"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, October 9, 2017

On the benefits of secret arraignments in New York - Part III. The program has no legitimacy under the current New York State law - and confirmed its secrecy and thus unconstitutionality by not inviting journalists to the ACTUAL arraignments

In my first two blogs on this topic - see Part I and Part II I pointed out that the new little arrangement of the New York State Court Administration, a "pilot program" in response to a settlement in a lawsuit charging that New York State, for 54 freaking years did not comply with the 6th Amendment right to counsel for criminal defendants at arraignments, contrary to the 6th Amendment and the U.S. Supreme Court precedent confirming it - Gideon v Wainright, 332 U.S. 375 (1963).

The "pilot program" was announced, with much fanfare, through a press-release from the New York State Court Administration, and a combined press-conference of the Broome County Sheriff and the Chief Administrative Judge of the 6th Judicial District Molly Fitzgerald.

The problem with this "program" is - that it ENTIRELY lacks legitimacy under the current New York law.

1.  Criminal procedure is bound to statutory and constitutional law, not "arrangements" by court administrations

An arraignment in a criminal proceeding is a creature of statute in New York.  How arraignments are to be held is determined not by courts, but by an entirely different branch of the government - the State Legislature.

And, even though the press release of the New York State Court Administration did feebly mention some "state law" that supports the "pilot program", the "state legislation" in question is no more than a budgetary provision given to the New York State Court Administration to implement measures to satisfy a SETTLEMENT IN A LAWSUIT for violation of indigent defendants' right to counsel.

That is not the same as giving the Judiciary Branch a sudden right to legislate and change Criminal Procedure law, the statutory law of the State of New York, as to when, where and how arraignments in criminal proceedings are to be held.

Illustrative in this respect is the opinion of Judge Veronica Gordon, a Town of Union judge who is not an attorney:

Press & Sun Bulletin out of Binghamton, NY cited the opinion of this clueless judge who hailed arraignments in jail and claimed that it is ok to do arraignments for ALL municipalities within the 6th Judicial District for arrests that happened over the weekends or at night (and you bet, once you heard about the "convenience" and "cost savings", the police will make sure, more, if not all arrests, will be happening this way) - because after that arraignment the cases will be supposedly FARMED OUT (her words, not mine) to the appropriate courts where defendants should have been arraigned in the first place.

In fact, the arraignment cannot happen FIRST some place out of court, right after an arrest of a criminal defendant by the police and THEN "farmed out" to the court of appropriate jurisdiction.

A criminal case in New York, under Article 170 of New York Criminal Procedure Law, in fact has to START in a court of appropriate jurisdiction by FILING in that court of a jurisdictionally sufficient accusatory instrument.

Only then an arrest warrant may be issued BY THAT COURT, and only then the criminal defendant must be brought to an arraignment TO THAT COURT.

Of course, there are exceptions to the warrant rule, when the police arrests a person without a warrant, but exceptions to the warrant rule are rare and allow the police a warrantless arrest only if the police actually apprehends a person in the commission of a crime.

In ANY event there is no arraignment without filing of an accusatory instrument.

And, the accusatory instrument is not valid if it is not filed in the appropriate court, not in some jail room.  And, Criminal Procedure Law does not allow arraignments in jail - period.  Does not.  And no judge is allowed to change that - only the Legislature, which did not change Criminal Procedure Law as of yet.

So, this little program is clearly unlawful under the statutory law of the state of New York.

2.  Arraignments must be PUBLIC as a matter of constitutional due process rights of criminal defendants

Criminal proceedings anywhere in the United States, as a matter of due process, must be public.  There is no such thing in this country as "Star Chamber" criminal proceedings in private - even if some judges and some courts attempt to seal some proceedings and some records of such criminal proceedings.

And, it is very obvious why arraignments in jail are not public and will not be public.

First, in Part I of this blog series, I provided an entire table explaining constitutional problems with this little "arrangement".

As part of that table, I pointed out that jail security rules will create multiple restrictions on the public which will prevent such proceedings from being public proceedings.

Because usually, when an arraignment is happening in a courthouse, journalists come TO THE ACTUAL ARRAIGNMENT.

In this situation, a journalist:

  • showed an empty "courtroom" in the Broome County Jail; at the same time claiming that
  • it is a new program, but that
  • 14 arraignments already happened in that program.

And, the question is - why, if this is a "friendly" journalists allowed into the heart of hearts of the Broome County Jail and who is invited to do the honor of conducting a press conference of Judge Fitzgerald and Sheriff Smolinsky about the event, didn't these nice people allow that same journalist to actually SEE AT LEAST ONE DAMNED ARRAIGNMENT?

How it is actually happening in jail?

How the jail actually accommodates the public to attend that arraignment?

Why-why-why it did not happen?

But - you know the answer, why.

Because these arraignments are MEANT to be secret, in violation of criminal defendants'
constitutional right to PUBLIC criminal proceedings, and of every stage of those criminal proceedings.

They are MEANT not only as a measure of convenience for the police, judges and prosecutors - but, they are meant, for example:

  • for the public not to see that the criminal defendant was beaten up during the arrest (happens ALL the time, especially to minority defendants); or tortured with too-tight plastic handcuffs eating into his/her wrists, or mistreated in any other way (starved, brought through frosty weather in inadequate clothes, barefoot etc.) - and cameras will not be allowed into jail to document the defendant's injuries, as it can be done outside a courtroom;
  • for indigent bail bond witnesses not to be able to appear at the "centralized" location in the jail
  • for prosecutors to be able to obtain from the bought wholesale (one-for-all-defendants) assigned counsel (which may raise MAJOR conflict of interest problems, by the way):
    • waiver of defendants' right for a felony hearing - or a immediate free release from jail without bail or bond;
    • waiver of defendants' speedy trial rights; and
    • presence of defendants' "counsel" at the time the prosecutor announces readiness for trial - which will later prevent the defendant from claiming such readiness was never properly announced (which would have happened if the defendant does not have counsel, and a one-for-all counsel is as good as have NO COUNSEL, or worse, a counsel who will surely sell you out for the personal benefit of being assigned to that "graveyard shift").

You know, sometimes I just desperately WANT TO BE WRONG.  Really, really, really.

I put out a legal theory, a legal analysis, because, based on the facts and applicable law, it APPEARS to be bad, but, in my heart of hearts, I hope against hope that it is not THAT BAD.

And I thought - maybe, just maybe, they WILL allow members of the public into those arraignments, conducted at the office of prosecution's witnesses - which is BAD, BAD, BAD already.

But they did not.

Not even journalists.

They only allowed - even journalists - to see only an empty room.

Without the judge, without prosecutors, without defense attorneys, without defendants - and certainly without the public.

Only an empty JAIL room, with a locking door.  Positioned as a "courtroom" of an unknown jurisdiction.

So - it IS bad.

Because - if the so-called "free press", the TV station that was allowed to handle the press-conference of the judge and the Sheriff about the "pilot program" was just fed information that, ALLEGEDLY, 14 arraignments were already had under the program, but was not allowed to be actually present at a single one of these arraignments, you can see what chance a garden variety average citizen from the street can have to be present at those arraignments - absolutely none.

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