Independence of Representation in Court and Judicial Accountability in the United States: March 2022

THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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, March 11, 2022

How could it happen that, even after sanctions, the access to justice system in Russia is better than in the sanctioning country, the US?

The impact of antiwar sanctions upon access to justice in Russia:

Russia will become the US?

Tatiana Neroni, J.D.

March 11, 2022 ©

On February 24, 2022 Russia has invaded a sovereign neighboring state, the Ukraine, and has started a war there, still ongoing at the time this article has been written.

As part of the effort to curb and eventually stop that war, various political and economic sanctions were imposed by the US and European states on Russia.

As a result of those sanctions, Russia announced that it

Is leaving the Council of Europe[1];
May likely restore the death penalty[2] (after a moratorium on such a type sentence since 1997, for a quarter of a century); and
Will no longer be subject to the jurisdiction of the European Court of Human Rights[3].

These 3 points have resulted in Russia regressing in terms of access to justice of its residents, especially in case of human rights violations.

In that regress though, interestingly enough, Russia is now approaching the state of access to justice of the main country imposing the antiwar sanctions, the United States.

Let us compare access to justice systems of the United States and Russia before Russia’s war with the Ukraine and now, during that war.

Table 1 Comparative table of access to justice systems, US and Russia, before Russia’s war with the Ukraine

Aspect of access to justice system	United States	Russia	Who had it better
Access to an international court on human rights violations	None, specifically prohibited by a condition US put in during ratification of the International Covenant for Civil and Political Rights[4]	Full access to the European Court of Human Rights[5]	Russia
Death penalty	Yes, federal Yes, certain states	No, moratorium since 1997	Russia
Government control over attorneys representing clients in court against the government	Total control All lawyers opposing the government in court are controlled by the government through licensing Most Americans cannot afford an attorney, but are prohibited by the government to choose who would represent them in court, including in cases where the government is their opponent in court	Partial (criminal defense bar only, regulation is through Criminal defense lawyer associations, no direct licensing of criminal defense lawyers by the government) Residents of Russia may choose who they want to represent them in all courts but criminal (and, of late, some appellate courts)	Russia

Now, let’s see whether and how this situation is going to change with the impending antiwar sanctions and the resulting actions of Russia.

Table 2 Comparative table of access to justice, US and Russia, as a result of Russia’s war against the Ukraine

Aspect of access to justice system	United States	Russia	Who has it better
Access to an international court on human rights violations	None, specifically prohibited by a condition US put in during ratification of the International Covenant for Civil and Political Rights	None	Equally bad
Death penalty	Yes, federal Yes, certain states	Planning to reintroduce the death penalty	If introduced, equally bad
Government control over attorneys representing clients in court against the government	Total control Most Americans cannot afford an attorney, but are prohibited by the government to choose who would represent them in court, including in cases where the government is their opponent in court	Partial (criminal defense bar only, regulation is through Criminal defense lawyer associations, no direct licensing of criminal defense lawyers by the government) All Russians, including all lawyers, are prohibited by the new criminal law to criticize the government ONLY re issues of war against the Ukraine Residents of Russia may choose who they want to represent them in all courts but criminal (and, of late, some appellate courts)	Russia is still better yet, no total control over lawyers criticizing the government, no opportunity to deprive a lawyer of his/her profession because of his/her political activities by revoking a license, and thus deprive the lawyer’s client of effective representation by that lawyer against the government on issues of human rights violations

CONCLUSION

It is a sad paradox, as the two tables above show, that even after Russia deals a blow to its access to justice system on 3 major points, it still has a better access to justice opportunities for people on the issue of human rights violations than the access to justice system in the United States, with the exception of the criminal punishment of criticism of the Russian government on the particular issue of the war in the Ukraine.

So, the US has so far beaten up the Russian government into a regress in its access to justice system towards the conditions of the sanctioning country, the United States.

[1] The Moscow Times, Russia Quits Europe’s Rule of Law Body, Sparking Questions Over Death Penalty, March 10, 2022.

[2] Id.

[3] Id.

[4] For a comprehensive account of bars in the United States erected by its government for access to justice see: Neroni, Tatiana, No effective legal remedies for Americans for human rights violations on the U.S. soil, September 26, 2018, Academia.edu.

[5] See e.g. Debevoise & Plimpton LLP, Ruling of the Constitutional Court of the Russian Federation on enforcement of ECHR judgments, August 17, 2015 (commenting on the decision of the Constitutional Court of the Russian Federation confirming that Russia subjects itself to the jurisdiction of the European Court of Human Rights as a result of Russia’s ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on November 4, 1950 (the “European Convention”).

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This article is cautionary.

There is no question (to me personally, at least) that in the case of the war with the Ukraine Russia is an aggressor and is acting unlawfully and unfairly, causing deaths, injuries and misery to people of a sovereign nation.

Yet, let's not forget while condemning an outside dictator and aggressor that

we also have a lot of problems here in the United States to solve, and that
we should not be led on a string by our government pretending to be "holier than thou" on the very issue of human rights where our own government is worse than the targeted foreign dictatorship.

Let's clean our own house, too.