutor in murder cases in the past, makes such an extraordinary personal observation at the time of jury selection in a murder case of a plumber - about her own prejudgment and not believing plumbers.

It is simply too much of a coincidence to claim that the judge did not know that the defendant in front of her was a plumber, and that his alibi witness to be presented later on at trial was a plumber, too.

Murder trials are extraordinary costly - because the state, at least formally, must provide extraordinary procedural protections to the accused.

If what Judge Hunter did was deliberate, she deliberately:

1) fixed a court case - which is a crime;
2) brought about a wrongful conviction and sentenced a person belonging to the class she does not like, after she brought about the wrongful conviction by her misconduct, to 114 years in prison; and
3) cost California taxpayers an extraordinary amount of money for the pre-trial proceedings, the trial (which will have to be all re-done now) and for the appeals, which would not have been necessary but for her behavior.

It is interesting to know whether Judge Eleanor Hunter will be investigated and prosecuted as an attorney, as a judge and criminally for her extraordinary misconduct.

It would also be interesting to know whether Judge Eleanor Hunter will be taken off the bench as unfit for judicial office, since she admitted that she forms pre-judgment of people's credibility based on their belonging to certain professional groups and because of personal experiences.

A judge must be able to be neutral.  Judge Hunter admitted she is not neutral if a litigant in front of her triggers her recollections about negative personal experiences, where personal experiences of judges are not part of the record, and there is no possibility for litigants to verify whether the judge's credibility determinations were or were not triggered by the judge's personal experience.

Judge Hunter is just too much of a danger to litigants.

She already cost defendant Vincent Tatum years in prison and tremendous stress.

She already cost California taxpayers hundreds of thousands of dollars spent on criminal investigation and prosecution of Vincent Tatum which will have to be all redone now.

I believe, Judge Hunter's other cases, and her cases as a prosecutor must now be thoroughly investigate to see what kind of tricks she used to pave her way to judgeship there.  It is unlikely the judge pulled a dishonest trick for the first time in her life - usually where there is immunity for corrupt acts, the immunity that covered Judge Hunter her entire career as a prosecutor as a judge, such immunity breeds what it covers - corruption.

I wonder whether Judge Hunter will be investigated whether she received any financial reimbursement to do what she did, or whether her misconduct was "gratuitous" - just to help a fellow prosecutor win a murder case.  And bring about a wrongful conviction.   No big deal, happens all the time in this country, right?

I will continue to cover this story.

Stay tuned.

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