A hole in absolute judicial immunity defense in New York

New York mandatory judicial disqualification statute, Judiciary Law Section 14 provides:

I already wrote on this blog that Judiciary Law 14 thus

presupposes disclosure by judges of their family trees 

to the sixth degree of consanguinity or affinity, 

not that judges are going to do that, but that's what 

the law presupposes, again, because otherwise

this requirement is hollow and without any meaning. 

But, additionally Judiciary Law 14 provides

an interesting twist on the so-called "absolute judicial

immunity for malicious and corrupt acts" - a judicially

created concept, an unlawful restriction of 

jurisdiction of federal courts in civil rights cases 

that is not found anywhere in the text of 

the Civil Rights Act.

In its seminal case on absolute judicial immunity,

Stump v Sparkman, the U.S. Supreme Court claimed that

a judge is immune even if his or her actions are

"malicious and corrupt".

Enters Judiciary Law 14.

If a judge is "malicious", that means the judge's

intent in litigation is to cause injury to a litigant

or litigant's attorney - that is a personal interest

under Judiciary Law 14, stripping the judge of

jurisdiction, and judicial immunity does not apply

"in clear absence of all jurisdiction".

If the judge acts in a corrupt manner (was bribed,

with money or non-monetary benefits to the judge

or to whoever else the judge has a personal interest in),

it means that, under Judiciary Law 14, the judge

is "interested" in the outcome of the case and

"shall not sit", has no jurisdiction and is not 

subject to the judicial immunity defense.

As an added bonus, prohibition of Judiciary Law 14 

is jurisdictional, and makes decisions in violation 

of the statute not voidable,but void (when courts 

agree to actually apply the statute properly, 

which rarely happens, because judges in all courts 

are usually power-hungry and are very reluctant 

to obey the law imposing restrictions on their power).

Yet, the law is there, and it undermines the

concept of absolute judicial immunity for

civil rights state defendants in New York. 

A hole in the sovereign immunity defense in New York

New York State Defendants in civil rights cases regularly raise 11th Amendment and/or sovereign immunity defense.

Yet, the 11th Amendment does not contain a bar for citizens of a state to sue their own state,  see the text of the 11th Amendment 

 

and its discussion in Alden v Maine, 527 U.S. 706 (1999).

The 11th Amendment clearly bars only lawsuits commenced "by citizens of another state", not of the same state, and courts have no power to change the 11th Amendment by incorrectly reading it.

As to sovereign immunity that courts "found" in the Civil Rights Act, 42 U.S.C. 1983, while it is definitely not there, sovereign immunity was WAIVED by the State of New York in 1929 through a statutory enactment, the Court of Claims Act.

Thus, my humble opinion as a legal expert on civil rights law is that neither 11th Amendment, nor sovereign immunity applies on behalf of civil rights defendants in New York.

A follow up on Otsego County DA John Muehl: rehab, impeachment and/or disbarment?

I recently ran a blog about misconduct of Otsego County (NY) DA John Muehl and posed a question about obvious alcohol abuse by John Muehl that, in my view, jeopardizes constitutional rights of criminal defendants where Muehl is acting as a prosecutor.

After the blog was posted, a reader has sent to me an old archived article from 2003 about Muehl's leaving the scene of a personal injury accident in 1998 that Muehl has caused.

Here it is from the local newspaper The Daily Star, of Oneonta, NY:

 

 I will go column by column to enlarge the font and make it readable.

 Naturally, the trooper who stopped Muehl was "unavailable for comment".

Of course, telephones for the victims of the personal injury accident where Muehl was involved, were also not available for comment, their telephone was, allegedly, out of order, and the reporter could not wait with the publishing until he would talk to both the victims and the trooper who arrived at the scene and issued tickets.

Well, at least Muehl said it was his fault.

 Muehl was "thinking about fishing" when "driving along" and - voila! - hit a car in front of him and caused personal injuries to two people requiring transportation to a large hospital.

Apparently, Muehl (for some interesting reason) was not charged with driving without insurance, even though he did not have insurance card on him at the time of the accident.

Of course, the lawsuit by the victims of the personal injury accident was dismissed by judge Phillip Ramsey who, as far as I know, is yet another incompetent among our judges, at least judging by how he handled a divorce case reported to me, with records, by a person whom I did not represent in that case.

Muehl claimed he was "exonerated", yet, if the case was dismissed without reaching the merits, that does not mean Muehl was actually "exonerated", nor does it mean that Muehl, as a public official, should not have been investigated and prosecuted for lack of fitness for office - and especially so if he duped his voters by not disclosing the fact of his alcohol affliction during his election campaign.

It does not matter that "it's been a while".  Judging by Muehl's erratic behavior in court, his permanently glassy eyes and drunken face color, time only made his alcohol abuse worse, not better, which usually happens when you are in denial that the problem even exist, which is what happens when a person is cloaked with power and that power goes into that person's head, like it is in Muehl's case.

So, once again, shouldn't the accident reports be investigated once again to verify whether attorney Muehl was fit for office in the first place?

I also encourage members of the public to appear in court and witness Muehl's appearance and behavior, which speaks for itsef.

We have a staggering number of wrongful convictions in this country and in the State of New York.  Keeping prosecutors who think of fishing while driving a vehicle on windy mountain roads (likely, because Muehl was in his permanent happy or unhappy alcoholic stupor) will not improve that picture.

On death penalty, 8th Amendment and judicial corruption

On December 8, 2015 Pope Franis announced a Jubilee Year of Mercy.

On December 9, 2015 the State of Georgia executed Brian Keith Terrell, after he spent 20 years on death row.

Reportedly, the nurse "had a difficulty" inserting the IV for the lethal injection.  And, the executed person, on his death gurney, declared his innocence.

Still, no mercy.

An incompetent nurse was assigned to make even insertion of the needle unnecessarily painful, and it was reported that for an hour the person who professed his innocence, was wincing in pain.

And, while the civilized world abolished the death penalty long time ago, this country's judiciary continue to stubbornly refuse to declare it unconstitutional as a violation of the 8th Amendment.

That is the same court that considered it more important to decide the issue of constitutional validity of same sex marriage - I have nothing against the right of anybody to marry, but I assert most strongly that the right to life is more important, and with a system of criminal injustice as rigged as it is in the U.S. of America, with police witnesses lying on the stand, evidence forged, prosecutors advancing false evidence with impunity, defense counsel ineffective and dependent on handouts by the judiciary that is always siding with the prosecution...  With all of that, it is cruel and unusual punishment to put a person to death, an irreversible punishment.

And - how many judges knowingly sent an innocent man to his death.  Isn't that murder?  Shouldn't those judges investigated, prosecuted, convicted, put on death row and put to death, too?

And, how many judges send people to death, like they sent Brian Keith Terrell when there were significant issues regarding his innocence or lack of guilt amounting to the point of imposition of the death penalty?

After all, Terrell was tried 3 TIMES.

A prior mistrial.  So, one jury could not find Terrell guilty - the prosecution chose another.

Another jury found him guilty - the case was reversed because of a mistake in jury selection.

The prosecution indicted Terrell again.

Shouldn't there be just one shot at an indictment in death penalty cases.

In Terell's case, the prosecution got what they wanted only on the third try.

Then, changes of venue.

Claims that Terrell was provided ineffective assistance of counsel, specifically, that his counsel did not hire a forensic pathologist to assist the defense counsel to cross-examine the prosecution's forensic pathologist and to testify in Terrell's defense.

Claims that Terrell did not actually murder anybody, that there was a reasonable suspicion that somebody else did it.

You know what kind of statute was used by the court to block Terrell's claims of innocence and his reasonable claims of ineffective assistance of counsel?  The Antiterrorism and Effective Death Penalty Act.

Think about this word combination.  "Effective death penalty".  Of a person claiming innocence.  In a rigged system of justice.  Given one mistrial and one reversal.

No?  Why?  Doesn't the law equally apply to all?  I am talking about legal process, not terrorism.  I am talking about a judge who knowingly sent an innocent to his death-by-the-government, or who knowingly colluded with prosecution to block evidence that would have saved that defendant from being introduced, to be investigated and tried for murder and, if convicted, put to death by the means of the same "legal process".

I bet the death penalty will be found unconstitutional before any such sentence is carried out.

Judges will not allow a judge to be subject to a death penalty.  There will be mercy then.

Coincidentally, I recently watched an extraordinarily funny Ukranian comedy, "The Public Servant".  The pace, the pranks, the actors, the dialogue.... Unforgettable.  Highly recommend to those who know Russian - I do not know when or if it will be available with English subtitles.

There, the subject of judicial corruption came up at a talk show with the president of the Ukraine (the movie president, not the real president) talking to his people live, as well as his prime-minister, minister of foreign affairs and majority leader of the parliament.

In answer to the host's question as to how to fight judicial corruption, the minister of health recalled a piece of wisdom that one of the leaders of Asian countries shared with him:  against, it's a movie, a fantasy.

When, in that fantastical Asian country, a judge was caught for briberies, they skinned him, upholstered a chair with his skin, made his son a judge and made him sit and make decisions in that chair, sitting on his father's skin.

Cruel and unusual punishment?  What is cruel and unusual punishment?  Our judges do not consider it a cruel and unusual punishment to slowly put a person to death like so many people were, with drugs that are not meant for that purpose and do not work for that purpose "well".

Here is an execution list for just 2015, in the XXIst century, in the land of the free.

The last execution took place 2 days ago. 

Shouldn't we all be ashamed of what is done by the government in our name?

Shouldn't we stop at least the atrocious corruption in the judicial system to prevent innocent lives from being ruined by that corruption, life and property taken, families split and reduced to poverty?

Should we try then to introduce the Effective Anti-Corruption (Upholstered Chair) Act?

Might work.

British press reports that the U.S. does not have effective mechanisms to fight judicial corruption, U.S. press keeps mum

I wrote on this blog extensively about attorneys sanctioned for trying to do the right thing for their clients.

I recently posted a list of some lawyers who were reported to be sanctioned for critisim of judicial misconduct.

For purposes of disclosure, I am one of those lawyers.  My law license was suspended as of November 13, 2015 for what the disciplinary court modestly called my role in "3 client matters", which in reality were sanctions for motions to recuse a judge who sanctioned me after I sued him.

I found another name today, attorney Lori Laird, of Texas.

Here is what reportedly occurred.  "Attorney Lori Laird asked that [Judge]Dupuy bow out in 2013 because she’d represented Dupuy’s ex-wife in the couple’s custody battle in Galveston. The judge responded by slapping her with 37 counts of contempt, demanding that she “explain, defend or apologize” for her motion. He later sentenced her to 220 days in jail, although she didn’t serve any time."

In my case, it was thousands of dollars of sanctions that Judge Carl Becker extracted from me for suing him and exposing his misconduct in motions to recuse and the loss of a law license.

What the Louisiana judge did in the case reported in the same article was no different than what Governor Cuomo did by providing a similar "incentive" to Appellate Division 3rd Department (NY) judge Leslie Stein by elevating her to the position of a judge of New York State Court of Appeals, which was a huge promotion in terms of more money and more prestige.

The article reports that a New York attorney Raoul Felder who "served" on the New York State Judicial Conduct Commission, recalls "perplexing" experience from the Commission's decision-making.

The article reports that unreported and unaddressed judicial conflicts of interest go all the way up to the U.S. Supreme Court:

"Justice Steven Breyer owned $215,000 in health-care stocks when deciding on the legality of the Affordable Care Act in 2012. Justice Samuel Alito’s portfolio included $2,000 in stock in The Walt Disney Co. in 2008, the year the court heard Disney, FCC v. Fox Television Stations. And perhaps most famously, justice Antonin Scalia has participated in the Bush v. Gore case, even though his son Eugene’s law firm represented one of the parties. In another case, Scalia remained in the panel despite having gone on a duck hunting trip with former Vice-President Dick Cheney while he was being sued to reveal the details of secret meetings he held with oil company executives in the run-up to the 2003 invasion of Iraq",

and that judges refuse to step off conflicted cases by claiming that their impartiality cannot be reasonably questioned.

The question is - by whom? - by them certainly, since their moral compass seems to become permanently askew as soon as they take the oath of office that brings them their money, power and prestige.  But by a reasonable objective observer - sure.

Not the least of questions is - why it is a British newspaper that is so vigorously investigating judicial corruption and not American.

Why whistle-blowing attorneys, time and again, get their stories turned down by American mass media that is simply afraid to touch the subject?

Where is the famous fearless journalism on the burning issue of public concern in this country, judicial corruption?

Is Ghana ahead of us in fighting judicial corruption?

Yesterday, it has been announced in the press that Ghana, sacked 20 judges for corruption and that now, Ghanian lawyers put pressure on the government to criminally prosecute those judges.

That's going on at the very same time as in the United States, American lawyers wholeheartedly support judicial corruption and get rid of those white sheep among them who oppose it.

And, we, the land of the free and of the brave, will remain behind Ghana, in our sorry state of human rights we are in now, unless and until we remove dependence of attorneys for their livelihood on the corrupt judiciary.   

The sagging pants and the butt display by (very) social worker Meghan Barnes, Delaware County, New York

In June of 2011, a man was arrested for refusing to pull up his sagging pants when boarding a plane in San Francisco, California.  Charges against him reportedly included "suspicion of trespassing, battery and resisting arrest".

In November of 2013, 38 Ervin Edwards was reportedly jailed and tasered to death in Louisiana after the police started to pick on him about, among other things, his sagging pants.

In May of 2014 two men were reportedly arrested in South Carolina and charged with disorderly conduct for refusal to pull up their sagging pants that showed - no, not their butts, only their boxers.

In 2014, several municipalities in Florida made prohibited saggy pants in public places in the city.

In September of 2015, students in Mississippi were reportedly arrested for protesting a "sagging pants ban" on campus.

Today, on December 10, 2015 a South Carolina news source Fox 8 reported that several South Carolina high school students were jailed for wearing sagging pants to class.


In 2010, Delaware County (NY) District Attorney Richard Northrup who is elected to become Delaware County Judge since January 1, 2016, for 10 years forward, refused to prosecute Delaware County social worker Meghan Barnes, relative to Delaware County Treasurer Beverly Shields who was at the time reportedly a girlfriend or close personal friend of now-retired Family, Surrogate's and County judge Carl Becker, for showing an eagle tattoo going into "the crack of her butt" (child's statement) to an 8-year-old on school premises during an official social services investigation.

As Delhi Village Police Michael Mills explained Richard Northrup's refusal to charge Meghan Barnes for indecent exposure before a minor and for endangering welfare of a minor, "the standards of female nudity have evolved".

So, for Richard Northrup, it is ok for a government official, while discharging her official duties, in a school full of children, to display the crack of her butt to an 8-year-old boy as part of her investigation.

Think what local teachers can do now that they know that such behavior is allowed!

If anything, those standards are de-volving across the country, where people are actually arrested, jailed and even tasered to death for showing simply their boxers, not tattoos of the country's symbol going into the cracks of their butts.

Think about mentality of a person who puts the symbol of her country into such a place, she really respects her country, doesn't she?

Well, everybody has a 1st Amendment right to freedom of expression, even such a crude one.

Yet, public officials do not have a right to expose little children to their freedom of expression on intimate body parts.

By the way, Delaware County is a legal guardian of foster children on an ongoing basis.  Shouldn't parents of children in foster care start wondering whether Meghan Barnes exposes her wards to viewing the eagle that has only grown since 2009, along with the butt?

Meghan Barnes, upon my information, has not been demoted or disciplined for her behavior.

She continues to draw, according to a public records source, seethroughny.net, $49,398 a year of the taxpayers' money, and it is a big concern whether she draws this money while indulging her exhibitionist habits with little children.

By the way, when I raised the issue of Meghan Barnes little exhibitionist tricks on little children in court, I was accused of invasion of privacy and indecency.

Once again, it is an invasion of privacy of a public official to publicly discuss in court public exposure of public official's private parts to a small child during official investigation in a public place.

And, it is an indecent exposure to publicly expose in court proceedings the public indecent exposure by a public official in a public place.

Just for your information.