"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 1, 2016

The problem of who will prosecute the prosecutor gets, well, spirit-ed? spirit-ual? You be the judge

The U.S. Supreme Court gave prosecutors absolute immunity for malicious and corrupt acts in office (which, I believe, led to the abundance of wrongful convictions in this country) on the assumption that an alternative remedy, attorney discipline, is available for prosecutors - an assumption that scholars believe, is wrong.

A well known public advocacy project, ProPublica, wrote about the problem of "who will prosecute the prosecutor" who commits misconduct in criminal cases - with an indication that, basically, nobody would.

In 2010, California tried to pay lip service to discipline of rogue prosecutors - by claiming it was reviewing files of 130 prosecutors to figure out whether to subject them to discipline.

Some of those prosecutors were actually prosecuted and one (!), reportedly, suspended.

In New York, the bill to create a Commission for Prosecutorial Misconduct was introduced in 2013, and was, and, I am sure, still is, the subject of aggressive hostile lobbying against the bill by the State District Attorneys' Association described in the transcript of a public hearing on attorney discipline in August of 2015, p. 25-27,

see also an article by the Rockland County District Attorney Thomas Zugibe.

Nevertheless, the bill so far has passed both chambers of the New York Legislature - the House and the Senate - and is close to approval by the New York State Governor Andrew Cuomo

- unless, of course, Cuomo's friend, the Chief Judge of the State of New York (a former lifetime career prosecutor) and her friends will not persuade him to veto the bill.

Prosecutorial misconduct occurs not only in criminal proceedings, but also in "civil" disciplinary actions against public employees and holders of occupational licenses.

And, many attorneys pointed out that disciplinary prosecutors should themselves be not immune from discipline - which, at this time, never happens, no matter what disciplinary prosecutors do.

That is one of the problems of occupational regulation - creating classes of nobility who are above the law, people connected to the government, or those who handle disciplinary prosecutions themselves.

An unusual case necessitating to prosecute the prosecutors was reported out of Texas.

In Texas, as in every other state, liquor sales are regulated by the states.

And in Texas, as in each state, there are enforcement and prosecuting authorities for violators of liquor regulations who sell liquor without a license.

And, when the Texas Alcoholic Beverage Commission hosted the National Convention of Liquor Administration, and wanted to serve alcohol to the "liquor administrators" for some unknown reason, the National Convention of Liquor Administration was supposed to follow the law its participants are enforcing - and obtain a liquor license.

And - reportedly, it didn't.

Now, the Commission is going to investigate and prosecute itself, with predictable results.

Like judges are investigating and prosecuting judges.

Like attorneys are investigating and prosecuting attorneys - eliminating those disciplinary attorneys do not like, and keeping their friends in business, no matter what the record and the law is.

Like social services investigating foster parents for child neglect (while being the agency that placed children with those foster parents and is responsible for that same child neglect).

There should be mechanisms provided for in every prosecutorial office for prosecutions of their own members - and, as of now, such mechanisms either do not exist, or do not work, judging by the number of conflicts of interest reported by the public, and dismissed by federal courts on prosecutorial immunity grounds.

The "do what I say, not what I do" principle of our law enforcement is simply not acceptable.

And yes, there must be stricter discipline for liquor authorities who violate their own laws than for everybody else, and stricter discipline for prosecutors who violate criminal laws than for everybody else - after all, prosecutors know exactly what they are doing.

Otherwise, the claim that this country is based on the "rule of law" will remain what it is now - a mockery.

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