"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 11, 2017

Why is the U.S. still behind Russia in court transparency and video reporting of court proceedings?

Yesterday, blogger Ruslan Sokolovskiy who was on trial for catching Pokemons in a Russian Orthodox church on his own phone, recording himself doing it and posting the recordings, with his comments, on YouTube - was sentenced to 3.5 years conditional discharge, with some hours of "mandatory labor" and supervision.

There is no question that the conviction and sentence for "insulting the feelings of the believers" is marasmatic and completely out of touch with the realities of the XXIrst century, as well as against the own Constitution of Russian Federation and against the European Convention as to the freedom of speech and expression.

But, what has struck me when reviewing materials from that proceeding is not the obvious stupidity and illegality of the criminal prosecution, conviction and sentencing of Sokolovsky, but the transparency of criminal proceedings unmatched in the U.S.

Imagine the reality of being able to watch, from anywhere in the world:

  1. testimony of factual witnesses:

    • of prosecution's witnesses:

      • of a secret witness, with hidden identity and changed voice - but video and sound recording is still allowed;

    • of defendant's witnesses:
      • Elena Sannikova, a Russian Orthodox believer and a former political prisoner;

  1. testimony, including cross-examination, of expert witnesses:
    • for the prosecution:
      • linguistic expert Marina Borisovna Voroshilova (this witness requested the court to prohibit videorecording, only sound recording was allowed, over defense's objection, I would note here that TWO defense attorneys were allowed to voice objections AND the defendant personally; such objections by both an attorney and a represented party, would not be allowed in a US court, which is a shame, as it adds a unique perspective of the client);

      • sociologist Dmitriy Sergeevich Popov:

      • expert on religions Alexey Nikolaevich Starostin, who also asked for the court's protection as to videotaping - but not as to audiotaping:
  • a forensic psychologist (a police officer) Kirill Vitalyevich Zlokazov who, like prosecution's expert witnesses Voroshilova and Starostin, asked the court not to allow videotaping of their testimony, but audio taping was still allowed - of course, neutrality of this "expert" witness is in big question because he is also a police officer, a Major in the police force:

      • religion expert Zoya Elifeevna Chernyshkova who did not conceal her face, see a member of the public directly photographing her during testimony on a tablet;

  1. defendant's mother;

  1. the "last word" of the defendant;

  1. the reading of the verdict by the judge,

including the reading (mumbling, rather, as in a bad sermon) portions of expertise of the 6 videoclips that blogger Sokolovskiy has put on YouTube:

It is very clear that in the town of Ekaterinburg where the court proceedings were taking place, Judge Ekaterina Sheponiak

did not care that she was recorded when presiding over proceedings and reading the verdict.

She did not care even that she is being videotaped while reading out the following bizarre portion of the verdict:

"attributing to Jesus Christ of images ... from the bestiary of Japanese mythology", whatever that means.

That is a crime, ladies and gentlemen, that a 22-year-old young man is convicted of in Russia, by a secular court.

Yet, one cannot deny to Judge Sheponiak that she MOSTLY (with the exception of several witnesses for the prosecution) allowed both videotaping and audiotaping of court proceedings, and even where she did not allow videotaping, she allowed audiotaping for all witnesses.

Moreover, it is obvious that video- and audiotaping in court proceedings in Russia are routine, since all other participants in that court also did not react to smartphones being used in the courtroom to take pictures and videos of witnesses during testimony.

Here, a man walked up to witness pulpit during testimony, pointed a phone at witnesses, both for prosecution

and for the defense

and either took a photo or recorded a video.  Nobody stirred, and the testimony continued.

Not so in the U.S., New York courts specifically.

Despite a longtime pledge of the previous Chief Judge Jonathan Lippman to bring cameras into the courtroom because, as he said, it is anachronistic to prohibit the public on the outside of the courtroom to see what is happening inside the courtroom in open court proceedings where public is allowed to be present without restrictions.

Yet, Lippman neither did, nor could abolish criminal law, Civil Rights Law 52, which makes it a crime of misdemeanor to "broadcast" from the courtroom.  In fact, I was personally sanctioned and ordered to pay attorney fees for New York court system, on request of the civil rights fighter New York Attorney General Eric Schneiderman's "assistant AG", for requesting a federal court to deem Civil Rights Law 52 unconstitutional, just at the time when Lippman was sermonizing about allowing cameras into the courtroom.

Nor did he abolish the court rule prohibiting audio recording anywhere in the courtHOUSE, whether inside or outside of the courtROOM where proceedings are taking place,

Yet, absence of independent recording, both audio and video, of court proceedings, leads to rampant fraud in cooking up court transcripts, both in New York and in other states of the United States.

So, yes, Russia appears to be sinking back into Middle Ages by criminally prosecuting people for catching pokemons in a church and "offending feelings of believers" by questioning existence of Jesus Christ - in other words, Russia has swung from cruel persecutions of religion, killing priests, monks and nuns, ransacking churches, taking children away from believers, and that continued into my own adult life, to the point that I still remember I was afraid to marry in church and was mocked for calling my first child Vera /'faith' in Russian/ to now merging with religion as if it is part of the state, in violation of the Constitution of the Russian Federation.

What was going on in Sokolovskiy's trial cannot be called by any other word than "bizarre".

Yet, Russia appears to be sinking into the Middle Ages with more court transparency than courts in the U.S. have despite their claimed democracy, fairness and striving for "excellence".

moved proceedings into her cloakroom to escape the press from "humiliating her", because she, according to her own words, is "thinking out loud".

So, not only there is a prohibition to audio- and video-record anywhere in the courthouse, but now a New York judge introduced a de facto prohibition to even be PRESENT at a public court proceeding:

  • she did not invite the public and the press into her cloakroom;
  • she made it clear that she removes proceedings into her cloakroom because she wants to exclude witnesses from the public and the press.
Of course, the way #JudgeJoanKenney looks

and the way she acts, without even considering her "thinking out loud", one must wonder whether alcoholism and mental illness is involved.

The court system already reacted to press reports about "unusual" behavior of Judge Kenney by removing proceedings into her dressing room to exclude the press, by demoting her - a rare occurrence, I must add.

Yet, despite repeated recommendations that she is not qualified for her job, she is not removed from the bench, but keeps being re-appointed, and now, "demoted" to City Court, as if litigants in that court are second-rate individuals and can be given a third-rate judge with some apparent problems upstairs and with her temperament.

Cameras in the courtroom would have cured New York and other states - and federal - court system of a lot of such judges.

But, alas, we are not Russia.

Even if we do not prosecute for catching Pokemons in churches.

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