"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.

Sunday, December 18, 2016

Kentucky and Oregon defy the U.S. Supreme Court on ... Batson v Kentucky - a precedent prohibiting racial discrimination in jury selection in criminal proceedings

I wrote several blogs about the fate of Kentucky African American Judge Olu Stevens who was disciplined for following the U.S. Supreme Court' 30-year-old precedent in Batson v Kentucky - and who criticized racist attitude to jury picking by the local white criminal prosecutor, see my blogs here, here, here and here.

It is apparent that #JudgeOluStevens had a right, applying the U.S. Supreme Court precedent not only on point, but even directed against the State of Kentucky - prohibiting peremptory challenges that pick the jury not reflecting the racial cross-section of the population.

After all, a criminal defendant has a right to a trial by jury of his "peers", by a representative composition of those "peers", including the racial composition.

In August of this year, the Judicial Conduct Commission of the State of Kentucky defied the U.S. Supreme Court precedent by forcing Judge Olu Stevens to accept disciple for doing his job and for following the U.S. Supreme Court precedent on point and for trying to eradicate racial discrimination in criminal proceedings - that is already sending a disproportionate number of African Americans to prison.

I am sure Judge Stevens accepted the discipline of a 90-day suspension in order to keep his position, salary and, possibly law license - because otherwise he was absolutely correct in what he is doing, and did not violate any laws.  On the opposite, he followed a U.S. Supreme Court precedent, as he was supposed to.

Now, the Kentucky judiciary has aggravated its position as a racist system of "justice" even more - by ruling, through its highest court, that despite the U.S. Supreme Court precedent pronouncing, 30 years ago, that it is a violation of criminal defendant's 6th and 14th Amendment when the prosecution is allowed to strike all black jurors on the venire in a trial of a black defendant, judges in Kentucky do not have a right to strike "randomly selected" jury panels lacking racial diversity, because, according to Kentucky highest court, giving a judge such advantages is "short-sighted" and advantages of such power will be "short-lived".

Here is a portion of the majority opinion of the U.S. Supreme Court's 30-year-old precedent on point against the State of Kentucky doing the exact same thing that it is arrogantly doing all over again, 30 years down the road, and punishing a black judge for asserting the U.S. Supreme Court precedent in his courtroom:

I wrote recently how a New York judge, Judge Gary Rosa was trying to defy (based on his and his law clerk's personal grudges that I am going to address with the New York State Commission for Judicial Conduct) two U.S. Supreme Court precedents on point by claiming that applicability of the U.S. Supreme Court precedent is based non on unifying legal issues, but on "matters" and "fact patterns" - which prompted me to write an article that absolute judicial immunity, then, if Judge Gary Rosa, or any other judge, is sued, should be given, under the same principles, only in cases with the same "matter" and "fact pattern" as in Stump v Sparkman, the precedent relied upon to give judges absolute judicial immunity for malicious and corrupt acts.

In other words, that judicial immunity should not be given unless the case involved unlawful sterilization of a minor without notice, appointment of counsel or opportunity to be heard, under false pretenses that the surgery to be done is of appendicitis - which the teen did not medically need.

I provided an example pertaining to applicability of 1st Amendment U.S. Supreme Court precedents -

1)     Flag burning, Texas v. Johnson, 491 U.S. 397 (1989);
2)     Cross burning, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992),   Virginia v. Black, 538 U.S. 343 (2003),
3)     a Nazi march through a city of Holocaust survivors, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977);
4)     a protest with nasty slogans in front of a fallen soldier’s funeral, Snyder v. Phelps, 562 U.S. 443 (2011);
5)     false claims of valor in battle, United States v. Alvarez, 567 U.S. ___ (2012);
6)     regulation of content of commercial signs – Reed v Town of Gilbert, 576 U.S. ___ (2015).

In this particular case, no comparison of issues in cases with different matters is even required - because, in Kentucky, everything is identical with the U.S. Supreme Court precedent, Batson v Kentucky - the "matter" (as per Judge Rosa), the "fact pattern", the unifying legal issue, and even the State against which the decision was made.

I wonder if Oregon Supreme Court coordinated its decision with Kentucky Supreme Court in insisting on legitimacy of racial discrimination in criminal proceedings - but the criminal defendants certainly can coordinate arguments on their appeals for certiorari by the U.S. Supreme Court, where a lengthy opinion from SCOTUS is not even required - cases can be overturned simply because of defiance of the U.S. Supreme Court precedent on point.

I also wonder how the U.S. Supreme Court will react to the growing defiance by highest state courts of the U.S. Supreme Court precedent:

It is interesting whether the U.S. Supreme Court will clamp down on defiance of its precedents by the states or will let them continue undermining its authority and power.

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