Talking heads thumping Trump for criticizing Judge Curiel are in denial of existing law and practices in American courts

For years, the media avoided like plague the issue of judicial impropriety and bias.

For the last couple of days, the talking heads on TV and the media discuss nothing else.

Because it is safe to do so now - because thinking is not required to just say: to accuse a judge of appearance of impropriety is:

1) racist;
2) unamerican;
3) makes the accuser unfit to be a president.

Of course, it is not just the race of Judge Gonzalo Curiel that drove Donald Trump to raise the appearance of impropriety in Judge Curiel presiding over the case of Trump University and repeatedly ruling against Trump University.

It is what is called the "totality of circumstances" including:

1) the heritage of Judge Curiel - his parents were both Mexican immigrants, and,  with all the frenzy in the media, I did not see any efforts to uncover and produce documents indicating that Judge Curiel's parents entry into this country was legal;

With the amount of money thrown into this media frenzy, to rely upon statements of Judge Curiel's brother Raul that his parents entered the country legally is irresponsible journalism.

Trump is right to raise the issue that a large part of Trump's election campaign is to build a wall and prevent further illegal immigration from Mexico.

It is nonsense to say that a judge would not feel for his immigrant parents (now deceased) and would not try to use his position of power to hurt a critic (fair or unfair) of his heritage - and it is especially so when the judge is honored in supporting the "community" which honors as its part organizations of illegal immigrants.

I wrote on this blog about a lot of different motives for judges to act as advocates and not as impartial tribunals.

The triggers range from being an athlete (like the defendant), a churchgoer (while the defendant went to the same church choir), and most definitely, the race.

The media accuses Trump of being a "racist", "unamerican" for "assaults on a judge".

There was no physical assault.

There was criticism.

Can a party in litigation raise the appearance of impropriety?

Sure.

And, are there legal standards in this country indicating that NOT taking into account the race of the factfinder is a violation of the litigant's due process of law?

Sure.  The media conveniently forgets about that.

On May 23, 2016, the U.S. Supreme Court overturned a death sentence because it was meted out to a black defendant by an all-white jury - in 1987, that is 30 years ago:

"The State’s new argument today does not dissuade us
from the conclusion that its prosecutors were motivated in
substantial part by race when they struck Garrett and
Hood from the jury 30 years ago. Two peremptory strikes
on the basis of race are two more than the Constitution
allows.

The order of the Georgia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion." 

In other words, the U.S. Supreme Court, in 2016, overturned a death sentence - that a judge allowed - which was motivated by race of the fact-finders.

Which means, race of the fact-finders matters.

Very much so.

Why do we actually strive for "judicial diversity"?

Why do we want more judges of color on the bench?

The U.S. Supreme Court Justice Sonya Sotomayor answered that question:

In 2001, Sonia Sotomayor, then an appeals court judge, "gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”"

Sonya Sotomayor was recently in the middle of a controversy with her other statement - to force lawyers to provide free services for the poor as a condition of having a law license.

That statement of Sonya Sotomayor was vigorously discussed in the press.

The 2001 - on point - statement of Sonya Sotomayor that the ethnicity and sex of a judge "may and will make a difference in our judging" is all but forgotten, and Trump is jumped upon - for saying the same.

That the ethnicity of a judge does matter and, in his case, does raise an appearance of impropriety.

Sonya Sotomayor, in her famous speech, rejected the notion that it does not matter that the decision is made by a white or non-white judge, by a man or woman (which is how it should be).

Sonya Sotomayor, who was since PROMOTED to the U.S. Supreme Court, thinks otherwise:

"In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

That's EXACTLY what Trump doesn't want in a judge in his case.

A "wise Latino man" who would draw from and based his decisions not upon the record and the law, but upon the "richness of his experience" - and from the "richness of experience" of his Mexican immigrant parents, now both deceased, and thus even more honored by the judge.

In other words, Trump wanted to exclude a possibility of Judge Curiel making a decision in  his case based on extra-judicial factors - which is EXACTLY what the "wise Latina woman" Sonya Sotomayor was calling upon judges to do since 2001.

2) Affiliations of Judge Curiel with advocacy organizations for illegal immigrants

It was discussed in the media ad nauseam whether Judge Curiel's participation in a lawyers' group which itself is affiliated with the nationalist La Raza movement raises an appearance of impropriety.

From the point of view of ensuring a right to a fair trial for Trump University - where its founder has pledged to fight illegal immigration from Mexico, and made offensive statements against Mexican immigrants equating them with criminals - Trump has a point, and that is especially given the speech of Sonya Sotomayor and her "wise Latina woman" drawing upon her experiences as opposed a white man who "didn't live that life".

Trump also has a point where Judge Curiel:

• sat on panels awarding scholarships to illegal immigrants; where 
• the organization he sponsors honored him for "support of community" and of the La Raza San Diego Association as recently as on May 26, 2016;
• organizations of illegal immigrants are considered by the San Diego Lawyers Association as part of the "community" that Judge Curiel was just honored for serving so well;

That would give any litigant enough pause and a basis to make a motion to recuse judge Curiel.

The reason why Trump's lawyers do not make such a motion is not because it is not merited, but because the current climate of sanctions against attorneys who make motions to recuse, and the media frenzy around the case intimidated the lawyers into considering their own interests (in not being sanctioned and not losing other business and not to be boycotted) over and above the interests of their client.

3) What would also give me pause is the answers of Judge Curiel at his confirmation hearing before the U.S. Congress.

In his answer to questions ## 6 and 8 below (which was pre-prepared by Judge Curiel), Judge Curiel put precedents of the U.S. Supreme Court and federal appellate court, even erroneous (unconstitutional?) precedents, above the U.S. Constitution - while such precedents are NOT part of the Supremacy Clause, DO NOT trump the U.S. Constitution, and ARE NOT binding upon any court if they are made in violation of the U.S. Constitution.

I received recently an e-mail from an individual in some advocacy group appealing to members of the e-mail list to distance from Trump and not to discuss the issue whether there is or there is no appearance of impropriety in Judge Curiel presiding over the class lawsuit against the Trump University.

The e-mail was pointing out that it is the wrong person and the wrong situation where the appearance of impropriety should be raised, in other words, not a "perfect showcase".

I disagree.

The media's silence - in general - on the issues of judicial misconduct, bias, and impropriety, of judges of all races and genders - and the media's frenzy once a prominent, and much hated (deservedly on many points), presidential candidate raises this issue, and the way the public responds, after being heated up by the cues from the mass media, actually warrants and even mandates a response from those of use who see what is really going on.

It is not inappropriate to raise ANY issues raising the appearance of impropriety.

The right of access to court, the right to an impartial judge, the right to a fair trial are all fundamental constitutional rights, guaranteed by the 1st, 5th and 14th Amendment.

The right to criticize a member of the government - any member, including a judge - is a fundamental constitutional right, guaranteed by the 1st Amendment to any one of us, including a presidential candidate, no matter how he is hated by some people, and no matter whether that hate is deserved or not.

A Latino U.S. Supreme Court Justice Sonya Sotomayor endorsed judicial decision-making influenced by race and gender of the judge, and drawing on the judge's background and experiences outside of the record.

I do not see the media talking heads criticizing her.

The pleading standards in federal court - the infamous Iqbal and Twombly cases - allow judges to draw upon their own extrajudicial experiences.

Once again, Judge Curiel is allowed by the U.S. Supreme Court precedent - which he pledged to follow at his confirmation hearing, whether it is erroneous (unconstitutional) or not - to draw on his own personal experiences in deciding court cases.

I do not see the media criticizing or even mentioning Iqbal and Twombly cases.

I only see the media in a frenzy DENYING that Judge Curiel would do what the precedents allow him to do.

And I only see the media eating alive Donald Trump for saying that doing what Sonya Sotomayor claimed a judge must be doing, and what the U.S. Supreme Court in Iqbal and Twombly allowed judges to do - drawing upon their own personal experiences in deciding cases - which is what Trump discerned in Judge Curiel's decisions - was wrong.

It is wrong.

Let's sum it up.

1) Race matters in court decision-making, as ruled in:

Batson v Kentucky, 476 U.S. 79 (1986);
Foster v Chatman, (May 23, 2016)

2) Drawing upon a judge's personal experiences related to his racial heritage should be done as part of judicial decision-making - according to the U.S. Supreme Court justice, a "wise Latina woman" Sonya Sotomayor.

3) Drawing upon a judge's personal experience in deciding federal cases is allowed at the pleading stage, for purposes of deciding a motion to dismiss before reviewing any evidence in the case - by a U.S. Supreme Court case 

Ashcroft v. Iqbal, 556 U.S. 662 (2009):

"whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and common sense" - see criticism of that decision here and here.

In 2010 there was an empirical study conducted of decisions made by judges of different races.

The article describing the study actually indicated that racial diversity in the judiciary is important because:

"[i]t is essential that judges have an ability to relate to a rapidly growing diverse culture and the experiences of minorities vulnerable to White people in positions of power within industries predominantly controlled by Whites."

A judge's "ability to relate", or empathy to a certain class of litigants, is called "bias".

A judge should be even-handed, impartial and should correctly and fairly apply the existing law, based on the record of the case - that's all the judge has to do.

If in any judicial confirmation hearings, a judge would be tested for his or her "ability to relate" to various classes of litigants - there will be a media frenzy of another kind, condemning the judicial candidate for seeking his judicial seat to promote interests of a certain class of litigants to which the judge "relates".

The existing law, the existing studies, statements of a presently sitting U.S. Supreme Court Justice clearly indicates that race matters in judicial decision-making.

Many litigants, mostly pro se (because attorneys are afraid to raise the issue) are raising the issue - in pleadings and in social media - that judges make decisions in favor of people with backgrounds similar to the judge, including ethnicity, religion, church, cultural values etc.

But, when such an issue is uttered by a presidential candidate - the media immediately calls him racist, and political capital is made on bashing him.

Based on the facts at his disposal, and existing laws and practices as described above, Trump had every right to raise the issue of appearance of impropriety in Judge Curiel presiding over his case and repeatedly ruling against his institution.

The taint is not removed by claims that Judge Curiel's decisions are supported by evidence.

For purposes of fairness of adjudication, appearance of bias and impropriety is as important as the actual bias and impropriety.

And, if the media really wanted to protect a judge from racist attacks - the media should protect the recently suspended Judge Olu Stevens of Kentucky - a black judge who was suspended by a racist judicial system for insisting that the anti-racist law, Batson v Kentucky, is followed in the racist criminal justice proceedings.

The black judge Judge Olu Stevens actually called out a white prosecutor for being a racist.

And was suspended for his efforts to enforce the anti-discrimination law.

I don't see any media frenzy defending Judge Olu Stevens though.

A judge has no claim for racial discrimination where he is in a position of power to decide a case of a litigant, is allowed to draw upon his personal experience to make such a decision, and where the top judges in the country encourage judicial decision-making based on the judge's racial heritage.

Don't fall into the trap of bashing Trump on this issue.

It is not un-American to question impartiality of a judge.

It is not un-American to try to secure a fair trial for yourself, by statements in court and out of court.

It is not un-American to criticize a judge in a public forum, including for decisions based on the judge's racial heritage.

I will never forget how a black client, an Army Veteran who went through combat where his country has sent him,  a man with no criminal record, told me about civil court proceedings in front of white judges - "they are not ready to see the likes of us without shackles".

That was not in the Bible Belt states.  That was in the State of New York.

Race in judicial decision-making matters.

To deny it is to deny the obvious.


If there can be prejudiced decisions by a white judge against a black litigant, there can be prejudiced decisions by a judge of any race against a representative of another race.

How to fight ethnic-based bias in judicial decision-making?

On a case by case basis.

Like Trump is doing.

To support Trump-bashing at this time, when he had every right to raise the issues he is raising, is to deny yourself in the future a possibility to raise issues of judicial impartiality and appearance of impropriety in court proceedings, and I am talking about litigants of any racial and ethnic background.

You have a right to a fair trial.

You have a right to a judge who is, at the very least, not an advocate for a group you are criticizing or whose access to the U.S. you are trying to restrict, and especially not an advocate because of blood ties.

You know the saying - "blood is thicker than water".

It is.

In racial and ethnic issues, too, and judges are human.

When a litigant feels he is treated unfairly and may be the victim of an ethnic-based judicial bias, he must be able to raise that issue.

It is a legitimate issue ensuring access to court and the right to impartial judicial review and fair trial to all of us.

Don't sell yourself out, don't fall into the traps of the talking heads.

They have money to make - as well as politicians who condemn Trump for "judge-bashing" to make political capital out of it.

On our backs.

And, before continuing to bash Trump, please, consider reading these law review articles:

Cornell Law Review, 2009 - "Does unconscious racial bias affect trial judges?" 

An article claiming that judges stereotype - and make their decisions - based on judge's own race and race of litigants in front of them.

This article, measuring sentences by white judges against white and minority defendants.  If a white judge on minority defendant bias exists, a minority judge on white defendant bias may exist, too - don't you think?

Yet another study on race-based judicial bias claims that "[s]ince African American judges have likely experienced discrimination themselves, they can recognize more complex and subtle forms of racial harassment".

If you are in a jury pool, and you have "likely experienced" the type of crime you are judging - you will be taken off the case, because there is a high likelihood you will act as an advocate.

Judge Curiel - let's remember that - was raised in poverty, by two laborer Mexican immigrant parents who both died young, likely because of their hard labor past.

And finally, there are many judges in the district court where Judge Curiel "serves".

Once again, Judge Gonzalo Curiel was picked to be assigned to 2 out of 3 lawsuits against the Trump University, out of 16 available judges:

1. Cynthia Bashant - white Non-Hispanic female, no evidence of immigrant parents;
2. Anthony J. Battaglia - white non-Hispanic male, no evidence of immigrant parents;
3. Cathy Ann Bencivengo (nee Palumbo) - a white female, possibly Hispanic, no evidence of immigrant parents;
4. Roger T. Benitez - Hispanic, immigrant, born in Havana, Cuba;
5. Larry Alan Burns - white male, U.S.-born, no evidence of immigrant parents;
6. Gonzalo P. Curiel - Hispanic, born to Mexican immigrant parents;
7. William B. Enright (born 1925, 91 years old) - a white Non-Hispanic male, no evidence of immigrant parents;
8. William Q. Hayes - white non-Hispanic male, no evidence of immigrant parents;
9. John A. Houston - African American, no evidence of immigrant parents;
10. Marylin L. Huff - white non-Hispanic female, no evidence of immigrant parents;
11. M. James Lorenz - white non-Hispanic male, no evidence of immigrant parents;
12. Jeffrey T. Miller - white non-Hispanic male, no evidence of immigrant parents;
13. Barry Ted Moskowitz - white non-Hispanic male, no evidence of immigrant parents;
14. Dana M. Sabraw - a male judge, has a Japanese immigrant mother
15. Janis L. Sammartino - white female, no evidence of immigrant parents
16. Thomas J. Whelan - white male, no evidence of immigrant parents

The state of California where the court sits has the following demographic composition:

According to 2014 US Census Bureau estimates, California's population was:

• 73.2% White, 
• 6.5% Black or African American, 
• 14.4% Asian, 
• 1.7% American Indian, 
• 0.5% Pacific Islander and 
• 3.7% from two or more races. 

By ethnicity, 

• 38.6% of the total population is Hispanic-Latino (of any race) and 
• 61.4% Non-Hispanic (of any race).[11]

Ok, so the population is more than 1/3 Hispanic.

Out of 16 judges of the court - 2, possibly 3 Hispanic judges, that is 12 to 19%.

Once again - there are 38.6% of Hispanic people in population, and 12 to 19% (I am not sure about Judge Bencivengo/Palumbo).

That is less than 1/3 of the proportion of Hispanics in the population.

There are 14.4% Asians in California's population.

There is 1 (one) judge who is half-Japanese in the court.  That is 6% of the court, more than 2 times less than the proportion of Asians in the population.

There are 6.5% of African Americans in the California population - and there is only one African American judge, about the same as proportion of the population (the question is though why the African American population is so scarce, twice less than the average in the U.S. - is California actively discriminating and preventing African Americans from settling in?).

Four females out of 16 judges, too.

So, the court where Judge Curiel serves was composed as a mysoginistic white male-dominated body.

There are only 2 (possibly, 3) Hispanic judges on that body.

There are only 3 judges who have any personal experience with immigration - one judge was born in Havana, Cuba, one judge has a Japanese immigrant mother, and the third judge, Judge Curiel, has two Mexican immigrant parents.

Judge Curiel is the ONLY judge out of 16 judges who has Mexican immigrant parents.

Trump is fighting illegal immigration, specifically out of Mexico.

Is it a coincidence that out of the body that was composed in such a way that it is dominated by white male judges (it is not Trump who made up that court that way), the judge assigned to him is the ONLY judge with Mexican immigrant parents?

Don't talk racism.

Talk common sense.

Judge Curiel was picked for this case for a reason.  And he is doing his "job" well.

A DA with a toy electric chair

A district attorney anywhere is supposed to carry out "dual roles" - to vigorously prosecute crimes, and at the same time to make sure he is fair to the accused and to the public and the victim.

Right.

We know how it works generally - prosecutors are drumming up convictions no matter what is the law or the record, and are unflinchingly offering false evidence, feeling fully protected to do that by the judge-created concept of absolute prosecutorial immunity.

But, usually prosecutors at least keep the front of pretending that they are doing their dual duties/roles and are fair and impartial to the accused.

Not so in a case in Georgia, a state with a death penalty, where a "toy electric chair" was on display in the office of Alcovy Judicial Circuit #DistrictAttorneyLaylaZon.

Here is Layla Zon's official biography on her DA's website.

She is prosecuting death penalty cases.

And in her office she keeps on display a "toy" described as follows:

“Death Row Marv” is a battery-powered toy electric chair that produces an electric buzzing sound with Marv’s eyes glowing red under a helmet attached to electrodes. After his “electrocution,” Marv asks, “That the best you can do, you pansies?”

And because of that toy - a motion to vacate a death penalty was recently filed in court where the defense counsel puts it out like it is - that Layla Zon "is 'pathologically enthralled' with the death penalty and has pursued it with a fervor and zeal unmatched by any other district attorney in the state".

AFTER the motion was brought, DA Layla Zon said that she seeks only death penalty in cases that "warrant" it, that the toy was in her office before she became a DA in 2010 and that she has "recently" removed "the toy".

Well.

2010 was 6 years ago.

Layla Zon worked in the DA's office - and obviously saw the "toy" before, too - she joined the DA's office in 2000.

If it was the previous DA's idea to display this "toy", and Layla Zon did not have authority, as a subordinate employee, to remove it, Layla Zon's DUTY was to REPORT it as PROSECUTORIAL MISCONDUCT to disciplinary authorities, to the courts and to the defense counsel in all death penalty cases - which she obviously did not do before 2010.

When Layla Zon became the DA herself - in 2010 - it was her duty to remove the "toy" and give an ethics course to her staff about it - which she did not do either.

And, Layla Zon, when cornered, displayed an astounding casualness about what the "toy" is and represents:

"'It was not something I purchased to decorate my office,' she said. 'It was a left-behind trinket that became part of the woodwork. … I never sat and looked and fixated on it, like it was part of some medieval mindset.'"

So, we need to be grateful that Layla Zon just had an electric chair on display in her office and "never sat and looked and fixated on it".

You know what says that she did fixate on it?

The toy was battery operated.

If anybody saw it operated during the term of Layla Zon - from 2010 to 2016, it is not simply a "trinket left behind", batteries go bad quickly, they need to be replaced.

The toy was obviously a cherished "part of the woodwork".

And, whatever Layla Zon says now that the "toy" is exposed to the media scrutiny and to a motion to vacate a death penalty, the appearance that for the DA death penalty is entertainment requires her removal from that position - together with her subordinates and staff who supported such entertainment.

Predictably, the person condemned to death by a white prosecutor in the Southern State of Georgia, is black.

His name is Rodney Young, and he is poor - otherwise he would have had a private attorney and not the "state capital defender" representing him.

The motion of Rodney Young's public defender also says that Layla Zon turned down Rodney Young's request to plead guilty in exchange for a life sentence, even though such a rejection of a plea offer resulted in, probably, millions of dollars for state taxpayers for the trial and for the death row appeals that may go on for years.

A conviction on a plea bargain with a life sentence would not have been subject to such appeals.

She was determined - and inspired by the "Death Row Marv" (which is still sold on Amazon, by the way - which would not have happened in any civilized country) - to put Rodney Young on the death row.

Georgia is a death penalty state.

But, the death penalty in the state is administered by a lethal injection.

The lethal injection - and the death penalty itself - are subject to increasing protests and U.S. Supreme Court filings addressing it as a cruel and unusual punishment.

But, whether it is or it isn't a cruel and unusual punishment, the electric chair is not and has not for a while, been used in Georgia for executions.

The motion of Rodney Young said that 

" The motion notes that the Georgia Supreme Court in 2001 found that death by electrocution caused excruciating pain with a certainty of “cooked brains and blistered bodies.”

“The idea of any elected state official memorializing such a barbaric (and unconstitutional) practice with an office ornament would be surprising and troubling,” the motion said. “The fact that the elected official at issue here is a constitutional officer entrusted with virtually unfettered discretion in deciding which defendants under her jurisdiction will be singled out for execution, and which will be spared, is cause for real concern.”

Now Layla Zon says she regrets she didn't trash the toy when she came to office.

But - she didn't trash it specifically because that she didn't think it is inappropriate for a prosecutor in a death penalty state to display such a thing in her office.

And that is the problem, whether the "toy" will be now removed or not.

With the "toy" Layla Zon and all members of her staff who supported such entertainment, should be removed, too.

That white guy Shakespeare

I've just written a blog about the Afro-Russian poet Alexander Pushkin who, during his short life (he was fatally wounded at a duel at the age of 37 in 1736) managed to produce an enormous amount of rhymed verse, plays and prose - and is until this day considered the founder of the Russian literature and the greatest Russian poet.

Alexander Pushkin was black.

Yesterday was his birthday.

I did not see a lot of celebrations of his heritage as a heritage of a literary genius of African descent.

What I saw instead is an announcement that Yale students call for abolishment of a "core course" in English literature.

Why?

Because only white male straight poets were included into the curriculum.  And students rebelled and claimed that the English major must be "decolonized".

So, who "colonized" the English major at Yale university?

Here are the names of the offending poets:   

For the fall semester:

1. Geoffrey Chaucer (1343-1400);
2. Edmund Spenser (1552-1599);
3. William Shakespeare (1564-1616);
4. John Donne (1572-1631), and

For the spring semester:

5.  John Milton (1607-1664);

6. Alexander Pope (1688-1744);

7. William Wordsworth (1770-1850);

8. TS Eliot (1888-1965)

The course was meant to "provide all students with a generous introduction to the abiding formal and thematic concerns of the English literary tradition.”

One of the students renouncing the "poets sequence", "Margaret Shultz ’16, who majored in English, said she supports the request to abolish the Major English Poets sequence. She added that while there are many great courses in the department that relate to race, gender, ethnicity and sexuality, they are mainly upper-level courses that are not emphasized as the “core curriculum.”

Students actually filed a petition to abolish the course which says, among other things:

“A year spent around a seminar table where the literary contributions of women, people of color, and queer folk are absent actively harms all students, regardless of their identity,” the petition reads. “The Major English Poets sequences creates a culture that is especially hostile to students of color. When students are made to feel so alienated that they get up and leave the room, or get up and leave the major, something is wrong.”

I wonder if "students of color" or women or "queer folk" would stand up and leave the room where they are taught, let's say, chemistry, or physics, or any other science that was, until recently dominated by white males.

It apparently does not occur to students of any identity that even in the United States, homosexuality was a crime until just 15 years ago, and it was punishable by death in Europe in the middle ages.

What kind of "literary contributions of the 'queer folk'" - acknowledging their homosexuality in the open - do our modern-time students expect?

Actually, hints at homosexuality exists in the works of the same:

Geoffrey Chaucer;
Edmund Spenser;
William Shakespeare;
John Donne

Should straight students now get offended of the same course and feel that the course creates a "hostile environment"?

Actually, to me, a person who has been born and raised in a Communist country, the USSR, this petition caused a flashback to the years of the so-called "socialist realism" in the literature.

Because the Yale students did not say the poets chosen were bad poets, or that they did not reflect the literary tradition - which is exactly what they came to Yale to study.

They did not like the fact that the identity of the poets and topics of their poetry - allegedly - did not reflect the latest-day concept of diversity, which did not exist at the time the overwhelming majority of these poets (7 of 8) lived and worked.

In the USSR a person could not be considered a bona fide writer worth to be known to the public if he or she did not write in the tradition of "socialist realism".

My memory is still crammed - from childhood, cannot uncram it - with verses I was made to memorize at school that, if I recite today, will raise quite a few eyebrows.

Yet, at that time that was the requirement of the day for poets and writers who wanted to see their name in print to write in that "tradition".

The verses that I was made to memorize at school promoted loyalty to the country and the Communist party beyond your life, rejection of relatives and their religion,  glorifying snitching to authorities of your parents if they were idelogically opposed to the party.

Movies in the country swept by pre- and post-WWII hunger and destruction was about the greatness of Stalin and of the same communist party.

The true issues were not allowed to be described.

It appears that now the future rulers of this country - the intellectual elite from Yale - claim they will be offended by simply learning about the literary tradition, because the literary masterpieces they are assigned to read were not created by women, "people of color" and "queer folk".

As to the "queer folk" I already pointed out that the youngsters who were keyboard-happy to write and file the petition, did not give themselves time to research the history of the time when the "assigned" poets lived and whether those poets were actually "closet" homosexuals who were simply afraid to reveal their identity because there was a death penalty for homosexuality that was considered a sin by the church.

The students did not consider that women were predominantly illiterate at that time and property of men - so what kind of creativity, and especially published literary works, could you expect from women of 14th to 18th century?

For example, a 12th-13th century female poet Marie de France was (as scholars say) an abbess and a half-sister of English King Henry II.

Marie De France wrote in French, so her work cannot be attributed to the English literary tradition.

Another known female medieval poet, and also a member of the nobility, is known only by name, Gwerful Fychan - and her literary works reportedly did not survive, and she lived in Wales, which is a different language.

There are many medieval female poets known - but all of them appear to be from either Wales, or France, or Spain, or Italy, or they were Arabic, so their works could not be assigned in an English major class.

What I did not see in the students' petition is suggestions.

The youngsters came to Yale to study English literature and the English literary tradition.

That literary tradition was created gradually, for centuries, and was influenced by history of the period when literary works were created.

While it may be offensive that women, and people of color, and homosexuals were not well represented - or represented at all - in the English literary tradition of several centuries back, if that is part of history, history cannot be re-written just because we want it.

If there were no known outstanding female poets, or openly homosexual poets, or poets who were "people of color" who contributed to the English tradition of 14th to 19th centuries - we cannot re-write the history where a few white males were the privileged class and prevented education of everybody else. 

That history cannot be re-written, and hiring a modern female African American poet will not replace knowledge of the English literary tradition of 14th - 19th centuries.

If students want to find such authors - they can just as well do it, and present the faculty with the names and the works they want to be assigned, which they did not do in their petition.

Yet, if students pressure the faculty as to how to restructure assigned courses, the university can always ask such students to go some place else, where they will like the curriculum better.

Because a petition without any suggestions as to who is going to replace the "eight white male poets", the renowned classics of English literature, is simply pressure seeking publicity and disrupting work of the school, and nothing else.

I cannot imagine while people cannot read - and enjoy - good poetry without seeing whether the person who wrote it is a woman, what is the author's sexual preferences and what is the author's skin color.

It is profoundly bizarre to me to assess the worth of a work of art by the identity of who created it.  If it is written by a woman - the poem is good, by a white male - bad?

If Yale yields to this pressure, we will then see pressure upon professors in other courses, and in other schools - from chemistry to math - to assign for studying only the work created by "women", "people of color" and "queer folk", without regard of the actual value of that work, and while overlooking the work created by "white male" authors.

If the Yale faculty allows students to control the curriculum, governed by the students' desire to remain illiterate as to the actual classics of the English literary tradition because of identity of their authors, that would be the end of education.

I will then suggest, as a taxpayer, that IRS should withdraw the tax exemption from Yale, and from any other "public charity" schools, if schools eliminate proper educational content from the curriculum because of the color of the author's skin.

I wonder if William Shakespeare could imagine that at any time in the future he and his works will be sought to be banned from the curriculum of one of the best universities in the world because of the color of his skin.

To those students who continue to engage in this educational racism, I suggest: stop using all modern time inventions and conveniences unless you verify that they were not created by white males, but instead are created exclusively by women, people of color and "queer folks".

Be consistent.

That black guy Pushkin

Yesterday, on June 6, 2016, it was a 217th anniversary of the birth of one of the greatest - or THE greatest Russian poet Alexander Pushkin.

This is his portray as a young man.  And yes - the greatest Russian poet Alexander Pushkin is of African descent.

Alexander Pushkin's great-grandfather was black.  His name was Abram Gannibal, an Afro-Russian noble, military engineer and general under the famous Russian czar Peter the Great.

Abram Gannibal was brought as a child slave from what is now Cameroon and gifted to the Russian czar Peter the Great - who came to love the child, raised him as a son and godson, gave him a title of nobility, and got him married into a family of Russian nobility to give him a future in a patriarchal country.

I did not see much of public celebration of his heritage in the U.S., or of his contribution to the world literature.

It may be attributed to the fact that Pushkin wrote in rhymed verse - in Russian, of course - and, as any translator knows, to translate verse, the translator him/herself needs to be a gifted poet, writing also in rhymed verse.

It has been noted by observers, most recently, yesterday, by BBC (the article is in Russian, I will strive to find the English version), that poor translations of Pushkin resulted in misunderstanding of his works by readers in other languages, that, while the West "expects" from Russian literature to be philosophizing and discussing existential issues, Pushkin's verse is intimate and delicate - and, I must add, that is true even though Pushkin touched upon in his verse and prose deep philosophical issues, and described historical events.

Pushkin, I must say, was also a rebel against religious dogma and zealotry.  His "Gabrieliad", written when he was 22 (he was fatally injured at a duel at 37) is openly mocking the concept of immaculate conception.  Even though Pushkin denied authorship of "Gabrieliad" during his lifetime, scholars analyzing his works - as well as any reader who knows Pushkin's style - will find it difficult to believe that anybody else wrote that poem.

In Russia, every child remembers as bedtime reading - for 2 centuries so far - Pushkin's fairy tales.

Pushkin's romantic verses are famous, as well as his "Little tragedies" cycle and his historical prose:

"The Captain's daughter" - a novel about the uprising of Emelyan Pougachiov against the just-enthroned empress Catherine The Great and

"Peter The Great's Negro" ("Арап Петра Великого") - before accusing me, please, note that the book was written in the 18th century, and that I cannot change its title.

His two poems in verses were turned into operas - "Eugene Onegin", music by Piotr Chaikovsky, and "Ruslan and Ludmila", music by Mikhail Glinka.

Pushkin is part of the world literature, the founder of the Russian literature, and surely a Goliath of the African heritage literature, and it is a shame his anniversary was not noted, nor his literary heritage celebrated in this country on his birthday yesterday.

A judge-advocate for the rapist is condemned in the media and by the state Legislature - just one judge-advocate, and only because of the social media outrage

I wrote about a couple of judge-advocates today - one from Kentucky, who advocated his religious beliefs on marriage in his courtroom while promoting his novel and acting out his invented procedures from the novel.

Another is about a military veteran judge who was giving leniency to violent felons who were military veterans and advocating for them even after he gave them "house arrest" and probation instead of 20 years in prison in accordance with charges.

By the way, I did not discern any public outrage from that sentence - where a trained-to-kill man is being unleashed upon the community, and 50 more such people are hatching in the Veterans Treatment court.

Yet, public outrage with judicial decisions which look pretty much like advocacy for the defendants still happen.

For example, a petition has been launched to take from the bench the judge who sentenced a rapist convicted by a jury to 6 months in jail plus probation - for a felony, where, as of yesterday, 152,000 signatures have been collected.

The public outrage is complete with an Assemblywoman's public request to the judge to resign, and threatening to "exhaust other measures for holding him accountable" if he does not resign.

On the one hand, a judge must not be swayed by public opinion, and pressure from outside sources should not sway judicial decisions.

On the other hand, the public is obviously capable of seeing things through and seeing that Judge Aaron Persky, a former athlete, had a soft spot for another former athlete, convicted felon Brock Turner - and thus thought it too tough to hold him fully accountable for rape he was convicted of by the jury.

Yet, I am sure that if the prosecution would have asked the judge to recuse because of his background as an athlete, the judge would have laughed the prosecution out of the courtroom by telling them that his background as an white male athlete is "too attenuated" to recuse him from this case.

And, nevertheless, his background mattered - and he did act as an advocate for his "brother" athlete-the-rapist.

So, next time a judge tells you that his background is not important and is "too attenuated" for the appearance of impropriety charge - remember this case.

And remember Judge Holder's case.

And remember Judge Philpot's case.

Because the judge's background matters - and judges often engage in advocacy for the parties they deem attenuated to.

Here it is the rapist who was an athlete.

In another blog here I described a judge who gave leniency (in an ex parte hearing, without the presence or notification to the prosecution) to a sex offender probationer who sang in the church choir at the church the judge attended.

Judges know they are immune from prosecution.

And they do engage in advocacy on behalf of parties they favor.

And the only reason, unfortunately, for calls for resignation of Judge Persky is because of the storm in social media.

If people are silent, judges advocates will proceed fixing cases for those they favor.

Judges as advocates for causes in their own courtrooms: A military veteran judge disciplined for advocating on behalf of his brother, an army veteran, a violent felon "Green Beret" who committed a hate crime against a presumed Muslim

In a bizarre turn of events, a Florida judge Gregory P. Holder agreed to a reprimand for his role in acting as an advocate for an army veteran, Green Beret Clay S. Allred.

Here is what Clay S. Allred did:

"An Army National Guard reservist at the time, Allred was staying in a hotel in Ybor City while waiting to move into an apartment that was being painted. His Jeep was loaded with the few things he owned — three rifles registered to him, some body armor he used during training, clothing, dishes, ironing board, computers, guitar and cables.

He spent a good part of Aug. 21 drinking. On the way back to his apartment, he finally had a break with reality at a gas station on Fowler Avenue and Bruce B. Downs Boulevard, at a corner of the USF campus.

For Allred, the memories of what happened next are hazy. Much of what he knows comes from a video taken of the incident.

He says he wanted to use the bathroom but was told it was only for customers. He tried to buy an energy drink, but the clerk wouldn’t break his $100 bill.

Then he urinated on the counter and yelled “I hate you people” to the clerk, Quadratullah Hassan, who is Muslim.

Hassan chased Allred out to his car.

As Allred pulled away, he fired three shots from his Glock 26 pistol into the air."

Ok, so we have:

1) driving while intoxicated;
2) urinating on the counter in a public place - that's public lewdness,  a sex crime in many states;
3) aiming a Glock 26 pistol at a clerk, and
4) firing a pistol into the air - three times - in a public place, and at a gas station, which could have caused fatalities.

Clay S. Allred was already given tremendous leniency, a house arrest and probation, a leniency that can only be explained by the military veteran-judge's partiality to a military veteran who, instead of being prosecuted for felonies, was given a slap on the wrist.

Allred was charged with "discharging a firearm from a vehicle, a second-degree felony with a maximum penalty of 15 years in prison, as well as aggravated assault with a deadly weapon, a third-degree felony punishable by up to five years in prison, and criminal mischief, a first-degree misdemeanor" - but, interestingly enough, he was not charged with public lewdness (urinating in a public place), a sex crime.

After all that, Allred was given a house arrest and probation, and his "brother", an army veteran judge Holder engaged in advocacy on his behalf even after he was convicted.

Judge Holder wrote to the Allred's university that expelled him after he committed a crime, asking to restore him as an online student.

In many online programs, students must take some exams in person and thus appear on campus.  

It is thus understandable that the university refused to enroll the convicted violent felon, protecting other students and people on campus from violent outbursts of this trained-to-kill army veteran who hates Muslims to the point that he already shot (in the air for now) when seeing a person of Middle-Eastern descent and who engaged in public lewdness - for which he was never even charged.

The judge himself is a retired colonel.

With all that in-built bias, the judge presides (and was left to continue to preside) over a Veterans Treatment Court - while obviously acting as an advocate and not as an impartial judge, and letting dangerous, trained-to-kill, felons to have a slap on the wrist and remain free to commit more crimes.

After Allred's case was closed - with house arrest and probation for several violent felonies - Judge "Holder continued to lobby for Allred. In November, he wrote a letter to USF's president asking that Allred to be readmitted to the university as an online student. He pleaded before the school's board of trustees, enlisted the support of Veterans Affairs Secretary Robert McDonald in Washington, D.C., and sought help from U.S. Sen. Bill Nelson, D-Fla."

What is amazing is that the Veterans Affairs Secretary Robert McDonald considered it appropriate to help a judge advocate on behalf of a violent felon to enroll that violent felon into the university - which is another shooting waiting to  happen, just wait until Allred drinks again to the point of urinating on the counter in a public place.

When the university, protecting its students, employees and visitors from another potential campus shooter, refused to enroll Allred, the judge "called the university's response "an absolute abdication of their responsibility to their students, especially their student veterans."

In fact, what the university did in refusing to enroll Allred was a complete opposite - a responsibility to the students, employees and visitors.  But, for the judge the only thing that mattered was that Allred was his "brother", a military veteran - and for the judge, the benefit for the "brother" was more important than the danger to the lives of thousands of people on campus and in the community.

For that - the judge "agreed" to a reprimand only.

When a judge starts to engage in advocacy for a person with the same background as the judge himself - the judge should be taken off the bench immediately, not "agree" to a reprimand.

At this time, since the judge received only a slap on the writs and was allowed to stay on the bench, he will simply disguise his advocacy into what will be deemed as "judicial discretion".  But he remains an advocate for the veterans, even for those who present a danger to the public, like Clay S. Allred, a former Green Beret who Judge Holder allowed to escape violent hate-crime charges.

Since Judge Holder was given only a slap on the wrist, expect more of the same - and worse - from him.

Since Clay S. Allred was given only a slap on the wrist, expect more of the same - and worse - from him, too.

Remember, Clay S. Allred is a trained Green Beret who hates Muslims, and who discerns whether a person is or is not a Muslim by how he or she looks.

Clay S. Allred "completed mental health counseling.

He logged more than the required number of community service hours.

And he has stayed away from alcohol."

It is acknowledged in the article that "in another courtroom, those accomplishments wouldn’t have meant as much.

But on this Friday, Allred, a former Green Beret staff sergeant, was appearing in Hillsborough County’s Veterans Treatment Court, where the steps he’s taken mean the difference between prison time on felony charges and house arrest."

This is not a non-violent crime.

This is a person trained to kill pointing a loaded gun at another person because he hates that person for no other reason than his presumed religious affiliation.

Clay S. Allred faced 20 years in prison for his crimes.

He escaped with no jail time at all, thanks to Judge Holder.

I wonder if the victim of Clay S. Allred's crime was consulted about propriety of such leniency.

"The Veterans Treatment Court was launched in October 2013 by county Circuit Judge Richard Weis, a lieutenant colonel in the Army Reserves, who saw a steady stream of misdemeanor charges filed against veterans suffering from service-related mental illness, traumatic brain injury and post-traumatic stress disorder."

The Veterans Treatment Court was established for veterans charged with misdemeanors - but, when Clay Allred was charged with hate crimes, felonies, the Veterans Treatment Court was conveniently expanded to encompass army veterans charged with felonies, too - just to accommodate Clay Allred.

Just like that - a military veteran judge creates a separate court for his "brothers", military veterans, so that it is not the jury who would be considering "service-related mental illness, traumatic brain injury and post-traumatic stress disorder" as AFFIRMATIVE DEFENSES to violent crimes of army veterans, but military veteran judges who would advocate for defendants as their "brothers".

And just like that - the program expands to make an ineligible army veteran, charged with violent felonies and facing 20 years in prison, eligible for a slap on the wrist - a "house arrest".

This judge-advocacy court exists for 3 years by now - with nobody opposing this singling out for special treatment of criminal defendants who are the most dangerous since they are trained to kill and unbalanced enough to use their skills to mass-murder, as it happened, for example, at the Camp Lejeune military base in North Carolina.

Leniency to dangerous criminals, whoever they are, because they are the judge's "brothers" is called corruption of the court system.

And both "judge advocates" - the one that instituted the Veterans Treatment Court, and the one who advocated for leniency to a person who pointed a loaded gun at an unknown person simply because he hated Muslims and thought his victim was a Muslim - should be removed from the bench and the Veterans Treatment Court dissolved.

The most dangerous criminal defendants should not be sentenced to "house arrest" instead of 20 years in prison, simply because they are army veterans.

If they are a danger to society, they must be held accountable in accordance with the law as everyone else.

And the same refers to judge-advocates.

And, please, note that there are 50 of other army veterans who were charged with misdemeanors and felonies who are currently in judge Holder's Veteran Treatment court.

With Holder's approach to "treatment" of violent felons who are his "brothers", we can only expect that Holder will keep unleashing dangerous trained-to-kill felons upon the society.

Because they are his brothers, and he can do nothing less for them, everybody else's right to life be damned.

Judges as advocates for causes in their own courtrooms: a novelist Kentucky #JudgeTomPhilpot promotes marriage as "Biblical analogy for God's love" while acting out his novel in the courtroom

Here is a judge, a Kentucky judge Tim Philpot who could not abstain from using court proceedings in front of him to impose upon people his personal and religious views - and do it for his own financial profit, in addition to his judicial salary.

Judge Tom Philpot wanted to put his experiences as a judge into a book.

He first reportedly wanted to share his knowledge of what is going on in divorce courts by writing a "serious scholarly about marriage"  - but then found it to be "just too complicated".

When a judge finds writing a "serious scholarly book" on the subject he is supposed to be an expert in "too complicated" - an issue of his competency already arises.

But, what the judge did is simply beyond bizarre - he wrote a novel in lieu of a "serious scholarly book", invented procedures in that novel, took his invented procedures from the novel into his courtroom, and is acting out those procedures upon litigants.

Judge Philpot's "pro marriage" novel promoting marriage as a "Biblical analogy of God's love" is trading for $20 at the website http://www.judgezbook.com/.

Since Judge Philpot admits that he is "pro marriage" and that he wrote the novel in lieu of a "serious scholarly" book on divorce, because writing a "serious scholarly book" was "just too complicated", it is safe to assume that judge Philpot put his own personal views into the book.

And that is already a problem for litigants who must now think whether to come with their divorces in front of a "pro marriage" judge, and whether to come with their custody cases of children born out of wedlock in front of a pro marriage judge.

Judge Philpot also wrote in his book about the alleged bad consequences of marriages broken up - such as children born out of wedlock.  It is, of course, an insult to any parents who consciously made their decision not to marry and to stay together without marriage, having children together.  This judge considers their relationship, and children born of such a relationship a "bad consequence" of the broken institution of marriage - and publicly expresses that view in a book.

And that is a big issue for parents of children born out of wedlock appearing in front of Judge Philpot in custody, or child neglect proceedings where such parents never planned to marry in the first place - because there is a clear possibility that Judge Philpot may rule adversely in their cases simply because they were not married when they gave birth to a child.

Moreover, in his book Judge Philpot promoted his religious views - he "writes about marriage as the Biblical analogy for God’s love", so when he is promoting marriage in his courtroom, he is promoting also his religious views on that issue.

Unfortunately, Judge Philpot did not stop at writing a novel in lieu of a "serious scholarly book" because writing "serious scholarly" books is "just too complicated" and putting in his novel his personal views about the vices of having children born out of wedlock and the virtues of marriage "as the Biblical analogy for God's love".

Judge Philpot started to also act out his novel's plot in his courtroom, because the judge "decided if I was going to write about a crazy judge, I had to act a little crazy myself".

Well, at least, Judge Philpot recognizes that he was acting "crazy [him]self".

The issue that concerned the judge the most was - was marriages that people wanted to dissolve "irretrievably broken" enough to actually dissolve those marriages.

In other words, can couples be forced to stay married if one of the spouses wants out?

Judge "Philpot said he has recently been conducting short, informal Irretrievably Broken Hearings in divorce cases assigned to him that involve children. When a couple’s testimony makes him think there is a chance for reconciliation, he asks them to attend a “discernment counseling” session to better think through their decisions.

Philpot said it is too soon to say if the process has stopped any divorces. Because he is acting within the 60-day waiting period allowed by Kentucky law, there is nothing couples who object or their attorneys can do but grumble privately."

Now, one thing is to share custody of the children.

Quite another is to be coerced or forced to stay in an intimate relationship with a person you don't want to stay in that relationship with - for a variety of personal reasons.

It is apparent that the judge does not make a distinction between these two issues.

"Philpot said it is too soon to say if the process has stopped any divorces. Because he is acting within the 60-day waiting period allowed by Kentucky law, there is nothing couples who object or their attorneys can do but grumble privately" - so, the judge uses the guise of the 60-day "waiting period" to force his religious views upon parties in divorce proceedings, so "there is nothing couples who object or their attorneys can do but grumble privately".

A great approach by a judge, isn't it?

Philpot actually conducted an off-the-record "Irretrievably Broken hearing", acting out his novel, in front of a newspaper reporter trying to coerce a couple seeking an uncontested divorce to reconcile.

And, after that off-the-record "acting out the judge's novel" hearing, the judge ordered the couple to attend a "discernment counseling session".

Again, these people wanted out of their marriage, they wanted an uncontested divorce, and that's why they came before the judge.

Wanting a divorce is not good grounds to order people into counseling of any kind.  They obviously could do that before they came to court.

It is also obvious that they were going to amicably share custody of their children, but that does not mean that anybody, including a judge, has the power or right to invade their privacy and force them to stay together in an intimate relationship if they do not want to.

I also resent the fact that Judge Philpot openly advertises his proselityzing in the courtroom by inviting a reporter, telling him about his novel, about marriage as the "Biblical analogy of God's love" and by even demonstrating his obviously illegal off-the-record "Irretrievably Broken hearing" spawned not by the law, but by the judge's novel.

Consider that litigants and attorneys will probably be afraid to even raise the issue of judicial misconduct in this case, and of judges imposing his own personal views, including his religious views, on the divorcing couples.

Yet, what Judge Philpot is doing - is judicial misconduct.  Whatever Judge Philpot's intentions are, he is imposing his personal views, including his religious views, upon people in lieu of the law of the State of Kentucky, and makes it harder, longer and more expensive for people to divorce - court-ordered counseling does not come free.

It is also disgusting that the judge uses his taxpayer-paid job to spawn books, and then uses courtroom proceedings and live people as guinea pigs to advertise that book and boost his sales.

I wonder if the judge also gets kickbacks from the "discernment counselors" where he sends the divorcing couples.  

Judge Philpot already lack integrity enough to use his position not only to impose his personal, and religious, views upon litigants in his courtroom, but to use his courtroom proceedings as a source of additional profit, so I would not put it beyond such a judge to get a little more profit by sharing in the proceeds of discernment counselors.

I will follow the story whether Judge Philpot will be disciplined for his shenanigans in the courtroom.

When a judge starts to use the courtroom as a playroom and as a religious pulpit, acting out procedures he invented in novels, because writing a scholarly treatise in the subject he is supposed to be an expert in is "just too complicated" for him - he should be taken off that bench immediately.

Judge Philpot is right.

It is not just a judge acting as an advocate.

It is not just a judge acting as a proselytizer of his religious beliefs in the courtroom.

It is not just a judge deriving additional financial benefit from court proceedings and using litigants as captive actors to advertise his book.

It is simply crazy.

It is like reality-TV for this judge to get noticed and advertised for his book - there is no justice in this courtroom where a judge simply acts out scenes out of his book for his own financial benefit and seeks to create new scenarios he can write about.

It is like a sneak-preview for reporters - see, this off-record "Irretrievably Broken hearing" will be part of my next book.

Crazy.