"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.

Wednesday, May 10, 2017

#IStandWithAttorneyWilliamHersmesmeyer. An 86-year-old federal judge John Henry McBryde, a confirmed multi-decade lawyer-bully, was endorsed and encouraged by the U.S. Court of Appeals for the 5th Circuit in putting a chill on the 6th Amendment right to counsel

In my previous blog today, here, I described how a federal judge in Oregon is illegally bullying an attorney for winning a case.

The same is happening in federal courts in the 5th Circuit, with the 5th Circuit's blessing, where a long-time-confirmed lawyer-bully Judge John H. McBryde sanctioned a lawyer for contempt of court, simply because he did not want to "narrow by clarification" his very clear objection which the judge wanted him to narrow by answering the judge's "yes or no" questions that did not have "yes or no" answers.

The 86-year-old Judge John H. McBryde (d.o.b. 1931) of the U.S. District Court of the Northern District of Texas has an extensive set of own rules pertaining to "his" court proceedings.

23 lawyers participated in disciplinary proceedings against him, and he was taken off their cases - for  a year.  I imagine what he did to them after he got back on their cases.

Judge McBryde has been well-known, since his appointment, to be an anti-lawyer bully:

Moreover, Judge McBride was subject of lawsuits filed against him and by him against the Judicial Council that was reportedly seeking his disciplinary prosecution.

The lawsuits were reportedly initially sealed - even though it is unconstitutional to do so, but in 1999, a decision in one of them was published.

As that decision reports,

"This case arises out of an investigation by a Special Committee ("Special Committee") of the Judicial Council of the Fifth Judicial Circuit ("Judicial Council") into the conduct of the Honorable John H. McBryde, United States District Judge for the Northern District of Texas, pursuant to the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 372(c). The Special Committee's investigation spanned two years, culminating in a 159-page Report containing findings of fact and recommendations to the Judicial Council. On December 31, 1997, upon consideration of the Special Committee's Report and various responses thereto, the Judicial Council publicly reprimanded Judge McBryde for "conduct prejudicial to the effective administration of the business of the courts." As a remedial measure, the Judicial Council ordered that no new cases be assigned to Judge McBryde for a period of one year, and disqualified Judge McBryde from participating in any cases involving certain attorneys for a period of three years."

So, Judge John Henry McBryde, at the age of 68, was known to be prejudiced against certain attorneys, was subject to a lengthy disciplinary proceedings, and a 159-page report was issued about his shenanigans.

Judge McBryde, reportedly, was the first of federal judges tried by his own peers for lack of judicial temperament.

And, 20 years ago, observers of the battle between Judge McBryde and the Judicial Council pointed out the obvious "remedy" for a then 65-year-old judge who obviously "lacked judicial temperament" - retirement.

Yet, Judge McBryde somehow escaped that forced retirement and continues to preside over cases at the lively age of 86, with the same devastating effect upon attorneys.

Joe Patrice, a contributor to the "legal" blog "Above The Law" coquettishly praised Judge McBryde for his latest bullying session against attorney William Hersmesmeyer for not caving in when Judge McBryde, under the guise of "clarifying" attorney Hersmesmeyer's objection wanted attorney Hersmesmeyer to narrow or change it, which the attorney refused to do.  Judge McBryde fined assistant Public Defender, attorney Hersmesmeyer $500, for contempt of court for sticking to the contents of his objection without agreeing to the judge's "clarification"/narrowing of the objection.

Unfortunately, the 5th Circuit, knowing Judge McBryde as a bully of attorneys since 20 years past, still sided on this with Judge McBryde.

Here is what Assistant Public Defender (criminal defense attorney for an indigent defendant) William Hersmesmeyer was sanctioned for:

Yet, while Assistant Public Defendner Hermesmeyer was objecting to legality of a sentence, the judge was asking him whether he is objecting to a "possibility" of a sentence above sentencing guidelines:

"Legality" and "possibility" are two different things, so Assistant Public Defender Hermesmeyer stuck to his guns and insisted on his wording of the objection - which was part of the record.

Yet, Judge McBryde insisted that Assistant Public Defender Hermesmeyer should answer his question:

That put the attorney before a dilemma:

1) saying to the judge: "No, Your Honor, you are not correct"; or
2) avoiding that situation by insisting on having his objection accepted as he initially worded it, which is what the attorney did.

Yet, there was no "civil contempt" involved, as there was no "lawful order of the court" that the attorney violated.

A judge's request to "clarify" what did not need clarification is not a lawful court order subject to contempt sanctions.

Moreover, based on the judge's obvious bias and picking on him, the public defender moved to withdraw - which the judge had to have granted under the circumstances, but instead denied and sanctioned him for asking to withdraw, too.

After sanctions were imposed, and the judge commenced a separate disciplinary proceedings starting with his 2-page order from a criminal case (sua sponte, for which he had no right, and which was in violation of Williams v Pennsylvania, same as in the case of attorney Marcus Mumford I blogged about today).

That "court proceedings" cannot be even called "court proceedings" because in the United States, "court proceedings" are adversarial, and in the disciplinary proceeding against attorney William Hermesmeyer the complaining party is absent:

So, the accuser (and adjudicator) was obviously Judge McBryde - which was unconstitutional under Williams v Pennsylvania making void any adjudications made by a judge who is also acting as an accuser in the same proceedings.

Not that it mattered to Judge McBryde.

Not that it mattered to the 3-judge panel of the 5th Circuit.

In the disciplinary "proceedings", the fined public defender filed with the court an explanation as to why he answered the way he did at the sentencing (sacrificing himself for his indigent client):

Not to be outdone, Judge McBryde filed a 32-page "supplemental order" with an explanation of why he bashed the public defender and described the history of his own bashing - presented as all public defender's fault.

Here is how the 5th Circuit describes the supplemental order of judge McBryde:

And here is what Judge McBryde said in that order.

First, Judge McBryde recognizes that he is issuing a longer order, with more explanations of his actions, after attorney Hermesmeyer already filed an appeal from the disciplinary sanctions, but Judge McBryde claims authority to be able to affect the appeal by supposedly "assisting" the appellate court with additional explanations of his actions.

Then, Judge McBryde sites objections that may or may not have been mistakes of attorney Hermesmeyer in a long string of criminal cases, but could not be considered as "contempt of court" subject to sanctions against a criminal defense attorney.

Since attorney Hermesmeyer's sanctions had nothing to do with his previous cases, it is apparent that the judge entrapped attorney Hermesmeyer, who the judge knew to be a stickler to particular wording of the objection, into not answering the judge's "yes or no" question because there was no "yes or no answer", but the real reason was for the judge to commence proceedings against the attorney and to air out the judge's complaints in a string of criminal proceedings.

It is apparent that Judge McBryde, in view of his fixated bias against attorney Hermesmeyer, should not have been on any cases of attorney Hermesmeyer.  After all, back in 1999 the judge was taken off the cases of 23 attorneys, and was publicly reprimanded for lack of judicial temperament, which did not get any better when the judge neared 90 and was still on the bench.

Both Judge McBryde, and the 5th Circuit that supported him, obviously, did not give a rat's ass about the 6th Amendment right to counsel which they were chilling by their sanctions against a public defender.

After all, prosecutors are given absolute immunity in what they are doing during the trial not to intimidate them from doing their job properly.

Yet, a criminal defense attorney is the only "counsel" mentioned in the U.S. Constitution, the 6th Amendment, and what the judge was doing set a chilling example on that right to counsel, by intimidating criminal defense attorneys that they may be disciplined for ANY objections that a judge, "in his discretion", subjectively, may consider improper or meant to delay proceedings.

Bashing lawyers for taking a stand for their clients is fashionable for some "legal commentators".

Just a year ago, another Above the Law contributor sided with the judge for handcuffing a female public defender for making a constitutional argument.   Above the law republished it with glee. Fortunately,  the order of contempt against attorney Zohra Bakhtary was vacated by another judge, and the judge who abused her, Conrad Hafen, was voted out of office - but not disciplined!

Also, a year ago, Law360, also with apparent glee, represented in a headline a lawyer making a motion to recuse a judge based on obvious judicial misconduct (forging a court transcript by "splicing" in an audio file of her own disclosure of her conflict of interest) as a physical assault on a judge.

In this case, an 86-year-old judge with a bad temper and a known history of lawyer abuse is allowed for decades to remain on the bench and continue with his lawyer abuse.

Moreover, the 5th Circuit now endorsed and encouraged that behavior, so it is prone to continue with a vengeance.

I applaud the courage of Assistant Public Defender William Hersmesmeyer for standing up for his right to make objections on behalf of his client the way he, and not the judge, deems necessary, despite knowing that he is standing up to a confirmed bully.

I am amazed that attorneys like Public Defender William Hermesmeyer, courageous, honest, willing to sacrifice themselves for their clients, still exist.

Yet, an attorney should not be put in front of a dilemma - to represent his client properly and sacrifice his law license and livelihood, or not.

Sanctions against criminal defense and civil rights attorneys for making constitutional objections in court (and sentencing objections refer to constitutional right to liberty protected by the 14th and 4th Amendment) should be abolished as unconstitutional, and as a chill on criminal defendants' 1st Amendment access to court, 5th and 14th Amendment Due Process and 6th Amendment right to counsel.

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