"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, May 18, 2017

Pro-prosecution change of venue in Ken Paxton's trial - Part II: a media admonition for Ken Paxtonl: don't shop for a judge when he is an Inn of Court's puppet and is in the prosecution's pocket

In my previous blog I described an unprecedented decision by a judge to move the trial, over a defendant's objection, to another county on the eve of that trial, because allegedly the jury pool was tainted FOR THE PROSECUTION.

The issue of waiver of venue objections by the prosecution who has chosen the venue

And it was allegedly unfair to the prosecution to keep the trial in the venue where the prosecution BROUGHT it in the first place - and thus picked a venue and waived all objections to it.

The issue of waiver has not been picked up by the media, as far as I saw

Instead, the media is pounding on Ken Paxton for trying to remove the judge who is obviously in the prosecution's pocket.

Changes of venue are rare and disfavored by courts.

Changes of venue at the request of plaintiffs who have CHOSEN that venue in the first place are unheard of.

Even more unheard of are changes of venue by the prosecution in criminal cases who unilaterally investigated the case for a long time before bringing it before the grand jury of a certain county, and litigated it up to the point of a trial without raising the issue of donor lists available before the indictment - the donor lists of Texas AG Ken Paxton as a defendant.

Had there been an unbiased judge, he would have tossed such a prosecution's motion, likely with sanctions against the prosecution for trying to delay the trial and deprive the defendant of his right to a speedy trial by the jury of his own peers.

Since the plaintiff (the prosecution) has chosen venue, it could not be heard about change of venue.

U.S. Constitution specifically protects the fair trial for the defendant, not the prosecution

Moreover, the U.S. Constitution only provides for a right to a fair trial for the criminal defendant, not for the prosecution, so the judge put the law and the U.S. Constitution on its head by claiming that the jury pool is somehow "tainted" for the prosecution.

Of course, the prosecution has to have a fair shot at the case - but it actually does, the whole criminal procedure is skewed towards the prosecution, so the prosecution has nothing to complain about, after having served as a legal advisor for the decision-maker (the grand jury), in an ex parte manner, about bringing the indictment in the first place.

Not only that, but the prosecution had a powerful tool - voir dire, ,jury-picking - to strike those potential jurors who were donors to Ken Paxton, were connected to such donors or were swayed by any kind of publicity in favor of Ken Paxton.

Double-standard in upholding the prosecution's objection to County officials as donors of defendant somehow contaminating the prosecution's right to a fair trial

Prosecutors usually do not object to their own choice of venue if the County officials donated to their own election campaigns.  The same should be true for the defendant.

Moreover, even for the judiciary, who should set the standard of conduct for all other participants in court proceedings, donation by an attorney or party to the judge's election campaign is not, in itself, a basis for recusal - at least, judges do not consider it as such.

The same presiding judge would have vigorously fought (as all judges do) against any requests for recusal because HIS OWN DONORS would be  either the prosecutors, or witnesses, or serving as jurors.

Double-standard in upholding the prosecution's objection to pro-defense publicity as allegedly tainting the prosecution's right to a fair trial

I write on this blog, time and again, about pre-trial publicity done by the police (prosecution's witnesses) and by prosecution in practically all criminal cases that deprive defendants of their right to a fair trial, and that is especially so with the advent of social media.

The moment the person is arrested, charged with a crime, and the information gets into the so-called "police blotter", his or her reputation is done for, and he or she is already guilty in the court of public opinion.

Just read comments on Facebook about any criminal charge - the only thing that is discussed is how to punish the person (torture and killing in prison often comes up) and how to stop spending taxpayer money on allowing the defendant a right to appeal.

In this respect, Ken Paxton is no different.

His reputation has suffered a major hit when indictments were published and widely discussed in the media.

Yet, that is the normal course of business for the prosecution.  They have always been tainting jury pools and swaying public opinion against criminal defendants long before trial, and judges did not see any problems in that, the criminal defendant's constitutional right to a fair trial be d***ed.

What was not normal course of business is that somebody would publicly stand up in defense of a criminal defendant demonized by the press.

There were gag orders issued in the trial, which neither the defense, nor the prosecution violated - no such motions were made and no sanctions imposed.

Yet, after choosing their own venue and waiving all objections to such venue, the prosecution, on the eve of trial, filed a motion claiming that the defendant Ken Paxton is now "deified" by his "powerful allies".

So, demonizing the defendant before trial is good and never causes changes of venue, but "deifying" the defendant is bad.

And these arguments fly, apparently, in the secular court of a State of Texas.

Does it bear to mention that Judge George Gallagher is also a "master" of an "Inn of Court",  usually a secret-membership organization of judges and attorneys who meet to wine and dine judges (and pay for their own and their spouses' national and international trips) behind closed doors, of course, to promote "excellence" of the legal profession.

Judge Gallagher's particular Inn of Court published its membership directory, and its schedule of events, yet, the organization still has membership by "nominations" only, and the meetings and interactions of the organizations are, as far as I could see from the schedule of events, for members only.

See what Judge Gallagher's Inn of Court reported as to how its members get to use trial judges who are members of the Inn:

Imagine that an average Texan, as a member of the public, a part of a popular sovereign, who has actually HIRED state trial judges and pays their salaries out of taxes, approaches that judge and asks him to hold a luncheon in chambers, for the public and the press, to give information to the public and the press about "what goes on within the judge's court".

I bet any trial judge, including #JudgeGeorgeGallagher, would refuse to do that, quoting confidentiality of court deliberations.

Consider a group of pro se litigants in the trial judge's court asking for the same.

The judge will refuse, quoting judicial ethics and prohibition on ex parte communications.

Yet, no such prohibitions, apparently, were at work when "trial judges" of the "Mahon Inn", including Judge Gallagher, held luncheons in the state court chambers for members of a private fraternity they were members of.

For those members, likely attorneys appearing in front of those judges, including Judge Gallagher, trial judges provided lunches in chambers, with "personal, informative and encouraging" information about "what goes on within that judge's court".

Apparently, the Inn and its members, through sponsorship of judges, have an influence upon them to do what they would not do for the public, the press, for pro se litigants or attorneys who are not part of the Inn.

That much about judicial independence, and that much for the propriety in court proceedings.

Yet, since the resurrection of the English part-clerical, part-militarized, part-nobility legal guild of the Inns of Court was the idea of the Chief Judge of the U.S. Supreme Court Warren Burger in 1977, after a free trip to England with "other lawyers and judges", and since the Inns' English partners heavily sponsor SCOTUS judicial law clerks' travel to England, as well as monthly free lunches with wines for judges and their law clerks, the U.S. Supreme Court and other federal and state judges openly support the organization,

making its members impenetrable for criticism of accountability for impropriety.

As an example, my lawsuit to try to get data from this organization was dismissed before service by a federal court whose judges were members and officers of the Inn.

So, we don't know, do we, whether Judge Gallagher made his unprecedented and illegal decision to transfer venue in Ken Paxton's case, on request of prosecution, the party that has chosen that venue because he was told to do that by HIS Inn of Court donors.

I am sure Judge Gallagher will not be in a hurry to disclose that information.

But, the "brave" media is not too brave to delve into these sticky subjects.  Investigative journalism in this country, apparently, is long dead.  It only voices the opinions of the government, or, as it happens now, of the press's sponsors who want a certain outcome in certain elections.

It is safer at this time to bash Ken Paxton, for "judge-shopping" in a situation when the presiding judge in his own criminal trial is obviously in the pocket of the prosecution.

A sad irony, and a karma for Ken Paxton as a prosecutor, possibly - but also an illustration to the public that laws and the U.S. Constitution that are supposed to protect the rights of the accused in criminal proceedings do not work even for high and mighty when they support the wrong person - here, the President of the United States.

We already have an example from Pennsylvania where a crooked judge, presiding over a crooked criminal proceeding, obtained a crooked conviction against the State Attorney General Kathleen Kane, for going against judges and prosecutors.

Let's see what will be the course and the outcome of the Texas trial against the Texas AG who would very apparently not have been indictment but for the political struggle for his seat.

I bet the Inn of Court's puppet Judge Gallagher's "unusual" change of venue and his work as a practical advocate for the prosecution - allowing it to dump the entire jury pool from the venue they have themselves chosen, in order to help the prosecution win the case - will not be his last pro-prosecution trick in this trial, if he is not removed from the case.

I will continue to monitor the trial and outcome of Texas AG Ken Paxton.

Stay tuned.

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