"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.

Sunday, August 26, 2018

#MeToo in New York has stopped at the doors of courthouses - and what New Yorkers can do about it

I am all for the rule of law.

And, I am all for proving allegations before marring a person's reputation - especially when allegations are about sexual harassment.

Such an allegation is very, very damaging to a person's reputation, and, yes, the ideal situation is that such allegations must be ruled upon by the court before anybody would be pointing a finger at a person and stripping him of his business, official position, or his reputation, or all of the above.

But, there is also the so-called #metoo movement.

And, in the State of New York, specifically, the #metoo movement, so far, has swept away two giants previously believed to be unsinkable - on allegations alone, without any court decisions on the subject of supposed sexual harassment:

1.  Harry Weinstein; and
2. the former New York State Attorney General Eric Schneiderman.

Just allegations - and they are gone, as well as their reputations.

But - we also have this.

Meet New York State Judge Douglas Hoffman.

Note that, as of today, Judge Douglas Edward Hoffman, of New York City Family Court - of all courts - has "no record of public discipline" as an attorney.

Note that judge Douglas Hoffman is still very much on the bench - on the bench of Family Court, deciding fates of families and children without a jury.  

For that, a person needs to have an extremely high level of judgment and moral character, don't you think.

Well, think again.

Here is the lawsuit.

Of judge Hoffman's former law clerk, a female attorney of Philippino descent, Alexis Martquez.

And, before I start analyzing the lawsuit - a big kudoz to Ms. Marquez' attorney, Anthony Vasillev, for a meticulously drafted lawsuit, and for his courage to take off the entire judicial system for - instead of helping the victim sexual harassment, firing the victim of sexual harassment and erasing half of the New York State anti-sexual harassment policy.

By the way, the New York State Governor Andrew Cuomo, running this year for re-election against a strong opponent, Cynthia Nixon, has just changed the state employee harassment in the workplace system, rerouting it into one committee which, as comments suggest, has no resources to handle the amount of complaints and will be simply used to sweep complaints under the rug - just as the New York judicial system did with Ms. Marquez' complaints and with complaints of other victims of sexual harassment by judges in New York.

Consider the setup.

A law clerk is an attorney.

Her law license - and livelihood - is regulated by judges.

She works for a judge.

A judge starts to come on at her - starts to sit close to her, talk to her about "imagine that we are married", "imagine that you are my girlfriend", tells her stories that he supposedly "did the baby thing" with his former law clerk.

Tries to contact her over the weekend on her personal email, asks her personal questions, demands that she talks to him in a "singsong female voice".

When the woman tried to set personal boundaries for a judge - in writing, by an email, the hell broke loose.

Documenting judicial misconduct was, in the New York judicial system, the ultimate faux pas for a female attorney - which ultimately cost her her job.

Because she did not want to stop, filed written complaints against the judge, refused to back out of them, and thus received, at first, hints that she might not be a "team player", and thus is not entitled to be "transferred" because of a "professional mismatch" with a judge.

So a "professional match", I understand, would be speaking to the judge "in a singsong voice", and "doing the baby thing" with the judge.

What Ms. Marquez discovered, as her lawsuit alleges, is that the New York court system is well aware of instances of sexual harassment by judges, but has developed a very intriguing way of dealing with such instances.

Here is the set of rules.

1.  The judge involved in sexual harassment remains on the bench, and he, of course, retains his law license.
2.  The law clerk/attorney who keeps mum about the sexual harassment, gets a bribe - a "transfer" to another good paying job, with good benefits, within the New York judicial system, while job listings in the system is not public (and if any jobs are listed, the listings are phony, since candidates are picked to fill these vacancies out of friends, families and political supporters of judges).
3. The law clerk/attorney who documents sexual harassment and demands accountability for the judge and remedies for herself - gets canned, and
4. People in the judicial administration who are supposed to handle such complaints "lawyer up", claim that direct communication with them is "inappropriate" and direct the victim of sexual harassment by a judge to litigate her claims.

Which Ms. Martez did - she filed a lawsuit.

Easy rules, aren't they?

During her nearly 2-year's ordeal Ms. Marquez has learnt that, for example,

1. the Chief Adminsitrative Law Judge of the Office of Court Administration of the State of New York Lawrence Marks had unilaterally - and in answer to her complaints - ERASED half, if not the most part, of the state court system's anti-sexual harassment policy.  The provisions erased are listed in the lawsuit.

2. Chief Judge Janet DiFiore - the one with the "Excellence" program, 

refused to help the female attorney, a victim of sexual harassment by a judge, and refused to help reinstate her when she was fired for "professional mismatch" in understanding of judge Hoffman, and for "not being a team player" in the belief of New York State court administration - for daring to document her plight and demand justice, think about it - for an attorney to demand justice from a court system, the gall!

By the way, DiFiore, in her "Excellence Initiative", called upon any person (including Ms. Marquez) to advise her what aspects of the court system in which DiFiore "is committed to achieve and maintain excellence" "giving the people of New York the level of justice services they have a right to expect and deserve" - but somehow remained deliberately deaf and blind when an appeal to "improve" the system and cleanse it of judges - sexual predators - reached her.

But, of course, this is the same DiFiore who was herself involved in many lawsuits before her ascension to the bench through nomination by her buddy Governor Cuomo whom she rescued once from a criminal investigation for corruption (I testified about it, about other instances of documented misconduct of DiFire and about my personal experience as an attorney, also documented, with prosecutorial misconduct of DiFiore's DA's office in a criminal case to the New York State Legislature in written testimony since the Legislature did not allow me to appear in person and give an oral testimony against DiFiore's confirmation - all I got for that is that DiFiore was still confirmed and retaliated by making illegitimate decisions on my court cases that came to "her" court, without recusing herself).

And, it was the same DiFiore who was known to have called a journalist who dared to run a critical article about herself and her attorney husband and yelled at the journalist that her husband is on first-name basis with U.S. Supreme Court justice and has their direct phone lines.  Talking about integrity.  Talking about impartiality of judicial review as to every and all appeals coming from DiFiore to the U.S. Supreme Court.

There is also a sinister side to DiFiore that the so-called "mainstream media" is unwilling - or afraid? - to explore, there are too many bodies of African Americans "coincidentally" surrounding her reign - as a prosecutor and as a judge.

This is the same DiFiore who appointed her own husband to a Committee for Constitutional Convention in New York - as an anniversary present no less.

This is the same DiFiore who already made at least one judicial decision that I know of in favor of organization her husband participates in managing.

I do not know whether Ms. Marquez and her attorney will have enough guts to present evidence of DiFiore's dishonesty and corruption to the federal court - especially that DiFiore and the Chief Judge of the federal appellate court (2nd Circuit) Robert Katzman appoint judges to the "shadow court system" - the State-Federal Judicial Council, membership in which both New York State and New York federal system refuse to disclose, and thus lawsuits against DiFiore in front of courts within jurisdiction of the 2nd Circuit become not only futile, but downright dangerous for litigants and their attorneys.

None of judicial decisions coming out of the 2nd Circuit may be treated as legitimate - since there is absolutely no assurance for the public that such decisions were made in court and on the merits of the case, and not through the "telephone law" and through the secretive State-Federal Judicial Council.

Attorney, with whose assistance the New York judicial system "lawyered up" instead of helping the victim of sexual harassment at the hands of a judge - was none other than the already "famous" John McConnell.

I wrote about John McConnell 3 years ago, in relation to his efforts to pretend to be a private lawyer of Judge Brian Burns of Otsego County and to threaten legal action against a father of a teenage mentally ill boy who Burns sentenced as an adult and not as a youthful offender, to many years in state prison, in retaliation for his father's written plea for mercy.

The complete cast of characters for the lawsuit is as follows:

So, let's not forget.

Harry Weinstein - toppled on allegations of his ALLEGED victims, without a court decision that sexual harassment actually happened.

Eric Schneiderman - resigned upon allegations of sexual harassment, also no judicial decisions.

Judge Douglas Hoffman remains very much on the bench, very much with his law license intact, with "no record of public discipline" and continues to unilaterally decide fates of New York parents and children in Family Court.

Moreover, his victim is fired, specifically for exposing him, and half of the state court system's sexual harassment policy is faithfully erased for the benefit of Judge Hoffman - as alleged in the lawsuit - by the Chief Administrative Judge Lawrence Marks.

And, these people continue to regulate access to justice - not only of Ms. Marquez, but by all New Yorkers, regulate attorneys, so that they would be honest and competent, and call each other "Honorable" - as a job title.

Honorable - no matter what he does.

What is interesting that, in connection with Ms. Marquez' lawsuit, the union of court employees took a stand in her defense (the sad part is that it took a stand after she was fired and after the lawsuit was filed) and demanded from the state authorities to create a commission to oversee the New York State Judicial system -

  1. the spending of the multi-billion-dollar budget;
  2. the secret hiring and firing process;
  3. the harassment policy.
The problem with such a demand is - that a Judicial Conduct Commission already exists.

And not only exists - but was just used as a model to create yet another "Commission", to supposedly fight prosecutorial misconduct.

So much for the model.

Apparently, the model does not work - since the union of insiders, court employees, ask to create an independent (from the judiciary, with its "presumed integrity") body to reign in judicial misconduct.

So, we have 2 attorney regulation systems in New York:

1. for prosecutors, 
2. another for non-prosecutors - where judges who regulate attorneys, would not regulate prosecutors, because - who knows, a prosecutor may decide to "regulate" and prosecute a judge, right?

And, now there is a demand to create 2 judge-regulation systems - the Commission for Judicial Conduct and … another Commission for Judicial Conduct, that "would work".


Of course, the misconduct - both judicial, and prosecutorial - will continue for as long as judges (and prosecutors) will "enjoy" (the term they usually use in legal documents) the so-called "immunity" from civil lawsuits, protecting judges (and prosecutors) even for malicious and corrupt acts on the bench.  And, until prosecutors (who already "enjoy" the permanent bribe from judges, absolute immunity for prosecutor's own misconduct) are removed from their positions of "legal advisers" to the grand jury, which makes no sense since the prosecutor is a side to a criminal lawsuit and may not be allowed to advise the decision-making body, but it is, "by law".   And, until the public is allowed DIRECT ACCESS to the grand juries to ask grand juries for investigations against rogue judges and prosecutors, and other public officials who commit misconduct.

In this case - where the judge was an employer and not an adjudicator of a court case - the judge might not get away with immunity so easily, but we'll see how the State-Federal Judicial Council (oops) the federal district court will rule.

As to misconduct of judges, elections are coming, and New Yorkers may demand from the candidates to various offices - accountability, to create REAL, EFFECTIVE mechanisms of accountability for judges and prosecutors.

No immunity.

Remove prosecutors from position of legal advisors of grant juries.

Direct access of people to grand juries.

Very easy remedies.

Not costing any money at all.

Do you think New York candidates for public office will dare promise that?

Or, will dare implement these solutions when they actually come into office?

If not, there is another remedy.

A statewide public referendum.

Enough is enough.

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