"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.

Tuesday, October 4, 2016

New York reacts to a criminal defendant's request for a non-attorney counsel of his choice - with a psychiatric evaluation and lockup

I wrote on this blog about what I thought to be the first known case of a consumer of legal services to file a motion requesting the court to allow him to be represented in court by an individual of his choice who is not a licensed attorney.

I was wrong stating that the motion filed in early 2016 in the U.S. District Court for the Northern District of New York was the first case where a consumer of legal services would ask the court to allow him representation in court by an individual of his choice, whether a licensed attorney or not. 

There was another, earlier, case in 2014, filed in the U.S. District Court for the Eastern District of New York, by an indigent pro se civil rights plaintiff Cory Townsend, I am publishing the entire complaint of Cory Townsend here, which I obtained from

Cory Townsend raised, among other issues, that he was improperly denied representation by "counsel" of his choice, who was a non-attorney.

The 6th Amendment provides for a right to "counsel" in criminal proceedings. 

Nowhere does the 6th Amendment say that the "counsel" must be a government-approved (licensed) attorney, and courts have no authority to narrow constitutional rights through interpretation, that is usurpation of authority of the People to make amendments to the U.S. Constitution.

So, the plain language of the 6th Amendment requires the court to accept the defendant's choice of court representative.

Recently, in an article addressing the "justice gap" and U.S. Supreme Court Justice Sonya Sotomayor's statement that she would endorse mandatory pro bono work by attorneys to bridge that gap (you can read here about the results of mandatory assignments to criminal cases of attorneys not specializing in criminal defense in Louisiana), law professor Ilya Somin suggested to give vouchers for assignment of public defenders to criminal defendants - so that they could choose their attorneys themselves.

That is not a revolutionary concept, because relationship with a court representative is a fiduciary relationship, a relationship of trust which cannot be ordered by a third party, or by the government, as it happens nowadays through court-appointed counsel in criminal cases.

After all, if "monied" litigants can hire private counsel of their own choice, indigent litigants should have their choice of counsel, too, even though the state pays for it.

Yet, courts are "unprepared" to give choice of a court representative to poor litigants, even when monies for legal representation and non-legal services auxiliary to such representation (experts and investigators) for the indigent are provided for by law.

In my husband's motion filed in the U.S. District Court for the Northern District of New York in early 2016, the court ducked the motion by refusing to address it at all and claiming that my husband is under an anti-filing injunction for new actions, even though the motion was filed in an old action, with a motion to vacate.

In Cory Townsend's case, the U.S. District Court for the Eastern District of New York dismissed his claim that his constitutional rights were violated when he was not allowed representation by a non-attorney of his choice without an explanation, reasoning or even without litigation - before the complaint was even served, so the court was acting as an advocate for the defendants.

Cory Townsend repeatedly objected to state-court-appointed attorneys and insisted on a non-attorney representing him, he was sent to an involuntary in-patient (locked up) psychiatric evaluation for his request, in the best traditions of Soviet punitive psychiatry against dissidents raising issues or expressing views as to government misconduct that the government considers inconvenient or dangerous.

Licensed attorneys are neither better educated, nor do they necessarily pass the bar testing their knowledge of the law of the state where they are practicing, based on reciprocity agreements between states on attorney admission.

And, statewide, not area-of-law-wide law licenses permit licensed attorneys to practice in the area of law of which they have absolutely no concept.

And, while justice gap in New York ever widens, New York itself invents ways of having the poor represented by unlicensed and uneducated individuals, while squeezing out qualified attorneys working for the poor, as explained in my pending petition to the U.S. Supreme Court - with a detailed explanation of mechanisms of how it is done.

But, when New York is squeezing out qualified counsel for the poor, including criminal defense attorneys, and invents "stop-gap solutions" where the poor are offered inadequate substitutes of qualified counsel of their choice, New York insists on one thing - that whenever the poor are, in fact, given counsel where counsel is constitutionally required (by Gideon v Wainright), the choice of counsel must be the presiding judge's and not the poor criminal defendant's.

Well, one criminal defendant in New York, Cory Townsend, did not want to accept the choice of his counsel, a relationship of trust, from the presiding court - and filed a federal complaint about it in the U.S. District Court in the Eastern District of New York, in 2014.

He was given a "poor person status" - but only to dismiss his case before it was served upon the parties, on various theories

His claim that he was entitled to representation by "counsel" under the 6th Amendment by any individual of his choice, whether licensed or unlicensed, went unaddressed.

The dismissal was affirmed on appeal.

I will have to split analysis of Cory Townsend's complaint into several blogs, as it raises a number of important constitutional issues that would be better to analyze separately.

Here, I will address that Cory Townsend objected to appointment of a public defender:

  1. On September 27, 2012 Judge Curtis Farber appointed public defender Iliana Santiago over objection of criminal defendant;
  2. On October 1, 2012 Judge Farber had a proceeding where the defendant was not present, with Cory Mescon as his public defender - while he objected to a public defender;
  3. On November 26, 2012, defendant was brought into court before Judge Alexander Jeong, represented by public defender Cory Mescon who Cory Townsend claimed did not represent Cory Townsend properly;
  4. On February 19, 2013, defendant was brought to court before judge Danny Chun, and objected against representation by public defender Mijin Chung Kang; his objections were ignored, but Cory Townsend claims he was not properly represented by attorney Kang;
  5. On April 17, 2013, Cory Townsend was brought before the court again, and attorney Kang against whose appointment Cory Townsend objected, was there representing him, against his wishes, again;
  6. On May 21, 2013, at another court appearance, Cory Townsend objected to representation of attorney Kang again;
  7. On June 26, 2013, at another court appearance, Cory Townsend objected to representation of attorney Kang again;
  8. On September 25, 2013, at another court appearance, Cory Townsend objected to representation of attorney Kang again;
  9. On October 21, 2013, at another court appearance, Cory Townsend objected to representation of public defender Christiana Giardino;
  10. On December 3, 2013, at another court appearance, Cory Townsend objected to representation of attorney Giardino again;
  11. On January 16, 2014,  at another court appearance, Cory Townsend objected to representation of attorney Kang again;
  12. On February 6, 2014, at another court appearance, Cory Townsend objected to representation of attorney Reginald W. Haley III;
  13. On March 20, 2014, at another court appearance, Cory Townsend objected to representation of attorney Craig Lee Newman;
  14. On May 1, 2014, at a court appearance, Cory Townsend objected to "recusal" of attorney Craig Lee Newman as his representation - I am following the complaint;
  15. On May 2, 2014, at a court appearance, Cory Townsend objected again to "recusal" of attorney Craig Lee Newman as his representation;
  16. On May 20, 2014, at a court appearance, Cory Townsend objected to representation by appointed attorney David Michael Walensky;  despite Cory Townsend's objection to representation by David Michael Walensky, he claims he was coerced into agreeing to a psychological evaluation with Walensky as his counsel;

On June 10, 2014 the court ordered an in-patient competency evaluation and had Cory Townsend detained in a psychiatric facility.  No court representative of Cory Townsend's choice was present at the hearing.

At that hearing, Cory Townsend wanted to be represented by a non-attorney, as stated in the court order of federal court dismissing his complaint.

On June 18, 2014, a petition for habeas corpus was filed on Cory Townsend's behalf.

On July 2, 2014, at a court appearance, a trial was scheduled for September 10, 2014 - meaning that competence of Cory Townsend should not have been in question, otherwise he could not be tried.

All that Cory Townsend wanted is the appointment of a non-attorney Lidya Radin to represent him in court at a hearing which eventually sent him to an in-patient competency evaluation, and that was denied to him.

Federal court, while acknowledging that Cory Townsend raised the issue that he wanted a non-attorney represent him at the involuntary competency hearing, said nothing further of that issue, did not analyze it and dismissed that claim without an explanation, analysis or statement of legal grounds.

Based on the fact that a trial was scheduled after the order for a competency evaluation, Cory Townsend was deemed competent.

So, what occurred is that:

  1. a person who was presumed to be competent was brought as criminal defendant before a criminal court;
  2. the criminal defendant objected to appointment of public defenders at least 16 times in court;
  3. defendant's objections were ignored and public defenders not of his choice, against whose representation he vigorously objected, continued to represent him, represented him in a manner that he objected to, including in his absence;
  4. defendant's request for a non-attorney to represent him at the competency hearing was ignored by the court, and the court ordered his competency in-patient (locked up) evaluation in a psychiatric hospital while he was represented by an attorney who was forced upon him by the court and against whose representation he vigorously objected;
  5. then, he was deemed competent, and was convicted.

We come back to the same issues:

  1. does a competent consumer of legal services have a choice of his own fiduciary agent, a court representative, whether the representative of the consumer's choice is licensed (approved by the government to "help" him with his choice) or not?
  2. is it constitutional - to force a consumer of legal services, and especially one sued by the government, to accept a government-approved, government-appointed court represented as his only alternative to pro se representation?
I will continue to analyze Cory Townsend's civil rights lawsuit, and decisions (trial and appellate-level) dismissing it.

Stay tuned.

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