"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.

Tuesday, August 21, 2018

As of yesterday, New York State recognized that its attorney regulation system is politically motivated

Yesterday, New York State Governor Cuomo has signed a bill creating a Commission on Prosecutorial Misconduct.

The wrongfully convicted, criminal defender association, civil rights advocates rejoice.

They have "won".

Won what?

Of course, nobody in New York State legislature (where legislators are predominantly attorneys whose licenses and livelihoods are controlled by a different branch of the government, courts, talking about "checks and balances") dared to go at the core problem that makes prosecutorial misconduct possible - judicial and prosecutorial immunity given by judges to themselves and to the only people who can hold them criminally accountable, prosecutors.

And, nobody looked at the fact that, naturally, judges would not discipline prosecutors - because otherwise prosecutors will start turning judges for corruption and violation of constitutional rights of litigants into criminal grand juries - or call in the FBI, after all, it is a federal criminal offense, and New York courts have a "concurrent" jurisdiction on federal issues.

The created Commission has the exact same flaws that the Commission upon which it is modeled, the New York State Commission for Judicial Conduct:

  1. conflicts of interest in appointment of members;
  2. secrecy in operation;
  3. lack of standing for complainants to appeal dismissed meritorious complaints.
In other words, it is a waste of taxpayer money, and, as I wrote before, a dangerous illusion created - and already spread with fanfare, that the state of New York is some kind of a "trailblazer", not only in number of wrongful convictions, but in "creating a remedy".

An effective legal remedy, ladies and gentlemen, is a remedy that people can take to court and win for themselves, every single victim winning a recourse for themselves in every single case, on an individual basis.

A legal remedy would be the right to sue the damned suckers in federal court - and such a right, believe it or not, was created by the U.S. Congress when it enacted the Civil Rights Act, 42 U.S.C. 1943, only the federal judiciary - that has NO RIGHT under Articles I and III of the Federal Constitution, to change that legislation - did just that, and gutted it as far as lawsuits against themselves and their prosecutors is concerned.  

The judiciary created for prosecutors and for themselves "absolute immunity", a de facto permission to violate that same U.S. Constitution, the oath to uphold which was the condition for them to take office in the first place.

A legal remedy would be if a victim of judicial or prosecutorial misconduct could directly address a grand jury and ask it to conduct an investigation of the matter and bring criminal charges against the perpetrators.

That is not what the Commission is for.

It is a barrier between the people and the government, a secretive, conflict-ridden barrier that gives the victim no "standing" (right) to even challenge ANY decisions of the Commission, no matter how arbitrary they are, including putting complaints against prosecutors directly into the garbage bin.

I hate to be right on this one, folks. 

Yet, come January of 2019, when the Commission on Prosecutorial Misconduct starts operating, you will see I was actually right - when your complaints start being tossed, and when all explanation you will receive will be - none.  Dismissed, and that's all.  And you will have no right to appeal the dismissal.  Because the Commission has "exercised its discretion".

And you will have the solace, the satisfaction, the "remedy" of being able to put your complaint down the garbage chute.   

Of course, for that, you did not have to pay millions of dollars of your hard-earned taxpayer money for yet another secretive  - and useless for you - government entity.

But let's return to the question that is staring every New Yorker in the face now.

Now there are TWO systems of attorney regulation in New York, one for non-prosecutors, and one for prosecutors.

One for prosecutors is headed by the Executive branch of the government, one for non-prosecutors - by judicial branch of the government.

Why the need for two systems of attorney regulation?

Oh, because the judicial branch which creates and appoints attorney disciplinary committees and considers them part of itself 

(so that it combines in itself all three branches of the government - legislative, executive and judicial - it legislates the rules of conduct for attorneys, investigates attorneys, files charges, prosecutes them, and them adjudicates them, too, talking about constitutional "checks and balances" that that same judiciary must uphold, according to every judge's constitutional oath of office)

WOULD NOT, for years, discipline prosecutors - those prosecutors that have caused New York to lead the nation in the number of wrongful convictions.

So, instead of yanking the judiciary from its position of regulator of attorneys and instead introducing a regulator (if it is needed at all) that would be neutral and would act not in a self-serving manner, "the solution" was to create a parallel system of attorney regulation.

And, people are making careers on "winning" the bill - because, being attorneys (the sponsor of the bill) or future attorneys (some of supporters of the bill), they are AFRAID to do the right thing and create the real remedy for the people, which will not require ANY funding from the budget at all.

1.  Abolish prosecutorial and judicial immunity - and allow people to obtain their own legal remedies in cases of prosecutorial misconduct in their own civil lawsuits; 

2. allow direct access of the people to the grand juries to ask for investigation and prosecution of rogue prosecutors (and judges).

Instead, New York State shot itself in the foot and has become the first state in the nation that recognized that the system of attorney regulation is a politically motivated sham.

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