"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.

Monday, May 15, 2017

Public comment on New York's proposed standing order of discovery in criminal cases - Part I. Lack of transparency.

The public has until June 5, 2017 to send public comments to New York State permanent Justice Commission regarding its new proposal of a standing court order in criminal proceedings regarding obligations of the prosecutor and defense counsel in discovery.

The proposal is long, 20 pages, and a lot of traps and inconsistencies are hidden in it.

I am starting a series of articles analyzing this proposal, and will forward all of them as my public comment to this proposal.

Even if I do not live in New York State anymore, I continue to pay property taxes in that state which feed the work of prosecutors and police, so I do have a say in the matter, as a taxpayer.

Moreover, New York does not restrict public comment only to residents of New York state.

The very first problem that jumps to mind is the lack of transparency in:

  • how it convened - without following the Public Meetings Law, without notice to the public or opportunity to be heard, behind closed doors;
  • how it formed its committees and subcommittees;
  • how and from whom the Task Force solicited "recommendations".
If this task force was truly to address the urgent, glaring issue of wrongful convictions, and would truly be interested in trying to address that issue and prevent innocent people from being charged and convicted of crimes they did not commit, it would have been, at the very least, transparent and honest with the public as to what it is that the "Task Force" is doing, how and why.

That the public was given:

  • no say in the composition of the Task Force;
  • no say in the work of the Task Force;
  • no notice as to meetings of the Task Force;
  • no opportunity to be present at those meetings or provide their own input to the work of the Task Force -
already speaks volumes about both legitimacy of the Task Force itself and legitimacy and potential conflicts of interests and motivations of the Task Force.

But that's only one problem of many in how and why this proposal has come about.

I will continue to analyze the proposal.

Stay tuned.

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