"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, April 20, 2017

No prosecution without a legitimate prosecutor - rules judge Breslin of Albany, NY

When I just started my career as an attorney, I had a case in town court in the town of Margaretville, NY, before Judge Gary Rosa - who at that point still pretended to be a decent judge, see how he had changed (or, rather, revealed himself) now, here.

The case was a zoning case, and private attorney Carey Wagner, a real estate lawyer (and that's certainly not my rating of him, I never was his client)

 pretended to prosecute that zoning case, as a criminal prosecutor.

Of course, he had no right to do that, as he was never even sworn as a criminal prosecutor, and was never hired as an Assistant District Attorney.

Not only that, Carey Wagner, according to my client, represented both the complainant in a certain dispute among neighbors, and consulted my client about that same dispute, which still resulted in formation of an attorney-client relationship for purposes of the privilege.  Wagner, thus, was completely disqualified from prosecuting the matter from which he was conflicted out.

Nevertheless, he did proceed, was exceptionally rude with me (as the review of his own client states, too) and was trying to run me over, claiming that I am fresh out of law school, do not know anything, obviously heavily hinting at my immigrant status and at the fact that English was not my native language.

What stirred Wagner's ire most of all is that I obtained, through a FOIL request, from Delaware County Clerk's office (and that office refused to satisfy the request at first, demanding me to tell them my reasons and purposes to ask for public documents, I had to complain to the New York State Committee for Open Government in order to have the Committee talk sense into the Delaware County Clerk), a document showing that they have no oath of office for Mr. Wagner as a criminal prosecutor.

On those grounds, I moved to dismiss criminal charges brought by Mr. Wagner against my client.

Judge Rosa dismissed the case on other grounds, but he obviously tried to stay as far away as possible from any "controversy".

In 2015, when disciplinary prosecutor Mary Gasparini tried to put me in jail when materials from my own disciplinary proceedings (where I was disciplined for criticizing a corrupt judge Carl F. Becker in a motion to recuse), specifically, audio recordings showing that transcripts of two conferences with the referee were cooked, were published online. 

Mary Gasparini also, like Carey Wagner before her, tried to purport that she had authority to bring criminal proceedings against me.

I opposed criminal charges on the law, as a jurisdictional matter, and raised the issue that Mary Gasparini is not a criminal prosecutor and is not authorized to bring criminal charges in New York - among other jurisdictional defects.  Criminal charges were dismissed without an explanation.

An explanation did come, from State Supreme Court Justice Thomas Breslin, of Albany, NY, who dismissed a criminal case because it was brought and prosecuted by a "Justice Center for the Protection of People with Special Needs".  

New York State Attorney General, surprisingly, intervened and sided with the criminal defendant, which, possibly, decided the fate of the case.

In his decision, Justice Breslin agreed with the defendant's argument that only elected prosecutors may bring and prosecute criminal charges in New York.

That is the clear restriction of statutory law, County Law 700.

Yet, several questions now arise in connection with Judge Breslin's decision:

1)  Can now courts continue assign "special prosecutors" who are not elected prosecutors in such counties?  And, are prosecutions commenced and concluded by such special prosecutors legitimate or are they now void?

2) Can town attorneys continue to prosecute zoning cases, without being sworn in as Assistant District Attorneys, and while the Town is a completely different entity from the County, and where such representation is nearly always fraught with conflicts of interest?

3) Can police officers prosecute traffic tickets - as they often do in New York, and especially because procedure for prosecution of traffic tickets in New York is the same as for criminal charges - Criminal Procedure Law?

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