Of course, prosecutors are a touchy bunch, they can prosecute judges for crimes, right? For that reason, it is better to appease them - with prosecutorial immunity, for example, or with support as a breeding pool for judiciary.
But a law license of a prosecutor in the hands of a judge as "regulator" of the legal profession can be a handy tool at times.
Think Pennsylvania's former Attorney General Kathleen Kane, elected by 4 million of voters, who was:
- first suspended and then disbarred by judges who she criticized and investigated;
- turned into a grand jury by an "obedient" prosecutor whose license was in the hands of the judges she criticized and investigated;
- convicted "by jury" when an obedient judge (also a law license holder whose license was controlled by the judges who Kathleen Kane criticized) blocked jury's access to information that criminal proceedings against Kathleen Kane were politically fabricated by the powerful subjects of her investigation.
Convicted, disbarred, removed from office, bad-mouthed.
That's what awaits a prosecutor, an attorney, a woman who dares to criticize the judiciary and investigate it for corruption.
And prosecutors, also licensed attorneys, take notice. They do not criticize judges. They do not investigate or prosecute judges. And judges are grateful.
The only discipline for misconduct that I am finding though is discipline by the regulator of the legal profession (the judiciary) for criticism of that same regulator of the legal profession.
Think Kathleen Kane, PA.
Think prosecutor George Westfall in Missouri
Think prosecutors Elizabeth Holtzman and Paul David Soares in New York.
Think Kathleen Kane, PA.
Think prosecutor George Westfall in Missouri
Think prosecutors Elizabeth Holtzman and Paul David Soares in New York.
One of the most prominent cases of discipline against a prosecutor for criticizing a judge is discipline in 1991 of New York City prosecutor Elizabeth Holtzmann - for protection of a victim of rape who was humiliated by the judge in chambers, outside of the view of the public and, of course, while that show of humiliation was not
Yet, there was no mention of that truly heroic deed of Elizabeth Holtzmann in the Wikipedia article about her, so I decided to correct that omission - especially when contributions and edits to Wikipedia articles are encouraged by Wikipedia.
The only condition for a contribution was that the contribution should have quotes and not contain defamatory statements - false statements of fact.
The only condition for a contribution was that the contribution should have quotes and not contain defamatory statements - false statements of fact.
I registered as an editing contributor, and offered a section "attorney discipline" to Elizabeth Holtzmann's Wikipedia article.
Since I doubt that Wikipedia will dare to publish it - even though every statement that I have made there is supported by court cases, one White House report, a law review article authored by a judge, an admission by a former judge in his "prison memoir" and an article in New York Times - I am republishing my contribution to Wikipedia here. Since the font of the scans may be too small, I am also publish the submission in PDF format, so that readers can enlarge the font for easier reading, here.
Let us consider what Elizabeth Holtzmann was disciplined for once in connection with the #MeToo movement and the recent "Women's March" - where her name was not even mentioned, despite the price she paid for her personal courage in protecting the victim of rape from humiliation by a male judge which surely discouraged many more victims of rape from coming forward.
She was disciplined for "defaming a judge".
Judges are regulators of the legal profession in the United States and in New York - which means in plain English that judges control every lawyer's ability to work and earn money for his family.
Coincidentally, all other witnesses present in the chambers and who refused to support Holtzman's story were people whose livelihood was controlled by the judge:
- a defense attorney whose license the judge could easily revoke through sanctions for criticism (as it was done to attorney John Aretakis in 2008, for criticism of a judge in a motion to recuse in a criminal case) and
- two court employees who the judge could fire at any time.
The witnesses preferred self-preservation.
No independent record (a videotape or an audiotape) existed to verify Elizabeth Hotlzmann's words.
Now, what usually happens if anybody thinks he is defamed?
The "aggrieved" person who thinks he was defamed can sue the person who he thinks defamed him.
And, such a lawsuit in New York involves a "special pleading" standard - if that "elevated" pleading standard is not met, the complaint is dismissed before discovery or trial.
And, such a lawsuit in New York would require to be proven - to a jury no less (trial by jury in New York is provided as a matter of right by New York Constitution for all issues of fact) - by preponderance of the evidence.
And, where the plaintiff is a public official, the public official faces a nearly impossible task of claiming that not only the statements against him were false, but they were made with a malicious intent.
And, in such a trial, the victim of rape would surely be able to testify under oath, in public, and describe what is being done to her in the judicial chambers.
And, Elizabeth Holtzmann, a defendant in such an action where Judge Irving Levine would have been a plaintiff - who would have had to:
- draft a complaint - meeting the elevated pleading standard;
- file it publicly in court, subjecting himself to discovery, written interrogatories under oath, out-of-court depositions under oath
would be able to depose Judge Levine and cross-examine the living hell out of him in a public trial.
So - the necessity to expose the judge to the
- expense;
- public exposure; and
- pleading standards;
- standards of proof before an impartial jury of people whose livelihood does not depend on whether the judiciary gives or does not give them permission to work (like they do with attorneys and court employees)
in a defamation lawsuit by a judge against an attorney is tremendous.
And, of course, Judge Irving Levine who was taken off the bench 2 years after the episode reported by Elizabeth Holtzmann because - instead of a puny prosecutor whose license was in the hands of Judge Levine - his misconduct, corruption, was now outed by FBI agents who overheard his lovely conversation about fixing a court case for his very wealthy and very influential friend Meade Esposito (to whom Judge Levine owed his judicial career), the "former Brooklyn political leader", when Judge Levine was casually discussing the fixing of the court case with Meade Esposito, ex parte, in a restaurant.
What kind of influence Meade Esposito had on New York State judges, up to the Chief Judge of the New York State Court of Appeals (the top state court) is demonstrated in these two articles of New York Times - from 1972
and from 1973:
Still, by the time FBI agents overhead the court-fixing conversations between friends, the judge-maker Meade Esposito and Judge Irwing Levine, Esposito was already convicted for public corruption - but not sent to prison, mind, where ordinary folks get locked up for stealing five bucks.
Thus there was no brow-beating the FBI agents at that time, and the New York State Commission took Levine off the bench, including for lying to the FBI agents in denying misconduct - but Judge Levine was never criminally prosecuted for case-fixing and corruption and was never disciplined as an attorney.
He died with "no record of public discipline".
Yet, when a prosecutor, Elizabeth Holtzmann, who reported a different kind of judicial misconduct of Judge Irving W. Levine, her fate was quite different from the fate of the FBI agents whose testimony the New York State Commission for Judicial Conduct could not shrug off as easily as Holtzmann's press-release.
Her report of Levine's judicial misconduct was first reviewed by Robert Keating, Administrative Judge of the New York City Criminal Court, who is now an adjunct professor of Pace Law School and even Vice-President of that school:
It is Judge Keating who conducted a "review" - instead of requiring Judge Levine to go to court and file a defamation case if he wants to claim that he was defamed by Elizabeth Holtzmann.
And it was Judge Keating who, instead of a jury in a never-filed defamation lawsuit who "found" that report of judicial misconduct of Judge Levine (friend of influential and wealthy judge-maker Meade Esposito) by Elizabeth Holtzmann "is not supported by the evidence".
Judge Keating had an interesting connection with the same Meade Esposito, judgemaker and "boss" of New York State judges and friend and career-maker of Judge Levine.
In his biography published on his Pace Law School webpage, Vice-President of Pace Law School mentions that he was "the Coordinator of Criminal Justice for Mayor Edward Koch from 1980 to 1982" and that he was only "later being appointed to the Criminal Court bench in New York City" and further up the judicial ladder.
Since Keating was himself "appointed" after working for Koch, and Esposito was the one who "made" judgeships at that time, it is fair to suppose that Esposito played a role in Keating's judicial career, too.
So, Levine's friend and colleague, connected with Levine not only as a colleague, but also through connections with Levine's wealthy and politically influential friend, supporter of Levine's judicial career for whom Levine fixed court cases, absolved Levine from the necessity of filing a defamation court case against Elizabeth Holtzmann.
Mind that as an "administrative judge" of criminal court, Robert Keating had no authority to conduct any reviews - he was not a member of the Judicial Conduct Commission.
Yet, not only he did it, but several state authorities relied on his review in disciplining not the judge, but the judge's critic, prosecutor Elizabeth Hotlzmann.
It is interesting to see how discipline of Elizabeth Holtzmann fits into the record of her own - quite outstanding - career as a public servant.
Her report of judicial misconduct of Judge Levine in 1987 was not the first time when she upset a powerful political figure related to the judiciary.
15 years before that, at the age of 31, she has upset the many-times-incumbent Chief it he U.S. Senate Judiciary Committee by ousting him and being the first woman to be elected into the U.S. Congress.
And, in her report in 2016, Elizabeth Holtzmann provided the following additional details as to her discipline for criticism of a judge when she was a District Attorney in New York City.
First of all, she pointed out that at that time public officials were not ashamed in publicly denigrating and demeaning women,
including female attorneys:
Second, Elizabeth Holtzmann was the woman who upset the "Old Boys Club" of the judiciary by her previous election to the U.S. Congress that ousted the male Chairman of the Senate's Judiciary Committee of many years, the woman who won the District Attorney elections against a male opponent who was putting her down as a little girl, and was fighting to abolish the requirement that rape could be proven only if the women proves resistance and could never be proven against the woman's husband, making marital rape legal, enabled and encouraged.
It is that with that background in mind that discipline of Elizabeth Holtzmann was handled.
No defamation lawsuit was required of Judge Levine to win against Elizabeth Holtzmann.
Instead, the judiciary's role as the regulator of the legal profession - regulation introduced to help consumers find competent and honest attorneys - was used to create a private and institutional benefit for regulators themselves, to quash critics of their own misconduct.
It must be stated with regret that even the single female judge on the Court of Appeals, Judge Judith Kaye, supported discipline against Elizabeth Holtzmann claiming that she is protecting not a judge from criticism of misconduct, but the public from "unfair" defamation of a judge, knowing that defamation must be first proven in a defamation lawsuit - a lawsuit that Judge Levine never filed.
Judge Kaye's
- "being a good girl",
- bowing to the Old Boys' Club in browbeating a female prosecutor simply because she protected a victim of rape from vile misconduct of a male judge and
- blocking the path of so many victims of rape to a legal remedy - who would want to subject themselves to humiliation the kind of which the victim of Judge Levine's misconduct suffered -
paid off big time for her: Judge Kaye was appointed by Governor Mario Cuomo as the Chief Judge of the court in just two years after that, when Cuomo's friend Chief Judge Sol Wachtler was charged with federal crimes.
Moreover, Wachtler reported in his prison memoirs that Kaye sent him friendly notes to prison:
"Joe Bellacosa, my friend of forty years, who had sat with me as a judge on New York State’s highest court for eight years, came to visit me today. He flew down from Albany this morning to, as he put it, give me “a hug.” He did more than that. He gave me reassurance of the affection and concern of my former colleagues and delivered a warm note from Judith Kaye, the Chief Judge.
Wachtler, Sol. After the Madness: A Judge's Own Prison Memoir (p. 140). Open Road Media. Kindle Edition. "
Once again - Wachtler was convicted for extorting money from a woman in exchange for a promise that he will not kidnap her minor daughter.
It is interesting to mention that, when Holtzman's discipline was upheld in 1991 by the Court of Appeals, and when judges created a court precedent portraying her as a dishonest person making false statements against judges, Holtzman was already elected as New York City Comptroller - at the time when "it has long been an open secret that New York City courts are patronage mills where party loyalty buys judgeships and judges reward party hacks with lucrative assignments".
In fact, Kaye herself conducted a token "investigation" into such practice, which continues throughout New York State to this day, long after Kaye has gone from the Court of Appeals and died.
The discipline did not stop Holtzman.
After discipline was affirmed by the Court of Appeals in July of 1991, in October of 1991 Holtzman tried to have the Senate's Judiciary Committee hear testimony of a second alleged rape victim of a U.S. Supreme Court judicial nominee Clarence Thomas.
The witness was not heard.
Thomas was appointed to the U.S. Supreme Court.
Another witness against a federal judicial nominee, also a young woman from New York City, Elena Sassower, protesting against nomination of Judge Richard Wesley, who insisted on her testimony before the U.S. Congress, was simply jailed by the old boys' club, and the judge was still appointed.
Coincidentally, Elena Sassower's mother, attorney Doris Sassower, was suspended indefinitely from the practice of law just one month before discipline against Holtzman was affirmed by the New York State Court of Appeals, for filing constitutional challenges of the cross-endorsements party schemes, the kind of which Meade Esposito was the mastermind.
New York State now celebrates trailblazer women who fought against the establishment for civil rights.
Yet, I do not see Elizabeth Holtzmann, while giving speeches about progress in women's rights, pointing out to the plight of other women attorneys who have less connections than Holtzmann's and whose license, thus, could not be saved from judicial retaliation after they exposed judicial misconduct.
Doris Sassower, suspended in 1991 for criticism of judicial corruption and for her work as a civil rights attorney filing constitutional challenges to that corruption, remains suspended.
This author, suspended in 2015 for the same, see the article where a local newspaper in Delaware County, New York, with connections to a judge who is behind my suspension, acknowledges that I was suspended for criticizing "gross judicial misconduct"
remains suspended. Mind this bibliographical rarity, The Walton Reporter is the only public source (other than my blog) that has made this "slip of the tongue", a confession that my law license and livelihood was, indeed, taken by judges taking advantage of their roles as regulators of the legal profession in retaliation for criticism of those same regulators, judges.
Other sources, including the order of suspension itself, does not state that I was suspended FOR criticizing judicial misconduct - even though I was really suspended
- without ANY fact-finding hearing
- based solely and exclusively on sanctions imposed upon me by the corrupt Delaware County judge Carl Becker (whose pictures with bears he killed Walton Reporter regularly posted in the past) FOR making a motion to recuse Becker because of his misconduct and corruption (he recused from my cases in 2009, then got himself reassigned to my cases in order to be able to get me, got me in 2011 and immediately put his sanctions into the "disciplinary pipeline", same as Judge Levine did with Elizabeth Holtzmann).
The only prosecutor disciplined since Holtzmann in 1991 was Paul David Soares, the Albany County DA, in 2012 - "coincidentally", also for criticism of a judge.
By the way, my discipline was sustained by the court in a similar fashion with Holtzmann's discipline - by the time I was suspended in November of 2015 Judge Carl F. Becker already ran from the bench during an FBI and Commission for Judicial Conduct investigation.
Yet, it is a crime for an attorney to criticize a judge even if his misconduct has already caught up with him.
Since Holtzmann's discipline many, many attorneys, regulated by the judiciary, were disciplined by judges, and removed from the reach of the public they could benefit by their services, for criticism of their own regulator - which is, as Holtzmann knows and argued to the court, not only unconstitutional, but requires the change of the interested regulator of the legal profession.
Holtzmann, knowing full well that attorney regulation, introduced for the benefit of the public, is used to the detriment of the public, sat by in Congress for several decades, not trying to lobby the federal Legislature to remove the regulation of the legal profession, and with that, of public access to court, from the hands of the regulator who is using it to grab private privileges for the regulator itself and to quash criticism of its own misconduct.
So, when we are celebrating "Power to Women", we must ask ourselves - for what purpose do some powerful women, like former Congresswoman Holtzmann, used that power?
For self-promotion only?
That is not what voters expected of her. And that is why I do not support pink-hatted "women's marches". They are useless. Their organizers are nowhere to be found where real women's real civil rights are violated.
I did not hear anybody "of consequence" trying to speak at that Women's March about the plight of many, many, many attorneys, female and male, who are disciplined and lose their licenses for criticizing their regulator - which is their duty to their client and to the public to do and their citizen's rights to do, too.
The change of the judiciary as the interested regulator of the legal profession is long overdue.
The way the judiciary uses attorney regulation to gain privileges and quash critics, skipping the necessary defamation proceedings against critics to find defamation through closed-doors "Star Chamber" proceedings without prior discovery or a jury trial, is a shame of the American judicial system.
An interesting historical note before I bow out.
The American judiciary grabbed regulation of attorneys claiming that such a power of the judiciary to regulate the legal profession is "historical", that it was like that in the "Old Country" - the country separation from which because of its unfair laws was won through a bloody war, and paid for with so many lives.
Yet, even in the Old Country cases where people were prosecuted for criticism of the government were taken away from judges of the Star Chamber in 1792, and put into the hands of juries, by the Libel (Fox) Act, specifically because judges proved they could not be impartial in handling criticism of themselves.
Let's remember the date when this rule was revoked in the Old Country - and based on a petition drafted by a Star Chamber Judge Sir Edward Coke who knew from his own experience how biased he was in cases of seditious libel (criticism of the government).
1792.
In 1792 in England, by an act of Parliament, cases of prosecutions for criticism of the government were taken from judges and given to juries.
Of course, juries often do not help if they are fed self-serving law by judges.
For example, in 1964 the U.S. Supreme Court (itself a regulator of its own "bar"), decided Garrison v Lousiana where it reversed a criminal conviction of a prosecutor for criticism of judges, saying:
"A state court convicted him of violating the Louisiana Criminal Defamation Statute, which, in the context of criticism of official conduct, includes punishment for true statements made with "actual malice" in the sense of ill-will, as well as false statements if made with ill-will or without reasonable belief that they were true. The state supreme court affirmed the conviction, holding that the statute did not unconstitutionally abridge appellant's rights of free expression.
Held:
1. The Constitution limits state power to impose sanctions for criticism of the official conduct of public officials, in criminal cases as in civil cases, to false statements concerning official conduct made with knowledge of their falsity or with reckless disregard of whether they were false or not. New York Times Co. v. Sullivan, 376 U. S. 254, followed. Pp. 379 U. S. 67-75.
2. Appellant's accusations concerned the judges' official conduct and, did not become private defamation because they might also have reflected on the judges' private character. Pp. 379 U. S. 76-77."
After Garrison, disciplinary boards (entities populated and controlled by judges and considered as "arms of the court") continued to provide a service for those who gave them their licenses and ability to earn a living, judges, while blocking access or control over the regulation by people who they are supposed to benefit - consumers (just look up compositions of disciplinary boards, consumers are always present in token numbers, if at all - in such numbers as never to outvote judge-regulated attorney members).
Disciplinary boards allowed judges, as described above, to skip the necessity to file defamation lawsuits against attorneys who they think make false statements against them, and to take their licenses without any impediments like open court proceedings, discovery or jury trials.
Instead, judges are offered a "service" - just complain to us, and we will stage a Star Chamber for attorneys and decide who gets to continue to practice, and who gets to starve because they dared to criticize "the hand that feeds them" - even though the supposed "hand that feeds" attorneys is only a REGULATOR of law licenses FOR THE BENEFIT OF THE PUBLIC, not the King to do with the license what they want because of their personal grudges.
In other words, disciplinary boards continue to offer judges Star Chamber services that were prohibited in the Old Country in 1792.
And, American attorneys - and the public they represent - continue to live in a pre-1792 era.
And, nothing is done about it because attorneys whose licenses are controlled by judges have so far overpowered all branches of the government, so the concept of "checks and balances" became a mockery.
What importance this all is to the public at large minding its own business far away from "attorney squabbles"?
Next time when you cannot find an attorney who would not be afraid to take on a civil rights case of judicial misconduct, or file a motion to recuse a judge - remember to ask former Congresswoman Elizabeth Holtzman, who cozily hid behind her connections and public officer's salary for 50 years.
Ask her just one question.
You knew that the regulator of the legal profession has a major conflict of interest and uses that conflict to grab personal advantages to the detriment of the public - instead of doing its job and regulating the profession for the benefit of the public. You knew that to pursue that goal the judiciary makes attorneys live in a pre-1792 Star Chamber England.
Just saying.
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