"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.

Saturday, December 15, 2018

The sham of Prosecutoricla Conduct Commission in New York, Part 8, one more "good violation" of the "bedrock principle" of separation of powers

Here is the 8th article of my article series about the sham of Prosecutorial Conduct Commission in New York that was - according to an insider - prearranged to be signed into law before the elections and then stalled "because of a lawsuit" after the elections and before coming into being.

In the last article, Part 7, I have covered the argument of the District Attorneys Association in their lawsuit that the law creating the Commission violates the "bedrock principle of democracy", the separation of powers.

While separation of powers - if it works - is, truly, the bedrock principle of democracy, I have pointed out that prosecutors are quite selective about New York government's violation of this "bedrock principle", picking and choosing which of such violations to condemn and which to support - because it aids those same prosecutors.

I have pointed out that the prosecutors gladly accepted a violation of separation of powers when:

  • The Governor de facto rescinded the law about creation of the Commission for Prosecutorial Conduct (while the law remained on the books and was not - until this day - rescinded or abolished by the Legislature, the only government body that has authority to do that); and
  • that Appellate Divisions (intermediate appellate courts) discharge what prosecutors pointed out as being an executive function of disciplining elected executive officer (prosecutors), including the power of removal - which prosecutors claim belongs only and exclusively to the executive branch of the government, the Governor (and on this, prosecutors are right, since ALL of over 180 licensed professions in New York are regulated by the executive branch, while removal of prosecutors may be, truly, done only by the chief if that branch, the Governor - in accordance with the State Constitution).  Why such a preference?  Because Appellate Divisions have an unwritten policy never to remove a prosecutor still an office - and never did, in all the history of attorney regulation.

There is yet another violation of the "bedrock principle" of separation of powers in favor of prosecutors that prosecutors thoroughly enjoy and never try to complain about or refuse to accept:  the so-called absolute prosecutorial immunity.

Let's look at who's who in how that prosecutorial immunity was given to prosecutors (who hold onto it with a death grip and invoke it whenever they are sued - for causing a wrongful conviction, for example, that has put an innocent person into prison for several decade, or on a death row).

1.  There is a U.S. Constitution, with its Article 6 Section 2 - the Supremacy Clause, making itself the Supreme Law of the Land.

2.  There is Article I of that same U.S. Constitution giving exclusive power to create, change and call back (enact, amend and rescind/abolish) laws exclusively to the U.S. Congress;

3.  There is Article III of that same U.S. Constitution giving to federal courts only the power to do what courts usually do - decide disputes between parties (by the way, prosecutors know limitations of judicial power very well, they pointed out the limitations of judicial power in their lawsuit).

This is from page 12 of prosecutors' lawsuit:

Consider:  "the separation of powers prohibits legislative or JUDICIAL "encroachment on the power of the executive branch", yada-yada-yada...  

The separation of powers, actually, prohibits ANY branch of the government to encroach upon the authority of the other branch - but yet, allows them to "check and balance" the other branches, remember?

Neither the principle of separation of powers, nor the "checks and balances" principle can be found in the text of the U.S. Constitution, it is just what the government "finds" in it - and "interpret" those found principles only and exclusively in its favor.

Collusion of the branches - instead of "checks and balances".

Recognition of the principle of "separation of powers" - only when it favors them.

Ignoring violations of the principle of "separation of powers" - also when such a violation favors them.

Now, see this:

"The function of judges is to determine controversies between litigants".

Oh, really?

So - when judges CREATE LAWS, and POLICIES favoring the government, the various changes to the Civil Rights Act that, taken together has made receiving a legal remedy for violation of a person's constitutional right (which is also a federal crime) practically impossible in the United States - that would be a separation of the "bedrock principle" of separation of powers?

Because judges went outside of their NARROW authority "to determine controversies between litigants" and very well encroach into the area of the Legislature, making law and creating policy for the entire country - like the U.S. Supreme Court does, 

hence the circuses over appointments of judges to that court and the lamentations that the court can "change the law" of the country and "undermine democracy" for decades because of appointment of ONE person to that court?

Do prosecutors come together and file any lawsuits challenging usurpation of power by the U.S. Supreme Court?

I know, I know.

But, let's look at point 4 of our little "who's who" in how prosecutorial immunity came into its illegal being.

4.  The U.S. Congress, basing its actions on Article 1 and the 14th Amendment of the U.S. Constitution, created a statute, the Civil Rights Act, 42 U.S.C. 1983, by which ANY person whose rights under federal law or the U.S. Constitution may sue ANY member of the government (including a judge and a prosecutor), seeking a legal remedy for violation of his rights.

And that is a very commendable law, a bedrock of democracy, because it implements several principles of democracy and fundamental fairness:

  • no-one is above the law, including government officials;
  • there should be a legal remedy for any legal injury, including and especially constitutional violations, violations of civil/human rights - because otherwise the country will inevitably, sooner or later, slide into chaos.

Now, what did our glorious U.S. Supreme Court do with the Civil Rights Act?

Well, of course, it CHANGED it - for which the exclusive right was only in the Legislature, the Congress.

What did the U.S. Supreme Court specifically do with the Civil Rights Act?

It has created exceptions for liability of nearly all members of the government for constitutional violations - violations of that same U.S. Constitution that they are sworn to uphold and defend, as a CONDITION of holding their positions in the first place.

And who was the first class of government officials to receive - unlawfully - this exception from the reach of the Civil Rights Act?

But, of course, the prosecutors - they only people in the United States who have the "discretion" (absolute power) to "choose" whether to bring or not to bring criminal charges for any crimes, including constitutional violations and corruption - against judges.

Absolute prosecutorial immunity was given - to the prosecutors by the court, in total violation of the "bedrock principle" of separation of powers, because, in order to that, the court amended the Civil Rights Act through interpretation, carving an exception into it - in 1976, 
even earlier than judges shamelessly gave the same gift of absolute immunity to themselves - while continuing to call themselves "honorable" as a job title, and while continuing to presume their own honor "as a matter of law", and requiring lawyers to presume their honor and embed trust in their honor into the public.  That self-gift judges gave themselves 2 years later, in 1978.

Think about it.

You are elected or appointed to a public office.

You take an oath to discharge your duties faithfully, as a condition that the office is given to you.

The moment the office is given to you, you use your power to give yourself a "right" to be free of liability for violation of that same oath that put you in office in the first place, and

You continue to claim that you are presumed to be honorable, and

Require, under the threat of punishment, that people depending upon you for their livelihood (lawyers who you give or from whom you take away permission to work in their profession, law licenses) - that lawyers dupe the public, the voters, and claim that you, despite the illegal gift to yourself allowing yourself to engage in misconduct or corruption without legal liability, are presumed-honorable.

Now, for a court to change a statute through interpretation - and especially to do that in order to give favors to powerful government officials as a bribe for those officials not to prosecute judges themselves - is as gross a violation of the "bedrock principle" of separation of powers as they come.

Do you see prosecutors filing lawsuits saying - your honors, what the hell did you do?

Why did you dishonor us so much with your bribe?

Why did you present us to the public as incompetent, corrupt and bought crooks who have to rely upon immunity given to us by one of our potential subjects of investigation in order to sleep peacefully at night and be able to work at all - because that was the explanation in how the immunity was given, that HONEST prosecutors would not be able to work properly, because they will be afraid (consider the mental frailty of the poor dears) of being sued for DISHONEST acts.

For that reason, the gift was given to them that they cannot be sued for DISHONEST acts, to allow them to work further - supposedly, HONESTLY.

So, did prosecutors - EVER - complained to courts about this crazy gift to them, 
  • violating the "bedrock principle" of separation of powers,
  • gutting the Civil Rights Act;
  • destroying the legal remedy GIVEN to people by the U.S. Constitution and by the U.S. Congress; and
  • giving prosecutors a carte-blanche to create as many wrongful convictions as they want?
Because the "condition" of immunity given to prosecutors by courts - attorney discipline - was given with the same "wink and nod" as when the law for New York Commission for Prosecutorial Conduct was enacted - just for the time necessary to dupe voters before elections and to put certain government officials back in office, and then stalled by unlawful agreement between "parties" (an agreement that was never announced to voters when the Commission was announced, with much trumpeting about New York's goodness and being the "first in the nation").

Prosecutors are NEVER removed from office in New York - out of office by Appellate Divisions.

In Pennsylvania, an elected-in-a-landslide State Attorney General Kathleen Kane WAS removed from office - first suspended, then tried, convicted, put in prison, disbarred - 

BECAUSE she dared to investigate and prosecute prosecutors and judges - one judge who she investigated had the audacity to actually preside over her disciplinary case and suspend her, and the court refused to vacate that suspension, deeming such behavior by their colleague proper.

So, I return to the question - do New York prosecutors want to waive the gift of absolute prosecutorial immunity that was given to them illegally and as a bribe by a potential class of subjects in their investigations and prosecutions (judges), in violation of that same bedrock principle of separation of powers that they so ardently (if partially) defend in their lawsuit?

Didn't think so.

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