"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, February 10, 2019

The Otsego County (NY) Judge John F. Lambert of his early judgeship years was a breath of fresh air - what has changed and why judges should not serve in the area where they live, and not serve for long anyway

My previous three articles were dedicated to the case of The City of Oneonta v Pervu, litigated in the Otsego County Supreme Court, New York, now before Judge John F. Lambert, and about misconduct of various actors, including the judge himself and his law clerk Mark Oursler who teachers the City of Oneonta how to seek punishment against immigrant respondents, with specific details what to file, when to file and what to attach to the filings.

I must say though that Judge Lambert was not like that when he was just elected - at least, not apparently so.

Judge Lambert was first elected as a County/Family/Surrogate's court judge 10 years ago, in 2009, when I was already practicing as an attorney.  

He was perceived by many, when he was elected, as a breath of fresh air in the local judiciary.

Young, lean, physically agile (he ran up the stairs of the courthouse instead of puffing up), and mentally alert and with a mind open to fairness and novel ideas.

When New York State first passed legislation allowing same sex marriage - long time before the U.S. Supreme Court legitimizing it in 2015, many local judges were in opposition to that law.

Judge Lambert, as far as I remember, volunteered, on the first weekend when the law went into effect, to officiate the first same sex marriages in the State of New York.

Without the fear of being frowned upon by his "older brothers" in black robes.

In his early judgeship years, Judge Lambert allowed, in bench trials, young attorneys to win against large, powerful and connected law firms.

In his early judgeship years, I remember an episode when Judge Lambert, after overruling 15 or more objections to hearsay in a trial in Family Court in child neglect proceedings, Judge Lambert lost his temper, put the attorney (it was me) up and chastised me for not knowing supposedly that hearsay is admissible in Family Court child neglect proceedings.

I calmly answered the judge that yes, it is admissible - but not in trials.

Judge Lambert told me, in front of all attorneys and clients and court personnel present, that I was wrong.

The trial continued the next day.

The very first thing that Judge Lambert did at the beginning of that next day was making a statement, in front of the same people, publicly, that he has reviewed the law regarding admissibility of hearsay at trials, and that I was right and that he was wrong - and that he is sustaining all my objections to hearsay and excluding all hearsay statements from the record.

We, attorneys, talked about it in the hallway during the break.  Not only my respect to Judge Lambert, but of all other attorneys present in the courtroom went up considerably.

It is human to make mistakes, and judges do that, too.

But, it shows a great character and promise when a judge diligently checks if he was right when an argument that he was not right was raised in court - instead of punishing the critic, as other judges routinely do.  And that is especially true when the judge corrects his mistake without forcing people to go through spending huge amounts of money, not to mention time, effort and mental anguish of the families, on the predominantly futile attempts to reverse his decision on appeals.

Then Judge Lambert rubbed elbows with his older brothers on the bench and started to show the same arrogance as others.

He started to routinely hold ex parte meetings in chambers during sessions of the County Court in criminal cases, where the police, probation and prosecution were invited to permanently sit with the judge in his chambers, while criminal defense attorneys were admitted there only when called by the judge, with breaks between admissions of attorneys that would allow vast ex parte communications between the judge and the prosecutors, police and probation.

Very important issues were discussed in those conferences, and, by constitutional law, clients should have been invited, too, but they were barred from being present in those conferences, as, I am sure, they are now.  Moreover, Judge Lambert has started to blast attorneys in open court (not me, but I know attorneys who suffered this way) for disclosing the essence of communications with the judge in those conferences - even though the clients were not invited.

Additionally, Judge Lambert started to copy the tricks of all local judges in staging endless mandatory "conferences", not asked by the parties, and especially in cases where private attorneys were hired by criminal defendants.

That way, the judge would make defendants pay for each trip of their attorney, including travel and waiting time, and private attorney who Judge Lambert disliked would have to sit in court for hours waiting to be allowed into the chambers (where prosecution, probation and police sat permanently) - and thus, the hourly bill to the client will be higher, and the client would run a chance to be drained of funds before the date of the trial comes.

Judge Lambert transferred this technique to Family Court cases (including child abuse and neglect) and to civil cases, too - having his law clerk Mark Oursler take time of attorneys (paid by clients) telling them, for hours, about Mark Oursler's interest in history, while attorneys would not dare to tell Oursler to shut up and attend to business, or to tell the judge that they do not need the conference scheduled - for fear of hurting their clients.

Lambert started to show favor and disfavor in assignments of cases to attorneys, assigning only people he likes and who would not do discovery, motions and go to trials on behalf of indigent clients.

Lambert started to rule in obviously unlawful manner in favor of powerful and connected attorneys, telling the stunned opponents that they can just as well "move up or move on", translation - appeal or suck it up and shut up.

And, Lambert started to get promotions from the administrative court system, obviously given for this change in character.

He is now the Supervising DWI judge and the Supervising "problem solving courts" judge in the 6th Judicial District.

Given Lambert's still-young age for a judge, only 20 years of the practice of law, and the considerably high administrative positions he is given now, he is being chosen for future promotion in administrative, and, possibly, appellate position - and he will continue to act the way he is acting, unlawful though it may be, to keep that career trend going.

The case of Melania and Nicolae Pervu is a yet another illustration of this character transformation of Judge Lambert - as was the case of O'Sullivan v Bowie I was writing about in my previous blog.

In the Pervu case, Lambert was assigned to the case in August-September of 2018, at the height of his re-election campaign for another 10 years.  

He stood a chance, given his role in O'Sullivan v Bowie's case in 2015 and the publicity of that case, to lose his judgeship on re-election.

And, he needed support from the system.

The system, obviously, required much in return.

Judge Coccoma, the initially presiding judge, a judge with a disqualifying conflict of interest - since his own wife's agency and, possibly, his wife, had to testify in the trial, being one of the agencies responsible for rent subsidies to tenants of the Pervus, and thus, responsible to check out BEFORE they sign contracts for rent subsidies whether the place where they are putting indigent residents at taxpayer expense are up to code - assigned Lambert to the case, a judge who stood to lose his judgeship in less than 2 months or to gain another 10 years of power.

The way Lambert ruled in the Pervu case, protecting Coccoma's wife and City of Oneonta Attorney's wife (the Chairwoman of the Board of Public Service whose order to vacate the building her husband David Merzig was enforcing in court) from the necessity of testifying and proving their case, under cross-examination, in open court - showed that he knew which side his bread was buttered and who butters it.

In October that year, after the initial rulings by Lambert in the Pervu case, Lambert, without any qualms, accepted an "award" from the hands of a member of the powerful and rich local Clark family, while a member of that same family is on the Otsego County Board

and while County cases are litigated in front of Judge Lambert - where the County is either a party or a witness, as it happens in the Pervu case, or both.

"Coincidentally", Judge Lambert's son and his former law partner Michael E. Trosset's daughter are "chosen" by the school as athletic winners.

I truly hope that these young people were, indeed, winners, and are not corrupted from their earliest days in life by having their "wins" determined by their pedigrees, parentage and the school's need to win cases in Judge Lambert's court in child neglect and abuse and in PINs (persons in need of supervision) proceedings, as well in possible cases brought against the school and its teachers, civil and criminal.

Because, as is shown by the example of other local sons-of-judges, 

  • Michael Getman who buys off everybody in town through his late father's (a local judge) Dewar's Foundation giving large yearly donations to businesses and charities, including those that have stakes in court proceedings where Michael Getman appears as an attorney and as an Otsego County prosecutor, and to those where local judges and other local county officials sit on boards, and
  • Richard Harlem, the son of a late Supreme Court justice and the Chief Administrative Judge for the 6th Judicial District Robert Harlem, who is renting, for decades, an office to New York State Senator Seward, and for that gets favors from local judges who Seward favors, including assignment of judges and decisions on appeals from Sen. Seward's former legislative counsel, recently the Chief Administrative Judge for the 6th District, and presently the judge of the Appellate Division 3rd Judicial Department, handling appeals and attorney licenses, Robert C. Mulvey - 
these two sons of judges can win hands down, no matter what they do, what misconduct and crimes they are involved in, and whether facts or law are on their side or not.

Richard Harlem openly stated, for years, that, as a son of a judge, he has to have a larger share of the local market, so, catering for a judge's child is a given in the local neck of woods.

And, both couples of sons-of-judges and their fathers were caught in stealing big time, one (the Getmans) from a charity and another (the Harlems) from an estate (see the Blanding saga on this blog).

But, because of their fathers' influence, both couples remained unscathed, not charged with crimes, not disbarred and imprisoned, still practicing law, Getman is still handling and distributing millions of dollars from the same charity they were caught with his father stealing from, and is even prosecuting crimes in his area as a Chief Assistant District Attorney in Otsego County.

That's why I do not treat as a coincidence, and I do treat as suspect, the supposed athletic awards to the son of a judge, the daughter of a judge's close friend and former partner and to the judge himself - and to the award to the judge given by a powerful and rich local family that is omnipresent in all local governments, including the County that is a material witness in important litigation pending in front of judge right before the judge's elections for yet another 10-year term - which Lambert won.

Well, in a county where a sheriff can defend his police officer son for 2 years from a criminal investigation after that same son openly threatened to shoot up 2 elementary schools, at an age where any other person would have been charged with felonies, indicted, prosecuted and put in prison, and that sheriff is re-elected for another term past November - re-election of Judge Lambert after his disgraceful behavior in O'Sullivan v Bowie does not really surprise me.

The Sheriff's son, after his father's re-election, only "resigned" from the County police force, but was not charged with a crime.

What should be done to prevent the character transformation like we see in Judge Lambert's case.

1.  Judges should absolutely not serve consecutive terms.  One term only.  That will allow them not to build alliances and serve their own interests and teams rather than the law.

2.  Judges' terms should be very short, preferably a year max.  For the same reasons.

3.  Judges should be rotated out to serve not where they live, so that they do not rule in favor of their kids' school or their friends' business, or the local government giving them various awards.

4.  Judges should be prohibited to sit on boards of charities, which creates a conflict of interest where the judge is interested to get donations for its charity and rules in cases in the way providing business for his charities (Getman, for example, gives every year several thousand dollars to John Lambert alma mater, the Hartwick College).

5.  The judge's salaries must be provided by statute only, and no add-ons allowed from the court administration executives.  This would eliminate the appearance the judges like Lambert are ruling in cases in order to obtain and/or retain their add-ons like positions of Acting Supreme Court justices obtained only through approval of the court administration (Coccoma) and resulting in advancement of career and addition to salary.

6. Trial court judges and supervising positions in administration of courts should never coincide, preventing judges from losing their independence in cases in order to get approval and promotion from the court administration to administrative supervising positions.


7.  Judges should not be attorneys - if they are elected by the people, they should be answerable only to the people, not to the shadowy attorney licensing committees potentially depriving judges of independence for political considerations.

And, this would have prevented Judge Lambert from running unopposed in this election - if ANY local resident, not necessarily an attorney, would be able to run against him.

If non-attorneys are allowed to be judges in town and village justice courts, why not at the County and Supreme Court level?  As Judge Lambert's rulings in O'Sullivan v Bowie's case and in the City of Oneonta v Pervu's case, his rulings do not have anything to do with the law anyway, and everything to do with the local politics.

He was assigned to the Pervus case right before his elections, by the judge who was the husband of a potential witness in that case - with an implied warning "to perform" and "to behave", or else - and didn't Lambert behave? 

He did - and got support in elections, and got re-elected for another 10 years, now until 2028, and kept his promotions as the Acting Supreme Court Justice, and the supervising DWI judge in the judicial district, and the "problem solving court" judge in the district.

So, he will continue to do what he is doing, screwing the Pervu's case - otherwise we know what happens in New York if judges start to act up and defy the judge who assigned them to the case, and follow some pesky rule of law, it already happened in New York to a judge who was quickly brought to heel by the Chief Administrative Judge Robert Mulvey, and since then Robert Mulvey was promoted and is now in charge of reversals of Judge Lambert's decisions, another incentive for Judge Lambert "to behave", "perform" and "deliver" - the needed "solutions" in the "difficult cases" for the local government.

Until that happens - enjoy the corrupt rulings of Judge John F. Lambert.

And remember - you have brought it upon yourself by failure to research candidates and vote against him these past elections.

But We the People should remember - nobody's independence of judgment is achieved by giving that person immunity for corruption.

And, nobody should be given power to give such immunity for corruption - and for punishing his own critics - to himself, as it is happening in New York and American courts, see Stump v Sparkman, a 1975 U.S. Supreme Court case.

Independence of the judiciary IS, indeed, a great gift.

But, between 
  • condoning the judiciary's self-given gift of immunity for misconduct and corruption, and 
  • condoning the judiciary's death grip upon the control of public access to court through control of the legal profession, and
  • condoning that judges demand that only "attorneys in good standing" for at least 5, and for some positions, for 10 years (meaning in plain English, attorneys who never criticized a judge for 5-10 years) can become judges; and
  • condoning that people controlled by judges, "officers of the court", now constitute 100% of the judicial branch and the supermajorities of the other two branches, on the state and federal levels, changing the constitutional structure of the government in the United States; and
  • condoning that judges may accept financial donations from businesses, litigants and attorneys for judicial elections - as Judge Lambert did for his re-election campaign in 2008, in 2018 he did not even file financial disclosures - he ran unopposed, meaning, his own one vote would have been enough to "win" re-elections for him, a real victory, and
  • condoning that judges sit on boards of charities and give or receive money from other charities, where parties in litigation and their attorneys sit on boards, and
  • condoning that judges are allowed to participate in various events and societies, with secret membership, where they meet with attorneys behind closed doors and are wined and dined and paid for their vacations, and participate in ex parte communications under the guise of "promoting civility"P;

that independence of the judiciary has been long lost.

The American judiciary - and Judge Lambert is no exception - is independent only from the law and from having conscience.

Absolute power corrupts absolutely.

When will we learn?

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