The public all across the U.S., and in California, claimed, through petitions to remove #JudgeAaronPersky, that Judge Persky made a super-light sentence of the rapist of an unconscious woman Brock Turner because Judge Persky identified with Brock Turner as a young white athlete of Judge Persky's own alma mater.
What constitutes bias (lack of impartiality) is an objective standard judged by the perception of a "reasonable observer".
Hundreds of thousands of reasonable observers, members of the public told California Judicial Qualifications Commission what their reasonable perception is - that Judge Persky was, in fact biased in Brock Turner's sentencing.
Of course, in a similar case in New York, when improper refusal of New York Commission for Judicial Conduct was raised in federal court, federal judge Mae D'Agostino, without disclosure that she was the Chairwoman of the New York State-Federal Judicial Council (NYSFJC), ruled that members of the public who have filed complaints about judicial misconduct, do not have a right to claim impropriety of non-prosecution on their meritorious complaints.
While a victim of judicial misconduct can be said not to be neutral and impartial as a "reasonable observer" assessing judicial bias, petitioners, members of the public, were not victims, they were the reasonable observers who were assessing Judge Persky's behavior - and found it biased.
Moreover, Judge D'Agostino's and the 2nd Circuit's rulings referenced in Judge D'Agostino's decisions on the issue of judicial bias or non-prosecution of complaints against state judges cannot be deemed unbiased in themselves, because both the Chief Judge of the 2nd Circuit appoints judges to the New York State-Federal Judicial Council, and Mae D'Agostino presided over that Council, without disclosure of their participation in that organization.
Only anecdotal evidence is available about NYSFJC (and other "chapters" of State-Federal Judicial Council, including California SFJC).
Nominations are "being solicited", attorneys self-report "serving" upon "advisory committees" of the SFJC and advising judges, members of SFJC, while appearing in front of them in cases, some mysterious "matters of mutual interest and concern" between state judges who appear as defendants in civil rights actions in front of federal judges are reported.
The State of New York Office of Court Administration, in response to my Freedom of Information Request, only coughed up one (ONE) document of NYSFJC (despite 46 years of existence of state federal judicial councils at the very least)
- and that document indicated that New York Chief Judge and the Chief Judge of the 2nd Circuit appoint judges to the Council, and that Judge D'Agostino - obviously appointed by the 2nd Circuit Chief Judge - "served" as a Chairwoman of this shadow organization, existence of which is not supported by any laws, and purpose of which is clearly to fix court cases.
- membership in SFJC is secret - and
- the 2nd Circuit is stalling my FOIA request until this day as to membership in that Council (claiming I am not authorized BY LAW to get information about list of members of an ILLEGAL formation between state and federal judges, because I am seeking information about "federal judiciary" - state judges and attorneys serving that Council are certainly not members of federal judiciary, but that does not seem to bother the 2nd Circuit) -
Apparently, the existing structure of state courts, and checks and balances of constitutionality of what the state government is doing through the Civil Rights Act, was not enough - or satisfactory - for the U.S. Supreme Court Justice Burther, and he decided to tweak the system behind the scenes, with ALL state and federal courts following the "suggestion".
Here's what State Federal Judicial Councils are created to do:
So, when state and federal judges communicate behind the scenes - like in Bracci v Becker, for example, where federal judges, member and Chairperson of the Council, presided over the case, while state judges (likely members of the council - membership has not been disclosed to me by either the state court system on a FOIL request, or the federal court system, on a FOIA request), defendants in the case, received a favorable decision from the Chairperson of the Council - and while the appointing court for the Council, the 2nd Circuit, created decisions that "slightly modify the law" in order to help fix those cases,
as well as presided and actually helped "eliminate sources of friction between state and federal law officers" - in other words, blocked civil rights lawsuits against state judges.
Of course, judges, under the doctrine of separation of power, pursuant to state Constitutions (for state judges) and under Articles I and III of the federal Constitution (for federal judges), do not have the right to modify the law - "slightly" or at all, for that matter, since that would be treason, violation of judges' constitutional oath of office given when taking the judicial office.
And, 1970, when the Councils were thought-up by the judiciary and started to mushroom, without any legal basis or authority, is, coincidentally, the time of increasing civil rights movement and increasing civil rights lawsuits.
In his article, Judge Jack Weinstein, of course, under the guise of trying to "meet the needs of the American people", points out at the "overwhelming bulk of cases" that "states must, and should, continue to handle".
But, Jack Weinstein, again, under the guise of better use of "joint resources" of state and federal judicial system, suggests to use "various methods for effectively utilizing joint resources" - but admits that such "methods" "may raise constitutional ... difficulties".
"Constitutional difficulties" is just another way of saying that such methods of "utilizing joint resources" by state and federal systems may be unconstitutional.
And, judging that the judicial decisions "slightly modifying the law" emerged starting with 1970:
- the Younger abstention decided in 1971 (a year after Judge Burher's suggestion to create state-federal judicial councils in order to illegally "slightly modify the law", see how Chairwoman of the New York State-Federal Judicial Council Judge Mae D'Agostino rebuffs my claim of unconstitutionality of the Younger abstention in Bracci v Becker, without disclosure of her role as the Chairwoman, or her purpose to "slightly modify the law" to help her Council co-members, state judges, defendants in the case);
- the absolute judicial immunity - decided in 1978;
- absolute prosecutorial immunity - decided in 1976;
- judicial "reading" of the 11th Amendment contrary to its text - that it now allegedly blocks lawsuits of citizens against their own state governments;
- other types of governmental immunities that block most of civil rights actions;
- the heightened pleading standard which contradicted Federal Rules of Civil Procedure 8 and 9, and the Civil Rights Act;
- the Rooker-Feldman doctrine - formed in 1983 and, together with the Younger abstention, and judicial, quasi-judicial, prosecutorial, and other governmental immunities, broadly construed, blocks nearly all civil rights cases from being reviewed in federal court on the merits, and forcing civil rights litigants into a no-win vicious circle -
- you need to first raise your federal constitutional claims in state court (which will dismiss it without review, or with sanctions, on the doctrine of "constitutional avoidance"), even though the Civil Rights Act does not have a requirement of exhaustion of state remedies before suing in federal court, but
- whether you did or did not raise your federal constitutional claims in state court, your federal constitutional claims will still be blocked in federal court because, allegedly, since you COULD raise federal constitutional issues in state court - whether you did or did not do that - you CANNOT raise federal constitutional issues in federal court after state court ruled on the subject matter of your complaints.
Then, Judge D'Agostino claims that Younger, a plurality, not a majority opinion, with a very strong dissent, is a "binding Supreme Court precedent that [her court] is required to follow" - even though Younger modifies the Civil Rights Act by forcing civil rights plaintiffs into exhaustion of state court remedies, a condition that is not contained in the Civil Rights Act, and the U.S. Supreme Court certainly did not, under Article III, have the power to usurp the U.S. Congress's exclusive authority under Article I to legislate and modify its legislative acts.
Obviously, Mae D'Agostino, the Chairwoman of the New York State-Federal Judicial Council, is seeking to "slightly modify the law" by judicial decisions to help out her Council friends, representatives of state judiciary - judges-defendants sued in Bracci v Becker.
And that, ladies and gentlemen, is called case-fixing, a criminal offense under the federal law and an impeachable offense.
- Judge Persky's "contacts with Stanford University are insufficient to require disclosure or disqualification"; that
- the sentence was within Judge Persky's "discretion" - even though, when the judge is biased, it is clearly a problem to allow him to exercise the "discretion", and thus the issue whether the decision was within Judge Persky's "discretion" is irrelevant for determination of whether he was biased; and
- the Commission DID NOT use the only test that it was supposed to for determination of bias - whether Judge Persky's actions, reviewed from the position of a reasonable objective observer, appeared to be biased.
- require better disclosure of conflicts of interest and preferences by judges;
- ensure better, safer ways for the attorneys, to move to vacate, or appeal judicial decisions based on bias - so that attorneys would not be afraid, like the prosecution obviously was in Brock Turner's case, to claim judicial bias in front of Judge Persky, or on appeal;
- reduce "discretion" at sentencing for violent crimes; and
- improve judicial accountability by having judicial conduct commission populated by members of the public without any ties to the judiciary or to the legal profession.
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