The soap opera with Judge Alan Simon concluded, kind of - other soap operas are going on

The New York State Commission for Judicial Conduct has published its determination of removal against Judge Alan Simon, "a justice of a Justice of the Spring Valley Village Court and the Ramapo Town Court,
Rockland County".

I wrote a preliminary blog about discipline against Judge Alan Simon, when his case was just reported, but before the determination was published, here.

The decision reads like a novel about the Wild West.

The only thing that it lacks is horseback chases with shooting.

Otherwise - it is intimidation, yelling at another judge "have a stroke or die", holding a court employee (intern) in contempt for disobeying a "court order" issued orally by Judge Simon outside of the courtroom or any court proceedings, attempting to use for arrest of that employee Judge Simon's personal friend who was off-duty at the time, the list goes on and on - I encourage you to read the decision.

Yet, as I said in my previous blog, while Judge Simon undoubtedly deserved being removed from the bench for his shenanigans, many judges on higher benches remain there despite any shenanigans, because the New York State Commission has an unwritten policy to remove only low-rank jerks.

Higher-rank jerks will remain there and continue to do what Judge Simon was removed for - with impunity - until people of the State of New York vote in 2017 to change to the State Constitution and remove judicial immunity on constitutional level, allowing to sue judges who commit misconduct in office, for money damages.

Only hitting them in the pocket, where it hurts, will work.

And, as to Alan Simon - the "have a stroke or die" former judge is actually an attorney "with no record of public discipline":

Like another removed judge, Diane L. Schilling, who also remains a practicing attorney with "no record of public discipline", see her order of removal here.

Of course, Diane L. Schilling was a "special" counsel for Chief Administrative Judge for upstate New York Michael Coccoma - that may explain that she still does not have a "record of public discipline", despite having been kicked off the bench for misconduct.

Mr. Simon might not be as lucky as Diane Schilling - his looks do not qualify.

My not-so-rhetorical question is - when will attorney disciplinary committees take their collective heads from where they are and start removing licenses of judges disciplined for misconduct?

Isn't it their job to protect the public from the likes of Simon and Schilling?

A suspended attorney working as a judge - an abomination or an inspiration?

It was reported that an attorney whose law license was suspended in the State of Colorado is working as an administrative law judge in the State of New Mexico.

Great news for all attorneys disciplined (suspended and disbarred) for criticism of judicial misconduct.

We can all work as administrative law judges, and try to clean the system from within, by our own example - can't we?

2nd Circuit joins other federal courts in discrimination against criminal defense attorneys

I wrote on this blog about the tendency of federal courts to start blocking certain attorneys of criminal defendant's own choice from representing them.

It happened less than a month ago in two high-profile cases, in Minnesota and in Nevada.

Now it is happening in New York, too.

The U.S. Court of Appeals for the 2nd Circuit banned an attorney from representing clients on criminal appeals because of alleged misconduct in "defaults" on appeals.

Given that the same 2nd Circuit is extremely forgiving to any defaults and mistakes by the government in the role of an appellee (opponent of an appeal), no matter how bad those mistakes are, and that is my own personal experience and my husband's experience with his appeals, going after a criminal defense attorney for alleged "defaults" (failure to meet strict deadlines imposed by the Court of Appeals) to the extent of banning him from court-appointed representation of criminal defendants, appears pretextual to me.

Moreover, research of orders referenced in the "banning order" turned my suspicion of judicial retaliation and discrimination against Mr. Castillo into a firm belief that Mr. Castillo was improperly targeted by the court for something that had nothing to do with his alleged "defaults".

This is Mr. Castillo's banning order, referencing two cases in which Mr. Castillo allegedly defaulted:

1) United States v Morgan, Case No. 12-3231, and
2) United States v. Morales, Case No. 15-438

This is the entire portion of the docket in U.S. v Morgan when Attorney Castillo represented the criminal defendant/Appellant:

There is no indication in Mr. Castillo's notice of appearance in U.S. v Morgan that he was a court-appointed attorney, so he must be a privately hired attorney, chosen by Mr. Morgan to represent him on appeal.

Here is the timeline of Mr. Castillo's participation in the Morgan case:

• March 28, 2013 - Mr. Castillo enters the case;
• April 1, 2013 - Mr. Castillo reports to the court that all transcripts in the case are ready;
• August 16, 2013, September 27, 2013 and November 13, 2013 - Mr. Castillo repeats the report to the court that all transcripts are ready;
• February 18, 2014 - Mr. Castillo is relieved from the case by court order claiming that he failed to submit the appeal despite multiple notifications from the court.

The docket does not reflect any notifications.

The counsel that succeeded Mr. Castillo on the Morgan appeal also filed a defective notice of appearance,

but was not sanctioned for it like Mr. Castillo was in the subsequent US v Morales case.

This is the ENTIRE docket of United States v Morales:

While the "banning order" mentions an order of October 2015 that Mr. Castillo allegedly failed to respond to timely, there is no such order listed in the case docket - the latest filing in that case is of 04/13/2015 - new case manager assigned.

If the rest of the docket in a criminal appeal is secret (which is completely unconscionable, since criminal proceedings must be open to the public), there is no way to discern what the order was about, whether it actually was made, and what did Mr. Castillo did wrong.

As to the "defective documents" that Mr. Castillo allegedly filed which caused the ire of the court to the point of banning Mr. Castillo from court-appointed criminal appeals, Mr. Castillo's problem was that his notice of appearances was not "text-searchable".

I included the full notification to Mr. Castillo in docket 9, about his notice of appearance not being "text-searchable" 

and docket 11, same claim, his notice of appearance is not "text-searchable".

Such "defaults" have, of course, nothing to do with Mr. Castillo's ability to provide effective assistance of counsel to a criminal defendant-appellant, which is all that matters on such an appeal.

Possibly, the reason is not that Mr. Gaspar Castillo is a bad attorney,  but that he is a good one - and the 2nd Circuit resents that criminal defendants would have a good attorney representing them on appeals.   

As a comparison, here is the docket of my husband's appeal of the anti-filing injunction, also in the 2nd Circuit:

 My husband filed a notice of appeal on December 29, 2014, and filed his Appellant's brief on April 8, 2015, on schedule.

The Appellee filed their brief only on December 2, 2015, which was late, late despite ability to file instantly, electronically, and was 8 months (!) after the filing date of the Appellant's brief.

The court still allowed the late filing - without any problem:

My husband asked, by motion, to allow him to file electronically, to be on equal grounds with the Appellee.

The motion was denied without an explanation.

Within 16 days of the late filing of the Appellee brief, the decision of the Appellee was affirmed, before Mr. Neroni had a chance to file a responsive brief.

When Mr. Neroni asked the 2nd Circuit to vacate the summary order entered BECAUSE the court did not allow Mr. Neroni's electronic filing, and because Mr. Neroni had to use the U.S. mail overnight service which "misdirected" his pleadings and caused them to arrive late (not Mr. Neron's fault).

Mr. Neroni's motion to vacate and allow late filing of the Reply Brief from him - as the court allowed the Appellee to do - because his delay was not even his delay, but mistake of the post office that "misdirected" OVERNIGHT mail that was supposed to arrive BEFORE the deadline of December 18, 2015, his request to allow late filing and to file electronically, to prevent "misdirection" of overnight mail and to equalize Mr. Neroni's right of access to court with that of his counseled Appellee - that request was denied:

In my own appeal, Neroni v Peebles, Delaware County Attorney Porter Kirkwood appeared on behalf of an unnamed "Appellee" - in a case where there were multiple defendants and no appellees.

Kirkwood's filing was not recognized as "defective" and he was not sanctioned.

It is Mr. Castillo who was sanctioned and banned from criminal cases for filing notices of appearances that were allegedly not "text-searchable" - the horror!

The policy is clear - to discriminate against attorneys and litigants who courts do not like to the point of punishing them for something that is not their fault, or for some petty irregularities that can be easily forgiven, and at the very same time to allow the government late filings, defective filings, filings on behalf of unnamed parties - you name it, the 2nd Circuit allows it.

Attorney Castillo (in the picture on the right, with his client):

 attorney who is now banned from criminal appeals in the 2nd Circuit for 2 years - was actually selected as a top criminal attorney, a "super-lawyer" in the Albany, NY area, for the years 2011-2016:

Maybe - MAYBE - attorney Gaspar Castillo did something wrong, and for that he was banned by the 2nd Circuit.

But, that "maybe" must be clearly identified from the court records, in order to ban a skilled attorney from representing criminal defendants on appeals.

Records referenced in Mr. Castillo's "banning order" refer to cases where there is nothing in official court dockets (that I published above) that would support such a ban.

Thus, the ban must be based on some - as they call it - "extrajudicial" grounds.

Which is illegal.

In case of U.S. v Morgan, the appeal was won by the attorney who came into the case after Mr. Castillo - which says nothing negative about Mr. Castillo, because there was no reason to remove him that I see, preparation of appeals after a jury trial, based on transcripts, may take a long time.

The appeal in U.S. v Morales still continues, and no attorney was substituted there.

Maybe, that case is the key why Mr. Castillo was removed - the government was afraid that he will do a good job on that one?

Because, filing a notice of appearance that is not "text searchable" is a laughable pretense to remove a criminal defense attorney.

The #ASSLaw or #ASSoL - no better way to commemorate the passing of the devil #AntoninScalia

So, the George Mason School of Law wanted to brown-nose the judiciary a little bit (well, not a little bit), and to rename itself from the name of one of the founding fathers to the name of the "hunting trip crook" Antonin Scalia, a U.S. Supreme Court justice who considered that an innocent person may be "legally" executed, and who gave court victories to who greases his hand better.

The renaming was to - "Antonin Scalia School of Law".  That's right.

ASSLaw.

According to the school, that tries now to hastily re-name ASSLaw, the new name "caused some acronym controversy on social media".

Calling a school of law ASSLaw (or #ASSoL, which sounds no better), in a brown-nosing effort to commemorate the memory of a judge, is called "some acronym controversy".

Somebody has a sense of humor in that law school.

When you are trying hard to be the first to brown-nose the best way, you do not notice common-sense things - like the possible "acronym controversy" coming.

Isn't it poetic justice that the #ASSoL #AntoninScalia is called who he is - in the name of a law school no less.

There is reportedly a petition by the Virginia lawmaker circulating asking the school not to rename itself after the "controversial and polarizing" judge #AntoninScalia.

I, on the opposite, now support the renaming to be left in its first inspirational brown-nosing glory.

Please, do rename the school into #ASSLaw - it will be the symbol of the establishment of the legal profession, all of its core qualities at its very best.

U of Maryland School of Law: diversifying to prevent dying?

This is an announcement by the University of Maryland School of Law - of a brand spanking new quasi-law degree the law school invented to sucker money from somewhere, because of sagging enrollment into the J.D. program.

It is not a recognized degree.

It does not give you a right to practice law.

It costs $11,280 (15 credit hours times $750 plus $30 in fees).

The only value the degree appears to offer is for the school, to survive financially.

The degree is being aggressively advertised on the radio - according to my reader from Maryland (thank you for the tip!).

Do your marketing as to what "value" you are actually getting from this $11,280 degree - if any.

The American Bar Association's new piece of hypocrisy, a "professional manual" about lawyers' "reckless criticism of judges"

What is "reckless criticism" on issues of public concern?

How do you define "reckless" if you are criticizing a judge of:

1) a conflict of interest;
2) appearance of corruption;
3) bias or appearance of bias?

Is it "reckless" to even consider such a sacrilege?

This document came as a tip from my reader.

It shows that the American Bar Association, in its "analysis" of its members' 1st Amendment rights to criticize a judge - as part of their jobs no less - does not consider the main court precedent prohibiting ANY sanctions to be imposed for such criticism, at least without using the strict scrutiny test, which is never used in attorney disciplinary proceedings.

The ABA manual of "professionalism" for attorneys does not touch on the slippery topic (slippery for judges who sanction lawyers for criticism of judges) that content-based regulation in general, and especially content-based regulation of protected speech, and criticism of ANY public official for misconduct is protected speech, is presumptively unconstitutional.

Here is the masterpiece of the American Bar Association's advice to its members on "reckless criticism of judges".

I will analyze this piece at length and will publish more posts about it.

At this time, I would like to point out five things.

I.  Attorney disciplinary proceedings are used as substitute defamation actions on behalf of criticized judges where judges cannot legally win such actions, do not file such actions, and often when such actions are time-barred

The ABA points out to the use of the so-called "New York Times v Sullivan" DEFAMATION standard applied to criticism of public officials - applied to attorney disciplinary proceedings, thus EQUATING attorney disciplinary proceedings with a PRIVATE ACTION by judges that judges do not make against lawyers - because such actions will run into 1. truth as an absolute defense,  2. discovery against the judge that may reveal that the judge is, in fact, corrupt, and the extent of the judge's conflicts of interest and misconduct and 3. that judge's lawsuit is barred under the 1st Amendment.

So, when a judge cannot win a defamation lawsuit, attorney disciplinary proceedings are, instead, used as a substitute of a defamation lawsuit on behalf of a judge that is never filed because it cannot succeed and can reveal in discovery more than the judge wants to reveal, to suit the judge's rage - and to strip consumers of legal services of their most courageous providers.

II.  Means of investigations of judicial misconduct are limited, if at all available, stalled by authorities, and attorneys are sanctioned for actually doing thorough investigations that produce irrebuttable proof of judicial misconduct

Since the judge is not a party in attorney disciplinary proceedings, and in many states attorneys in such proceedings do not have a right to discovery, the claims that the attorney must be sanctioned for the lack of "investigation" are hypocritical.

I was actually sanctioned - by the then-judge Carl F. Becker - for my efforts to investigate Carl F. Becker through available means, Freedom of Information requests as to his semi-annual financial disclosures, which were also stalled from disclosure by the New York State Court Administration.

Christine Mire, an attorney from the state of Louisiana, was sanctioned because of her extremely thorough and diligent investigation against a judge which turned up PROOF in form of SWORN TESTIMONY of witnesses that not only transcripts, but even audiotapes of judge's alleged disclosure of conflicts of interest, were cooked, and the only person with an interest to cook those audiotapes and transcripts was the criticized judge.

Instead of taking the side of an attorney and castigate judicial corruption in how Christine Mire's - and, I am sure, many other attorney disciplinary sanctions - were imposed, the ABA "manual" authors had the audacity to quote Christine Mire's case as a case of "reckless disregard to truth or falsity" of Christine Mire's statements:

See my blogs about Christine Mire's case here, and here.

Since Christine Mire could not sue the judge because of absolute judicial immunity, and the judge did not sue Christine Mire for defamation, instead using the disciplinary process to avenge on the judge's behalf, the judge was not called to depositions, and no discovery against the judge was possible, as I understand.

Another bright example of attorney discipline used against an attorney for investigations of judicial misconduct is Pennsylvania Attorney General Kathleen Kane - whose law license was suspended by a panel where a criticized judge was part of - because of her investigations, in her capacity as an Attorney General, of judicial misconduct.

Ms. Kane's law license was suspended not because she did not do a thorough investigation, but, on the opposite, because she DID do a thorough investigation, uncovered many instances of judicial misconduct, Judge Eakin and many other public officials in Pennsylvania lost their positions because of what Ms. Kane uncovered - but attorney regulation was used against her to punish her as a whistleblower.

It was not the disciplined attorney's "subjective belief is not enough", the actual rule is that - NOTHING IS ENOUGH, no level of evidence, is enough to save an attorney from losing her license if the attorney dares to criticize a judge.

So, claiming that "subjective belief is not enough", and that thorough "investigation" needs to be done is pure hypocrisy of the ABA.

III.  Courts and the ABA continue to ignore the implication of the U.S. Supreme Court new precedent on content-based regulation of speech decided in June of 2015, Reed v Town of Gilbert

There is no Reed analysis of constitutionality of content-based regulation, and no application of the Reed strict-scrutiny test - not by the ABA, not by courts imposing discipline after Reed (Reed was decided in June of 2015).

In other words, courts and attorney associations continue to adamantly defy the U.S. Supreme Court precedent.

IV.  Attorney discipline for criticizing judges has nothing to do with the declared SINGLE purpose of attorney regulation - protection of consumers from BAD attorneys

The root of the matter is that attorney regulation is declared to be done for purposes of protecting the public from bad providers of legal services.

All cases of attorney discipline for criticism of judges is cases where GOOD and COURAGEOUS providers of legal services were sanctioned - for doing their jobs for their clients, for trying to ensure for their clients their constitutional right for impartial judicial review.

If the legal provider did not do any harm to his or her clients, criticism of a judge must not be part of any disciplinary rules or subject of any disciplinary proceedings, since it has nothing to do with the declared SINGLE purpose of attorney regulation - protecting consumers from bad providers of legal services.

Attorneys-critics of judicial misconduct are GOOD providers of legal services, trying to ensure constitutional rights for their clients, to impartial judicial review and access to court.

V.  Courts imposing attorney discipline and the ABA makes no attempt to comply (for ABA - address non-compliance) with the U.S. Supreme Court precedent regarding antitrust activities in occupational regulation

When attorney discipline is imposed by competitors of the attorney, without any supervision from a neutral state body, that constitutes an antitrust violation, a criminal activity in this country.

In February of 2015 the U.S. Supreme Court has stripped disciplinary bodies imposing discipline in regulated professions, of their "state" antitrust immunity if their markets, run by competitors of disciplined professionals, are not supervised by neutral bodies.

Attorney regulation is not supervised by a neutral body, as described in the U.S. Federal Trade Commission's "Guidelines to Staff".  

See how markets regulated by active market participants are defined by FTC.

See how the necessary neutral active state supervision of such market player-regulated professions is defined by FTC:

See where the "active state supervision" requirement is not satisfied:

Courts that preside over attorney disciplinary cases and that legislate the rules and appoint members of disciplinary commissions, are not neutral bodies for purposes of such supervision, because they themselves consist of licensed attorneys (judges).  

The State Attorney General is him/herself a licensed attorney, and what has been done to Pennsylvania Attorney General Kathleen Kane (her license was suspended for investigation and criticism of judicial misconduct) shows that AGs are themselves not "neutral" in supervising the process upon which their own licenses, livelihood and positions depend.

Even federal courts where judges are allegedly "sit during good behavior" for life, are state-licensed attorneys, and revocation of their law licenses will result in their impeachment and removal from office, and revocation of their law licenses can be done by attorneys who are not  happy because of a federal judge's ruling, so there is no real judicial independence in federal judiciary either.

The ABA manual does not even mention the impact of the 2015 U.S. Supreme Court's antitrust precedent upon attorney regulation and attorney discipline - because it does not serve the purposes of this PRIVATE professional organization (American Bar Association) to perpetuate itself, its business run as an antitrust cartel, and its favors and privileges from the judiciary if their members "are good".

So, "to be good" - DO NOT CRITICIZE JUDGES.

ABA did not have to run such a long manual, with so many cases incorrectly cited (like it did Christine Mire) and so many key cases on point avoided.

Just say - "YOU WILL NOT SURVIVE AS A PROFESSIONAL IF YOU CRITICIZE A JUDGE", no matter how right you are and how wrong the judge is.

Period.

That's the law.

Being "strongly deferential" to (biased in favor of) governmental litigants is a qualification for high office in the U.S., being an honest criminal defense or civil rights attorney is a disqualification for high office. It worked with #JudgeJaneKelly, will it work with #HillaryClinton?

I recently made a blog post about the disgusting tactic aimed to derail a high-office appointment of a candidate because of the candidate's history of being a criminal defense attorney and representing an "unpopular" client.

The tactic actually worked in derailing President Obama's choice to nominate a worthy candidate #JudgeJaneKelly and instead to nominate a white male with no history of criminal defense Judge Merrick Garland, against whom a disciplinary complaint/letter was recently filed, and the complainant seeks to testify at Judge Garland's confirmation hearing, if that hearing ever happens.  

The letter, addressed to Judge Garland, contains a phrase: "As chief judge, you have fostered a culture of corruption in the E. Barrett
Prettyman Courthouse".

We truly needed to reject nomination of an honest criminal defender to instead put on the U.S. Supreme Court another corrupt judge, who is "strongly deferential" to "big government" power.

Being "strongly deferential" (in other words, biased) in favor of the government, the government that appears in front of Judge Garland in civil rights cases in the federal D.C. Circuit of Columbia Court, as a defendant - is, obviously,  a good qualification for advancement to the top positions in the U.S. Government.

Being an honest criminal defense attorney opposing efforts of the government to accuse, often falsely, often on false evidence, individuals and put them through the hell of the American criminal "justice" system is, instead, a disqualification from a high governmental office in the U.S.

Since the tactic worked with #JudgeJaneKelly and, previously, against President Obama's nominee Debo P. Agebile who was not confirmed for the position of the Director of the Division of Civil Rights in the U.S. Justice Department because of his successful motions on behalf of an unpopular criminal defendant.  In other words, Mr. Agebile was, allegedly, a bad candidate for public office because he was a good criminal defense attorney and civil rights attorney who took his job seriously - the tactic is now used against presidential candidate Hillary Clinton.

While being no fan of Hillary Clinton for the position of President of the United States, as a dispassionate observer of the circus that the presidential campaign has become, I can state that the use against Mrs. Clinton of the fact that she represented - as an assigned counsel - in 1975, a person accused of child rape, indicates that her opponents are getting desperate.

The attack also shows that people have no understanding of the concept of presumption of innocence, claiming that she represented "a child rapist".

No, she represented a person who was presumed innocent, and was accused of child rape.

Even when attorneys represent people convicted of most heinous crimes, even conviction in this country - with rampant judicial and prosecutorial corrutpion and now-frequent exoneration, some of them from death row, many of them because of prosecutorial misconduct - even a conviction is not conclusive proof that that particular person committed a crime.

An innocent person facing death penalty will most likely falsely confess to save his/her life.  

95% or more of criminal cases are "resolved" in this country through plea bargains, where often innocent people accept the lesser of two evils.

To blame an attorney to try to defend people in such situations - especially when such an attorney, like in Mrs. Clinton's case in 1975 - was court-appointed, is to put constitutional law of this country on its head.

And - once again, before casting such allegations, opponent of Mrs. Clinton should think whether they look as they looked when they used this little smear tactic against her - desperate.