When a criminal conviction is at stake in California, Texas and Michigan, representation by a suspended attorney satisfies the 6th Amendment right to counsel requirement

Lawyers have to pay hundreds of dollars in bar dues in states where "organized bars" are mandatory and directly to the state where organized bars are not mandatory, where a portion of that money is used on attorney discipline.

Attorney rules required - and attorney discipline is imposed - if attorneys do not comply with Continued Legal Education (CLE) requirements.

I wrote on this blog about corruption in certification of CLE programs in New York.

I also wrote on this blog about CLEs where attorneys, in exchange for a $359 fee, learn how to brown-nose judges better, by learning about particular whims of particular judges.

Recently, a fellow legal blogger unearthed and commented on a 1996 case from California where an attorney suspended from practice in the State of California in the middle of representation in a criminal case for failure to comply with minimum CLE requirements, continued to represent the defendant, and represented the defendant at the sentencing.

And, while reviewing that case, I found two more cases, in Texas and Michigan, cases which, surprisingly, are not cited much (or, in fact, at all), in legal treatises about attorney regulation - while they clearly should be, because they undermined and destroyed the validity of the entire claim of consumer protection as a justification of attorney licensing and attorney monopoly in court representation.

The intermediate appellate court in California reversed the conviction as a denial of constitutional right to counsel (a new counsel had to be appointed at the time the defense counsel was suspended).

The Supreme Court of the State of California reversed, saying, among other things:

"We have noted that "admission of an attorney to the bar establishes that the State deems him competent to undertake the practice of law before all our courts, in all types of actions." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [68 Cal.Rptr. 1, 440 P.2d 65].) The reasoning of the Court of Appeal in this case, however, would compel the opposite conclusion if, hypothetically, the bar, following provision of notice of noncompliance and [14 Cal.4th 37] after lapse of the 60-day grace period, were to enroll an attorney on inactive status for failure to submit the required proof of compliance. We think it illogical to conclude that a California attorney, presumptively competent on day one, becomes incompetent on day sixty-one merely by virtue of MCLE noncompliance."

The court proceeded discussing that the presumption of competence of an attorney should not be based on such a flimsy premise as providing or not providing records of attendance of CLE courses.

"Moreover, if an attorney's involuntary enrollment on inactive status for noncompliance with MCLE requirements were indeed deemed the equivalent of a finding of incompetence, as the Court of Appeal apparently reasoned, it would be anomalous to permit the attorney's administrative reinstatement simply on submission of proof of compliance consisting of little more than a collection of attendance records. Yet the regulations evidently contemplate such a procedure. (See MCLE Rules, rules 12.2 [member's recordkeeping requirement], 15.1, 15.2.)"

The Supreme Court of the State of California also noted the exemption of attorneys working for the government from CLE requirements:

"In addition, various classes of attorneys, notably employees of the state, are statutorily exempt from compliance with MCLE requirements."

So, attorneys for the government in the State of California are presumed competent whether they take CLEs or not, while other attorneys are presumed incompetent if they do not take CLEs - therefore, attorney competence in California is the function of where you work.  You work for the government?  You are presumed competent.

The Supreme Court of the State of California - the regulator of the legal profession in the state - claimed in People v NGO this:

"If MCLE compliance were truly a sine qua non of competence, surely the Legislature would not have exposed the state to incompetent representation by its own in-house counsel."

Moreover, the California Supreme Court references a case from the Texas Court of Appeals, where the court came to a similar conclusion: representation by counsel suspended for non-compliance with CLE requirements is not a denial of right to counsel on 6th Amendment grounds.

In the Texas case in 1996, 

"[a] jury found appellant, Vance Alan Henson, guilty of possession of more than 400 grams of flunitrazepam, a controlled substance, and the trial court assessed punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice and a $25,000 fine. Appellant challenges the conviction by six points of error."

Ok, so a criminal defendant in Texas, a consumer of legal services, challenged on appeal his conviction for possession of a controlled substance and sentence of incarceration for 50 YEARS for possession of 400 grams (less than a pound) of a controlled substance, for, among other points, these reasons:

"By his third, fourth, and fifth points of error, appellant complains that his trial counsel was ineffective. Appellant first contends that trial counsel was ineffective because, during the trial, counsel was suspended from the active rolls of the State Bar of Texas for non-compliance with the Minimum Continuing Legal Education (MCLE) requirements."

In other words, the criminal defendant claimed that he was not represented at trial by a properly LICENSED attorney.

The Texas court engaged in this profuse legal analysis of the issue (I omit internal citations, they are available here):

"The Sixth Amendment requires that an accused have both counsel and reasonably effective assistance of counsel. ... 

Representation of counsel under the Sixth Amendment means at the very least, "representation by a licensed practitioner." 

When defense counsel is "not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character," the Sixth Amendment right to counsel will not be met.

Moreover, when there is an actual or per se denial of representation of counsel, a defendant "is entitled to relief without proving that he was prejudiced by the deprivation.

To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense."

So, the State of Texas, same as the State of California, calls a SUSPENDED attorney "a trial counsel" (as if the attorney is fully licensed) - in order to preserve a criminal conviction, even in a death penalty case, see the California Supreme Court citing the Texas case of a criminal conviction with a death penalty where the criminal defendant was represented by a suspended attorney:

"To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense. Parrish, 840 S.W.2d at 66; see Hill, 393 S.W.2d at 904 (overruling Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958), where death penalty was reversed when trial counsel was suspended for failing to pay State Bar dues although no complaint had been asserted about counsel's incompetence).

Yet, while the California and the Texas case claimed that the suspension of attorneys for non-compliance with CLE was simply a "technicality" and does not affect the attorneys "legal ability" or "moral character" (the question is then - why consumers of legal services are deprived of their services, especially where in all of those cases we deal with suspensions of criminal defense attorneys), Michigan, in a case referenced by the California court, went further than that.

In People v Pubrat, a case decided by Michigan Supreme Court in June of 1996, with a "precedential" status, the criminal defendant was contesting "the validity of a nolo contendere plea and the resulting sentencing that were conducted while the defendant's attorney was suspended from the practice of law".

The plea was "to attempted larceny from a building and carrying a concealed weapon".

If in California and Texas the court presented the suspension as not addressing "legal ability" or "moral character",  the suspension in Michigan was definitely addressing moral character of the attorney, because it was based on a criminal conviction of the attorney, and the suspension of the attorney was "disciplinary":

"The Court of Appeals [in Michigan - T.N.] reversed the defendant's conviction, reasoning that a disciplinary suspension reflects a lack of either competency or ethics. The Court of Appeals concluded that because of the suspension the defendant was represented by a person who was not an attorney, his right to counsel was violated, and that violation can never be harmless error. Accordingly, the Court of Appeals set aside the defendant's conviction."

After paying lip service to constitutional precedents that right to counsel is fundamental in criminal proceedings, the Michigan Supreme Court reversed the Court of Appeals and reinstated the conviction obtained while the criminal defendant was represented by a counsel suspended through a disciplinary suspension.

Michigan Supreme Court rejected defendant's claim that he was not represented by an "attorney", claiming that a suspended attorney is nevertheless an "attorney" until he or she is disbarred, calling the defendant's argument that representation by a suspended attorney is a denial of defendant's right to counsel under the 6th Amendment "syllogistic":

"The defendant's argument is mainly syllogistic: the defendant has the right to an attorney; a suspended attorney is not an attorney; therefore, the right was violated. However, the syllogism fails because its second premise is inaccurate. A suspended attorney is an attorney who has been suspended from the practice of law, but is still an attorney.[1] A person who becomes an attorney remains an attorney until formally disbarred or otherwise permanently separated from the bar. A suspension does not alter the formal status as an attorney."

Moreover,  the Michigan Supreme Court pointed out that "[t]his is not a case in which a lay person has masqueraded as an attorney".  Apparently, to the Michigan Supreme Court practicing law without a license by an attorney whose license was suspended for disciplinary reasons differed from the situation where a person practicing law without a license was never admitted to the bar:

"Although we do not address the question here, it is possible that we would reach a different result if the defendant's counsel had never been admitted to the bar."

Then, the court advances into its own "syllogistic" argument disagreeing with courts that automatically reverse criminal convictions where the representing attorney is suspended or disbarred at the time of representation (New York is one of them):

"A rule of reversal per se has been adopted by other jurisdictions that have considered that question. Those courts have declined to reach the question whether the person pretending to be an attorney actually provided adequate representation. The reversal is based on the fact that the person technically was not an attorney at all.[2] However, the conclusion that a person was not an attorney for right-to-counsel purposes is based on the fact that the person never became an attorney, not on the basis of a suspension. Thus, the reasoning of these cases does not support the adoption of a rule of reversal per se on the grounds that a suspended attorney is not an attorney. A suspension is irrelevant to that inquiry."

So, while attorney licensing and attorney monopoly for court representation is declared to exist because of PRESUMPTIVE competence of a licensed attorney to provide an effective representation in court, apparently, when criminal convictions are at stake, Michigan goes further and analyzes whether an individual who was not a licensed attorney, "actually provided adequate representation".

Moreover, the Michigan Supreme Court held that:

"The right to counsel is thus substantive, focusing on the actual assistance received, rather than mere form. We decline to hold that representation by a suspended attorney alone creates a reasonable probability of ineffective assistance."

Yet, the law of the State of Michigan at the time was clear - a suspended attorney could not practice law, it was a crime for him to do so.

And, the law was clear that the defendant had a right to "counsel", meaning, under Michigan State Law, a licensed attorney - where the State of Michigan had an OBLIGATION to provide defendant with an assigned LICENSED attorney if the defendant could not afford one.

So, the Michigan State court was absolving the government of its obligation to PROVIDE proper counsel to criminal defendants, not only supporting criminal convictions.

And, by this case, the Michigan State Supreme Court, the regulator of the legal profession in the State of Michigan, threw all declarations that attorney licensing exist to protect consumers, down the drain - here the consumer of legal services claimed lack of protection because of lack of licensing, and lost.

Yet, if top courts in three states could disregard clear statutory law made in order, at least allegedly, to protect consumers of legal services, when the challenges were brought by such consumers, any potential consumer of legal services, in choosing a court representative, can apparently do that, too - BEFORE going to court, and ask whether a certain unlicensed individual is able to provide an effective representation.

The Michigan Supreme Court also engaged in very interesting analysis of administrative and disciplinary suspensions, coming to the conclusion that some suspensions of licenses are based on "purely personal reasons" that do not affect ability of suspended attorney to provide "effective representation of counsel" to clients.

Since attorney licensing exists to protect consumers of legal services from attorneys who cannot provide effective representation of counsel, then, attorneys in Michigan, after this ruling, can practice, risking a criminal conviction for unauthorized practice of law, and claiming that, because of People v Pubrat, Michigan Supreme Court actually annulled the reasons for attorney licensing in the State of Michigan, and suspension for disciplinary or administrative reasons is not the end of story for the attorney, does not preclude the attorney from providing effective assistance of counsel, and thus should not preclude the attorney from practicing at all.

Even though attorney disciplinary proceedings are claimed to be "civil" and "remedial" in nature, seeking to "protect the public" (in order to deny the disciplined attorney a heightened procedural protection that would be required in punitive proceedings), the Michigan Supreme Court, in order to uphold a criminal conviction, undermined that claim and indicated this:

"The suspension of an attorney reflects a decision that the attorney is not permitted to practice law during the period of the suspension, rather than a statement that the attorney is not competent to practice law. There is no necessary correlation between disciplinary action and an attorney's ability to practice law, and we decline to create such a connection as a matter of law."

Huh?

Isn't it clearly punitive? We do not allow the attorney to practice law, even though the attorney may be competent to practice?  And provide valuable services to consumers of legal services, especially in the field of criminal defense, where the "justice gap" is felt the most in this country?

It is notable that there is a very strong one-judge dissent in the Michigan case:

The dissenting judge mentioned that the defense counsel "suspended from the practice of law because of his plea of guilty of the high misdemeanor of attempted conspiracy to manufacture, deliver, or possess marijuana with the intent to deliver or possess marijuana".

The dissenting judge reiterated the principles of effective representation in criminal cases:

"The United States Supreme Court recognizes that representation of criminal defendants consists of basic duties including, but not limited to, a duty of loyalty, a duty to avoid conflicts of interest, a duty to advocate, and a duty to possess the skill and knowledge necessary to "render the trial a reliable adversarial testing process." Id. at 688, 104 S.Ct. at 2065. Effectiveness of representation determinations are made in light of these duties and are guided by the prevailing norms of professional practice. Id. Courts universally acknowledge "that the constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection".

The dissenting judge pointed out exactly why attorney licensing and accompanying attorney discipline are declared to be necessary:

"Disciplinary procedures exist to protect the public and ensure that only attorneys who continue to meet the high standards required by the state bar will practice law", and "[t]he suspension of an attorney evidences the state's determination that the attorney is unfit to represent either the public or the legal profession. MCR 9.105."

The dissenting judge further stated that the majority opinion was dictated not by motivations that were expressed in that opinion, but by considerations of judicial efficiency.  In other words, the dissenting judge accused the court of lying and putting false reasons into the majority decision in order "not to burden the courts" with necessity to check out licenses of attorneys - which takes 2 minutes total on the Internet, or a requirement for attorneys to carry attorney cards with them at all times and present them at court hearings, and attach copies to their pleadings.

"The majority appears to say that even though this attorney is deemed unfit to practice and is suspended, he may continue to represent this defendant. The position articulated by the majority does not make good legal sense. The majority's opinion appears, at least in part, to be based on its fear of burdening the courts with the duty of "ascertaining that each attorney who appears before a tribunal has a valid, current license...." Op. at 600. The right to counsel is critical and should not be subordinated to judicial efficiency."

It is interesting to see that a dissenting judge of the top state court implicitly recognizes that courts make opinions in important cases, on fundamental constitutional issues, based on self-serving consideration of their own convenience other than the reasons articulated in judicial opinions.

The dissenting judge logically concluded that:

"If the state believes an attorney is unfit to practice law, then I believe that a defendant represented by a suspended attorney is automatically entitled to a review of the effectiveness of that attorney's representation."

The dissenting judge actually lashed out at the majority of his colleagues by saying:

"In the instant case, [the defense counsel's] suspension arising out of a drug conviction, coupled with the continued representation of the defendant in violation of the rules of suspension, is enough to raise a serious question about whether defendant was denied effective counsel. 

A contrary holding by this Court mocks the notion of a constitutionally guaranteed right to counsel and weakens the significance of the licensing requirements of the legal profession."

"Weakens the significance" is the understatement of the century.  The majority opinion DESTROYED the claim that attorney licensing and attorney monopoly ensures consumer protection in court representation.

After People v Pubrat, there is no legal grounds in Michigan (and in states following this decision) to assert that:

1. attorney licensing, and attorney monopoly on court representation, exists for protection of consumers of legal services; or
2. that attorney disciplinary process is "civil" and "remedial" (instead of punitive), in order to deny attorneys higher procedural protections in such disciplinary proceedings.

The table of convictions of high-ranking New York government officials from 2009 to 2016 - why no prosecutors or judges are in it?

On May 12, 2016, two days ago, The New York Times published the table of New York's 12 high-standing public officials criminally convicted for corruption and sentenced in the years of 2009 to 2016.

I wonder why New York Times inadvertenly omitted two recent convictions, 

1. of New York Senator and former Chairman of Committee for the Judiciary (approving judges to the New York State top court, the Court of Appeals) John Sampson convicted in July of 2015 and who is not yet sentenced, but is facing up to 20 years behind bars; and 

2.  New York Senator Thomas Libous who was convicted in 2015 and sentenced to a 60-month "house arrest" and $50,000 fine - because he had cancer, which does not usually prevent "defendants from the street", not state Senators, from going to prison.  

I, as a defense attorney, personally handled cases in New York criminal courts where I had to argue that a diabetic, a person on kidney dialysis (for years), a person who just underwent a quadruple bypass, a person who is legally blind - those people are better left outside than sent to prison, sometimes successfully, many times unsuccessfully.  

Judges often claimed that there is medical care in prison, so there is no reason not to sent there people with disabilities, even disabilities requiring ICU-type care.

In a case I did not represent, but where a lawsuit against the judge was filed by a pro se defendant, the criminal defendant claimed that the now-former Judge Carl F. Becker told him (and I checked the court records, the account was correct) that he allegedly invented his back pain to undergo SURGERY in order to forego sentencing, and that they have good medical care for him in prison, so he should be sanctioned for not appearing at sentencing because he was undergoing a back surgery.

That was the case of Nicholas Mitchell v Carl Becker, filed a couple of years ago in Delaware County Supreme Court, New York.

So, courts are lenient to disabled individuals with medical problems only when such disabled individuals are former Senators.

Libous was convicted for lying to the FBI about using his influence to get his son a job in an influential law firm in Westchester County.

Former Senator Dean Skelos was sentenced for 5 years, as well as his son was sentenced for 6.5 years for the same thing - for using Dean Skelos' influence as a Senator to get his job a sinecure job.

Thomas Libous recently died, and his published obituary in the local press in Binghamton, NY, was named "A Towering Legacy".

Towering, indeed.

To die while being under a house arrest as a convicted felon.

But - you know what is conspicuously absent in the list of these convictions?

Prosecutors and judges.

Does Preet Bharara avoid prosecuting judges because they regulate his own law license, and does he avoid prosecuting corrupt prosecutors because the majority of judges regulating Bharara's law license are former prosecutors?

In a state where corruption in courts runs rampant, and wrongful convictions are a problem for decades, to prosecute only legislative and city officials for actions not concerning court corruption appears just - too cautious to me for the allegedly independent prosecutor Preet Bharara.

Don't you think?

What is a criminal act for a judge in Tennessee, is a suspendable offense for attorney to report about a judge in New York and Louisiana. The case of #JudgeAmandaSammons.

A judge may not be a prosecutor - that much is supposed to be clear.

A judge is supposed to be neutral, and should not act as an advocate.

That much is also supposed to be clear.

It is not clear in, let's say, attorney disciplinary proceedings where prosecutors are claiming to be part of the adjudicating court (that also legislates the rules), but in child protective and especially criminal proceedings, that much is supposed to be clear.

Well, it was not so clear in Tennessee where the Campbell County General Sessions Court Judge Amanda Sammons, this kind-eyed amiable-looking woman here:

reportedly "ordered Campbell County Sheriff's Office jailers to elevate a child neglect charge filed against Krista Leigh Smith for failing to buckle up her children to aggravated child abuse, the toughest abuse law on the books".

In other words, Judge Sammons acted as part of prosecutor's team on the case.

Of course, Judge Sammons denied she ever did anything like that.

Yet, why would the Campbell County Sheriff's Office (I would give them credit on that for not bending to the judge's will) have to hire an attorney - "sought legal representation from attorney Charles C. Burks Jr. who told the News Sentinel the jailers intended to testify Sammons was lying"?

So, reportedly, "LaFollette mother Smith, 26, sat in jail two days in January, first under no bond, then under a $250,000 bond — unaware of any change to the charge she faced or why her bail was so high"

And, "Sammons then altered a record of the increase in Smith's charge by marking through it with a pen, jail records showed".

This is what Judge Phyllis Keaty likely did recently in Louisiana - altered court records - and had an attorney who brought a motion to recuse addressing that issue (where tampering with audio tapes was confirmed through testimony of technical experts and the person who did the altering), Christine Mire, suspended for making that motion to recuse.

In New York, I reported criminal forgery of public documents by, first, the now-former and then-illegitimate Delaware County Judge Becker - who sanctioned me for raising the issue of his illegitimacy and forgery of certificate of elections when I pointed out the lack of such a document on file, and then by the disciplinary referee and disciplinary prosecutor in the New York State Appellate Division 4th Department - and was suspended for two years my efforts.

So, in Tennessee, when a judge alters court documents, it becomes the subject of a criminal investigation - while in Louisiana and New York reporting of such a crime becomes the subject of a disciplinary investigation and prosecution against the whistle-blower.

Judge Sammons reportedly elevated the charges from the initial E Felony (carrying the maximum sentence in Tennessee of 2 years) to a B Felony (Haley's law) designed for "child torturers", with a maximum LIFE SENTENCE.

Baby Haley, the victim of a crime of aggravated child abuse in whose name the law was named, "was burned with cigarettes, beaten with a coat hanger on her ears, had acid put in her eyes".

Mother Smith allegedly did not buckle up her child, an act of negligence, not intentional torture - and Judge Sammons, not being a prosecutor in the case, charged her with Baby Haley's law.

Not to mention that Judge Sammons refused to recuse from the case, even when her role in altering the charge and acting as a prosecutor in the case became known.

Moreover, as is uncovered in the same probe, Judge Sammons recently ordered the court clerk to charge citizens a "drug-testing fee", without the required approval of the State Legislature.

Moreover, when Judge Sammons was informed that the clerk refused to assess such a drug-testing fee, because it was illegal, Judge Sammons did not back down, but instead, in March of 2016 issued an order requiring that such a fee be assessed, law or no law.

It is the same exercise of "raw power", law or no law, by the judge ("because I said it, Counsel") as I recently discussed regarding the case of Judge Manuel Real - and that particular behavior was most sharply criticized by the 9th Circuit Judge Alex Kozinski in his blistering dissent in Judge Real's disciplinary case, where Judge Real was only reprimanded, but allowed to remain on the bench.

As to Judge Sammons of Tennessee, her shenanigans as an advocate in child abuse proceedings were not restricted to defendant Smith's case.

In January of this year, another judge reportedly had to overrule Judge Sammons, returning two children, ages 15 and 3, back to their parents, after Judge Sammons removed the children from home without a hearing or legal grounds.

Also, Sammons, a former prosecutor, reportedly refused to dismiss charges against an innocent woman unless the indigent criminal defendant would pay $50.00 assessed by the judge for the help of the supposedly free (as required by the U.S. Constitution) public defender.

Judge Sammons did the same thing in yet another case, to another poor criminal defendant, ordering him to pay $200.00 for unused services of public defender after criminal charges were dropped against him by the prosecution, as a condition of issuing an order of dismissal, and was later overruled by another judge, stating that the poor do not have to pay legal fees for unused legal services, and especially where such services were supposed, under the U.S. Constitution, to be provided for free in the first place.

Apparently, Judge Sammons required that a criminal defendant who the prosecution no longer wanted to prosecute, pay for an order of dismissal, $200.00.

Same as in the buckling-as-torture case, court records were reportedly altered to show that the fee charged for the order of dismissal is not the fee that was actually charged (and not authorized by law).

Judge Sammons also reportedly refused to issue expungements of criminal record after dismissals of cases, and ordered late-comers to the court to be arrested for contempt of court for not coming at all.

So, this kind-eyed woman thinks that she is not only a judge, but also a prosecutor, and a legislator - she is the omnipotent government, the local Queen - literally, without any constraints on her power.

Let's see if any constraints will come, or whether the "special" prosecutor will let Judge Sammons go without criminal charges.

And - here is the election campaign website of Judge Amanda Sammons.

A judge calls herself in her own election campaign "a blue-eyed assassin".  Implicating that (1) she is merciless as a prosecutor and (2) her personal appearance.

Stressing that she is "blue-eyed" is, by the way, stressing that she is also white - in a Southern state, I guess, that means a lot for a judicial candidate.

It is as racist plea as one can imagine - elect me, I am a white girl!

Here is what she said next on her campaign website in 2014:

This is Judge Sammons' motto, loud and clear:

"if elected county judge, Mandy's goal is to make the entire criminal justice system in Campbell County, at sessions and juvenile levels much more efficient and more respectful of the VICTIMS - NOT the criminals".

Wait a minute - mustn't a judge pledge be to be neutral and impartial and to uphold the laws and the Constitution of the State and of the United States?

And, isn't it true that there are no "victims" and "criminals" until the conviction - which is at the end of SOME, but not ALL criminal proceedings?

If "Mandy" had such a mentality - that all criminal defendants she prosecuted were "criminals" before they were convicted - that is only a basis for those criminal defendants to file motions to vacate their convictions because they were deprived of their due process right to an impartial prosecutor, on the basis of "Mandy"'s statements in her judicial election campaign.

Of course, after branding complainants in a criminal case as "victims" and defendants as "criminals", "Mandy" immediately attempts - unconvincingly - to pay lip service to her alleged adherence to the Constitution:  

" As a prosecutor Mandy has always strived to remember that she serves the People, not herself, and that she is sworn to uphold the Constitution, not the whims of persons pulling political strings."

And that would include her own whims.

The "rebirth" "blue-eyed assassin" campaign ad was paid-for by the - blue-eyed assassin, that is, of people's rights:

Quite a "rebirth" "Mandy" brought into the court system.

I will continue to cover this story, as the special prosecutor announced the case is "85% ready", and the decision whether "Mandy" will be criminally prosecuted will be made within 2 months.

Remember, "Mandy" was a prosecutor herself for 10 years before coming to the bench.

Will Tennessee criminally prosecute a former prosecutor and a current judge for repeat alteration of court records and abuse of office?

Stay tuned.

In Omaha, Nebraska, pillow-talk case-fixing between Chief Judge Marcela Keim and the local City Prosecutor Matt Kuhse is going to be business as usual

I wrote yesterday about a case where a federal judge refused to recuse from a criminal case where the defendant claimed he used heroin for 14 months with the judge's brother in the presence of the judge's minor nephew, and where the defendant was supposed to testify in an unrelated criminal trial involving the judge's nephew.

The judge simply claimed that he is "estranged" from  his brother, did not see the nephew for a long time - and for that reason he is not biased.  While the judge, of course, kept the defendant in question in pre-trial detention after the defendant asked the judge to recuse himself, lifted the stay he initially imposed on the proceedings while a writ of mandamus to remove him involuntarily was pending in the appellate court, when the defendant asked for as much as a bond hearing (to get out of the pre-trial detention) - and the judge, in the absence of a prohibition from the appellate court, scheduled a trial date, forcing the defendant to file a motion to speed up the prohibition.

The judge, John Adams, was  involuntarily removed from the case by the U.S. Court of Appeals for the 6th Circuit on May 9, 2016.

What does that story have to do with what is happening in Omaha, Nebraska?

Well...

Let's see.

The mayor of Omaha, Nebraska, "chose" to appoint a City Prosecutor - a man whose office is supposed to bring criminal cases in front of the local County Judge.

The trick is that the chosen City Prosecutor is "coincidentally" the husband of the County Judge in question, which presents a conundrum - either the judge should recuse and all local criminal cases should be referred to another judge, or a special prosecutor must be appointed for all local criminal cases.  In both situations, there will be additional (huge, and unnecessary) expenses for taxpayers.

So, what were the reasons Mayor Jean Stothert and City Attorney Paul Kratz who "selected" attorney Matt Kuhse to be the City Prosecutor prosecuting cases in front of Matt Kuhse's wife, Douglas County Judge Marcela Keim (a different last name, you see) despite the obvious, and irreconcilable, conflict of interest?

And why would the husband Matt Kuhse accept a position for his office to prosecute cases before his own wife/judge Marcela Keim?  Which will obviously involve at least an appearance and a possibility of a peculiar type of ex parte communications in every case his office will handle in front of the judge - pillow-talk?

And, by the way, Judge Keim is reportedly one of 12 Douglas County judges - and, "coincidentally", the presiding judge of the 4th Judicial District of Nebraska?

Of course, where Matt Kuhse works now is also a conflict of interest with his wife's job - he works for the Douglas County Attorney's Office, while his wife is the Chief Judge of the 4th Judicial District overseeing the Douglas County Court - so, at least theoretically, Douglas County may not be prosecuted for any crimes because of the relationship.

And, the Douglas County attorney Don Kleine already reportedly noted that "Kuhse oversees other lawyers in the County Attorney’s Office, and there are no restrictions on those lawyers appearing in Keim’s courtroom", and that

“[t]hey’re both extremely, highly ethical people who I know will do nothing to jeopardize anyone’s fairness on any side.”

By the way, Matt Kuhse worked in this capacity, as a Douglas County prosecutor, since 1999:

And Keim is on the bench since 2011:

Keim is the presiding judge of the 4th Judicial District, not just the County Court, since 2016, and, "coincidentally", in the same year Keim is elevated to the position of Chief Judge of the 4th Judicial District, her husband is being promoted to the position of City Prosecutor where his salary nearly TRIPLES, see the current salary of the City's "interim prosecutor" Thomas Mumgaard:

And, of course, such a promotion of the Chief Judge's husband has nothing to do with the wife's position as a Chief Judge.

Because everyone involved in making the appointment, accepting the appointment and then presiding over and "supervising" cases handled by the husband and wife team, are all very highly ethical people.

One highly ethically person oversees attorneys under his supervision who appear in cases presided over by the other highly ethically person, his wife-judge - which is ALREADY a basis to REMOVE the judge, FIRE the husband and VACATE all cases so decided, for violation of due process and APPEARANCE OF IMPROPRIETY reasons.

By the way, what Kuhse already supervised as an attorney in Douglas County was FELONY cases prosecuted in front of his wife - so both Kuhse and Keim should be already impeached and disbarred for that, and convictions so drummed up reversed.

Relationship through 1st degree affinity (marriage) between a prosecutor and a judge is a complete disqualification and a taboo, whether the actual prosecutor appears in the courtroom himself, or supervises the case remotely.

Talking about wrongful convictions!

The wife, of course, same as Judge John Adams in Ohio federal court, does not recuse - because her husband is "removed" from the case by "only" supervising those attorney who appear in front of his wife/judge, and not personally appearing in front of her.

And, in view of sanctions that the judge can impose upon attorneys for opponents who obviously can lose their livelihoods if they move to recuse (I was suspended in New York in November of 2015 for making motions to recuse a judge, attorney Christine Mire was suspended for making motions to recuse in Louisiana in 2016, the list of such attorneys is actually very long), attorneys for opponents prefer to sell out their clients not to jeopardize their own livelihoods.

And, since these appearances of husband-supervised attorneys in front of wife-judge continued, as I understand, for quite some time, the local governmental officials decided to secure their position even more, protecting themselves from possible prosecution, and to promote one of their own, a supervising attorney from the Douglas County Attorney's office, to the position of the City Prosecutor, a person who has an absolute discretion to bring or not to bring criminal prosecutions in the City.

And, the people involved in such an appointment, which clearly qualifies as a "criminal enterprise" under RICO, claim that there is no conflict of interest still, because the husband and the wife are both "highly ethical people", and "they would never".

So, the wife, as a Chief Judge, will supervise appointments of judges to criminal cases, or preside over such cases herself.

The husband will (1) decide which criminal cases to bring or not to bring - obviously sparing the local officials who were his prior bosses or colleagues - and (2) will supervise attorneys in his City Prosecutor's office to appear before either his wife as a judge, or in front of judges assigned to cases by his wife.

Beautiful.

And now, every single criminal defense attorney in the City of Omaha, Nebraska will be facing a dilemma whether to make a motion to recuse the entire court and disqualify the prosecutor, or sell the attorney's client and allow the appearance of case-fixing, to preserve the attorney's livelihood.

Lovely.

All of those highly ethical people in Omaha, Nebraska.

And - the attorney disciplinary committee in the State of Nebraska, reportedly supported the appointment of husband to supervise criminal cases in front of wife:

"[Nebraska counsel for discipline Mark Weber] said in an interview that this type of situation has come up in other states, and courts have 'resoundingly' said that a judge’s spouse can’t practice in that courtroom but that colleagues of the spouse can.


'We give people, especially our sworn judges and our attorneys, the benefit that they’ll be objective and remain objective,' Weber said."

Well, here the Nebraska "counsel for discipline" stretched the truth a little bit - Matt Kuhse is not a "colleague" of attorneys who are appearing and will appear in front of Judge Marcela Keim.  

Matt Kuhse is their BOSS, who has an obligation to DIRECT them, and where all prosecutions are done in his name, under his authority and with his signature.

The Nebraska disciplinary counsel and the state courts apparently "resoundingly" overlook this inconvenient detail.


As the situation stands now, we and, most importantly, defense attorneys defending cases against the City Prosecutor/husband sending attorneys he supervises to prosecute cases in front of his own wife, can be assured that, should a motion to recuse be brought in such a situation, the disciplinary committee will go after the defense attorneys and not after the prosecutor and the judge.

And, if you remember, attorney licensing and attorney discipline exists because it is declared by the government attorney licensing protects consumers of legal services.

THIS is how consumers of legal services in Nebraska are "protected".

In my view - as an expert in criminal defense - all criminal convictions already obtained under Matt Kuhse's supervision, and all criminal convictions that are going to be obtained under his supervision in  his capacity as a City Prosecutor, will be void because of the relationship.

The taxpayers of the State of Nebraska, as well as criminal defendants are interested in finality and fairness of the criminal convictions in their state.

Surely there are enough attorneys in the City of Omaha, Nebraska, to fill the position of the City Prosecutor other than the husband of the Douglas County's Chief Judge.

And, it doesn't help that Judge Keim has been an Assistant City Prosecutor in the same office where her husband was now appointed, from 2004 to 2011, when she came to the bench.

Here is the husband Matt Kuhse who obviously uses his familial connection to a high-ranking judge to get a promotion and salary increase:

Not to mention that Judge Keim will FINANCIALLY BENEFIT from that particular salary increase, and is FINANCIALLY INTERESTED in her husband getting that position and keeping that position, so Judge Keim has a financial interest in drumming up convictions for her husband's office.

Judge Keim already had financial interest in the outcome of every criminal conviction prosecuted by her husband's office, from 2011, when she came to the bench, to date, for 5 years so far.

In the city where gang violence and racial tension are still very much a problem, citizens must be assured that people locked up are the criminals, and not innocents framed by a case-fixing husband-and-wife team of Matt Kuhse (in his capacity as the Douglas County assistant attorney - and now City Prosecutor) and Marcela Keim (presiding judge or Chief Judge of the entire 4th Judicial District).

I request my readers from Nebraska to watch the conviction rate in the City of Omaha and whether it is higher than in the neighboring cities and/or counties since 2011, the enthronement of the wife of a local prosecutor to the bench.

I will report how this disgusting and shameless story about misconduct of the "highly ethical people" unfolds.

Stay tuned.