New Yorkers will have a chance to change the way they live and allow the government to govern them - through voting on a referendum whether to have a new constitutional convention convene the next elections after November 2017.
In my opinion, a lot should be changed in the New York Constitution to correct the loopholes and flaws in the work of governmental mechanism.
I appeal to my readers even now to send your suggestions so that they can be published. If you want your name to be mentioned, I will, if you don't want to, I won't, but will reference that a certain suggestion was sent by a reader and not invented by me.
All suggestions are welcome.
I will start publishing my own shortly. Stay tuned.
Friday, August 14, 2015
New York leads by the number of convictions for corruption
It's hard to believe, but that's what the report says - that the State of New York so far leads the country by the number of convictions for corruption.
The statistics per se appears to be not bad - it can certainly be interpreted as if New York is trying to clean up the mess of its public officials. Yet, the statistical figures are what is called "unrepresentative" and tainted, because there is no indication as to which convictions, state, federal, both and in what proportion, were considered.
If convictions were by state courts - then we may have a ground for celebration since our corrupt courts can actually use some taxpayer-backed time to do their job instead of what they usually do - fixing cases for their friends, political contributors and potential contributors.
If convictions are by federal courts - that only shows that state courts, and state prosecutors, are unable and unwilling to fight corruption in the government in New York, which becomes more blatant and rampant by the day.
To future researchers and reporters - please, be clearer with the basis of your numbers, so that they actually show something instead of preventing proper interpretation of numbers provided.
The statistics per se appears to be not bad - it can certainly be interpreted as if New York is trying to clean up the mess of its public officials. Yet, the statistical figures are what is called "unrepresentative" and tainted, because there is no indication as to which convictions, state, federal, both and in what proportion, were considered.
If convictions were by state courts - then we may have a ground for celebration since our corrupt courts can actually use some taxpayer-backed time to do their job instead of what they usually do - fixing cases for their friends, political contributors and potential contributors.
If convictions are by federal courts - that only shows that state courts, and state prosecutors, are unable and unwilling to fight corruption in the government in New York, which becomes more blatant and rampant by the day.
To future researchers and reporters - please, be clearer with the basis of your numbers, so that they actually show something instead of preventing proper interpretation of numbers provided.
Wednesday, August 12, 2015
On a motion to recuse, if the challenged judge presides over the motion, does he violate The Constitution and act contrary to history and tradition?
I was reading a judicial decision dealing with occupational licensing in another state - state of Texas - and I came across a quote from Andrew Madison like this:
That brought me back to the issue of judicial recusals in the State of New York, and throughout the U.S. state and federal judicial systems, since rules of recusals are similar throughout the United States.
I've researched the law of recusal, through case law, professional literature and my own motion to recuse and resulting actions by judges, for years.
So far, I've conclusively established for myself the following facts:
1/ that motions to recuse are rarely made;
2/ that such motions are rarely made not because they are rarely warranted, but because attorneys refuse to make them out of fear of retaliation from the judge (there is a popular adage amongst the legal profession that making a motion to recuse a judge is a career suicide), and pro se parties are either not educated enough to make them, or are similarly afraid of retaliation;
3) that usually the judge who is subject of the challenge decides the motion;
4) that more often than not a motion to recuse is denied by the judge who is being challenged, and that the judge claims that he "looked into himself, consulted his conscience, and concluded that he is and can continue to be impartial" - which is unreviewable and uncheckable for obvious reasons, you cannot X-ray a judge's conscience, and conscience is an intangible concept;
Yet, let me once again quote from the Founders - since the U.S. Supreme Court and federal and state courts like so much to rely upon "tradition" in their decisions.
"No man is allowed to be a judge in his own cause,
because his interest would certainly bias his judgment,
and, not improbably, corrupt his integrity,"
Andrew Madison, The Federalist, No 10, at 79.
That brought me back to the issue of judicial recusals in the State of New York, and throughout the U.S. state and federal judicial systems, since rules of recusals are similar throughout the United States.
I've researched the law of recusal, through case law, professional literature and my own motion to recuse and resulting actions by judges, for years.
So far, I've conclusively established for myself the following facts:
1/ that motions to recuse are rarely made;
2/ that such motions are rarely made not because they are rarely warranted, but because attorneys refuse to make them out of fear of retaliation from the judge (there is a popular adage amongst the legal profession that making a motion to recuse a judge is a career suicide), and pro se parties are either not educated enough to make them, or are similarly afraid of retaliation;
3) that usually the judge who is subject of the challenge decides the motion;
4) that more often than not a motion to recuse is denied by the judge who is being challenged, and that the judge claims that he "looked into himself, consulted his conscience, and concluded that he is and can continue to be impartial" - which is unreviewable and uncheckable for obvious reasons, you cannot X-ray a judge's conscience, and conscience is an intangible concept;
Yet, let me once again quote from the Founders - since the U.S. Supreme Court and federal and state courts like so much to rely upon "tradition" in their decisions.
I've made so far many motions to recuse, the cases warranted it.
It is apparent that when you challenge impartiality of a judge, and especially when you point out to the judge that he has committed misconduct that is likely to affect the case, a judge who remains on the case to decide the motion to recuse is "a man judging his own case".
Yet, New York appellate courts stubbornly hold that it is within the "discretion" of the judge to decide whether to recuse or not, even though the Code of Judicial Conduct at the same time requires the judge to recuse if his impartiality may reasonably be questioned, and the "reasonable" part is obviously from the point of view of a neutral, impartial reasonable observer.
Absent an "out of body" experience, a judge cannot possibly be impartial reviewing a motion challenging his own self.
Just how "impartial" a judge is in reviewing such motions is easily shown by:
1) the number of sanctions imposed by judges in retaliation for a motion to recuse (I was sanctioned several times by the judge who was the subject of the motion);
2) that attorneys are afraid to make such motions, obviously not believing any such thing as a presumption of judicial integrity and impartiality, no matter what kind of motion is in front of the judge and how it affects him personally;
3) the recent case Shtrauch v Dowd in the U.S. District Court for the Northern District of New York dismissed based on an overstretched concept of absolute judicial immunity which, in the opinion of the federal district court, applies even after recusal of the judge, a judge yelled at a pro se litigant who made a motion to recuse that he is a very dangerous person to dare to "impugn the judge's integrity" by making a motion and then ordered an armed court officer to throw him out of the courthouse.
In my practice, one motion to recuse made in 2009 against a judge on behalf of a client resulted in:
1) a fabricated child neglect proceeding against me and my husband;
2) disbarment of my husband based on fraudulent civil case prosecuted by a retired judge and his son where all applicable law, as well as the record, were in favor of my husband, and were summarily disregarded nevertheless;
3) several sanctions against me for frivolous conduct, including "harassment of the court" (in plain English - harassment of Judge Becker, who was the prosecutor, the victim, the witness and the judge in commencing the sanctions proceedings and imposing the sanctions) which resulted in a disciplinary action against me, I am waiting for its results any day now;
4) several judgments against my husband based on retaliatory decisions of Judge Becker who stuck to our cases like glue, got himself assigned to all cases in all courts and ruled against us in every one of them, in gross violation of applicable laws and in contradiction of the record in front of him - which decisions the Appellate Division, where judges had their own conflicts of interest, eagerly affirmed.
5) vicious rumors spread about me in the community, where judges and their friends were discouraging people from retaining me claiming that I was "nuts", incompetent specifically because I am "suing judges" and because I will soon be disbarred.
I received phone calls from people referred to me by their attorneys for the only purpose of making a motion to recuse (I refused), and in one case, the referring attorney clearly stated to his own client that the referring attorney will not make the motion to recuse himself, because he did not want "to be blackballed", while I, on the other hand, "already have nothing to lose".
So, once again, going back to "history and tradition", as many judges so like to do - what about practice the statement made by Andrew Madison (quoted above) and confirmed as a due process right of every litigant by the U.S. Supreme Court and the New York State Court of Appeals - a man may not preside over his own case.
So, why judges preside over motions to recuse made against them?
Why judges preside over actions in contempt of court where they are initiators, prosecutors, alleged victims, witnesses and adjudicators?
Why judges preside over "frivolous conduct proceedings" where they are, once again, initiators, prosecutors, alleged victims, witnesses and adjudicators?
I guess, those are rhetorical questions.
Because "the rule of law" is a smoke screen for the the plebs and is not supposed to apply to the insiders, stupid.
Testimony of an ethics professor before the New York Statewide Commission for Attorney Discipline: head in the sand and interesting revelations
I wrote on this blog about the New York State Commission for Attorney Discipline - its composition made of market participants only, the way the Commission staged its hearings with testimony "by invitation only", with extremely short notice to the public, held during vacation period, during lunch hours, 2 hours at a time for three days in different locations - all meant to make sure that the least possible number of people shows up.
I also wrote about experts who are members of the Commission and who have a vested interests contrary to the Commission's declared goal - interests to preserve the current status quo in the legal profession and attorney discipline rather than change anything.
Today, I received from a friend a link to the testimony by Professor James Milles, a person privileged enough to have been invited to "testify" before the Commission, published by Professor Milles on his blog.
Update: Since ethics Professor James Milles, after I criticized him in this blog and in court pleadings, removed his proud blog boasting of his unethical conduct, and now you can see only some hieroglyphs if you follow the link to Professor's blog, his testimony can be still read in the official transcript of the New York Statewide Commission for Attorney Discipline, here.
James Milles is the professor of Legal Ethics in Buffalo Law School.
What Professor Milles said in his testimony before the Commission, and what he did not say in his testimony, is very revealing as to how the legal profession operates and how it grabs and trains new recruits.
First of all, it is very telling what Professor Milles does not say in his testimony.
You will look in vain for such words as "constitutional" or "unconstitutional" in his testimony.
You will look in vain for any meaningful analysis of disciplinary process, or for any analysis of possible constitutional defects in that process.
You will look in vain for coverage in Professor Milles' testimony of the issues of:
1) selective enforcement and non-enforcement of attorney discipline based on status and connections of attorneys;
2) antitrust and anti-competitive conduct of attorney disciplinary committees in pursuing attorney discipline;
3) separation of power issues in attorney discipline, both on the court side and on the side of disciplinary committees;
4) the effect of attorney discipline imposed by judiciary on independence of legal representation;
5) fear of judicial retaliation for pointing out judicial bias or misconduct and the resulting fear and unwillingness of attorneys to address such issues of public concern in pleadings, mostly because attorneys are regulated by the same branch of the government whose misconduct they have a duty to challenge, with the resulting lack of independence and inefficient representation of clients;
6) vague and arbitrary rules that allow to apply attorney discipline as a tool against dissenters, but allow real violators of ethics to escape discipline;
7) lack of proper records pertaining to attorney discipline;
8) lack of transparency of attorney discipline, which hurts both the public and the disciplined attorneys,
9) that the right to practice law (to engage in an honest profession in accordance with one's calling) is considered a privilege in New York rather than a constitutional right, as the U.S. Supreme Court said it is, with the resulting less procedural and substantive protections in attorney disciplinary proceedings.
and many other pertinent issues.
Since there was so little time afforded for testimony-by-invitation and the subject of imposition of attorney discipline is so pertinent to both livelihoods of hundreds of thousands of people, as well as to the right of access to court that attorneys are meant to ensure, any law professor invited to testify before the commission was, in my opinion, duty bound not to present the commission with a bunch of niceties and common places in his testimony, but to take the bull by the horns and analyze what bothers both the legal community and the public, and is the subject of raging debates in courts and in the social media.
Didn't happen.
What happened is a quote in the testimony by Professor Milles to the book authored by a member of the Commission Professor Gillers - which is clearly inappropriate and, to me, a violation of legal ethics by an ethics professor. To me, it amounts to brown nosing to quote a book of a presiding decision maker in one's testimony, as such citation has an appearance to gain that decision-maker's favor.
Imagine that you get on a witness stand and say: "I read your book, judge, and I am so very impressed".
Second, it is very telling what Professor Milles does say in his testimony - and especially HOW he says it.
Since the issue of attorney discipline prompted the Chief Judge of the State of New York to create a whole Statewide Commission, to address fairness and uniformity of discipline, and since the declared goal of attorney regulation and attorney discipline is to actually protect consumers of legal services, the public, the testimony before the Commission should, at the very least, be understandable to the public.
Yet, Professor Milles, often in his testimony, spoke in riddles well-laden with legal terms that are devoid of real meaning, and those terms, to me as a prepared reader who knows both the term, the background and what the terms really mean, it appears that certain statements by Professor Milles were meant to obscure the real purpose of certain deliberate gaps in law education, and meant to obscure what Professor Milles is likely afraid to say - that to insist on the rule of law rather than learning the "customs" of judges that lead to "significant variation" of judicial decisions is a career suicide for an attorney.
I also wrote on this blog that learning the customs and quirks of certain judges have become a business for attorneys, for judges who present such quirks at CLE courses, during taxpayer-backed time, likely for payment.
I wrote that such "continued legal education" courses and the whole concept that, attorneys can satisfy their licensing requirement by learning about "pet peeves" of judges to "better represent clients" is undermining the whole concept of the rule of law which should be blind, uniform, predictable, equally applied and not related to whether a certain attorney attended a CLE course held by a certain judge and paid for that judge's lecture as to what that judge's "pet peeves" are.
Professor Milles, citing to another law professor, from San Diego School of Law, tiptoes around the issue of arbitrary enforcement of the law in courts.
Professor Milles simply quotes:
"One of the hardest things to teach students is
how to deal with the sometimes significant variation
in judicial reactions to similar conduct. . . .
‘Pay close attention to custom’ is helpful, and
an obvious point, but I do find that students
throw up their hands and tend toward nihilism
when they perceive how much variation they will face.
Teaching realism without nihilism is important
but tough.”[11]
Let's translate this quote into plain English.
1/ Law professors acknowledge that "significant variation in judicial reactions to similar conduct" is a problem.
2/ Law professors acknowledge that such "significant variation" may and does cause law students (and lawyers in the future) to "throw up their hands" and "tend toward nihilism" - which is, in my understanding, a roundabout way of saying that when seeing that judicial decisions are plain arbitrary and all over the place on the same issue, law students lose faith in existence of the rule of law, which requires equality, uniformity and predictability of application, which undermines the whole idea of legal ethics;
3/ Law professors acknowledge that they teach law students to "pay close attention to custom", or "pet peeves" of certain judges, which is completely contrary to the whole idea of the rule of law or legal ethics;
4/ Law professors acknowledge that they continue to "teach realism without nihilism", or that they teach, instead of true legal ethics, a course in how to best brown-nose a judge by knowing of his "customs" in order to win a case.
Well, at least in the above statement Professor Milles gives credit to the law student's intelligence, that they weed through the "frames of reference" of law professors and see the core of the problem, arbitrary enforcement of laws, which is a constitutional problem and one of the reasons as to why the judicial system is currently in crisis and lost and continues to lose public trust in its integrity or effective operation.
Professor Milles went further and hinted that it may be that law professors are deliberately limiting knowledge by law students of the disciplinary process so that law students would not engage in ethical violations when they become attorneys.
I am not kidding.
Here is Professor Milles' statement published on his own blog:
"However, another reason for neglecting disciplinary
sanctions in legal ethics courses may be a concern
that teaching students about sanctions may contribute
to disrespect for the disciplinary process and disregard
of the ethical rules."
And then:
"Despite the explicit guidance of the Rules of Professional
Conduct, what the bar and the courts choose to sanction,
and what sanctions are imposed, may say more than
the rules do about the real values of the profession.[1]"
So, in other words, Professor Milles acknowledges that law schools prefer not to teach law students about the disciplinary process because they think that if law students know how attorney discipline works, or how arbitrary application of attorney discipline is, such knowledge will encourage law students to commit ethical violations.
Good grief!
First of all, in New York as in any other state, there is such a thing as a "presumption" of knowledge of all laws.
So, those same students who are deliberately not taught about attorney discipline, are "presumed to know" about attorney discipline - same as every lay member of the public, including illiterate ones.
This presumption exists to encourage members of the public to learn what laws are, in order to be on notice of the laws and to obey them.
Here, a professor of legal ethics admits that to teach law students, future lawyers and judges, about the law of attorney discipline "may be" an equivalent of encouraging these lawyers to violate rules of ethics.
It also says a lot of the low esteem that law schools have of the caliber of law students they recruit and teach.
If a law student, after learning what attorney discipline is, how it is enforced (or not enforced), will supposedly rush into violating of rules of legal ethics, that is to say that the only thing that prevents lawyers from violating rules of ethics is if they are kept by their law schools in deliberate ignorance of the laws.
Once again, good grief!
Sounds to me like a Dark Age religious zealot who would cackle from a pulpit that too much knowledge is from the devil and should be discouraged, not as a modern times law professor.
By comparison, if a member of the public knows about arbitrary enforcement of criminal laws, he or she will rush into violating criminal laws, so let's keep the public ignorant as to existence of criminal laws and how they are applied? That's the key to law and order? Ignorance?
If a person learns about the law that provides a procedural protection in the defense against charges of rape and murder, he will immediately go out into the streets to rape and murder?
Everybody has a right to an opinion, of course, but an opinion that ignorance as to problems with enforcement of attorney discipline will lead to deliberate ethical violations by lawyers, coming from the lips of a law professor, is a disservice to the law students he teaches - and that is my personal opinion.
So, presumably, only unethical individuals who only look how to violate rules of ethics, apply to law school, thus making it necessary for law schools to deliberately not teach them about attorney discipline or how it is applied?
And generations upon generations of such law students were thrown upon the unsuspecting public to represent them in court, and states give them monopoly for such representations and, moreover, require that judges be necessarily lawyers and thus members of that presumably unethical class of people?
If that is so, the profession is doomed beyond repair.
I also wrote about experts who are members of the Commission and who have a vested interests contrary to the Commission's declared goal - interests to preserve the current status quo in the legal profession and attorney discipline rather than change anything.
Today, I received from a friend a link to the testimony by Professor James Milles, a person privileged enough to have been invited to "testify" before the Commission, published by Professor Milles on his blog.
Update: Since ethics Professor James Milles, after I criticized him in this blog and in court pleadings, removed his proud blog boasting of his unethical conduct, and now you can see only some hieroglyphs if you follow the link to Professor's blog, his testimony can be still read in the official transcript of the New York Statewide Commission for Attorney Discipline, here.
James Milles is the professor of Legal Ethics in Buffalo Law School.
What Professor Milles said in his testimony before the Commission, and what he did not say in his testimony, is very revealing as to how the legal profession operates and how it grabs and trains new recruits.
First of all, it is very telling what Professor Milles does not say in his testimony.
You will look in vain for such words as "constitutional" or "unconstitutional" in his testimony.
You will look in vain for any meaningful analysis of disciplinary process, or for any analysis of possible constitutional defects in that process.
You will look in vain for coverage in Professor Milles' testimony of the issues of:
1) selective enforcement and non-enforcement of attorney discipline based on status and connections of attorneys;
2) antitrust and anti-competitive conduct of attorney disciplinary committees in pursuing attorney discipline;
3) separation of power issues in attorney discipline, both on the court side and on the side of disciplinary committees;
4) the effect of attorney discipline imposed by judiciary on independence of legal representation;
5) fear of judicial retaliation for pointing out judicial bias or misconduct and the resulting fear and unwillingness of attorneys to address such issues of public concern in pleadings, mostly because attorneys are regulated by the same branch of the government whose misconduct they have a duty to challenge, with the resulting lack of independence and inefficient representation of clients;
6) vague and arbitrary rules that allow to apply attorney discipline as a tool against dissenters, but allow real violators of ethics to escape discipline;
7) lack of proper records pertaining to attorney discipline;
8) lack of transparency of attorney discipline, which hurts both the public and the disciplined attorneys,
9) that the right to practice law (to engage in an honest profession in accordance with one's calling) is considered a privilege in New York rather than a constitutional right, as the U.S. Supreme Court said it is, with the resulting less procedural and substantive protections in attorney disciplinary proceedings.
and many other pertinent issues.
Since there was so little time afforded for testimony-by-invitation and the subject of imposition of attorney discipline is so pertinent to both livelihoods of hundreds of thousands of people, as well as to the right of access to court that attorneys are meant to ensure, any law professor invited to testify before the commission was, in my opinion, duty bound not to present the commission with a bunch of niceties and common places in his testimony, but to take the bull by the horns and analyze what bothers both the legal community and the public, and is the subject of raging debates in courts and in the social media.
Didn't happen.
What happened is a quote in the testimony by Professor Milles to the book authored by a member of the Commission Professor Gillers - which is clearly inappropriate and, to me, a violation of legal ethics by an ethics professor. To me, it amounts to brown nosing to quote a book of a presiding decision maker in one's testimony, as such citation has an appearance to gain that decision-maker's favor.
Imagine that you get on a witness stand and say: "I read your book, judge, and I am so very impressed".
Second, it is very telling what Professor Milles does say in his testimony - and especially HOW he says it.
Since the issue of attorney discipline prompted the Chief Judge of the State of New York to create a whole Statewide Commission, to address fairness and uniformity of discipline, and since the declared goal of attorney regulation and attorney discipline is to actually protect consumers of legal services, the public, the testimony before the Commission should, at the very least, be understandable to the public.
Yet, Professor Milles, often in his testimony, spoke in riddles well-laden with legal terms that are devoid of real meaning, and those terms, to me as a prepared reader who knows both the term, the background and what the terms really mean, it appears that certain statements by Professor Milles were meant to obscure the real purpose of certain deliberate gaps in law education, and meant to obscure what Professor Milles is likely afraid to say - that to insist on the rule of law rather than learning the "customs" of judges that lead to "significant variation" of judicial decisions is a career suicide for an attorney.
I also wrote on this blog that learning the customs and quirks of certain judges have become a business for attorneys, for judges who present such quirks at CLE courses, during taxpayer-backed time, likely for payment.
I wrote that such "continued legal education" courses and the whole concept that, attorneys can satisfy their licensing requirement by learning about "pet peeves" of judges to "better represent clients" is undermining the whole concept of the rule of law which should be blind, uniform, predictable, equally applied and not related to whether a certain attorney attended a CLE course held by a certain judge and paid for that judge's lecture as to what that judge's "pet peeves" are.
Professor Milles, citing to another law professor, from San Diego School of Law, tiptoes around the issue of arbitrary enforcement of the law in courts.
Professor Milles simply quotes:
"One of the hardest things to teach students is
how to deal with the sometimes significant variation
in judicial reactions to similar conduct. . . .
‘Pay close attention to custom’ is helpful, and
an obvious point, but I do find that students
throw up their hands and tend toward nihilism
when they perceive how much variation they will face.
Teaching realism without nihilism is important
but tough.”[11]
Let's translate this quote into plain English.
1/ Law professors acknowledge that "significant variation in judicial reactions to similar conduct" is a problem.
2/ Law professors acknowledge that such "significant variation" may and does cause law students (and lawyers in the future) to "throw up their hands" and "tend toward nihilism" - which is, in my understanding, a roundabout way of saying that when seeing that judicial decisions are plain arbitrary and all over the place on the same issue, law students lose faith in existence of the rule of law, which requires equality, uniformity and predictability of application, which undermines the whole idea of legal ethics;
3/ Law professors acknowledge that they teach law students to "pay close attention to custom", or "pet peeves" of certain judges, which is completely contrary to the whole idea of the rule of law or legal ethics;
4/ Law professors acknowledge that they continue to "teach realism without nihilism", or that they teach, instead of true legal ethics, a course in how to best brown-nose a judge by knowing of his "customs" in order to win a case.
Well, at least in the above statement Professor Milles gives credit to the law student's intelligence, that they weed through the "frames of reference" of law professors and see the core of the problem, arbitrary enforcement of laws, which is a constitutional problem and one of the reasons as to why the judicial system is currently in crisis and lost and continues to lose public trust in its integrity or effective operation.
Professor Milles went further and hinted that it may be that law professors are deliberately limiting knowledge by law students of the disciplinary process so that law students would not engage in ethical violations when they become attorneys.
I am not kidding.
Here is Professor Milles' statement published on his own blog:
"However, another reason for neglecting disciplinary
sanctions in legal ethics courses may be a concern
that teaching students about sanctions may contribute
to disrespect for the disciplinary process and disregard
of the ethical rules."
And then:
"Despite the explicit guidance of the Rules of Professional
Conduct, what the bar and the courts choose to sanction,
and what sanctions are imposed, may say more than
the rules do about the real values of the profession.[1]"
So, in other words, Professor Milles acknowledges that law schools prefer not to teach law students about the disciplinary process because they think that if law students know how attorney discipline works, or how arbitrary application of attorney discipline is, such knowledge will encourage law students to commit ethical violations.
Good grief!
First of all, in New York as in any other state, there is such a thing as a "presumption" of knowledge of all laws.
So, those same students who are deliberately not taught about attorney discipline, are "presumed to know" about attorney discipline - same as every lay member of the public, including illiterate ones.
This presumption exists to encourage members of the public to learn what laws are, in order to be on notice of the laws and to obey them.
Here, a professor of legal ethics admits that to teach law students, future lawyers and judges, about the law of attorney discipline "may be" an equivalent of encouraging these lawyers to violate rules of ethics.
It also says a lot of the low esteem that law schools have of the caliber of law students they recruit and teach.
If a law student, after learning what attorney discipline is, how it is enforced (or not enforced), will supposedly rush into violating of rules of legal ethics, that is to say that the only thing that prevents lawyers from violating rules of ethics is if they are kept by their law schools in deliberate ignorance of the laws.
Once again, good grief!
Sounds to me like a Dark Age religious zealot who would cackle from a pulpit that too much knowledge is from the devil and should be discouraged, not as a modern times law professor.
By comparison, if a member of the public knows about arbitrary enforcement of criminal laws, he or she will rush into violating criminal laws, so let's keep the public ignorant as to existence of criminal laws and how they are applied? That's the key to law and order? Ignorance?
If a person learns about the law that provides a procedural protection in the defense against charges of rape and murder, he will immediately go out into the streets to rape and murder?
Everybody has a right to an opinion, of course, but an opinion that ignorance as to problems with enforcement of attorney discipline will lead to deliberate ethical violations by lawyers, coming from the lips of a law professor, is a disservice to the law students he teaches - and that is my personal opinion.
So, presumably, only unethical individuals who only look how to violate rules of ethics, apply to law school, thus making it necessary for law schools to deliberately not teach them about attorney discipline or how it is applied?
And generations upon generations of such law students were thrown upon the unsuspecting public to represent them in court, and states give them monopoly for such representations and, moreover, require that judges be necessarily lawyers and thus members of that presumably unethical class of people?
If that is so, the profession is doomed beyond repair.
* * *
I suggest that the real reason as to why students are not taught about disciplinary process is less lofty and more prosaic than what Professor Milles cared to reveal in his testimony.
Law schools are businesses.
They need to recruit law students to survive.
Law education is a very costly investment.
Practice of law usually does not give room to any other business activities, it consumers the attorney's entire time.
If an attorney loses his or her license, he or she is usually blackballed from working anywhere in or near the legal profession, even as a secretary or office assistant, and he or she knows nothing else.
Moreover, losing a law license will adversely affect a suspended or disbarred attorney's ability to get any other license or certification, since during certification process you are invariably asked a question whether you have ever lost a license in any profession.
If law students are taught early into their law school studies, when not too much money or time was invested yet, just how volatile their supposedly lifetime investment into the legal education is, how much it depends on arbitrary decisions, made on a whim, out of spite or in clear retaliation for their professional activities (such as motions to recuse, complaints about judicial misconduct or, God forbid, lawsuits against a judge or other members of the government), many students will choose not to proceed with the education and will take their money elsewhere.
That may be the real reason as to why students as investors into costly legal education are kept in the dark about problems with reliability of their investment.
Which, to me, is a type of fraud by omission against investors and should be exposed as such.
That law professors, professors of legal ethics of all people, knowingly do not include the most important information about reliability, or rather, unreliability and volatility of financial investment in legal education for their law students, and thus mislead them into, possibly, a major financial mistake and disaster of their lives, is downright disturbing.
* * *
As a conclusion, I must point out an interesting discrepancy in Professor Milles testimony that may affect all attorneys who have ever undergone discipline in the State of New York - or who is undergoing it now.
Professor Milles did cite to a case of the New York State Court of Appeals indicating that the main goal of attorney discipline is deterrence.
That case is the basis for New York to apply the lowest possible burden of proof for the prosecution in such disciplinary proceedings - by preponderance of the evidence, and claiming that attorney disciplinary proceedings are civil proceedings, not quasi-criminal, as the U.S. Supreme Court found long time ago.
Yet, Professor Milles, throughout his testimony, refers to ABA-issued standards and makes his own statements which are apparently a reflection of consensus in law professors' community that attorney discipline has, as one of its goals, punishment.
Now, any first year law student who took a Criminal Law 101 course knows that the purpose of criminal proceedings are 4-fold and include the following goals:
1/ punishment;
2/ deterrence;
3/ disability (of perpetrator);
4/ rehabilitation.
So, once a goal of punishment is acknowledged, the proceeding must be deemed criminal, not civil, with all attendant procedures required by state and federal law for criminal proceedings.
Yet, in New York attorney disciplinary proceedings, though now admittedly punitive in nature, are deemed "civil", and afford even less protections than other civil proceedings - in procedure, discovery rights, subpoena rights, appellate rights (or, rather, lack thereof as to all of the enumerated rights).
So, at least something borderline positive came out of Professor Milles testimony - and that is implied admissions and revelations that can be discerned from Professor Milles' statements which paint a disturbing picture as to how attorneys cheat themselves and the public out of the rule of law.
Tuesday, August 11, 2015
Does judicial recusal mean anything under the New York State and U.S. law? Apparently, not much.
A recusal is an act of renouncing the judge's authority to preside over a case.
After the judge renounced his authority, presumably he or she is off the case and may not make any rulings in that case.
Lawyers in New York and generally in the U.S. are deadly afraid of making motions to recuse, even when they know such a motion is required based on documentary evidence in the case.
Why? Because a judge that is the object of a motion to recuse may retaliate viciously against such an attorney, sanction him, using the lax, vague and arbitrary judicially created "frivolous conduct" rule and send the lawyer into the disciplinary commission, which can leave the lawyer without his or her practice, reputation, livelihood, with his lifetime into the costly legal education gone down the drain and his skills unwanted and even prohibited to be used, even for the benefit of people, if the lawyer is suspended or disbarred from practice as a result of such judicial retaliation.
So, lawyers do not usually make motions to recuse, but pro se parties, on their own behalf, do.
And sometimes judges recuse on their own.
What happens after recusal occurred and what are the legal consequences of a recusal?
As the recent developments in the New York and federal law show, the judiciary does everything to water down the logical and reasonable consequences of judicial recusal, to help bad judges escape accountability for their misconduct.
Issue No. 1
May a judge who recused from the case rule in the case?
The logical answer: of course, not, the reason for a recusal is to remove the judge from the decision-making in the case.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct. Judge Carl F. Becker of Delaware County who hastily retired from the bench on July 31, 2015, from the coveted bench where he got after a ferocious election campaign wrought with fraud upon voters, re-entered two cases after recusal and made decisions in those cases, and no discipline was imposed upon him by the NYS Commission of Judicial Conduct despite my report of that. Appellate Division relied upon his unlawful decision on re-entry in one of the cases, both cases were from Family Court and both involved me as counsel for people against whom Carl F. Becker ruled on his re-entry after recusal.
Issue No. 2
May a judge who recused from a party's case preside over any other cases of that same party pending at the same time or closely thereafter?
The logical answer: of course, not, when a judge recuses himself from a party's case, he acknowledges that there is an appearance of impropriety or lack of impartiality that prevents the judge from presiding over such party's case. Such an implied admission destroys presumption of impartiality for that judge for any other case of that party.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
The same Judge Becker recused himself in 2009 from a case that his friend Delaware County Commissioner William Moon (who also hastily retired, a little earlier than the hasty retirement of judge Becker, and before the audit of Delaware County by the NYS State Comptroller that found multiple "indiscretions" by his department was complete) commenced against me and my husband in child neglect (dismissed after 2 years of litigation and a full trial, putting our whole family, including our children, through hell) 10 days after I brought a motion to recuse Judge Becker from a child neglect case of a client specifically because Judge Becker, the presiding judge in a bench trial and a fact-finder in a case, had extrajudicial knowledge about witnesses and represented the Petitioner in the case for 27 years prior to coming to the bench.
Judge Becker, upon information and belief, was still in communications with the presiding judge over that case, and soon after his recusal assigned himself to several cases where my husband and I were parties and repeatedly ruled against both my husband and I, generating over $100,000.00 in judgments against us, and generating several "frivolous conduct" decisions against me that were then sent to the disciplinary authorities, and I was prosecuted and await an order of discipline based solely and entirely upon rulings of Judge Becker in my cases AFTER he recused from my own and my husband's case in 2009.
In 2012, after Judge Becker worked enough havoc in my own and my husband's lives, he recused from ALL of our cases, but reentered two of them after that second recusal and made rulings against my clients (see Issue # 1 above).
Yet, recusal of Judge Becker from ALL of my cases in 2012 indicates that after his recusal in 2009 he should have been assigned to any of my cases and all of his rulings in cases where I or my husbands were parties, are void and should be vacated.
Judge James Tormey recused from one case involving me as a party in Chenango County Supreme Court, but refused to recuse from another case involving me as a party-plaintiff where I sued an attorney who is also a judge in a justice court, for his fraud upon the court. Judge Tormey stayed on the case in order to punish me for suing Judge Tormey in federal court - and he did, openly imposing sanctions, in part, for suing the judge himself. Judge Tormey also imposed against me an anti-filing injection, imposed upon me $2,000 in sanctions and over $8,000 in legal fees while misrepresenting the record in order to punish me instead of my opponent. Then, Judge Tormey sent his decision to the disciplinary committee before sending it to me, and the disciplinary proceeding got transferred to the 4th Department where two of the committee members are Judge Tormey's employees.
Issue No. 3
Can a judge get assigned to the case directly related to the one from which the judge has recused, remain or get assigned to a related case?
The logical answer: of course, not. If a judge feels he cannot be impartial in one case of a party, he cannot then claim he can be impartial in a case directly related to the case from which the judge recused, where issues of fact and law may be shared.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
Judge Kevin M. Dowd recused from Neroni v Harlem which was based on misconduct of attorney Richard Harlem, his crew and his clients in the case Mokay v Mokay, Delaware County Index No. 2007-695, yet, staunchly refused to recuse from Mokay v Mokay, bringing it, through adjournments given to Plaintiffs but not to me, through an ex parte trial during my documented medical leave, to a judgment against my husband of over $300,000.00. All the while, Kevin Dowd asked me after my husband's health during conferences in unrelated cases, calling my husband by his first name, "Fred", and asked to "say hello to Fred" for him.
Judge Michael V. Coccoma recused from Mokay v Mokay in 2007, but continued to assign judges to that case, and to all other cases involving my husband as a party.
Judge Coccoma recused from all of my cases, I believe, in 2012 after he started to actively assign himself to my cases (when I made a motion to punish his wife, an attorney, for frivolous conduct). When I pointed out to him his disqualification and reminded him of his recusal from my husband's case in 2007 and of my motion against his wife, he had the decency to recuse but continued to assign judges to my cases. Judge Coccoma has authority to make decisions pertaining to post-retirement perks for judges, so there is a vested financial interest for judges to make good to Judge Coccoma and rule against his enemies or enemies of his wife - and they diligently do so, judge after judge.
Issue No. 4.
Is a recused judge covered by absolute judicial immunity after he recused from the case?
The logical answer: no, of course not. Recusal is a voluntary cessation of jurisdiction by the judge, so where there is no jurisdiction, there is no immunity. Judicial immunity does not apply "in clear absence of all jurisdiction", and recusal is a voluntary abdication of jurisdiction by the judge, a point of (supposedly) no return.
The real-life answer: maybe, sometimes, in upstate New York and the U.S. District Court for the Northern District of New York jurisdiction, if a party or attorney for the party are critics of judicial misconduct.
Most recently, judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York who is connected through ex parte communications and out-of-court benefits to a law firm involving a disciplinary prosecutor John Casey against me and my husband who was openly bought by my husband's opponents in litigation attorneys Robert Harlem (a retired judge and retired Chief Administrative Judge of the 6th Judicial District) and his son Richard Harlem, to disbar my husband and not them, who were also turned in for his investigation, made a magnificent ruling that stretches immunity beyond the judge's recusal because the judge's misconduct "were related to litigation" from which the judge admittedly recused by the time he engaged in misconduct he was sued for.
Misconduct Judge Kevin Dowd was sued for, as I wrote on this blog, is because, AFTER THE JUDGE RECUSED, he knowingly used a court officer who was an armed Nazi sympathizer and already made an antisemitic comment/threat against Jewish litigant, to throw that Jewish litigant out of the courthouse for making the motion to recuse.
Judge Kahn wrote that there is no support for my argument that a judge loses jurisdiction on recusal, and with jurisdiction, he loses immunity.
So now, as long as a judge's misconduct is "connected with litigation", a judge may recuse and then continue to rule in the case against a party, including directions to armed court personnel to engage in violent actions against litigants who dared to make motions to recuse - and absolute judicial immunity for malicious and corrupt acts will apply even to that.
In other words, when judges have a vested interest, as a group and as a class, in some issue, like their own liability for misconduct in office or after recusals, you can count on judges trying to bend and twist words in order to present the most glaring unconstitutional conduct as lawful and the victim of such misconduct as a pest not entitled to any remedy.
So, the law of recusal is - it is nearly impossible to get, and when you get it, it means nothing.
There are no rules attending recusals, so even if you obtain a recusal, through a great personal sacrifice, the judicial system will retaliate against you so viciously that you may lose everything, your financial stability, your health, your ability to earn a livelihood for your family despite your skills that are much needed for many people.
The rule of law in action.
After the judge renounced his authority, presumably he or she is off the case and may not make any rulings in that case.
Lawyers in New York and generally in the U.S. are deadly afraid of making motions to recuse, even when they know such a motion is required based on documentary evidence in the case.
Why? Because a judge that is the object of a motion to recuse may retaliate viciously against such an attorney, sanction him, using the lax, vague and arbitrary judicially created "frivolous conduct" rule and send the lawyer into the disciplinary commission, which can leave the lawyer without his or her practice, reputation, livelihood, with his lifetime into the costly legal education gone down the drain and his skills unwanted and even prohibited to be used, even for the benefit of people, if the lawyer is suspended or disbarred from practice as a result of such judicial retaliation.
So, lawyers do not usually make motions to recuse, but pro se parties, on their own behalf, do.
And sometimes judges recuse on their own.
What happens after recusal occurred and what are the legal consequences of a recusal?
As the recent developments in the New York and federal law show, the judiciary does everything to water down the logical and reasonable consequences of judicial recusal, to help bad judges escape accountability for their misconduct.
Issue No. 1
May a judge who recused from the case rule in the case?
The logical answer: of course, not, the reason for a recusal is to remove the judge from the decision-making in the case.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct. Judge Carl F. Becker of Delaware County who hastily retired from the bench on July 31, 2015, from the coveted bench where he got after a ferocious election campaign wrought with fraud upon voters, re-entered two cases after recusal and made decisions in those cases, and no discipline was imposed upon him by the NYS Commission of Judicial Conduct despite my report of that. Appellate Division relied upon his unlawful decision on re-entry in one of the cases, both cases were from Family Court and both involved me as counsel for people against whom Carl F. Becker ruled on his re-entry after recusal.
Issue No. 2
May a judge who recused from a party's case preside over any other cases of that same party pending at the same time or closely thereafter?
The logical answer: of course, not, when a judge recuses himself from a party's case, he acknowledges that there is an appearance of impropriety or lack of impartiality that prevents the judge from presiding over such party's case. Such an implied admission destroys presumption of impartiality for that judge for any other case of that party.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
The same Judge Becker recused himself in 2009 from a case that his friend Delaware County Commissioner William Moon (who also hastily retired, a little earlier than the hasty retirement of judge Becker, and before the audit of Delaware County by the NYS State Comptroller that found multiple "indiscretions" by his department was complete) commenced against me and my husband in child neglect (dismissed after 2 years of litigation and a full trial, putting our whole family, including our children, through hell) 10 days after I brought a motion to recuse Judge Becker from a child neglect case of a client specifically because Judge Becker, the presiding judge in a bench trial and a fact-finder in a case, had extrajudicial knowledge about witnesses and represented the Petitioner in the case for 27 years prior to coming to the bench.
Judge Becker, upon information and belief, was still in communications with the presiding judge over that case, and soon after his recusal assigned himself to several cases where my husband and I were parties and repeatedly ruled against both my husband and I, generating over $100,000.00 in judgments against us, and generating several "frivolous conduct" decisions against me that were then sent to the disciplinary authorities, and I was prosecuted and await an order of discipline based solely and entirely upon rulings of Judge Becker in my cases AFTER he recused from my own and my husband's case in 2009.
In 2012, after Judge Becker worked enough havoc in my own and my husband's lives, he recused from ALL of our cases, but reentered two of them after that second recusal and made rulings against my clients (see Issue # 1 above).
Yet, recusal of Judge Becker from ALL of my cases in 2012 indicates that after his recusal in 2009 he should have been assigned to any of my cases and all of his rulings in cases where I or my husbands were parties, are void and should be vacated.
Judge James Tormey recused from one case involving me as a party in Chenango County Supreme Court, but refused to recuse from another case involving me as a party-plaintiff where I sued an attorney who is also a judge in a justice court, for his fraud upon the court. Judge Tormey stayed on the case in order to punish me for suing Judge Tormey in federal court - and he did, openly imposing sanctions, in part, for suing the judge himself. Judge Tormey also imposed against me an anti-filing injection, imposed upon me $2,000 in sanctions and over $8,000 in legal fees while misrepresenting the record in order to punish me instead of my opponent. Then, Judge Tormey sent his decision to the disciplinary committee before sending it to me, and the disciplinary proceeding got transferred to the 4th Department where two of the committee members are Judge Tormey's employees.
Issue No. 3
Can a judge get assigned to the case directly related to the one from which the judge has recused, remain or get assigned to a related case?
The logical answer: of course, not. If a judge feels he cannot be impartial in one case of a party, he cannot then claim he can be impartial in a case directly related to the case from which the judge recused, where issues of fact and law may be shared.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
Judge Kevin M. Dowd recused from Neroni v Harlem which was based on misconduct of attorney Richard Harlem, his crew and his clients in the case Mokay v Mokay, Delaware County Index No. 2007-695, yet, staunchly refused to recuse from Mokay v Mokay, bringing it, through adjournments given to Plaintiffs but not to me, through an ex parte trial during my documented medical leave, to a judgment against my husband of over $300,000.00. All the while, Kevin Dowd asked me after my husband's health during conferences in unrelated cases, calling my husband by his first name, "Fred", and asked to "say hello to Fred" for him.
Judge Michael V. Coccoma recused from Mokay v Mokay in 2007, but continued to assign judges to that case, and to all other cases involving my husband as a party.
Judge Coccoma recused from all of my cases, I believe, in 2012 after he started to actively assign himself to my cases (when I made a motion to punish his wife, an attorney, for frivolous conduct). When I pointed out to him his disqualification and reminded him of his recusal from my husband's case in 2007 and of my motion against his wife, he had the decency to recuse but continued to assign judges to my cases. Judge Coccoma has authority to make decisions pertaining to post-retirement perks for judges, so there is a vested financial interest for judges to make good to Judge Coccoma and rule against his enemies or enemies of his wife - and they diligently do so, judge after judge.
Issue No. 4.
Is a recused judge covered by absolute judicial immunity after he recused from the case?
The logical answer: no, of course not. Recusal is a voluntary cessation of jurisdiction by the judge, so where there is no jurisdiction, there is no immunity. Judicial immunity does not apply "in clear absence of all jurisdiction", and recusal is a voluntary abdication of jurisdiction by the judge, a point of (supposedly) no return.
The real-life answer: maybe, sometimes, in upstate New York and the U.S. District Court for the Northern District of New York jurisdiction, if a party or attorney for the party are critics of judicial misconduct.
Most recently, judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York who is connected through ex parte communications and out-of-court benefits to a law firm involving a disciplinary prosecutor John Casey against me and my husband who was openly bought by my husband's opponents in litigation attorneys Robert Harlem (a retired judge and retired Chief Administrative Judge of the 6th Judicial District) and his son Richard Harlem, to disbar my husband and not them, who were also turned in for his investigation, made a magnificent ruling that stretches immunity beyond the judge's recusal because the judge's misconduct "were related to litigation" from which the judge admittedly recused by the time he engaged in misconduct he was sued for.
Misconduct Judge Kevin Dowd was sued for, as I wrote on this blog, is because, AFTER THE JUDGE RECUSED, he knowingly used a court officer who was an armed Nazi sympathizer and already made an antisemitic comment/threat against Jewish litigant, to throw that Jewish litigant out of the courthouse for making the motion to recuse.
Judge Kahn wrote that there is no support for my argument that a judge loses jurisdiction on recusal, and with jurisdiction, he loses immunity.
So now, as long as a judge's misconduct is "connected with litigation", a judge may recuse and then continue to rule in the case against a party, including directions to armed court personnel to engage in violent actions against litigants who dared to make motions to recuse - and absolute judicial immunity for malicious and corrupt acts will apply even to that.
In other words, when judges have a vested interest, as a group and as a class, in some issue, like their own liability for misconduct in office or after recusals, you can count on judges trying to bend and twist words in order to present the most glaring unconstitutional conduct as lawful and the victim of such misconduct as a pest not entitled to any remedy.
So, the law of recusal is - it is nearly impossible to get, and when you get it, it means nothing.
There are no rules attending recusals, so even if you obtain a recusal, through a great personal sacrifice, the judicial system will retaliate against you so viciously that you may lose everything, your financial stability, your health, your ability to earn a livelihood for your family despite your skills that are much needed for many people.
The rule of law in action.
Prosecutions for murder and attempted murder must be mandatory against all individuals who are knowingly sending innocents to death rows
A lot has been said lately about wrongful convictions that landed people on death row. There has been a growing recognition in society that a lot of innocents may have been put on death row, and a lot of innocents may have been executed already.
There has been a growing recognition also that in many cases of wrongful death penalty convictions, such convictions were obtained at the time when prosecutors knew that the person they were putting on death row were factually innocent and withheld that evidence from the defense and the court.
Yet, there are not many reports of discipline against the prosecutors.
And I did not read any reports that prosecutors who KNOWINGLY put people on death row, were tried for murder (if the innocents were executed) or for attempted murder, if the innocents were either rescued from the death row or remain their awaiting an execution while the fight for their release and exoneration continues.
And my question is - WHY such prosecutors, and all members of investigative, prosecutorial and judicial teams who may have had knowledge of the factual innocence of criminal defendants who were convicted and sent to the death row are not prosecuted for attempted murder and for the actual murder?
No immunity protects from criminal prosecution.
Let's put pressure upon our representatives in the State and Federal Legislatures to pass laws making mandatory the criminal murder and attempted murder prosecutions of prosecutors and investigators who knowingly withheld exonerating evidence in death penalty cases.
There is no statute of limitations for murder, and there should be no status protection for murder.
Let's put pressure upon our representatives in State and Federal Legislatures to mandate criminal investigations and prosecutions in ANY case where exonerating evidence is withheld in criminal cases, whether in death penalty cases or not. That will bring a swift end to both prosecutorial misconduct and the position of prosecutors as coveted positions, which will only make the bench clean since now most of judges have a prosecutorial background, and thus an experience of misconduct without accountability ingrained in them as a matter of right before they come to the bench.
If such laws are passed and if a couple of prosecutors, especially well-connected ones, end up on death rows themselves, for murder no less, you will see how quickly the death penalty itself will be deemed unconstitutional and abolished.
It takes a high-ranking pig about to be "lawfully" killed by the government to for the "rule of law" to start working in this country.
So let's require that such laws be put on the books.
It's high time to end prosecutorial misconduct in this country that ruins and sometimes very literally ends people's lives.
There has been a growing recognition also that in many cases of wrongful death penalty convictions, such convictions were obtained at the time when prosecutors knew that the person they were putting on death row were factually innocent and withheld that evidence from the defense and the court.
Yet, there are not many reports of discipline against the prosecutors.
And I did not read any reports that prosecutors who KNOWINGLY put people on death row, were tried for murder (if the innocents were executed) or for attempted murder, if the innocents were either rescued from the death row or remain their awaiting an execution while the fight for their release and exoneration continues.
And my question is - WHY such prosecutors, and all members of investigative, prosecutorial and judicial teams who may have had knowledge of the factual innocence of criminal defendants who were convicted and sent to the death row are not prosecuted for attempted murder and for the actual murder?
No immunity protects from criminal prosecution.
Let's put pressure upon our representatives in the State and Federal Legislatures to pass laws making mandatory the criminal murder and attempted murder prosecutions of prosecutors and investigators who knowingly withheld exonerating evidence in death penalty cases.
There is no statute of limitations for murder, and there should be no status protection for murder.
Let's put pressure upon our representatives in State and Federal Legislatures to mandate criminal investigations and prosecutions in ANY case where exonerating evidence is withheld in criminal cases, whether in death penalty cases or not. That will bring a swift end to both prosecutorial misconduct and the position of prosecutors as coveted positions, which will only make the bench clean since now most of judges have a prosecutorial background, and thus an experience of misconduct without accountability ingrained in them as a matter of right before they come to the bench.
If such laws are passed and if a couple of prosecutors, especially well-connected ones, end up on death rows themselves, for murder no less, you will see how quickly the death penalty itself will be deemed unconstitutional and abolished.
It takes a high-ranking pig about to be "lawfully" killed by the government to for the "rule of law" to start working in this country.
So let's require that such laws be put on the books.
It's high time to end prosecutorial misconduct in this country that ruins and sometimes very literally ends people's lives.
Since documents show that the executed Ethel Rosenberg was innocent, should the surviving members of the prosecutorial and investigative team against her be tried for murder?
A day ago, a letter of the Meeropol Brothers, children of the executed Julius and Ethel Rosenberg, was published.
The children of this married couple, who were executed on their wedding anniversary, the wife - solely for refusal to turn on her husband, as recently released documents show, ask President Obama to finally do the right thing and exonerate at least their mother who was innocent.
The letter caused a rage of comments on Facebook, and one of the recurrent comments was - why would they ask for that? Their "commie" parents were convicted correctly, because AFTER the execution some materials from the KGB was released/surfaced etc.
First of all, nobody saw those "materials".
Second of all, if this country is the country ruled by the rule of law and not the rule of crowd rage driven by after-war fear and McCarthy-ist hysteria, a person can only be convicted after a proper jury trial.
A jury trial may not be considered proper and lawful where it was rigged by judicial and prosecutorial misconduct and where the prosecutor, in a published book, admitted that the judge sentenced the Rosenberg to death on the prosecutor's ex parte recommendation.
The misconduct was well known for years.
The prosecutor was not disbarred.
The judge who engaged in an ex parte communication with the prosecutor in a death penalty case, who was an anticommunist and put his political views into his decisions, and who admitted to going to a synagogue to ask for his G-d's guidance as to what decision to make as to the death sentence, was not taken off the bench and was not disbarred.
On the opposite, he was elevated to the appellate court, the U.S. Court of Appeals for the 2nd Circuit and even made its Chief Judge.
Another member of prosecutorial team, William P. Rogers, an assistant U.S. Attorney at the time of prosecution, not only was a not disbarred or criminally prosecuted, but became a Secretary of State in President Nixon's administration.
After the judge died, after the witnesses who gave testimony against the Rosenberg (Ethel's brother and his wife) died, then the grand jury testimony of Ethel's brother is released that shows that he was lying against her at the actual trial.
Documents are available that prosecutors never wanted to kill Ethel - or Julius, they simply wanted to coerce them to speak by the threat of the death sentence, and especially wanted Ethel to turn on her husband.
As the children of the Rosenberg's write in their letter to President Obama, when such tactics did not work, when Ethel Rosenberg "called the prosecution's bluff", false testimony was used against both of them to obtain a wrongful conviction and to execute them, leaving their young children orphans.
We are talking about something done by people who claimed their "honor" all their lives.
They belonged to an "honorable" legal profession.
They took multiple oaths of office to maintain the U.S. Constitution.
Yet, they did not have the basic human decency of not to obtain a wrongful conviction and a death sentence of a mother of two young children simply because she "called their bluff", and not to have her executed on her wedding anniversary to the husband against whom she refused to testify even at the price of her own life.
I must note that there is such a thing as a spousal privilege, and no spouse can be forced to testify against her husband.
Yet, "the honorable" members of the legal profession not only tried to violate that privilege, but punished an innocent with a death sentence when she refused to do that.
A letter signed by 82 law professors signed in 1976, 23 years after the execution of Ethel and Julius Rosenberg and 39 years before the letter filed by the sons of the Rosenbergs one day ago, points out, based on documentary evidence the professors reviewed, that the presiding judge, a staunch anti-communist, was in favor of their death penalty before the Rosenbergs were found guilty. That's an ultimate pre-judgment.
The letter, written to the House and Senate Judiciary Committee, requested to investigate the conduct of the judge.
That was in 1976.
As the biography of Judge Kaufman shows, not only he was not investigated or disciplined, but he was elevated to the position of an appellate federal judge and was later made a chief judge of the U.S. Court of Appeals for the 2nd Circuit - deciding issues of due process on federal appeals from civil rights cases, of all people, even though, according to the letter of 82 law professors in 1976 to Congress requesting investigation against Judge Kaufman, Judge Kaufman, a trial judge, was trying to unlawfully interfere with appellate process in the Rosenberg case and block appellate motions of the Rosenbergs and their co-defendant.
Judge Kaufman was, obviously, the best candidate for the job on the federal appellate court, and for the job of the chief judge of that court.
So, as the Facebook community continues to rage, why do the sons of Rosenberg want to stir the painful memories of their executed parents, what I see imperative as a lesson coming out of the Rosenberg case is:
1) the secrecy of the grand jury proceedings serves only the prosecution, including wrongful prosecution, and should be abolished; had the grand jury minutes of the testimony of Ethel's brother been released at the time of trial and not a month ago, after all witnesses and the presiding judge are long dead, Ethel would have been spared and her children would not have had to be raised as orphans, be adopted and change their last names to protect them.
2) it is clear that judicial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
3) it is clear that prosecutorial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
4) it is clear that the public, judging by FB comments today, would have convicted the Rosenbergs and would have sent them to death again, should they be tried today - without any evidence, just on the accusation of spying for the Soviets. That shows how low the legal education of the public on the issue of the presumption of innocence and the necessity of the rule of law is in this country, and that should be changed, too.
5) an investigation should be had as to the illegal means by which the wrongful conviction and death penalty of Ethel Rosenberg was obtained, and the surviving individuals who participated in the scheme must be tried for conspiracy to commit murder.
And yes, I fully support the request of the children of the Rosenbergs to formally exonerate Ethel Rosenberg - and to posthumously declare that judge Kaufman committed misconduct and should have been disbarred, prosecuted and, possibly, put to death penalty himself, because sending an innocent to the electric chair is murder.
The children of this married couple, who were executed on their wedding anniversary, the wife - solely for refusal to turn on her husband, as recently released documents show, ask President Obama to finally do the right thing and exonerate at least their mother who was innocent.
The letter caused a rage of comments on Facebook, and one of the recurrent comments was - why would they ask for that? Their "commie" parents were convicted correctly, because AFTER the execution some materials from the KGB was released/surfaced etc.
First of all, nobody saw those "materials".
Second of all, if this country is the country ruled by the rule of law and not the rule of crowd rage driven by after-war fear and McCarthy-ist hysteria, a person can only be convicted after a proper jury trial.
A jury trial may not be considered proper and lawful where it was rigged by judicial and prosecutorial misconduct and where the prosecutor, in a published book, admitted that the judge sentenced the Rosenberg to death on the prosecutor's ex parte recommendation.
The misconduct was well known for years.
The prosecutor was not disbarred.
The judge who engaged in an ex parte communication with the prosecutor in a death penalty case, who was an anticommunist and put his political views into his decisions, and who admitted to going to a synagogue to ask for his G-d's guidance as to what decision to make as to the death sentence, was not taken off the bench and was not disbarred.
On the opposite, he was elevated to the appellate court, the U.S. Court of Appeals for the 2nd Circuit and even made its Chief Judge.
Another member of prosecutorial team, William P. Rogers, an assistant U.S. Attorney at the time of prosecution, not only was a not disbarred or criminally prosecuted, but became a Secretary of State in President Nixon's administration.
After the judge died, after the witnesses who gave testimony against the Rosenberg (Ethel's brother and his wife) died, then the grand jury testimony of Ethel's brother is released that shows that he was lying against her at the actual trial.
Documents are available that prosecutors never wanted to kill Ethel - or Julius, they simply wanted to coerce them to speak by the threat of the death sentence, and especially wanted Ethel to turn on her husband.
As the children of the Rosenberg's write in their letter to President Obama, when such tactics did not work, when Ethel Rosenberg "called the prosecution's bluff", false testimony was used against both of them to obtain a wrongful conviction and to execute them, leaving their young children orphans.
We are talking about something done by people who claimed their "honor" all their lives.
They belonged to an "honorable" legal profession.
They took multiple oaths of office to maintain the U.S. Constitution.
Yet, they did not have the basic human decency of not to obtain a wrongful conviction and a death sentence of a mother of two young children simply because she "called their bluff", and not to have her executed on her wedding anniversary to the husband against whom she refused to testify even at the price of her own life.
I must note that there is such a thing as a spousal privilege, and no spouse can be forced to testify against her husband.
Yet, "the honorable" members of the legal profession not only tried to violate that privilege, but punished an innocent with a death sentence when she refused to do that.
A letter signed by 82 law professors signed in 1976, 23 years after the execution of Ethel and Julius Rosenberg and 39 years before the letter filed by the sons of the Rosenbergs one day ago, points out, based on documentary evidence the professors reviewed, that the presiding judge, a staunch anti-communist, was in favor of their death penalty before the Rosenbergs were found guilty. That's an ultimate pre-judgment.
The letter, written to the House and Senate Judiciary Committee, requested to investigate the conduct of the judge.
That was in 1976.
As the biography of Judge Kaufman shows, not only he was not investigated or disciplined, but he was elevated to the position of an appellate federal judge and was later made a chief judge of the U.S. Court of Appeals for the 2nd Circuit - deciding issues of due process on federal appeals from civil rights cases, of all people, even though, according to the letter of 82 law professors in 1976 to Congress requesting investigation against Judge Kaufman, Judge Kaufman, a trial judge, was trying to unlawfully interfere with appellate process in the Rosenberg case and block appellate motions of the Rosenbergs and their co-defendant.
Judge Kaufman was, obviously, the best candidate for the job on the federal appellate court, and for the job of the chief judge of that court.
So, as the Facebook community continues to rage, why do the sons of Rosenberg want to stir the painful memories of their executed parents, what I see imperative as a lesson coming out of the Rosenberg case is:
1) the secrecy of the grand jury proceedings serves only the prosecution, including wrongful prosecution, and should be abolished; had the grand jury minutes of the testimony of Ethel's brother been released at the time of trial and not a month ago, after all witnesses and the presiding judge are long dead, Ethel would have been spared and her children would not have had to be raised as orphans, be adopted and change their last names to protect them.
2) it is clear that judicial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
3) it is clear that prosecutorial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
4) it is clear that the public, judging by FB comments today, would have convicted the Rosenbergs and would have sent them to death again, should they be tried today - without any evidence, just on the accusation of spying for the Soviets. That shows how low the legal education of the public on the issue of the presumption of innocence and the necessity of the rule of law is in this country, and that should be changed, too.
5) an investigation should be had as to the illegal means by which the wrongful conviction and death penalty of Ethel Rosenberg was obtained, and the surviving individuals who participated in the scheme must be tried for conspiracy to commit murder.
And yes, I fully support the request of the children of the Rosenbergs to formally exonerate Ethel Rosenberg - and to posthumously declare that judge Kaufman committed misconduct and should have been disbarred, prosecuted and, possibly, put to death penalty himself, because sending an innocent to the electric chair is murder.
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