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.


Sunday, September 13, 2015

What made the U.S. Supreme Court disregard the "domestic relations" deference in so many cases


  1. The use of contraception;
  2. Legalizing abortion;
  3. Right to marry;
  4. Right to marry a person of another race of ethnicity;
  5. Right of a grandparents to see their grandchildren;
  6. Legal standard for deprivation of parental rights;
  7. Criminalization and decriminalization of homosexuality
  8. Gay marriage
All of the above are just a few issues that the U.S. Supreme Court undertook that directly relate to domestic relations.

Yet, lower federal courts consistently dismiss (with prejudice) civil rights actions of pro se poor litigants acting without counsel on the doctrine of "domestic relations deference" to state courts that, in the opinion of the federal courts, "bars jurisdiction" of federal courts in civil rights actions - even though the U.S. Congress never amended the Civil Rights Act to include such a jurisdictional restriction.

Here is a portion of the recent dismissal of the case Davis v Kushner in the U.S. District Court for the Northern District of New York by Judge Mae D'Agostino (a sua sponte dismissal of a poor unrepresented person's handwritten complaint without giving that person time or opportunity to retain counsel to address issues upon which the report threatening to dismiss the complaint was based, with 14 days' notice to complete all the required education (high school, college, law school) and take a crash course in civil rights litigation, where rules baffle even seasoned attorneys).





The piece is full of arrogant hypocrisy in blocking the person's only path to a legal remedy made available to him by a federal civil rights statute enacted by the U.S. Congress.

It arrogantly cites to the 2nd Circuit case (where civil rights appeals are rubber-stamped by 80-year-old judges without reading them in "summary" opinions) applying "Rooker-Feldman" doctrine that cannot possibly apply to a case decided by a court of limited jurisdiction where constitutional issues MAY NOT be raised because, once again, jurisdictional restrictions upon authority of the Family Court.

What is not raised in the lower court, may not be raised for the first time on appeal.

What may not be raised in any state court, is not subject to the appellate Rooker-Feldman bar.

Yet, the rubber-stamping courts seeking to eliminate civil rights cases by all means, do not care.

As to the "domestic relations exception", you will be seeking in vain for any traces of any such "exception" to federal courts' jurisdiction in the Civil Rights Act.  It is not there.

In other words, federal courts are acting unlawfully in tossing civil rights complaints regarding constitutional violations in Family Court, a court of limited jurisdiction where constitutional issues MAY NOT be resolved (at least, it is so in New York) - because of a judge-created rule that was created unconstitutionally, in usurpation of the U.S. Congress's exclusive power to legislate under Article I of the U.S. Constitution, and in violation of Article III of the U.S. Constitution that DOES NOT give federal courts the power to legislate.

Yet, the U.S. Supreme Court apparently picks and chooses which of the "domestic relations" to subject to its "deference" doctrine and which not to - which looks also as an unlawful policymaking to me and selective enforcement of even judge-created law - on a whim.

So, do we need any more proof that we have "the rule of whim" in this country in the place of the declared "rule of law"?

When exceptions to jurisdiction of courts that are only in Congressional hands, are invented on a whim by courts for themselves to control their dockets and protect government officials from accountability (while in most cases federal judges have undisclosed ties to those same government officials, from blood ties to friendship ties to financial ties to "former colleagues" ties), and then applied equally on a whim by the same courts, picking and choosing to which case the whim should apply, and which case, by whim, should be heard to make the most publicity and fame for judges - that is not called the rule of law, ladies and gentlemen.

U.S. District Court for the Northern District of New York is consistent in supporting racism on the bench against indigent pro se parties

In 2014, the Northern District of New York dismissed sua sponte (on its own motion) a civil rights case Davis v Kushner, Case No 1:14-cv-511, against Albany County Family Court Judge Susan Kushner brought by a Muslim parent who claimed that Judge Kushner (by the way, a judge who has been very active in the Jewish community) gave away custody of his child to a non-family member, far away from the State of New York (to Maryland) and without checking whether the new custodian of the child is or is not a pedophile - because the parent is a Muslim.











The civil rights case brought by a Pro Se poor person (adjudicated as In Forma Pauperis - poor) by the federal court - was dismissed "sua sponte" by judge Mae D'Agostino whose niece Amanda Kurilyuk is a partner with Anthony Cardona, son of the deceased head of the Appellate Division 3rd Department, also Anthony Cardona.

Anthony Cardona is also an Assistant District Attorney in the Albany County.

Stephen Allinger, Susan Kushner's son is also an Assistant District attorney in the Albany County, and got his position there after his mother became a judge - thus disqualifying the Albany County Dsitrict Attorney's office in all child abuse proceedings where the District Attorney is a necessary party by statute.

It is very possible that Mae D'Agostino rubbed elbows with Susan Kushner for a long time when both of them were attorneys, and should not have presided upon her case.  Yet, nothing these days can appear as an "appearance of impropriety" to judges, and self-recusal of a judge as it happened in Alex Kozinski's case because, even though the judge thought he could be impartial, he also thought there will be an appearance of impropriety to preside, is as rare as close-to extinction species.

The poor civil rights plaintiff agaisnt Judge Kushner who hand-wrote his complaint and asked for assigned counsel (which was denied, because assigned counsel is not "allowed" in civil rights cases), was given a whopping 14 days' notice by the court to answer a report of the magistrate claiming that the case must be dismissed and citing the law.

Here is the docket report of the case:




 Please, note that on May 2, 2014 the court filed the handwritten complaint from a Pro Se (self-represented) civil rights Plaintiff Robert Davis and issued to Robert Davis a Pro Se Handbook.

The Pro Se Handbook was supposed to be sent to Mr. Davis by mail.

The Pro Se Handbook sent by this court is a stack of papers, probably, 4-inch thick which is intimidating to a person who is not trained in the law.

There is no proof that Mr. Davis even received the Pro Se Handbook.

On the same May 2, 2014, the court recognized that Mr. Davis has filed a motion for poor person relief and to appoint counsel.

Within 6 days, on May 8, 2014, the court does the following:

  • grants Mr. Davis' motion to consider him IFP (poor person);
  • DENIES him his motion to appoint counsel BECAUSE the court has issued a recommendation to dismiss the case on the court's own motion, and
  • gives Mr. Davis a "notice" that, unless Mr. Davis files objections to that recommendation (without counsel), not only the case will be dismissed, but Mr. Davis' right to appeal will be precluded

 Here is the Report and Recommendation:





















 
It is clear that it is impossible for not only for a person not trained in law, as Mr. Davis was, but also for an experienced attorney who does not specialize in civil rights litigation, to respond to this "Report and Recommendation" by the deadline.

In fact, any attorney would have asked for an adjournment of the deadline.  But, an attorney would know how to ask.  Mr. Davis didn't know.

Mr. Davis simply did not respond to the Report and Recommendation - because he had no training to do so, and because the court, Magistrate Hummel, denied him assistance of counsel in order to be able to respond, and denied him even reasonable time to be able to hire such counsel.

Also, because NDNY court denies pro se parties a right to file electronically, the 19 days that were given to Mr. Davis to respond turned into a much shorter span of time - if Mr. Davis was even served by the "Report and Recommendation", for which there is no proof.

There is no indication that Mr. Davis received the Report and Recommendation that NDNY sends by mail - and I know for a fact based on experience on my husband when he sued pro se, that NDNY regularly claims it sent something when nothing comes.

Now, even if Mr. Davis did receive the Report and Recommendation, it would have been on Tuesday May 13, 2014 (New York law applicable to the situation, adds 5 days for regular mail).  From May 13, 2014, Mr. Davis had 14 days minus another 5 days for mailing, so, he had a whopping 9 days to complete his education, have a crash course in civil rights litigation without counsel, research the cases cited in abundance in the Report and Recommendation, form his legal theory of defense and answer.

Of course, it was a joke that the court expected a pro se indigent party to do that within the given time and a mere formality for the court before the court dismissed the action, acting clearly as an advocate for Judge Kushner, before Judge Kushner was even served with the lawsuit.

Here is the final order of dismissal signed by Judge Mae D'Agostino:










 







Judge D'Agostino heavily relies in her dismissal on Mr. Davis' "failure" to respond to the Report and Recommendation.

Readers, please, consider if you would be able to respond to that kind of Report and Recommendation, without counsel, by the given deadline.

Consider also that Judge D'Agostino mentioned in the order that Mr. Davis' alleged failure to respond to the Report and Recommendation did not only lead to dismissal of the case, but somehow precluded appellate review for that pro se indigent party.

Talking about discrimination against the poor.

Consider also that the case was dismissed "with predudice" (without opportunity to bring it back to court), even though it was dismissed before it was served and dismissed before Mr. Davis, an adjudicated poor person, had an opportunity to find an attorney for himself, while the court denied him an appointed attorney BECAUSE the court needed Mr. Davis to default on his objections, lose his opportunity for appeal - and clean the court's docket.

So - there is an appearance from all the above that Judge Mae D'Agostino supported job security for her niece by supporting the son of a judge who worked alongside the powerful law partner of her niece in the Albany County District Attorney's office.  

Yet, for Mae D'Agostino and her Magistrate Judge Hummel, apparently, there is no appearance of impropriety here - not even in how blatantly and arrogantly Mr. Davis was denied assistance of counsel and then punished that he could not file objections, within a very short period of time, to an extremely complicated report stuffed with legal theory - without assistance of counsel.

The next year after the dismissal of Mr. Davis' case, the same court, different judge, granted judicial immunity to yet another "IFP" (poor person) civil rights plaintiff, immunizing yet another judge, Kevin Dowd of the Chenango County Supreme Court, for antisemitic behavior AFTER the judge left the case - and had no jurisdiction over the case, thus acting as a lay individual without any immunity.

Even though cases were dismissed for judicial immunity, nothing prevented the Judicial Conduct Commission from investigating the cases and disciplining such judges for unfitness for office.  Yet, the Commission did not find anything objectionable in Kevin Dowd's behavior and we might never know whether the Commission even considered Judge Kushner's behavior.

I know about the Commission's review of Dowd' case only because the complaint about Dowd was mine.  Complaints against judges are usually made and kept secret by the Commission, so there is no way of knowing how many times, and on what grounds, complaints against judges were made, precluding the public from knowing about both judicial misconduct and about how well the Commission fights it.

When a Jewish judge is discriminating against Muslim parents, when an Anglo-Saxon judge discriminates against Jewish divorce litigants, and is doing it in a way specifically targeting their Jewishness, as Kevin Dowd did, both of these actions are racist, and both of them make judges unfit for the bench.

Yet, what appears is that courts are consistently endorsing racist behavior of judges through the judicially created doctrine of absolute judicial immunity that exists allegedly to allow independent judging without fear or favor.

So, judges are allowed to be malicious, corrupt and racist in order to allow them to be fearless and fair - for the alleged benefit of the people.

Only people bound to a lunatic asylum can concoct such a "logic", but that's the basis upon which thousands of cases have been tossed by law-educated judges in this country.

Petition your legal representative to end judicial immunity now. 

Petition your Congressman to impeach Judges D'Agostino and Hummel for outright discrimination against poor civil rights plaintiffs under circumstances suggesting conflict of interest.

Support state constitutional amendments to eliminate judicial immunity on constitutional level.

If you hope that the judiciary will bring their own to any kind of accountability - you are living in a dream world.

Remember Mr. Davis' case.

Mr. Davis was discriminated against because he was poor and a Muslim by one judge - Judge Kushner.

Then, he was discriminated by two other judges, now in federal court, where he sought redress of what Judge Kushner unlawfully did to him, according to his statement.

The judiciary will always look out for their own.

It is up to us, the People of the State of New York and of the United States, to bring judges illegally discriminating against people to answer and suffer the consequences of their misconduct.

Saturday, September 12, 2015

Do prosecutors running for judges seek to eliminate unfavorable votes through felony prosecutions? Richard Northrup of Delaware County is one of them

When a person is convicted of a felony, he or she loses not only his liberty or right to possess guns.  A felony conviction also carries a prohibition on the right to vote.  Whether it is legal or not, constitutional or not, is a big question, but that's how the State of New York applies it anyway.

In this respect, an interesting question arises.

When a prosecutor is running for a judicial office, he or she is competing for a better-paying job, so there is a definite financial incentive there.

Moreover, where a prosecutor who is up for re-election every 4 years (in New York) is running for 10-year (and better-paid) job, that is yet another financial incentive, involving also a better job security.

A criminal prosecutor, if he or she remains in office as a criminal prosecutor while running for a judge, handles a caseload of felony cases.

Each one of criminal defendants charged and prosecuted by such a prosecutor/judicial candidate is a potential voter.

Each one of the criminal defendants, as of the date the prosecutor announces that he or she is running for a judicial office, may claim that the prosecutor has a financial interest in the outcome of litigation, and the prosecutor's failure to resign and continuing on the case irreversibly taints the case and requires its dismissal.

Considering that judges IN THEIR MAJORITY come from prosecutors, think how many people were convicted in such tainted cases, simply because prosecutors wanted to eliminate votes through felony convictions.

By the way, the conflict arises also when the prosecutor is running for re-election to the same office, because the same criminal defendants that he prosecutes at the time of his or her campaign for re-election are potential voters against the prosecutor's re-election.

Such a conflict disqualifies not only the District Attorney him/herself, but the entire DA's office since the whole office answers to the DA and is subordinate to the DA.

I suggest that criminal defendants raise the issue that Delaware County DA Richard Northrup disqualified himself, his office and tainted all felony prosecutions in his office's caseload when he announced running for a judge, but did not resign from his DA's position.

But, of course, we cannot expect any such act of integrity from the current DA.  After all, it is risky to leave one job without securing another yet.  Conflicts of interest, constitutional rights of criminal defendants and rights of taxpayers not to pay extra for re-litigation of tainted criminal cases be d***ed.

Meet the "hero" - picture was posted by Porter Kirkwood on his judicial campaign Facebook website and constitutes public record.

Richard Northrup is on the left.  He looks calm, dignified, even refined.  Yet, his actions are far from any of those things.  Beware.


Friday, September 11, 2015

Rights assigned counsel in criminal cases in New York usually waive

Yesterday, I have published a blog about New York State raiding the Indigent Legal Defense Fund that is actually funded by conviction fines from the poor in the criminal justices courts where judges are not attorneys and do not have any minimum requirements for their education and training.

I would like to point out which rights assigned counsel most often waive, and most often without telling their clients that such rights even exist.  That I know because people often came to my office with a criminal record created through "plea deals" negotiated by assigned counsel and learnt for the first time that they had certain rights that were waived without their knowledge - and as a result they have a criminal record when the case could have been dismissed, and that the criminal record will affect their present legal position in a new case.

Here are rights that assigned counsel most often waive in felony cases (incarceration of over 1 year in state prison):


No
Name
How and when it is asserted
Why it is important
What happens if the right is not timely asserted

1
Right to a felony hearing

If the defendant is in jail, the demand is to be made immediately.  By law, a felony hearing must be provided within 144 hours if the felony case is first brought in the criminal justice court

The purpose of the hearing for the defense is dual:
1)      Obtain a release of the Defendant from jail without bail (for free) if People refuse to provide a felony hearing (which happens often, because People’s evidence is not yet ready)
2)      To see what evidence People have before they coached their witnesses how to lie
Usually, assigned counsel waives the felony hearing.  As a result, their indigent (poor!) clients remain in jail because they cannot pay the usually high bail set for felonies, and prosecution is allowed by assigned counsel unlimited time to prepare their case. 
2
Speedy trial time limits
Asserted by not agreeing to adjournments

New York law requires that felonies be prosecuted by indictments of the Grand Jury, and such indictments must be brought within 6 calendar months from the filing date of criminal charges in the lower court.  Prosecution often misses the date, and then the felony case MUST be dismissed for failure to comply with the speedy trial statute.

Assigned counsel usually waive speedy trial time limits by agreeing to adjournments of proceedings in court.  Because of such waivers, People get extra time to prepare their case and dismissal on speedy trial grounds is not possible.
3
Right to indictment by the grand jury
Asserted by refusing a waiver of such grand jury proceedings when offered by the prosecution
Grand Jury proceedings provide an extra layer of protection since
1)      the grand jury may refuse to indict or may indict for a lower-level crime;
2)      legal sufficiency of the indictment may be challenged on many grounds, which may provide additional grounds for a dismissal of the case at a pre-trial stage

Assigned counsel routinely coerce their clients into waiving grand jury proceedings, often for nothing in return, and without explaining to their clients what rights exactly they are waiving and why such rights are important. After the waiver “by consent”, prosecution proceeds by the so-called “Superior Court Information” (SCI), usually on the same count as initial felony complaint was, and without any possibility for the criminal defendant to attack legal insufficiency of the SCI.
4
Right to be notified of the grand jury proceedings

The right is automatically asserted when a felony complaint is brought in the lower justice court, and the defendant appears there, with or without counsel.  “Appearance” is arraignment when the criminal defendant is first brought before the court.

If there is no such notification, a motion must be made within 5 days only (!) from the arraignment on the indictment in the County Court, otherwise the right to challenge failure to notify defendant of the pending grand jury proceedings is waived

If the felony proceedings started in the lower court where the defendant appeared, the prosecution must notify the defendant or his/her counsel of the pending grand jury proceedings, so that the defendant can have an opportunity to testify at the grand jury proceedings and call his/her own witnesses there

Failure to notify the defendant or his counsel of the pending grand jury proceeding, if timely brought up on a motion, leads to dismissal of the indictment (if the judge knows and properly applies the law).  Even if the judge denies the motion, making such a motion provides an extra layer of protection on appeal. 

Criminal appeals are notoriously difficult to win, and the most likely ways of winning a criminal appeal are on procedural grounds – when certain procedures were not observed.  Failure by prosecution to notify the defendant or his counsel of the grand jury proceedings is a reversible error on appeal, and waiving such a right (especially without telling the criminal defendant that such a right even exist) is client neglect and attorney misconduct – even though it is never prosecuted as such.

Prosecution in Delaware County, for example, fails to notify criminal defendants and their attorneys of the pending grand jury proceedings and asserts that as a matter of right even if such failures are brought up on motion.  Otsego County is better, I’ve never had a felony case there where I was not notified.

Assigned counsel routinely waive this right, as it requires immediate involvement into motion practice, while assigned counsel usually do not do motions in criminal cases and usually do not like to do any drafting under time pressure.


5
Judicial, police, prosecutorial misconduct
Must be affirmatively asserted in motions
Can be grounds for dismissal of the case (or reversal on appeal), waived if not properly asserted on record
Such issues are an unspoken “taboo” with assigned counsel, they are never asserted, and thus the criminal defendant loses his or her right to claim dismissal of the case in the interests of justice, often without knowing that such a right existed



For those of my readers who would like to see for themselves how the first of these rights are waived, you can attend felony arraignments in any local criminal justice court in New York - criminal arraignments are public hearings.

You will see criminal defendants, shackled and handcuffed, come one by one before the court with their assigned counsel, and go away back to jail in shackles and handcuffs, with their counsel not even trying to request a felony hearing.

That is, I understand, one of the "cost-effective" solutions for the indigent criminal defense that the Indigent Legal Defense Fund is funded to work on - when it does not give away to the State of New York the money it receives from fines squeezed out of the poor convicted because of "cost effective"/a.k.a. pathetic legal defense.

And the vicious circle continues.

Delaware County primaries: Gary Rosa wins independent party primaries, Porter Kirkwood and James Eisel who ok'd giving away 129.6 million dollars worth of public contracts without public bidding, stick around

I am very glad that the judicial candidate Gary Rosa defeated Porter Kirkwood in the Independent Party primaries.

Sad that the Conservative primary voters endorsed Kirkwood, even though he was responsible for approving 129.6 MILLION in contracts by the County without public bidding - which means that taxpayer fell victims to non-competitive prices and possible cronyism in awarding the contracts.

Delaware County primary voters also endorsed James Eisel, the current Chief of Delaware County Board under whose guidance the contracts were awarded, once again, bypassing public bidding.

I have made a FOIL request to Delaware County to provide me copies of the contracts that Mr. Kirkwood and James Eisel ok'd without submitting them to public bidding, as well as other records related to those contracts.

I will publish on this blog responses by Delaware County.

Congratulations to Gary Rosa, and I hope that by the election day in November, voters will wake up as to misconduct of Mr. Eisel, Mr. Kirkwood and Mr. Northrup.

I hope that on the election day in November of 2015 Delaware County voters will decline to reinstate Mr. Eiesel in his Town Supervisor job and will decline to grant practically absolute power over their lives to the two attorneys already involved in misconduct in their current positions, Porter Kirkwood (Delaware County Attorney) and Richard Northrup (Delaware County District Attorney).

Thursday, September 10, 2015

Indigent defense in New York on the rocks: funded by the poor and raided by the state

Recently I've read several interesting documents about indigent legal defense in New York.

There is no doubt that constitutionally required defense for the poor in New York is in crisis.

Time and again New York State Court administration claims that there is a crisis in provision of legal services for the poor, creates "Commissions" and "Task Forces" (consisting of attorneys only) in order (allegedly) to help resolve the crisis, but - nothing changes.

Over time, some measures (or, rather, half-measures) were introduced to improve the situation, but, as it is now, representation of the indigent in criminal and Family Courts in the State of New York is - one word - horrible.

Criminal defendants are deadly afraid of assigned counsel, and for a good reason.  Public defenders, as well as assigned counsel are usually overloaded and underpaid.  Throughout my career as a legal assistant and an attorney, since 1999, I have never seen an assigned counsel make a motion, and very rarely an assigned counsel would conduct discovery - and only paper discovery.

The usual way of representation by assigned counsel is - waiver of defendants' rights at the outset, without even telling the defendants they had the rights that are waived by the assigned counsel to begin with.

Often the deficiencies in indigent criminal defense are explained by lack of funding.

So, I decided to look as to what are the sources of funding for indigent defense and if the situation is as bad as it is presented.

While looking for information about funding of the indigent legal defense, I came across an extremely interesting document:  a fairly recent report by the New York State Comptroller about revenues from town and village justice courts - those are the courts where judges are not lawyers and where judges are not required to have any minimum degree of education.  I wrote about these courts several times in my blog posts describing lack of competence of judges of these courts.

Yet, apparently, these courts exist the way they do - and the State does not really want to overhaul them - because - BECAUSE - these courts are a major revenue producer for the State and local governments.

I will run a separate blog posts, or, most likely, several blog posts, about the Comptroller's report.

At this time, I would like to point out just two numbers:

25 million and 50 million

25 million dollars - is the revenue that the justice courts provided, from conviction fines and surcharges, to the State of New York Indigent Legal Defense Fund (that was as reported in 2009);

And, it was recently reported that over a 6-year period New York State took 50 million dollars OUT of the Indigent Defense Fund, considering it as being "in the black" and having a surplus.  That was twice the yearly revenue the Fund received from the justice courts.
All explanations by the State of New York that ILDF is "in the black" and does not really need the money taken out of ILDF are profound lies.

ILDF cannot possibly be "in the black" to the point of being able to allow the State of New York to raid the fund and take $50 million dollars over 6 years - because over the same 6 years multiple lawsuits have been filed against counties and against the State of New York by various people and organizations claiming that indigent legal defense in New York is inadequate and underfunded.

By the way, the Indigent Legal Defense Fund itself claims as one of its goal - provision of COST-EFFECTIVE assigned legal defense.

What is COST-EFFECTIVE criminal defense, is well known - it is what we have now, when assigned counsel simply DO NOTHING.  That is extremely cost effective, because if - God forbid - assigned counsel would do anything more than show up at appearances, there will be no money to cover that representation.  So, while the State of New York pays lip service as to its efforts to resolve the crisis of indigent representation, in reality, New York state is robbing the fund created to help the poor receive adequate legal representation by simply taking the money (provided by the already convicted poor people) for other means.

Wednesday, September 9, 2015

While the Kentucky clerk is released from jail without purging her contempt, two pro se litigants will remain in jail forever until they withdraw their civil counterclaims?

The presidential hopefuls Huckabee and Cruz are celebrating the release from jail of the civil contemnor Kim Davis - even though she adamantly and willfully insists on continuing to refuse to release marriage licenses to same sex couples, and thus never purged her contempt of violating the 1st Amendment by imposing her own religious beliefs upon people she is serving as a public servant who took her office with an oath to uphold that same 1st Amendment.

Yet, in Illinois two pro se individuals are held in jail, and will be held in jail, as the judge reportedly said, forever, until they purge themselves by doing - you know what?  They must withdraw counterclaims in a civil action, undo the act guaranteed by the Illinois and the U.S. Constitution (1st Amendment, Petitions Clause).

So, in the Kentucky clerk's case, it is the Kentucky clerk who defied the U.S. Supreme court order and who willfully violates 1st Amendment rights of same sex marriage couples to be free from actions of public officials establishing their own religion as part of their duties, in violation of their oath of office.

In the Illinois case, pro se litigants are jailed for insisting on their state and federal constitutional right of access to court.

I must stress here that Andrew Harrison and Lyle Harrison are not in jail for filing A NEW LAWSUIT in violation of a court order.

They are in jail because they FILED COUNTERCLAIMS, meaning that they were protecting their position in opposition to the lawsuit that was filed AGAINST THEM.

And, the court is now saying that they may not protect themselves without the court's permission - and should go to jail if they do try to protect their legal position in court? 

So, two civil pro se litigants are going to be held in jail FOREVER - without being charged with any crime, without any discovery, any motion practice, any pre-trial hearings, any jury trials, any conviction or sentencing - simply because they insist on protecting their legal position in a civil case?

And the judges who is doing it, is still on the bench, still holds a law license, and presidential candidates are nowhere around.

So, I guess, the "stubborn" Andrew Harrison and Lyle Harrison are going to sit in that jail forever, while the stubborn Kim Davis was released to the media frenzy and made a poster girl in presidential campaigns. 

Simply because Andrew Harrison and Lyle Harrison are not politically connected, do not play the agenda card of the monied religious conservatives, and simply insist that access to court is their constitutional right that cannot be foreclosed by arbitrary orders by a judge.

There is a lot to be said here about judicial independence in Kim Davis's case.

The judge in the Kentucky case obviously yielded to the political pressure and released Kim Davis from jail, even though she did never purged her contempt and was not going to.

The judge in the Illinois two cases does not want to yield to common sense or constitutional requirements that access to courts simply may not be foreclosed, it is a fundamental right guaranteed by the State and the U.S. Constitution, and is not subject to arbitrary whims of the judiciary.

Will any presidential hopefuls pay a visit to Andrew Harrison and Lyle Harrison or stop children from going to public schools around the jail where Andrew Harrison and Lyle Harrison are held because of a rally they hold in front of the jail?

A rhetorical question, isn't it?

Oh, and yet another question.

Do you think the presidential hopeful Huckabee will be willing to go to jail in Andrew Harrison's or Lyle Harrison's place - as he claimed he wants to in Kim Davis's case?