"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.

Wednesday, January 9, 2019

The New York prosecutor's lawsuit - a selective approach to infringments upon prosecutorial discretion. Part IX.

Last year, I have started a series of articles about the lawsuit by the New York District Attorney's Association (a nonprofit corporation) to nip in the bud the law that introduced a separate Commission for Prosecutorial Conduct, unanimously passed by both houses of the state Legislature and used by state lawmakers, and by the state Governor Cuomo, to get re-elected - and then stopped in December on the pretext that a lawsuit challenging the law was made.

Part VIII is here.

In this part, Part IX, I will continue to analyze the prosecutors' lawsuit, and will touch upon a very interesting aspect of it, prosecutors' claim that the Commission on their conduct will supposedly encroach upon their exclusive discretion to charge or not to charge a crime, I wrote about it already in Part VI, from the point of view of prosecutors' indignation that they would be prevented from criminally charging whistleblowers against their own misconduct, but there is one more aspect to it.

I already covered in my previous articles the double standard of prosecutors in claiming that allegedly the existence of the Commission for Prosecutorial Conduct will violate the "bedrock principle of democracy", the separation of powers, because, by New York State Constitution, only the Chief Executive Officer of the State, the State Governor, has authority to remove prosecutors from office.

I already wrote that, despite that statement, prosecutors are happy with the current status-quo when not the executive branch (the Governor), but the judicial (in violation of that same bedrock principle of separation of powers) is authorized to discipline those same prosecutors and remove them from office by yanking their law licenses.  A double standard.

But, there is one more double standard here.

Contempt of court.

There is such an interesting relic, dating back to the 12th-century England, long before the U.S. emerged and long before the U.S. Constitution (that every judge and prosecutor are sworn to uphold) was adopted.

While prosecutors claim that their authority to charge or not charge, prosecute or not prosecute crimes is there exclusive authority, and attack the law that so much as allows a body investigating prosecutors' misconduct (that so far have racked up a giant number of wrongful convictions in the state of New York) to "encroach" upon that prosecutorial discretion - by giving immunity from prosecution to witnesses of prosecutorial misconduct.  Prosecutors are upset that the law has stripped them from their ability to retaliate against witnesses against them, by fabricating criminal proceedings against them.

But, they are, same as with the removal from office issue, absolutely ok to allow judges to charge people with contempt of court "committed in the judge's presence" - and to act as a complaining alleged victim, witness, prosecutor, jury and judge all in one in such cases.

No problem for the prosecution.

And, no problem for the prosecution that there exists a law in the State of New York allowing (supposedly) private parties, not at all any kind of prosecutors, to bring criminal and quasi-criminal ("civil contempt" which New York courts treat no differently than criminal contempt) charges of contempt of court BY MOTIONS within civil proceedings.

That is not, to those same prosecutors, an encroachment upon their "prosecutorial discretion".

I wonder, why the double standard?

Judiciary Law

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