"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.

Friday, January 8, 2021

A little bit on evidence and the law

 The law and evidence is what I know.

So I want to talk about that.

When you file a lawsuit in court, American courts have long rejected the need to file what is called factual pleading.

In plain English it means that you do not need to provide proof to the court when you file a lawsuit.

You only recite allegations which you believe to be true.

If proof is within exclusive possession of your opponent, you're entitled to a procedure called discovery or disclosure (you are entitled to it whether proof is an exclusive position of your opponent or not, but even more so if it is), meaning your opponent in court will have to answer your questions sent to him by mail or orally a deposition is under oath and to produce documentary evidence related to the case for your review.

Usually that exchange of information is happening without control by a judge.

And in American court proceedings discovery is usually what is called liberal, meaning very broad.

Such broad rights of discovery is given here by law because the legal system is declared to be interested in the most efficient and precise truthfinding.

There is also one big principle.

In American jurisprudence, by default, the finder of fact in civil proceedings in state and federal courts are juries, not professional judges.

Judges are only allowed to look at facts on motions for summary judgments - and that is happening only after discovery, and only if opponents agree on facts and the only thing to decide is the issues of law, based on those indisputable facts.

The indisputable facts are presented to courts on motions for a summary judgment through sworn affidavits of witnesses, no live testimony.

the only place where live testimony of witnesses is taking place is during discovery, procedure called depositions, and at a jury trial.

This is, as any law student and any lawyer will tell you, civil procedure 101 in the USA.

The standard of review of a motion to dismiss, at the very beginning of litigation and before discovery, does not involve evidence. At all.

On the very opposite, the standard of review is that the court must review allegations in the plaintiff's complaint / lawsuit in the light most favorable to the plaintiff and assume all of those allegations made by the plaintiffs in the lawsuit to be true.

The only government body that is entitled to rule on credibility of factual evidence in the United States legal system, on federal and state level is the jury.

In most States and in federal courts right to a jury trial is embedded into the state constitutions and into the seventh Amendment of the Federal Constitution.


Let's apply now all these principles to elections into the incident of the breach of the Capitol building on January 6th 2020.

1. Elections

In many states many lawsuits regarding election challenges were filed since November 3rd 2020.

If motions to dismiss are filed in such lawsuits, following the law, judges had to assume as true allegations in the lawsuits

(especially that they were backed up by actual evidence, sworn affidavit so witnesses, which plaintiffs did not even have to do because we do not have factual pleading in the United States,)

had to review those allegations in the light most favorable to the plaintiffs, deny the motions, and, given that the majority of documentary evidence was in exclusive control of the defendants,

 order a speedy discovery and

 trials by juries.

That did not happen.

Instead, we see reports by the media that 60 judges dismissed these lawsuits for lack of evidence, or because they considered evidence to be too speculative, meaning not credible.

Recall that assessment of credibility of evidence is the exclusive authority of the jury and nobody else.

A judge can evaluate factual evidence at trial only, and only if both parties have waived their right to a jury trial, agreeing to what is called a bench trial, a trial by the judge.

There were no jury trials scheduled in any of these cases.

There were no waivers of the jury filed in any of those cases.

In fact in many of these cases there is a demand for a jury trial plainly on the complaint.

Even on a motion for a summary judgment after discovery, remember, professional judges do not evaluate credibility of evidence.

Judges only rule summarily on the law on summary judgment motions after discovery if and only if parties agree and do not dispute any triable/essential issue of fact.

So, what we have is that supposedly 60 judges ruled - 

instead of juries that were never convened, 

without discovery that was never scheduled, 

on motions to dismiss where the standard of review was not simply 

believing anything plaintiff is saying, but 

assuming that anything plaintiff is saying is true -

 the judge does not have an option not to believe the plaintiff on motion to dismiss -

 and we have judges instead forgetting in unison what they were taught in the first year of Law School, and rule, instead of juries, on motions to dismiss on supposed insufficiency of evidence or that the evidence is not credible/speculative.

That is not a motion to dismiss, that is a trial without due process, discovery, or the right to a jury.

Be the judge yourself as to why such a coincidence happened across the country in all courts, state and Federal, at the same time.


2. The alleged breach of the Capitol building.

There are publushed videos of the police removing barriers and allowing in people with backpacks and baseball bats inside the secure area and opening the door to the Capitol building.

I have also personally watched a video by a lawful rally participant before the Capitol building clearly showing that everybody was screened before entering the secure area behind the barriers.

That backpacks, sticks and flagpoles were not allowed, that was clearly announced through loudspeakers by government officials.

Yet somehow the people in MAGA hats who the police were allowing in had backpacks and baseball bats. Note again that putting on a MAGA hat does not make you a Trump supporter.

Be the judge yourself why that happened.


Let us recall that in cases of election fraud the entire world watched multi-hour hearings of live testimony of witnesses in several States, done by state legislatures.

The majority of witnesses also said that they have made those same allegations under the oath in affidavits and that those allegations in the form of sworn affidavits were attached to lawsuits.

Democrats did not consider that as evidence.

Or democrats considered that as insufficient evidence.

Because courts considered that as insufficient evidence.

While judges did not have the right to consider credibility or sufficiency of evidence at all according to the law, it is the exclusive right of the jury - that did not happen in any of election challenge cases in 2020.

Now let's see what happened from the point of view of evidence with the supposed breach of the Capitol building on January 6th 2020.

1. There is an issue of fact for the jury to decide whether there was a breach, or whether the police let people in - as the video clearly shows.

Also, witnesses report in videos in blogs that 

* therewas no Wi-Fi or Internet at the rally, 

* people did not know what was going on inside the Capitol building, but 

* they did see that the police was letting some people in, and that

*There were provocatures telling them that the public is invited into the public building to listen to the public hearings, and that's such observation will be good for democracy.

So it is a triable issue of fact what was the intent of people who actually listened to that and went toward or into the Capitol building - while they were lacking any other information because their internet service was blocked.

Were they insurgents, or were they good faith people tricked in by provocateurs.

This is again a triable issue of fact for the jury.

2. Were there provocaters?

3. If there were, who were they -

All of that are triable issues of fact for the jury.

But - there is an interesting phenomenon emerging.

Actual evidence, sworn affidavits of witnesses, that was actually too early to introduce at the beginning of legal challenges but was still introduced in good faith in support of lawsuits, was disregarded by professional judges who usurped functions of the jury - without Discovery and without a trial.

Yet, voting was already held, that evidence was rejected by Congress - because judges unlawfully rejected it - and we have a new president voted in, despite massive sworn evidence of election fraud.

Nobody wants to investigate.

In fact, those who do want to investigate are called traitors.


It is a 180° flip though when we're talking about the supposed breach of the Capitol building that happened only two days ago.

Without an investigation

Without sworn testimony or affidavits or witnesses

Without ascertaining who those people in the Capitol building were

Without verifying why the police let armed people in

Without verifying why the internet/information was blocked from people in the rally, so that misleading by possible provocateurs became a very dangerous opportunity -  endangering members of the Congress under any circumstances, given the numbers and the possibility of militant groups infiltrating a rally such size -

Without working with the evidence

Accusations are already cast at the level of Congress and the mass media,

80 million people already branded as terrorists and calls are being made in mainstream media like ABC News to cleanse them, which is inciting violence very clearly, and the a lot of comments on Twitter showing that there are a lot of people ready to do that cleansing and start right now.

And articles of impeachment already drawn against the currently sitting president in the two last weeks of his presidency - just on an assumption that a group wearing MAGA hats must be true Trump supporters.

It is very obvious that no good faith investigation can be conducted within this period of time, and that articles of impeachment are unnecessary since who Democrats wanted to be in the white house has already been voted in.

That it is not backed up by evidence at this time.


I'm calling to both sides.

There are rules of evidence 

They are applicable to both sides 

They're applicable equally to election fraud cases and to the case of the supposed breach of the Capitol building.

Please think before making assumptions and falling victim to more provocations.

It may be a very dear loss to all of us.