"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.

Monday, December 13, 2021

How the New York Legislature has created a jurisdictional prohibition for ALL State County judges to preside over trials in criminal felony proceedings

New York State Judiciary Law Section 14 provides:

"Disqualification of judge by reason of interest or consanguinity Judiciary (JUD) CHAPTER 30, ARTICLE 2

§ 14. Disqualification of judge by reason of interest or consanguinity.

A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

The degree shall be ascertained by ascending from the judge to the common ancestor, descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor.

But no judge of a court of record shall be disqualified in any action, claim, matter, motion or proceeding in which an insurance company is a party or is interested by reason of his being a policy holder therein.

No judge shall be deemed disqualified from passing upon any litigation before him because of his ownership of shares of stock or other securities of a corporate litigant, provided that the parties, by their attorneys, in writing, or in open court upon the record, waive any claim as to disqualification of the judge."

Let's look at the first paragraph of the law once again and closer:

A judge shall not 

  • sit as such in, or 
  • take any part in the decision of, 
    • an action, 
    • claim, 
    • matter, 
    • motion or 
    • proceeding 

That is an absolute, jurisdictional prohibition to even participate in multi-judge panels deciding court cases, much less to preside and make decisions as a sole judge.

So, when does that absolute prohibition apply?

  • sit as such in, or take any part in the decision of, 
      • an action, 
      • claim, 
      • matter, 
      • motion or 
      • proceeding 

    to which the judge is 

    • a party, or 
    • in which he has been attorney or counsel, or 
    • in which he is interested, or 
    • if he is related by consanguinity or affinity to any party to the controversy within the sixth degree."
    So, if a judge has been "an attorney or counsel" in a certain proceeding, he may not participate in that proceeding as a trial or motion or appellate judge, that is clear, right?

    Now, how can a judge become "an attorney or counsel" in a legal proceedings?

    One scenario would be that BEFORE BECOMING A JUDGE, the judge, as an attorney, represented a person in the same proceedings which he is not assigned to as a judge.

    In such a case the judge must immediately recuse himself.

    Another scenario demonstrates that even an Assembly full of lawyers and having, at taxpayer expense, a huge legal department, can produce crazy legislation that upends validity of all criminal felony proceedings and convictions in the state, putting ALL County judges under the absolute prohibition of Judiciary Law Section 14.

    Criminal Procedure Law of the State of New York, (CPL) § 190.25(6)

    The legal advisors of the grand jury are the court and the district attorney

    and the grand jury may not seek or receive legal advice from any other source

    Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes”.

    What can possible be wrong about this setup?

    Well, a couple of things.

    Second, New York State Constitution Article VI § 20(b)(4) specifically and unambigously prohibits practice of law by County judges:

    “A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.”

    Given the clear and unambiguous prohibition by the New York State Constitution, the New York State Legislature had no authority to not only 

    • ALLOW County judges to practice law in being legal advisors of grand juries when grand juries investigate and draft criminal charges in criminal cases,
    but also

    • to PROHIBIT grand juries ANY OTHER CHOICE OF LEGAL ADVISOR, BUT the County judge OR the prosecutor, OR BOTH, working as a team.

    Third (as to the latter prohibition), NOBODY, a physical or a legal person or a government entity may be deprived of a CHOICE of a legal advisor OF THEIR CHOICE, WHO THEY TRUST.

    The New York Legislature has managed to violate this simple rule, too, by PROHIBITING the grand jury to use/trust any other legal advisors but the judge (who, by the State Constitution, may not give legal advice) and the prosecutor.

    And fourth, let's consider Judiciary Law 14 together with Criminal Procedure Law 190.25(6).

    Under Judiciary Law 14, a judge SHALL NOT (absolute prohibition) participate in court proceedings where he was "an attorney or counsel".

    Under Criminal Procedure Law 190.25(6) the judge MUST be an attorney or counsel for the grand jury - and an exclusive one, together with the prosecutor, too - even though the judge is PROHIBITED to be a legal advisor to anybody by the State Constitution.

    Let us draw a parallel with a civil case.

    Let's consider a document that starts a civil lawsuit in the State of New York - a "complaint".

    The complaint is drafted by attorney/legal advisor for the Plaintiff.

    Imagine if that attorney who have drafted the Plaintiff's initial pleading giving the court jurisdiction (complaint) then becomes a judge who rules over the case.  Impossible, obviously violates Judiciary Law 14 - and the U.S. Constitution, 14th Amendment Due Process Clause (the right to an impartial judge) on top of that.

    Now let's go back to the grand jury proceedings in a felony case.  The grand jury also produces an initial document suing the defendant in the criminal case, upon which the court bases its jurisdiction for the criminal felony proceedings.

    Similarly to the civil case, the legal advisor drafts that document.  Who is the legal advisor?  The team of the judge and the prosecutor.  

    After the judge creates the indictment AS A LEGAL ADVISOR of the grand jury (which is prohibited by the State Constitution, but mandated by the State Legislature in CPL 190.25(6)), the judge then presides over the felony case in the trial (which is prohibited by the State Legislature in Judiciary Law 14).

    I am not even talking about a judge forming a team in giving that unconstitutional legal advise with the prosecution and then pretending that the judge is neutral and impartial presiding over prosecution of the document the judge created in ex parte communications with the prosecutor - which is a violation of both judicial and prosecutorial codes of conduct.

    Yet, since there is a point in all grand jury proceedings in the State of New York when the prosecution BLENDS/MERGES with the judge - in giving legal advice to the grand jury while creating the first pleading in the case, the jurisdictional pleading, the accusatory instrument - the judge may not later on disattach himself from the prosecution and pretend that NOW the judge is separate and distinct from the prosecutor and is now somehow neutral - the judge can't unring the bell, he HAS MERGED with the prosecutor in creating the accusatory instrument, it cannot be undone, it VOIDS THE WHOLE CASE, making the whole proceedings, including the conviction, JURISDICTIONALLY DEFECTIVE, and thus null and void.

    The U.S. Supreme Court has ruled just 5 years ago that proceedings and their results are void where even ONE out of MANY judges in the presiding panel was also prosecutor in the same case.

    In New York, the trial judge BLENDS with the prosecutor in all felony cases as a matter of legislative mandate!  Thank you, New York State Legislature, for the mess!

    I am not even talking about the fact that, under the agency law the lawyer/legal advisor of the party is considered "to stand in the shoes of the principal" and "to be the voice of the principal".

    The principal (client) in this case is - the GRAND JURY.

    So, in ALL felony proceedings in New York state THERE IS NO JUDGE!  The judge has disappeared/ has been eliminated by blending the judge with 
    • co-legal advisor/prosecutor  AND 
    • the client/ the grand jury.

    But, that's not all yet!

    A legal advisor owes the DUTY OF LOYALTY to its client - the GRAND JURY in this case.  Owing the duty of loyalty to the client, the grand jury, that has created the accusatory instrument, how can the judge then pretend neutrality in presiding over the same case as a judge?

    It is the same as advising a civil plaintiff what to put into a civil lawsuit/complaint - and then preside over it as a judge.


    I wonder when this mess will be addressed by a civil rights action in federal court challenging constitutionality of New York CPL 190.25(6) that has disqualified ALL criminal court judges in felony proceedings by making them (in violation of the State Constitution, on the one hand, and of the defendant's 14th Amendment Due Process right to a fair and impartial judge, on the other hand) exclusive (with prosecutors) legal advisors of the grand juries in creating indictments - or by a writ of prohibition from a criminal case to the Appellate Division, since the prohibition of Judiciary Law 14 is of jurisdictional nature.

    Of course, courts will then face a very sticky dilemma - 
    • to agree that the New York Legislature has messed up big time (which is visible plainly from the texts of statutes and the New York State Constitution cited above) and thus invalidate ALL felony convictions in the State from the time CPL 190.25(6) has been enacted,

    Or, as it usually happens, 
    • to refuse to look the law in the face and try to tiptoe around the topic with some word-gymnastics that judges and lawyers are so capable of doing - up until the point when it will blow into everybody's faces when there will be mass challenges of that "law".

    Anyway, the issue of disqualification of all County judges in all felony proceedings in New York due to a head-on collision of state statutes is out in the open, and ripe for the taking for the challengers.

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