"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, December 11, 2018

Prosecutors' pre-fixed lawsuit challenging constitutionality of the New York State Commission for Prosecutorial Conduct, Part IV. The Legislature and the Governor inadvertently nixed prosecutorial immunity for the Attorney General and his Assistants and to special counsel assigned to prosecute criminal cases.

In this part of the series covering New York prosecutors' lawsuit challenging constitutionality of the New York State Commission on Prosecutorial Conduct, Part IV, I start analysis of issues in the lawsuit that - as people "in the know" told me yesterday - was not planned to proceed until the Legislature, also as "planned", would change (gut?) the law signed in with fanfare on August 20, 2018, at the height of the Governor's and New York lawmakers' election campaigns.

Part I can be read here.

Part II - here.

Part III - here.

The text of the prosecutors' lawsuit is available here.

And, as I have pointed out before, certain valuable information can be blurted out by people out of complacency mixed with lack of proper training in a certain field of knowledge.

Here, attorneys, as I pointed out in my previous blogs, did not advertise on their webpages their training in the necessary (for this lawsuit) fields of:

  • constitutional law;
  • occupational licensing, and a peculiar subpart of that licensing,
  • attorney regulation.

Thus, their blunders.

The first blunder was made in their challenge to the reach of the Commission for prosecutorial conduct based on the law's definition of a "prosecutor" subject to jurisdiction of the Commission.

Here is what the District Attorney's Association said on this issue in their lawsuit.

People usually do not read lengthy Senate bills - like the one challenged here. 

And, if they do read those bills, they may not pay attention to the intricacies and implications of certain blunt statements, like:


But - by pointing this distinction in a lawsuit, the poor buggers brought attention to what they may not have wanted to point their finger at (they do not use the word "corruption" in the lawsuit, for sure).

To the exception carved out in the prosecutorial misconduct law by the Legislature and by the Governor who signed that law - FOR THEIR OWN COUNSEL, Attorney General, Assistant Attorneys General and special counsel who may be appointed instead of the Attorney General to represent legislators and the Governor on "sensitive issues", in civil rights lawsuits filed against them.

Isn't it nice?

An Attorney General - a criminal prosecutor in his own right, as well as his assistants and his (and district attorneys' replacement - special counsel) are not within the reach of the Commission on Prosecutorial Conduct.

And, of course, the Attorney General and his Assistants are not within the reach of attorney discipline.  You know why?  Because the Attorney General and his Assistants REPRESENT the blokes in attorney grievance committees when they are sued - either for civil rights violations, or for violations of federal antitrust laws, which happens fairly often in the State of New York.

So, what does this not-so-little loophole allows prosecutors to do?

The Attorney General and his assistants - and special counsel assigned after recusal either of the Attorney General, or of any garden variety county DA -  can drum up wrongful convictions at their total delight, without ever being subject either to attorney discipline (by unspoken policy) or by the Commission for Prosecutorial Conduct (by "law").

But, on the other hand, what can the public do with the same statute for their own benefit - against rogue prosecutors?

The stick has two ends, and the other end actually hurts the Attorney General, Assistant Attorneys General and special counsel appointed instead of recused Attorney General or District Attorneys.  And, hurts them badly.  

Not considering the Attorney General and her Assistants, as well as special counsel, as prosecutors - for the benefit of the blokes who made the law exempting them from the reach of the Commission for Prosecutorial Conduct presents a curious problem for them in civil lawsuits filed against them.

How can a bloke claim prosecutorial immunity if a statute created for that bloke's benefit by the bloke's powerful client specifically excepts that bloke from the definition of a prosecutor?

If he is not a prosecutor, he should not be covered by prosecutorial immunity.  Right?

That was one favor given to their own counsel by the Legislature and by the Governor.

So many blokes worked so hard on the text of this law.  With law degrees, no less.

And that is what they produced.

By the way, I did not see why the challenge was even in the lawsuit - because there was no pronounced equal protection challenge in the text of the two "causes of action" in the complaint, nor is such a challenge possible.

Because the U.S. Supreme Court whose precedents govern - instead of the U.S. Constitution, as should be in accordance with Article 6 Section 2 of the U.S. Constitution that all judges and lawyers and lawmakers are sworn to uphold - how constitutional challenges are decided, divide such challenges into levels of "scrutiny", divide rights guaranteed by the U.S. Constitution into more important and less important.

Equal protection, in its turn, is divided into classes of people - also invented by the U.S. Supreme Court, such classes are not in the U.S. Constitution - more protected classes and less protected classes.

More protected classes (equal protection based on race or nationality) deserve, in the U.S. Supreme Court opinion, strict scrutiny, the highest level of the court's scrutiny, and those misers who the court did not include into their list of "protected classes", deserve only "rational review" - meaning, any explanation that is not completely insane (and then some) will prevent a court finding that somebody's equal rights are violated.

And, SCOTUS did not (yet) include prosecutors into a protected class for equal protection purposes.

So, exposing the difference - that only DAs and Assistant DAs, but not the Attorney General, Assistant Attorney General and "special counsels", are within the reach of the Commission for Prosecutorial Conduct, as the law now provides - was shooting from a cannon into the blue sky for no purpose at all other than attract attention to something that corrupt and that stupid.

But - what are you going to do, people?

That's who you voted into office.  That's who you have.  That's what they do.

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