"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.

Thursday, December 22, 2016

California sets a new low - standard - on judicial bias, defying the public's reasonable perception of bias in #JudgeAaronPersky's case

There is a constitutional right to impartial judicial review in all proceedings, civil and criminal.

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.

So, since

  • 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) -
Judge D'Agostino's decision in Bracci v Becker and its subsequent affirmation - through a non-precedential summary order - by the 2nd  Circuit, both participants in the behind-the-scenes case fixing for judges sued in civil rights actions in federal court - cannot be seriously construed as legal decisions of courts, instead of case-fixed, and thus void, decisions of interested parties.

That is especially true that the only comprehensive overview of the State-Federal Judicial Councils, by its participant, federal judge Jack Weinstein, indicates that SFJC are created to "relieve tension" between state judges (defendants in civil rights actions) and federal judges (presiding judges in such cases), which smacks clearly of corruption and case-fixing.

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.
The doctrine of Rooker-Feldman is a statutory appellate doctrine based on the idea that only the U.S. Supreme Court, as a direct appellate court, may review claims from the highest state court.

Yet, if federal constitutional issues were not raised in state court, but are regarding violations of fundamental constitutional rights, under Marbury v Madison, state court decisions are void (as in being "null", never made), and the Civil Rights Act does not require anybody to raise federal constitutional issues only in federal courts.

Look how the Chairwoman of the New York State Federal Judicial Council ducks the issue of unconstitutionality of the Younger abstention - where federal courts refuse, despite their clear jurisdiction under the Civil Rights Act,  to exercise it, waiting until state courts (judges being defendants in federal court) decide federal constitutional issue, thus forcing civil rights plaintiffs in federal court to first raise their federal constitutional issues in state courts, the courts that are already violating their constitutional rights - and then, the federal court will block the same civil rights plaintiffs, on Rooker-Feldman grounds, after the state court rebuffs their federal constitutional challenges referred to them on Younger abstention grounds.

Judge D'Agostino first slightly "tweaks" the U.S. Supreme Court precedent in Marbury v Madison claiming that under that precedent courts "may" strike down unconstitutional laws - instead of a clear statement in Marbury v Madison that unconstitutional laws are VOID, and when the law is VOID, it is as if it never existed, whether courts do or do not choose to strike them as unconstitutional.

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.

*  *  *

What does all of that has to do with Judge Aaron Persky's case?

The "slight modification of the law" that State-Federal Judicial Council (existing in California) require of its members through judicial decisions, in other words, through case-fixing, may include an agreement behind the scenes that state and federal judiciaries, in concert, seek to prevent issues of judicial bias from ever be won or even raised in court.

Try raising issues of judicial bias - in state or federal court.

No matter what court rules or the federal statute on judicial disqualification say, challenges to judicial bias always come in front of the same judge whose bias is challenged, and the judge often imposes sanctions upon the attorney and the party, often with orders of paying legal fees of the opponent.

Many attorneys have been disciplined, and lost their licenses by trying to raise judicial bias, and for criticism of the judiciary, and I continue to compile the list of such attorneys, victims of political persecution in this country - since official sources and the "mainstream media" is not interested in such a subject.

It the sentencing of Brock Turner's case, despite all public petitions, prosecution was afraid to raise the issue of judicial bias - and did not actually raise it in a motion to recuse, nor did the prosecution appeal the obviously biased sentence.

Since, as Judge D'Agostino said in Bracci v Becker, members of the public do not have "standing" to challenge non-prosecution of offenses, even by public officials, and the prosecution was silent as to the issue of bias, the Commission for Judicial Conduct could claim that the issue of bias was WAIVED by the prosecution ON BEHALF of the People of the State of California.

But, the Commission for Judicial Conduct did not say even that - that the prosecution WAIVED the issue of bias, which would be true as a matter of law.

The California Commission for Judicial Conduct, instead, produced a lengthy "opinion" on the merits of the case - rejecting multiple public complaints of Judge Persky's bias

confirming that it is within the authority of California Commission for Judicial Conduct to discipline judges for bias

but claiming that there is no evidence of bias on Judge Persky's behalf:

The Commission claimed that:

  • 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.

Now, some legal industry commentators claim that Judge Persky was "cleared", and it is time to "close the book" upon his behavior because his behavior, even though it was "alarmingly lenient", was not biased.

But, actually the "book" on Judge Persky's, and other judge's biased judicial decisions should be OPENED, not CLOSED - with in-depth analysis by the public, and by the legislatures, what changes need to be made to:

  • 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.
And, the decision on bias regarding discipline or non-discipline of Judge Persky is biased itself.

First, because there was no disclosure whether any members of the California Commission on Judicial Performance were also members or advisors to California State-Federal Judicial Council that may have directed its members to eliminate the issue of judicial bias from courts and public domain.

Second, because, by the California State Constitution, 5 out of 11 members of the Commission, are either judges or attorneys whose livelihoods are regulated by judges.

Third, because there are no restrictions as to ties of the 6 "lay" members of the Commission to the judiciary.

And fourth, because the alleged supermajority of "lay public members" as supposedly impartial and disinterested as to judiciary, was tipped over in the case of Judge Persky by participation of a lay member who was a court interpreter,

The public member of the Commission Mary Lou Aranguren is a certified Spanish-English court interpreter, and, the bulk of Spanish-English court interpreters' income come - as the civil rights lawsuits from New York demonstrates - from criminal courts.

Thus, had Mary Lou Aranguren ruled in favor of discipline against a criminal court judge, she could have kissed her income good bye.

The California Commission on Judicial Performance, staffed by a supermajority of individuals with their livelihood derived from court proceedings and judges, cannot produce unbiased decisions - at all, or in Judge Persky's case.

And, the Commission's decision on Judge Persky's alleged "lack of bias" does not "close the book" - it keeps Judge Persky's "book" open, and opens a second "book" - on the biased composition and biased ruling of the Commission itself, due to its members backgrounds and personal interests.

The public discussion of Judge Persky's bias and misconduct - and the government's efforts to sweep it under the rug - must continue.

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