"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 1, 2016

Judge Damon Keith on racism of federal court judges in Ohio: " Democracies die behind closed doors. ... I am deeply saddened and distraught by the court's deliberate decision to reverse the progress of history"

Donald Trump called out a Latino judge Gonzalo Curiel for not recusing from the case of Trump University because of the judge's background.

The judge refused to recuse, even though there was plenty in his background warranting recusal, see here and here.

We have federal judges openly claiming that their personal heritage should be used in their judicial decisions.

One judge who so claimed is a federal appellate judge Ilana Rovner, the other is one of the present-time U.S. Supreme Court Justices Sonya Sotomayor.

Here are both of judges holding beliefs that their personal heritage must be part of their judicial decision-making (the two judges on the right):

Moreover, the U.S. Supreme Court exceeded its authority to the point of allowing federal judges to act as unsworn witnesses and adjudicators and use their own personal "experiences" (which are not made part of the record and are not known to litigants), in order to decide sufficiency of pleadings in civil rights cases - cases which, under the 7th Amendment of the U.S. Constitution, demand that all issues of fact are decided by jury.

At the same time, the U.S. Supreme Court, in Batson v Kentucky, has made clear, at least in one context, that (whatever those judicial experiences are), discrimination based on race at least in criminal proceedings is constitutionally intolerable - and criminal verdicts made by juries picked with the exclusion of a certain race are unconstitutional.

Yet, in the same blessed state of Kentucky, an African American judge Olu Stevens

was suspended for trying to do his job and eradicate racism in criminal proceedings, just as the U.S. Supreme Court directed to be done in Batson v Kentucky.

Now, in the State of Ohio, another judge, a federal 94-year-old African American judge Damon Keith

not only issued a fiery dissent against his colleagues, judges whom Judge Damon Keith pretty much accused of racism in their court decision.  Judge Damon Keith also gave an interview to the press about his beliefs that led to his dissent, a very unusual situation.

Judges usually do not - and are not supposed to - make public comments about their judicial decisions.  Judge Olu Stevens of Kentucky was suspended for not only fighting racism in the courtroom, but also for making public comments about racism (even though the racism was apparent) of a white prosecutor.

Here is Judge Keith's 38-page dissenting opinion (you can use the keyword "dissenting" to find it within the pdf document starting with the majority opinion).

The majority judges whose opinion Judge Keith criticized as racist was authored by white male judges:

and John M. Rogers:

Here is how Judge Keith's dissenting opinion starts:

And here is how it progressed (I encourage my readers to read the dissenting opinion of Judge Damon Keith in its entirety, here I will only provide some excerpts):

Judge Damon Keith then provides life stories of 35 people, both black and white, with pictures, who were killed by white supremacists, many of them for their stance on the right of the persons of color to vote.

This is the voting law in the State of Ohio that Judge Keith describes as challenged in the lawsuit:

While describing the history of how the new law came about - and I encourage my readers to read the entirety of that account - Judge Keith, importantly, points out that, while the new law presupposes some literacy in providing the necessary information, help to illiterate voters by poll workers is prohibited by that same law:

Judge Keith points out that the standard of review on appeal in federal court is a "de novo" review of issues of law and mixed issues of law and fact:

but also deference to the factual findings of the trial court:

Judge Keith then points out that not only the district court made reasoned determinations warranting deference, but that those determinations were made after a 12-day bench trial, as a culmination of several years of litigation, and based on a lot of evidence presented to the court:

Despite the applicable standard of review of "clear error" as to factual findings of the trial court, the majority, according to Judge Keith, overruled the factual findings simply because the court could decide differently

Obviously, the only reason for the majority to depart from the clear standards of review was their desire to do so.   

Judge Keith then points out that the majority disregards the requirement of using the "totality of circumstances" approach in analyzing the disparate impact of the law on the right of the persons of color to vote, instead using what Judge Keith called a "piecemeal freeze frame approach", analyzing whether each one of the factors, taken separately, demonstrate a disparate impact - which is too much of a burden to meet, and is not required by law.

Judge Keith points out that the majority misinterpreted or misrepresented certain evidence in the case, applied a wrong legal standard to analyze the equal protection claim, fundamentally misrepresented and misapplied the disparate impact legal standard, disregarded the lower court's findings of the history of racial discrimination in voting in Ohio.

Here is Judge Keith's full conclusion about the majority's opinion:

Did Judge Keith use "the richness of his experiences" as a black person living in Ohio?

Judge Keith is, reportedly, a grandson of former slaves, and surely his family's "rich experiences" with slavery and then with racial discrimination, formed his world outlook.

Yet, the dissenting opinion of Judge Keith shows that the judge DID NOT use "the richness of his experiences" - or his family's - in that opinion.

Instead, he analyzed the majority's opinion under the law, and under the required standard of deference to the trial court's decision.

Here, the parties voluntarily chose an African American district court judge, Algernon L. Marbley,

to hold a bench trial, not a jury trial, in their case.

Then, a super-majority of white judges was appointed to decide the appeal from that case, and suddenly, all legal standards required to apply deference to the decisions of  black judge were scrapped, and two white judges, acting, without authority, as trial judges instead of appellate judges, overruled the factual findings of a black judge.

All that Judge Keith's dissenting opinion was pointing out - as "impassioned" as the press called that opinion - was that the majority did not apply the required legal standard and did not afford due deference to the lower court's factual determinations, as they were required by law.

And that was a continuation of "white supremacy", now on the bench.

The "white supremacy" in the courtroom continues not only through Judge Olu Stevens' removal in Kentucky, and overruling of Judge Algernon Marbley's case by the super-majority of white judges in Ohio federal court who disregarded applicable legal standards and acted as trial judges instead of appellate judges.

In California, white female #judgeAnne-ChristineMasullo

is currently the target of a public defender's motion to recuse based on allegations of racial bias.

Judge Masullo is listed on the website of her court as a "Family Law" supervising judge:

Here is a review I found about Judge Massullo's practices in Family Court:

Yet, Judge Massullo, a career prosecutor before coming to the bench, was assigned to the criminal case against an indigent African American man for resisting arrest.

Judge Massullo, in a pre-trial ruling, prohibited the public defender to ask prospective jurors their opinions about the Black Lives Matter movements and the police brutality - which, obviously, would allow the prosecution to keep on the jury jurors with prejudice against African Americans and their resistance to police brutality.

While the case claims to be one of robbery or attempted robbery, there exists - thank God for cell phones - evidence showing a police officer punching the defendant while he was already in handcuffs and on the floor face-down.

Nevertheless, it was the defendant who was charged with battery on police officers and not the other way around.

The alleged robbery - conspicuously - was not charged, even though it was the trigger for the whole situation, and there are claims that the allegations of robbery were made by a passenger who insulted the defendant's pregnant girlfriend - and that defendant was unarmed and did not commit robbery.

By the way, in the state of Texas last year, the jurors were given questionnaires to answer in writing as to their opinions on the Black Lives Matter movement and police brutality - while Judge Massullo prohibited a public defender in California to question prospective jurors about their opinions on the same subject even orally, during the jury selection (voir dire) stage of the criminal trial.

Knowing Judge Massullo's background as a career criminal prosecutor, as well as her reported stance on pushing people to settlements, is it her way to push the criminal defendant to reach an agreement with the prosecution, in view of the prospect of not being able to pick an impartial jury?

So, the "richness of experiences" of the nation's judges informing their decisions continues to boggle observers' minds.

What plausible reason could Judge Massullo possibly have, other than her personal bias and apparent desire, as a former career prosecutor, to help the prosecution, to block questions of a public defender to prospective jurors, in a criminal case against an African American involving police brutality, about their opinions on the movement of African Americans resisting police brutality?

I will continue to cover the subject how the "richness of experiences" based on judges' personal backgrounds "guide" their decision-making.

And how this nation's courtrooms are ruled by personal whim of judges, causing our democracy, as Judge Keith cogently stated, to "die behind closed doors".

Stay tuned.

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