"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, August 30, 2017

#ArpaioPardon and the rule of law - Part II. Charges of criminal contempt of court. Can a court constitutionally be the victim, accuser and adjudicator in the same proceeding?

Recently I posted an article about the supposedly "controversial" presidential pardon of an Arizona sheriff Joseph Arpaio, where I argued that the pardon was justified by the egregious violations of due process in the criminal proceeding.

I've seen the following interesting counter-arguments on social media in favor of legality of such proceedings and impropriety of the pardon.

The counter-argument refers to the 1994 decision of the then 83-year-old federal judge Cecil Poole, a career prosecutor before coming to the bench - NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994).

The case, the so-called "precedent" of the 9th Circuit that the 9th Circuit, probably, used in denying Arpaio's petition for a writ of mandamus ("probably" because the 9th Circuit did not provide any legal reasoning for the denial),

is astounding in its incompetence and egregious violations of the most basic concepts of criminal constitutional law - which can be attributed either to the authoring judge's advanced years, or to his background as a career prosecutor, or to his bias, or to all of the above.

At the same time, the case has striking similarities with Arpaio's proceedings - civil and criminal - and thus is worth reasoned review, especially at the background of lynching "public opinion" where commentators base their opinion on the identities, personalities and personal history of Arpaio and President Trump who pardoned him, and not on the legality of criminal proceedings against Arpaio.

So, same as in Arpaio's case, the NRLP case involved a civil proceeding and a criminal proceeding, and there was a civil contempt proceeding within the civil proceeding.

A civil contempt proceeding is civil in nature and - as the case demonstrates - the respondents were required to answer charges and provide affirmative defenses to the charge of civil contempt of court.

That is one of the major differences between a civil and a criminal contempt - in a criminal proceeding the defendant is presumed innocent and has a right to remain silent from the beginning to the end of the criminal proceeding.

But, look what happened next.

So, in a case where respondents already filed an answer, criminal charges were added.

That is why the so-called "civil contempt" proceedings should not even exist - first, because courts routinely fail to distinguish between civil and criminal contempt of court proceedings, mixing them up - see, for example, how #JudgeSusanBolton prosecuted Joe Arpaio on her own "order to show cause" in a criminal proceeding - and an "order to show cause" is an element of a CIVIL contempt of court proceedings requiring the defendant to actually waive his constitutional right to remain silent.

So, the situation in NRLB was that:

  1. a plaintiff in a civil case wanted to have criminal charges brought against the defendant in the same civil case, on top of civil contempt charges that were already brought;
  2. a private individual in the U.S. may not bring criminal charges against anybody;
  3. bringing criminal charges against anybody is the prerogative of the EXECUTIVE branch, the prosecution;
  4. since the alleged crime was committed against a federal court, federal prosecutors, the U.S. Attorney's office, was the correct authority to bring criminal charges.
My argument is backed up by the fact that criminal contempt charges were prosecuted against Joe Arpaio by the U.S. Attorney's office, as any other crime - and, as any other crime, should have been brought by the U.S. Attorney's office, too.

In Arpaio's case criminal charges were not brought by the U.S. Attorney's office, but were at least prosecuted by the U.S. Attorney's office.

In NRLB case above, a private party requested the VICTIM of the alleged contempt, the court, to file an accusatory instrument, and the VICTIM "referred the case" to a "special master" of the civil contempt proceedings, a magistrate of the U.S. District Court for the Northern District of California. Once again:

Let's note that the plaintiffs did not ask the U.S. Attorney's office to bring criminal charges, but the court, the supposed victim of the crime.

Recently, I had a situation where a criminal court in a case where my husband and I were victims of a violent crime (burglary and attempted arson), appointed a prosecutor who himself, as well as one of his assistant prosecutors, had disqualifying conflicts of interests and a personal interest to hurt us instead of protecting us as alleged victims of the crime.

I addressed the court on that issue.

The court, #JudgeGaryRosa of the Delaware County Court (NY) explained to me that I, as an alleged victim of the crime, have no say in the criminal proceeding.

Rosa then allowed the prosecutor, John Muehl,

to continue handling the case where we were the alleged victims of a burglary and attempted arson - with a predictable result, the case did not reach the grand jury.

Now, if an alleged victim - and, until the verdict, any claimed victim is an alleged victim - has no say in the criminal proceedings, then that concept does not change if the alleged victim is the court itself.

Yet, in the quagmire of criminal contempt proceedings, this factor, as well as many others, are ignored - in order to allow courts to do what other alleged victims are not allowed, to bring, prosecute and adjudicate proceedings where they claim themselves to be victims.

So, the court claiming to be the victim of a crime in NRLB, "referred" now the additional CRIMINAL case to the same "special master" that was already handling the civil contempt proceedings.

That "referral" was also highly irregular, as criminal proceedings must be commenced in criminal court on charges brought by the U.S. Attorney's office and nobody else, as the court is put into an untenable position when it acts both as an accuser and an adjudicator - a position that the U.S. Supreme Court recognized in 2015 in Williams v Pennsylvania as unconstitutional.

And, of course, the 9th Circuit, an appellate court has no authority whatsoever to commence criminal proceedings, so the referral was illegal to begin with.

To add insult to injury, the "referral" was made not to a district judge who has the authority to preside over criminal proceedings, and who is appointed by the President and confirmed by the U.S. Congress to do that job, but to a "special master" who was a federal magistrate.

Of course, a federal magistrate does not have a right to try criminal cases without consent of the criminal defendant.  There is no indication in the decision of the 9th Circuit that such a consent was obtained from the criminal defendant in NRLB case.

But, what happened next is even more astounding in terms of incompetence of the magistrate, F. Steele Langford, Chief Magistrate for the Northern District of California.

Magistrate Langford acted as if he has never been to law school and never took the mandatory Criminal Law class.

Even though he appointed counsel for the criminal defendant, he also committed two egregious errors invalidating the proceedings:

1) consolidated a CIVIL and a CRIMINAL contempt proceeding - which never happens, there is no such thing in law as a consolidation of a civil and a criminal proceeding; and

2) "appointed" an interested party, attorneys for the other supposed victims in the proceedings, NRLB, to prosecute the case.

Of course, by that, Chief Magistrate Langford denied the defendant's due process right to an impartial prosecutor from the very beginning.

Then, magistrate Langford, as a court-appointed "special master", held hearings in the CONSOLIDATED civil and criminal contempt proceeding, the two proceedings which could not possibly be consolidated, for the following reasons:

Civil contempt
Criminal contempt
Who brings the charges
A civil party
The government

What is the purpose of proceeding?

To coerce compliance with a court order by a threat of fine or incarceration

To punish incompliance with a court order
Can the contemnor “purge” his contempt?

Yes, as soon as the contemnor complies, he must be released from jail

No, no matter whether compliance comes after charges are brought, if the contemnor is convicted and sentenced, there is no automatic release from jail because of belated compliance with the court order

Does the right to remain silent apply?

What is the burden of proof in the proceeding?
By preponderance of the evidence
Beyond the reasonable doubt

So, proceedings were unlawful for the following reasons (at least):

  1. a federal appellate court does not have original jurisdiction to hold criminal proceedings - if that is true, what court will be reviewing the appeal as of right from that criminal conviction? or, will the appellate court review the appeal from its own decision?
  2. a federal appellate court does not have authority to file accusatory instruments;
  3. a federal appellate court does not have authority to allow magistrates to act as trial judges in criminal proceedings without consent of a criminal defendant;
  4. a federal appellate court does not have a right to act as an accuser and adjudicator in a case where it also considers itself a victim of a crime;
  5. proceedings in civil and criminal contempt may not be consolidated;
  6. proceedings in criminal contempt may not be allowed to be prosecuted by anybody but the U.S. Attorney's Office;
  7. proceedings in criminal contempt may not be allowed to be prosecuted by an interested party;
  8. criminal proceedings must end with a VERDICT, not with a "report and recommendation" to the appellate court - the "report and recommendation" part indicates that the "special master" did not have the power to render the verdict.  Nor did the appellate court, since it has no ORIGINAL jurisdiction to try criminal cases.
But, you know what happened when the defendant objected to the 9th Circuit that the magistrate did not have authority to handle her criminal proceedings?

The 9th Circuit agreed with her (in part) that it actually violated the law by:

  • giving to a federal magistrate jurisdiction he did not have by statute; and

  • by referring a criminal case to be tried by a magistrate without consent of defendant

But, after agreeing on that, the 9th Circuit initiated criminal contempt proceedings again, anew, and with many of the previous constitutional violations.

  • The 9th Circuit still claimed the original jurisdiction to try criminal cases and sentence the defendant;
  • there was still no criminal prosecutor (U.S. Attorney's office) in the picture, and
  • still the court (federal appellate court) was the initiator of criminal charges, which is the exclusive prerogative of the executive branch of the government
  • still the criminal case was referred to a "special master", not to a jury trial, with all the necessary preliminary criminal procedure.

Of course, the 9th Circuit explains its lawlessness in usurping original jurisdiction for criminal cases, instead of referring the case to the U.S. Attorney's Office to act at its discretion to bring or not to bring a criminal contempt charge in the proper jurisdiction - by the lawlessness of its "brothers", the 3rd and the 5th Circuits:

And here comes a great big problem - pre-judging a penalty in order to deprive a criminal defendant of a constitutional right.

Somehow, Judge Cecil Poole completely forgot (even though he has been a career prosecutor and a judge of many decades) that it is not the penalty that defines the charge, and the procedure that is required for such a charge - it is the charge itself.

Yet, the 9th Circuit's shameless decision apportioning constitutional criminal procedure based on the end result rather than designation of the charge, is EXACTLY what Judge Susan Bolton did in denying Joe Arpaio a right to a jury trial and in granting the prosecution's motion (!) for a bench trial - something that usually never happens in a criminal proceeding:

Because until now - long after Judge Bolton's conviction on a bench trial on a pretext that somehow a penalty of "no greater than six months" in prison makes the charge a misdemeanor, it is listed in Arpaio's docket as a felony:

So, based on this logic, if the government brings a felony charge against you or your loved one, but then, without even attempting to substitute the charge for a misdemeanor, argues to the court, as the prosecution did in this case, that, IF the defendant is convicted, a sentence of "no greater than six months would serve the ends of justice", suddenly the felony becomes a misdemeanor and thus the defendant is not entitled to a jury trial?

It is prosecutor-speak all right, but it is certainly not how criminal procedure works.

I wonder if they taught such nonsense in the University of Iowa School of Law where Judge Susan Bolton obtained her Juris Doctor degree - but I highly doubt that.  Had Judge Bolton said something like that on her bar exam, we would never have had the displeasure of having her license and then on the bench.

But, back to the NRLB criminal case, the "inspiration" for judge Bolton in the Arpaio's criminal case.

Judge Poole produced one more pirouette in order to do what his court had no authority to do - start a criminal proceeding.

There was one more problem there - there was a trial on the merits, the defendant was put in jeopardy of a conviction and incarceration, and double jeopardy clearly applied.

Judge Poole (the 9th Circuit) got out of that conundrum beautifully:
  • first, by acknowledging that the 9th Circuit made a mistake by allowing a magistrate to try a criminal case without consent of the defendant and;
  • second, completely bypassing the questions
    • whether a federal appellate court has an original jurisdiction to try criminal cases, and
    • whether it has a right to initiate criminal proceedings, especially those where the court is presented as the alleged victim
  • the 9th Circuit claimed that BECAUSE it made a jurisdictional mistake by allowing a magistrate to conduct a nonconsensual trial in a criminal case, double jeopardy DOES NOT apply.

So, criminal law is put by an 83-year-old judge (former prosecutor) on its head where:

  1. federal appellate courts now have original criminal jurisdiction;
  2. constitutional procedure in a certain criminal proceedings is defined not by the status of the charge as a felony or a misdemeanor, but by the judge's consideration ahead of time as to what the penalty should be; and
  3. double jeopardy will not apply if the trial court makes jurisdictional mistakes.


And, while skipping the question whether an appellate court has original jurisdiction to try criminal cases, the 9th Circuit borrowed "wisdom" from the 2nd Circuit by simply changing a magistrate as a special master to a district judge:

Rule 42. Criminal Contempt

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.
(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a defense; and
(C) state the essential facts constituting the charged criminal contempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.
(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

But, Rule 42 of Federal Criminal Procedure is the rule issued not by the U.S. Congress, but by the U.S. Supreme Court, while nothing in the U.S. Constitution allows the U.S. Congress to re-delegate the Article I power delegated to it by the people to the U.S. Supreme Court under any circumstances, and especially in situations where the court legislates about cases where the court itself is the alleged victim of a crime.

Here, the court allows itself
  • to act as a victim, accuser and an adjudicator - which, as the same court said in 2015 in Williams v Pennsylvania, is a violation of due process rendering such proceedings VOID; and 
  • to appoint a prosecutor other than a government prosecutor ("The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.")
Moreover, even if the government declines to prosecute the case - which ends criminal prosecution in all other criminal cases, somehow the court "must" overrule the government if the case is a crime where the court itself is a victim and appoint "another attorney", a private attorney, to prosecute the case anyway.


As to the NRLB case, the special master appointed on referral of the 9th Circuit appointed the private firm that represented the alleged victims to prosecute a criminal contempt case against the alleged perpetrator, ON CONSENT from the U.S. Attorney's Office.

The 9th Circuit admitted in NRLB that it erred twice in how it handled the criminal proceedings:

Of course, it did not address the fact that it is acting as a victim, accuser and adjudicator, and that it created a rule by which defendants can routinely be stripped of their constitutional rights to a jury trial on a judge's pre-judgment of a penalty, and of their right to double jeopardy based on their own mistakes.

And, THIS decision, wrong and incompetent from the point of view of criminal procedure and constitutional law, wrong through and through, is being offered as a Gospel to be followed in Arpaio's case.

And, people are signing petitions accusing the President of the United States for wrongfully granting a pardon to rescue an "unpopular defendant" (which is an understatement of the century) from the clutches of politicized judges who would invent any rules and bend any law in order to arrive at the decision they would like.

Yet, when the public is ardently chest-thumping that the President somehow violated the "rule of law" by cutting the thread of judicial misconduct with a presidential pardon, think about this proposition: the law equally applies to everyone.

Next time anybody else is subjected to a criminal contempt proceedings, including, let's say, a contrived charge of disobedience to a completely insane court decision or because of bad blood with a judge who got a bribe to fix your case, remember petitions you signed claiming that the very same corrupt conduct of a judge - but towards a person you do not like - is somehow "the rule of law".

Oh, well.

And, as to the argument that Arpaio had to take his chances on appeal - with the 9th Circuit, the author of the wonderful NRLB opinion, which already rejected Arpaio's petition for a writ of mandamus without any legal reasoning, and by the U.S. Supreme Court that legislated the Rule 42 allowing itself and other courts to act as alleged victims, accusers and adjudicators in the same proceedings, and to appoint private prosecutors on their own behalf (whose livelihood they completely control through licensing).

Not to mention that both the 9th Circuit and SCOTUS are courts distinguished by their open and adamant lack of integrity.

Suggesting that these corrupt people somehow constitute the symbol of the "rule of law",

and that their corrupt decisions must be obeyed as Gospel requires a collective lobotomy to believe and follow.

So, contrary to claims of some prominent commentators, and uninformed, but emotionally charged comments on social media from people, who most likely never read the case and opposed the pardon simply because they think Arpaio is a racist, and that is a good enough reason why he should be held in criminal contempt of court, this particular pardon is a victory OF the rule of law, not AGAINST it.

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