"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

On the improper use by criminal prosecutors of sealed juvenile adjudications in criminal proceedings in New York

New York State Family Court Act § 381.2, entitled "Use of records in other courts," provides:

"1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.
"2. Notwithstanding the provisions of subdivision one, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1."

Here is how a New York appellate court applied this statutory prohibition to use juvenile delinquency adjudications IN ANY OTHER COURT:

Family Court Act § 381.2 is clear on its face and provides that neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to the Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court (see Family Ct Act § 381.2 [1]). 


"Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (McKinney's Cons Laws of NY, Book 1, Statutes § 76). The above-cited language of the Family Court Act is unambiguous and makes clear "that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction".


As noted above, the sole statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of records and information relating to a juvenile delinquency adjudication by a court in imposing sentence upon an adult (see Family Ct Act § 381.2 [2]). 

However, a SORA proceeding is civil in nature (see People v Mingo, 12 NY3d 563, 572 [2009]), and a risk level determination is not a sentence (see CPL 1.20 [14]). 

Thus, the statutory exception is inapplicable. Consequently, we hold that the Board, which is merely an advisory panel, exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender's criminal history".

So - THE ONLY time when a criminal court may consider juvenile delinquency adjudications is when an adult criminal defendant HAS BEEN ALREADY CONVICTED OF A CRIME and the COURT IS CONSIDERING HOW TO SENTENCE/PUNISH HIM AS A RESULT OF THAT CONVICTION, and even then, when such a sentencing concerns a sex offender, the risk level of the offender may not be determined with the help of such a juvenile adjudication.

The law makes it clear that juvenile adjudications may not, under any circumstances, be used in a CRIMINAL TRIAL against the defendant.

Any attempt by the prosecution to even hint to the public in a public record that the criminal defendant HAD juvenile adjudications before trial and for use in trial is prosecutorial misconduct meant to irreversibly contaminate the jury pool and obtain a wrongful conviction based on sealed inadmissible records.

If any such attempt is made in a criminal proceeding, a motion to disqualify prosecution for misconduct should be immediately made, as well as a motion to recuse a judge if the judge allows introduction of such records.

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