"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.

Monday, October 3, 2016

The pretense show of being tough on prosecutorial misconduct begins across the country - and ends in Arizona by letting a prosecutor keep profits from his misconduct

California has made introduced new legislation to hold prosecutors criminally accountable - for a felony, a disbarring offense - if they withhold information from the defense, which they USUALLY do.

Of course, the teeth of any law is in its enforcement, and, where the law concerns criminal liability of prosecutors, I believe that the public and not other prosecutors, must be given the right to turn cases over to the grand juries - which California did not do.

So, theoretically, there is some progress made.

Practically - there is an appearance that the public is being appeased, but the law will change nothing, since prosecutors who habitually withhold Brady material will not charge their brothers and sisters for doing the same.

At the same time, in Arizona, a prosecutor who committed misconduct in several cases, over several years - and misconduct included even writing a book about a criminal case he prosecuted before the case was appealed (talking about personal interest of a prosecutor in the outcome of litigation), the prosecutor received a whopping discipline of an "admonition", and "probation".

The prosecutor announced in November of 2015 that he is "set to release" the book about the case where he prosecuted a person for murder, in 2016, before the appeal ran through, thus disqualifying himself from opposing the appeal since he acquired a pronounced financial interest in the outcome of litigation - and attorneys are prohibited by rules of professional conduct from acquiring a cause in their client's case, so what prosecutor Martinez was doing was attorney misconduct even had he not been a criminal prosecutor.

Moreover, a criminal prosecutor represents the People in a criminal case, and there may not be any "untold stories" sold by prosecutors to the public - because such information is either privileged under attorney-client privilege, or improperly withheld from the defense, and a criminal prosecutor in either event may not be allowed to profit from his own wrongdoing.

The book was, indeed, published on in February of 2016, and was on a pre-order before that:

It takes time to put together such a book.

The fact that it was so quickly published after the conviction indicates that prosecutor Martinez prosecuted the case not so much to do his job "so crimes are prosecuted vigorously, and so that justice be done", but in order to gather material to publish this book, and enrich himself.

The disciplinary proceedings, resulting in admonishment and probation, did not actually require prosecutor Martinez to stop selling the book, as he had no right to sell that story.

Martinez continues to sell the book as of today:

Here is how prosecutor Martinez describes himself and the book in order to drum up sales despite the fact that he had no right to sell the story, and selling the story was attorney misconduct and public fraud:

For his misconduct, Martinez was not disbarred, was not even suspended - while misconduct listed in the 27-page complaint was committed in 11 murder cases.

Martinez was not ordered to forfeit his ill-gained proceeds from the book either.

And, Martinez is no novice as a prosecutor - he advertises himself on Amazon as being a prosecutor for 27 years, so he knows full well he should not be doing what he is doing, but - easy money for a sensational book was too hard to pass by:

Moreover, as of today, the page of Juan Martinez's book also features an interview with Martinez - which makes no mention that he was admonished for publishing the book in the first place.

With a slap on the wrist, the happily smiling Mr. Martinez continues to sell the evidence of his misconduct, gaining glowing customer reviews and profiting by his misconduct.

Amazingly, a seasoned - retired - attorney with 37 years of experience, filed one of the glowing reviews, in full knowledge that publishing such a book was prosecutorial misconduct:

So, the Arizona bar, essentially, said - go ahead, Mr. Martinez, do more of the same - and maybe, it will be addressed with another admonition in some more years.

The question is - did Martinez share the proceeds from the book with the disciplinary prosecutors and judges to keep his loot?

The disciplinary decision in Arizona does not even cite the prosecutor's specific misconduct, so that it would be clear for the public whether the discipline was too light.

So, that is another curtsy to appease the public into believing that discipline of prosecutors is more than what it actually is, a closed-door rigging game.

At the very same time, in New York, prosecutors continue to be the Sky Dwellers who may never be touched by attorney discipline and can engage in any kind of misconduct they want.

Even though New York Senator DeFrancisco (himself an attorney) introduced a bill for creation of a separate Commission on Prosecutorial Misconduct which was heralded when it was introduced, in 2014, as "the first in the nation" - New York State Association of District Attorneys have so far lobbied the bill into non-existence, and the regular attorney disciplinary board continue to enforce their unspoken policy of not prosecuting prosecutors.

Here is how the lobbying by the Association of the District Attorneys against the bill was described in the testimony by Mr. Bastuk, a victim of prosecutorial misconduct who testified in front of New York Commission on Attorney Discipline in Buffalo in 2015:

But, as I said in my previous blog, the wheels of justice may be turning slowly, but they are, in fact, turning.

So, we see at least some changes in how prosecutorial misconduct is addressed, no doubt, brought about by public pressure and outrage.

And, public pressure and outrage should continue if we want any real progress be made against prosecutorial misconduct.

And - the public, the Arizona taxpayers should press the Arizona disciplinary authorities to revisit Martinez's disciplinary case and make him forfeit all profits from his ill-gained book and put the profits into the state budget.

Update as of October 4, 2016Martinez is appealing his discipline.

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