"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 II. The proposal is trying to usurp the functions of New York Legislature.

This is a continuation of public comment on the proposal of New York Task Force as to "standing orders of discovery" in criminal proceedings.

I already addressed the lack of transparency in appointment and work of the Task Force, here.

The next problem is that the "standing order" is trying to:

  • usurp the powers of the State Legislature as to important policy issues in criminal proceedings; and
  • forestall or prevent, by providing a surrogate of a "standing order of discovery", the necessary legislative reforms of the state criminal justice system.

The proposal for a "standing order" affecting discovery in criminal proceedings is affecting several important policy issues which are the authority and job of the State Legislature and elected people's representatives to address, and not secretly appointed people who are not accountable to voters.

Policy issues that the 20-page proposal is attempting to resolve that are for the Legislature only to resolve are, and the list is not exhaustive:

were raising issues of assignment of criminal cases as a matter of judicial whim only to those who agree to please the judge and not "make waves" by providing effective assistance to indigent defendants ;

  • SIXTH - the need to allow, as right to counsel, for the criminal defendants, including indigent criminal defendants, to have counsel of their choice, who they truly choose and trust, possibly through a system of:
    • vouchers, and
    • deregulation of the criminal bar, allowing criminal defendants to choose to represent them any person, not necessarily a person approved (through licensing) by the same government that is pursuing the defendant in criminal proceedings, which is an irreconcilable conflict of interest;
  • SEVENTH - eliminate prosecutors from their positions of "advisors" of grand juries, undermining adversarial process of the criminal justice.
  • EIGHTH- the need to eliminate the plea bargaining system which drums up convictions without regard to evidence, for purposes that have nothing to do with fighting crime:
    • cutting "court congestion" in criminal cases and
    • providing free labor to the for-profit prison industry, and
    • providing work to unionized prison workers;
  • NINTH - address the issue of non-discipline of criminal prosecutors for misconduct in criminal proceedings (which New York Legislature is attempting to address at this time, against vigorous opposition by the State District Attorneys' Association, through the legislative creation of the Commission on Prosecutorial misconduct);
  • TENTH - eliminate prosecutorial immunity in lawsuits for misconduct to provide a meaningful remedy to the victims of wrongful convictions and to deter further wrongful convictions;
  • ELEVENTH - to seriously address, with true participation of the public, true and effective accountability for prosecutorial misconduct as the cause of wrongful convictions.
These are all important policy decisions, and these decisions need to be addressed by People's representatives elected for that purpose - the Legislature, not by some clandestine "task force" appointed in a clandestine manner, meeting in a clandestine manner for clandestine purposes, not allowing public participation.

The notice for "public comment" right now is just a fake to solicit comments from the public, toss them and approve what they want to promote anyway - and what they want to promote is:

  • further protection of the prosecution as the breeding pool of judges (just read official biographies of New York state or federal judges to see that the overwhelming majority of judges came from prosecutors);
  • further intimidation of the defense bar, and
  • making wrongful convictions irreversible -
as I will show in my further analysis of the proposal in separate articles.

The whole point for giving exclusive legislative power to People's elected representatives in the Legislature and not any other branches or bodies of the government, and to have those Legislative representatives elected for short terms is:

  1. transparency;
  2. availability for the public of a right to:
    1. contact their legislative representative;
    2. come and talk to that representative;
    3. send legislative proposals to that representative;
    4. testify in the Legislature as to those proposals
    5. put those proposals out for public referendums.
Here, the public:

  1. did not elect any of the members of the Task Force AS LEGISLATORS - they did not even run as legislators, they were appointed by New York Chief Judge Lippman in 2009;
  2. these Task Force members have no accountability to the public, no duty to meet with them, and no incentive of being recalled from office, impeached or not elected for the next term to speak to members of the public;
  3. there is no possibility of a LENGTHY legislative process discussing all possibilities, all public needs, all conflicting public interests and conflicts of interests and weighing all options before introducing a legislature on important policy considerations - here, the proposal was made, through an announcement on New York State Court system's website, on April 6, 2017, and public comment, through written e-mails only to some unelected lawyer in the New York State Court system, will be closed within 2 months of that time, on June 5, 2017, without any public hearings.

What was the composition and background of this clandestine group, and how the proposal tries to subvert the need for real reforms in the criminal justice system, read on in my next public comment articles.

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