"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, December 12, 2021

On "letter applications" by prosecutors in criminal cases instead of motions on notice according to the CPLR (New York)

 I have noticed from many submissions of different readers from across the State of New York that often prosecutors "enjoy" a cozy relationship with the court, to the point of not even taking an effort to comply with proper procedure in asking the court for major relief - such as in motions.

A prosecutor simply files a "letter request" to the court - without the required formalities of a notice of motion, supporting affirmation under oath, supporting evidence and memorandum of law, supporting affidavit of service upon parties.

Well, I can bet all that is dear to me on the fact that if a pro se (not represented by an attorney) party files a "letter request" with the court, despite the rule requiring courts to give a "liberal review" to filings of pro se parties, such a "letter request" will be rejected by the court as not a proper motion.

Yet, from a criminal prosecution "letter requests" without following formalities of motions appear to be hunky-dory for some judges.

If a defense attorney does not object against "letter applications" - you know what the defense attorney is doing to his client?  

Depriving him of his right to appeal "as of right" any ruling of the court on such a "letter application" immediately - specifically because the "letter application" was not a formal motion made "on notice":

                "Another consideration for careful 
                practitioners is the availability of appellate 
                review. A request for relief made in the absence 
                of a notice of cross motion is not a "motion ... 
                made upon notice" (CPLR 5701 [a] [2]), 
                so an order granting or denying the request 
                is not appealable as of right, and permission 
                to appeal is necessary (see CPLR 5701 [c]; 
                Blam v Netcher, 17 AD3d 495, 496 [2005]). 
                By contrast, generally, a party may appeal as 
                of right to challenge the disposition of a motion 
                or cross motion made on notice (see 
                CPLR 5701 [a]).

While the client is allowed to appeal immediately and as of right any ruling of the court on a motion made on notice.

So, if your attorney wants to exercise "professional courtesy" to a prosecutor by allowing him/her to make "letter applications" for major breaks at trial (prosecutors do not file motions other than for major breaks at trial), that courtesy (for your money) is, in fact, screwing you as the client - royally - because you will not be even able to appeal the ruling on that "letter application", no matter how badly it affected you.

And this, ladies and gentlemen, I believe, is a major illustration of ineffective representation of counsel.

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