Unlawful harassment by #JudgeDanPolster of New Jersey attorney John McDermott continues - even after Judge Polster's behavior was clearly invalidated by the just-decided U.S. Supreme Court case on point

I wrote on this blog recently about outrageous harassment of a New Jersey attorney John McDermott by federal judge from Ohio Dan Polster.

Judge Dan Polster, on the same day, issued an order dismissing the lawsuit against John McDermott's brother and, at the same time, issued an order requiring John McDermott (who was not attorney of record for any parties in that case, was not admitted to practice law in the state of Ohio or in Judge Polster's court) to personally appear THE NEXT DAY to answer civil contempt charges as to why he should not be held in contempt for allegedly telling his brother not to appear at the case management conference (on the day when his brother's motion to dismiss was granted by the same judge and the case against the brother was dismissed).

There is no indication in the docket that John McDermott was served with the order to appear in civil contempt proceedings, or with the bench warrant.

John McDermott is, once again, practicing and living in New Jersey, and Judge Polster was summoning John McDermott to appear in Ohio the next day after the order to appear was issued, and without serving the order on John McDermott.

Actions of Judge Polster were clearly illegal.

Whenever people's liberty is involved, they have to be served with such warrants personally or at the very least by certified mail.

It takes time for orders to travel from state to state, so Judge McDermott definitely had no right to expect John McDermott to appear in federal court without ever having being served with the contempt charges in accordance to the law.

Moreover, the contempt charges were issued by Judge Polster, making Judge Polster an accuser against John McDermott.

On June 9, 2016 the U.S. Supreme Court made a decision in Williams v Pennsylvania, 579 U.S. __ (2016) holding, among other things, that when an accuser also acts as an adjudicator in the same court proceeding, such a situation constitutes a violation of the due process of the accused.

In other words, a judge cannot act as an accuser and prosecutor in the same court case.

Yet, that is exactly what Judge Polster is doing in his standoff against attorney John McDermott.

Judge Polster accused John McDermott of misconduct in a sua sponte order of June 7, 2016, before the decision in Williams v Pennsylvania was made, and, two days later, after the U.S. Supreme Court clearly ruled that behavior such as Judge Polster's in acting as an accuser, prosecutor and adjudicator in the same court case, is a violation of the accused's due process rights, Judge Polster adamantly continued, and still continues, to adjudicate the civil contempt case against attorney McDermott despite being the accuser in the same case.

Realizing that attorney John McDermott will not waive lack of jurisdiction over himself and will not appear in the illegal contempt proceedings, Judge Polster reportedly replaced his bench warrant with a $500/a day fine against attorney John McDermott.

Judge Polster's order imposing a fine upon John McDermott is dated June 15, 2016, nearly a week after the Williams v Pennsylvnia decision that indicated that not only an accuser cannot also be a judge in the same case, but the judge's failure to recuse from such a case is a violation of due process of law of the accused.

If Judge Polster wanted to act fairly with Attorney John McDermott, he should have acted as a complainant in the case, but should have recused from adjudicating the case.

Apparently, Judge Polster does not want to be fair, he wants to show to John McDermott and to everybody else that his power is unlimited, law or no law, and that he can do anything to people with impunity.

It is obviously personal to Judge Polster that he was disobeyed, no matter how unlawful, petty and unfair his infantile demands are which are based on unlawful knee-jerk orders that were filed, but not served upon the accused individual.

The media report about the ongoing standoff did not mention unlawfulness of Judge Polster's actions, their stark contradiction with the judge-established U.S. Supreme Court precedent.

Well.

In Alabama, the Chief Judge is now being investigated, and will possibly be removed because he disobeyed a U.S. Supreme Court precedent on gay marriage.

Here, a federal judge is acting as a petty tyrant and disobeys the U.S. Supreme Court precedent on point prohibiting an accuser in a court case to adjudicate that same court case.

I wonder whether any discipline will be imposed on Judge Polster based on his outrageous misconduct.

I will  continue to follow this story and to cover it on this blog.

Stay tuned.

When democracy works to oust misbehaving judges - and when it doesn't

I recently described on this blog how a judge handcuffed a young female attorney for making constitutional arguments in court on behalf of her indigent criminal defendant.

I am happy to report that the judge was not re-elected to another term.  Democracy worked - in this case - and the judge was ousted by voters, after media reports of his outrageous misconduct.

That does not mean that the judge should not be also disciplined and forever barred from running for a judicial office or being appointed to a judicial office again.

Unfortunately, democracy does not always work this way.

Even where judges are elected in state elections, the power of the voters to do what they did by ousting the handcuffing judge Hafen, absolutely depends on the decision of third parties whether to run in opposition to the judge voters want to oust.

If the judge is running unopposed - as it happened in the case of the "Stanford rapist"-coddling judge Aaron Persky, the judge is still re-elected, whatever is the position of the majority of voters, because there is no such thing, unfortunately, as a possibility to cast a vote against a candidate that runs unopposed, although, I believe, it is a valid idea to consider

Moreover, federal judges, who hold tremendous power over people's property, constitutional rights and life and death, literally, because there is still death penalty in federal criminal proceedings, and all state death penalty sentences go through federal courts on habeas corpus petitions, are appointed, not elected, and are appointed for life.

Moreover, no matter what they do in cases, they are protected by both the judge-invented absolute judicial immunity for malicious and corrupt acts, and by the federal Judicial Misconduct and Disability Act that precludes any review of complaints regarding actions of a judge in a court case or related to a court case (even corruption related to a court case).

The remaining avenues are appeal, which most often does not work, because federal appellate court have a policy to review civil rights complaints through summary orders without thorough review and to endorse whatever the district court said, even if the judge in the district court committed misconduct, or impeachment, which is practically impossible to obtain.

In my next blog I will show the power of a federal judge to harass people and do it with what appears to be, as of now, absolute impunity.

Stay tuned.

Constitutional law: playing poker with a card sharp

sI am currently reviewing several cases coming from federal courts where constitutional rights (4th Amendment search and seizure of home in one case and denial of habeas corpus review in another) were denied because constitutional rights were not "clearly established" prior to that time.

Well, 4th Amendment is "clearly established" from the date of enactment of the 4th Amendment, and so is the right to habeas corpus relief, which is only to be suspended at times of war.

But, federal courts require more than that - that the particular circumstances under which such rights are violated (the 4th Amendment or other constitutional violations challenged through a civil rights action or habeas corpus petitions) must be also recognized as violation of those particulars constitutional rights in precisely the context in which the violation happened to the present challenger.

That kind of specificity, of course, is not required by either the Civil Rights Act.

Yet, since recent times, it was included into the so-called "Anti-terrorism and Effective Death Penalty Act" which encompasses ALL habeas petitions, even those not related to either terrorism or death penalty cases.

In 2015, the 9th Circuit made an extremely bad decision of denying relief in a civil rights action where child protective services, together with police, came to a home to investigate allegedly unsafe conditions in the home pursuant to a 2-month old anonymous report and demanded access to the house and warrantless search of the house.

The parents' confrontation with CPS reportedly occurred in 2004 (the lawsuit was filed in 2005, this is the way litigation is dragged on through courts sometimes).

The police eventually backed off and did not demand the search of the home, after the parents called their attorney and the attorney talked to the police.

The CPS raged on and, based on an anonymous report that CPS did not investigate for 2 months, and based on parents assertion of their 4th Amendment rights, CPS offered the parents a "choice" - to allow search of the home, or to surrender their children, and wrote up immediately the CPS custody paperwork without a court order (allowed in that state in emergency situations). 

The case was hardly an emergency, but CPS could nevertheless first take and traumatize the children, and leave parents argue unlawfulness of the taking for months or years in court.

The parents spared the children and allowed the search - and then sued.

The federal court claimed that they did that after consultation with an attorney, that constituted consent, and that the duress parents were put under by the CPS was not a violation of the 4th Amendment or due process rights that was "clearly established previously".

The same argument is entrenched in a statute, AEDPA, the Antiterrorism and Effective Death Penalty (once again, EFFECTIVE death penalty, figure that out) Act - no habeas corpus regarding a federal constitutional issue unless, before the violation occurred (and that could have been decades prior to the habeas petition being filed), the constitutional violation has been "clearly established" by the U.S. Supreme Court precedent.

First, such a restriction makes the U.S. Constitution look like a strobe light in a night club - it means this now, and that in second, and it meant that two seconds ago, and now this two months down the road.

Doesn't work that way.  The U.S. Constitution is what it is once and for always.  The interpretation by the U.S. Supreme Court does not change the Constitution.

If the U.S. Supreme Court took upon itself the duty of interpreting the U.S. Constitution (the duty that is nowhere to be found in the actual text of the U.S. Constitution), that is the only duty that it is - take the case and interpret it against the U.S. Constitution, not against the court's own prior interpretations of that U.S. Constitution.

And, while interpreting the U.S. Constitution, each time anew, the court needs to remember that at no time the U.S. Constitution was changed to include the U.S. Supreme Court's precedents into the Supremacy Clause, so the U.S. Supreme Court precedents are not, and have never been, the Supreme Law of the Land.

With that in mind, let's see what is happening in the habeas (death penalty and life-in-prison cases) and in civil rights cases.

According to the AEDPA and according to interpretation by the federal courts of the "qualified immunity" of various governmental officials from liability in civil rights lawsuits alleging constitutional violations, a victim of such a constitutional violation cannot have ANY relief unless the fact that what occurred to that victim was, indeed, a constitutional violation, was established, on the same or closely similar set of facts, in another lawsuit, in a prior U.S. Supreme Court case.

Here is what it means legally.

The review by the U.S. Supreme Court is by a petition for a writ of certiorari only.

That means that the U.S. Supreme Court has an absolute discretion to decide which cases to take and which not to take.

So, the "clearly established" part is committed to the chance that:

1. somebody else's right before you were similarly violated;
2. that somebody filed a lawsuit, appealed it to the federal court of appeals, and further took the case all the way to the U.S. Supreme Court, complying with an ocean of rules and either paying a lot of money or finding somebody to represent that person for free - or being an exceptionally tenaciously and resourceful pro se party;  as everybody understands, such a combination of probabilities reduces your chances considerably if not drastically;
3. after the above improbable events, then the U.S. Supreme Court should have agreed to take and review the case, and 
4. the U.S. Supreme Court then decided in that somebody's favor.  

So, federal courts are telling you that your right to obtain a remedy for your constitutional violations depends upon whether somebody else before you, through a series of highly improbable events committed to chance and to the whim of the U.S. Supreme Court to even hear those cases.

And, of course, since it is the government you are suing, and the government tells you that your right to sue the government depends on whether, before the lawsuit, the government (the U.S. Supreme Court) CHOSE to agree to review and decide a similar case for somebody else.

And, if it was not the whim of the U.S. Supreme Court to take and review and decide cases of somebody else before you - even if there was an ocean of such cases, but they were all rejected by the U.S. Supreme Court - tough, you are without a remedy.

Doesn't it feel like playing poker with a card sharp?

When judges long to openly participate in politics, the solution is simple - just resign first

Of course, we know that judges rule in favor of those who donate to their election campaigns.  That's politics, right?

And, of course, we know that judges make decisions along their party lines, even though it is prohibited.  Right? 

Otherwise, there would not have been the indecent fight over which president should appoint the next U.S. Supreme Court justice.

Otherwise we would not have had indecent amount of money spent on lobbying in Congress of laws giving power to judges or absolving judges of liability for misconduct (like an amendment to the Civil Rights Act cutting off the provision that judges may be held liable for legal fees, if not damages).

They should apply the law, not create it in according with party lines and their personal views and whims.

Right?

But, of course, they do.

In Illinois, an appellate judge started to publicly advocate out-of-court political activities of judges - so that judges should stop being "political eununchs".

Of course, such political activities will only reveal what has always been happening in the back rooms of courthouses anyway.

But, when a judge becomes a judge, he or she volunteers to become a "political eununch", to leave the judge's party-related beliefs and preferences behind.

And, if judges think that they have lost too much by shedding their right to publicly engage in political discourse on the topics they may be discussing in court - there is an easy way to solve that problem.

Just resign.

A case of prosecutorial misconduct (out of Louisiana) is heading to the U.S. Supreme Court

Louisiana courts, reportedly, have an "abysmal record of consistently misapplying and misinterpreting the Brady doctrine" (that's a constitutional doctrine requiring criminal prosecutors to turn over to the defense, upon a request and without any requests, any evidence pertaining to lack or lessening of defendant's guilt, or as to impeachment evidence of the government's witnesses and benefits offered to witnesses in exchange for testimony). 

Yet, federal courts UNfaithfully apply in civil rights lawsuits the doctrine of Younger and Rooker-Feldman, precluding civil rights lawsuits when a criminal proceeding is already pending, and after it has been resolved against criminal defendants - with the court applying the Brady rule in an abysmal way.

Louisiana courts are not unique in their "abysmal record" of misapplying and misinterpreting of ANY constitutional rights of criminal defendants - other states are no better.

Plus, prosecutors "enjoy" (very much) the gift of absolute prosecutorial immunity that the courts, consisting predominantly of former prosecutors, gave prosecutors on a pretext that discipline against prosecutors is avaialble. Of course, everybody knows that disciplinary committees only seek to punish competitors of members of disciplinary committees, as well as critics of the judiciary, and independent criminal defendants and civil rights attorneys - but NEVER prosecutors.

So, when preventive medicine is not available, the body can fester and rot up to gangrene - and that's what happened in Louisiana with prosecutorial misconduct, and is happening across the country, where close to 98% of criminal cases are "resolved" by plea bargains - simply because defendants and their attorneys know that the chances of winning in biased courts in front of former prosecutors are very slim.

A case regarding prosecutorial misconduct is heading towards the U.S. Supreme Court. Will the court review it is a question - review by the U.S. Supreme Court is discretionary, not mandatory.

And, if it does - what will it say? Some dismissive mumbo-jumbo or, finally, a systemic resolution of a systemic problem that the court itself created with the gift of prosecutorial immunity for malicious and corrupt acts?

Sua sponte court sanctions outlawed by Williams v Pennsylvania?

On June 9, 2016 the U.S. Supreme Court decided a case Williams v Pennsylvania, where, in its holding (not dicta) the court ruled that there is a constitutionally intolerable possibility of judicial bias where a judge is also acting as an accuser.

Williams v Pennsylvania is a majority decision, and thus considered in the American jurisprudence to be a binding precedent on lower courts.

State and federal courts in the U.S. routinely commence proceedings for: 

• sanctions for "frivolous conduct", 
• attorney discipline and/or 
• contempt of court - civil and criminal -  "sua sponte", which means "on the court's own motion".

Yet, when a court commences a proceeding "sua sponte", the court acts as an accuser and prosecutor, and, under Williams v Pennsylvania, as of June 9, 2016, may not remain on the case as an adjudicator.

So, we can see Williams v Pennsylvania as a MAJOR decision undermining judicial power to retaliate for criticism.

Conflating Terrance Williams's death penalty case with Donald Trump as a way to mislead the public as to how to assert their right to impartial judicial review

Some commentators are quick to reduce the rules of judicial disqualifications to the judge not being a prosecutor in the same case, and are even trying to deduce from the U.S. Supreme Court the ulterior motive of addressing Donald Trump's statements regarding appearances of judicial bias through an unrelated death penalty case out of Pennsylvania.

First, I doubt that the commentator read Williams v Pennsylvania thoroughly - because the court addresses there ONLY the problem of a judge acting as an advocate for the state in the same case, but also says that the rules of constitutional appearance of judicial bias are not fixed in stone and delineated (other than in the two incidents -

• massive financial donations to judicial campaigns, Caperton v A.T. Massey Coal Inc., 2009 and
• the judge acting as a prosecutor in the same case, Williams v Pennsylvania, 2016).

That means that the court has left the door open to raise other issues for constitutionally intolerable bias to be raised on a case-by-case basis.

I read Williams v Pennsylvania most thoroughly, as I am using it in my research for various purposes, and I am an expert on the issues of judicial qualification, having researched and litigated the issue for years.

Second, I doubt that the commentator did a thorough research of the background of ‪#‎JudgeGonzaloCuriel‬ before continuing to thump Trump regarding his comments about the judge.

Because, both Trump and his attorneys actually left out several major reasons why #JudgeGonzaloCuriel should not have been presiding over Trump University court case.

The commentator hints at "anybody with a wireless signal", and, in fact, a lot of information can be obtained by a thorough researcher of Judge Curiel's background using just two resources - time and the Internet. So, the commentator did not use her own wireless signal diligently - and that's a shame. On her as a journalist.

I am preparing a series of blogs (thorough research take time, so, please, bear with me) showing that - indeed - Judge Curiel not only should not have been on Trump University case, but should be (but - realistically - never will be) investigated regarding outcomes of ALL cases he decided, as a state judge, and as a federal judge, because he appears to be appointed just-in-time to fix court cases for his buddies from secret-membership organizations that he is a member of, and I do not mean La Raza or La Raza-associated organizations, and against those who he has a personal (or "life-story") grudge against.

But, of course, such a topic is just too incendiary for the "mainstream" commentators and talking heads to raise - it affects the livelihoods of too many "establishment" attorneys, their "connected" clients - and case-fixing judges at all levels.

And, as the last note - to use a case where the victim of sexual abuse Terrance Williams who killed his longtime abuser (from 13 years old to 18 years old) and was cheated out of his life by the fraud and criminal misconduct of the decorated "amputee" Vietnam veteran prosecutor-turned-judge who still remains a licensed attorney despite his CRIMINAL misconduct (because he is a decorated and disabled Vietnam veteran?) - and to do that simply to join a political campaign to undermine a presidential bid because of statements of the presidential candidate that have NOTHING to do with that case is beyond low, and to do that without doing thorough research on the subject, is low.

The prosecutor-turned-judge, together with his office, committed the following fraud in Terrance Williams' case:

1) did not disclose to the exceptionally inefficient defense attorney who did not see his client until 1 day before the DEATH PENALTY case trial that the victim in the case was his young client's abuser since Terrance Williams was 13 - and, naturally, when Terrance Williams asked the court to replace that defense attorney, and the court refused, there was no trust between the young man and the defense counsel required for effective representation in a death penalty case;

2) the prosecutor's office (Ronald Castille was the DA, so, even though he did not personally try the case, but signed the death penalty application, he was responsible for all actions of the trial prosecutor) struck 14 out 16 black jurors in the jury pool - a Batson v Kentucky violation;

3) the prosecutor's office non-disclosure to the defense that Terrance Williams was a victim of sexual abuse was strategic - because it was the second killing by Terrance Williams of his abusers, and in the first, prior, murder trial, the jury refused to find him guilty of 1st degree murder after hearing he was a child victim of sexual abuse at the hands of the middle-aged man who he killed when he turned 17.

And, there is an entire campaign going on with doctors, mental health professionals, sex abuse victim advocates fighting for Terrance Williams' life now.

The sentiments regarding victims of sexual abuse and sexual predators against children were no different at the time of the murder trial of Terrance Williams, as his 1st murder trial indicated, and the jury was willing to give leniency to the young man who killed his long-time abusers.

I am NOT expressing my personal view and I do NOT support vigilante justice, all I am saying is that the 1st jury gave Terrance Williams leniency because of his status as a sex abuse victim, and because he killed a pedophile, his own abuser.
  
And that is exactly why, in the 2nd trial, the prosecutor lied to the jury by concealing as a motive that the young man killed the perpetrator of egregious crimes against him since he was 13, and instead claimed that Terrance Williams killed "a good man because he offered him a ride in a car".

4) The prosecutor elicited perjury from Terrance Williams' co-defendant (who plead guilty and escaped death sentence) to say that the motive for the killing was not sexual abuse by the victim of Terrance Williams, but robbery.

5) The prosecutor elicited perjury from the co-defendant to say in his testimony that he received no benefit from prosecution in return for his testimony - while the prosecution promised him to write a letter to his parole board.  That was revealed only in 2012, nearly 30 years after the conviction in 1984 that was based on that fraudulent testimony.

6) The DA's office did not disclose the exculpatory/guilt-diminishing/impeachment evidence called "Brady" material (as described above) to the defense.

All that time Terrance Williams sat on death row.

The prosecution - the very office that obtained a conviction and death sentence by fraud - aggressively sought Terrance Williams' death.

Several death warrants were issued over the years.

Several appeals, habeas corpus petitions and applications for stays of execution were issued over the years.

Judge Castille got elected through his statement to the voters of being "tough on crime", including a statement that he aggressively pursued the death penalty and put 45 people - including Terrance Williams - on death row.

So, Judge Castille used the fraudulently obtained conviction and death sentence for his personal (and financial) benefit.

And then, Judge Castille presided over FOUR habeas corpus petitions of Terrance Williams, rejecting them.

In the last one, Judge Castille not only participated in a decision that reinstated the death penalty of Terrance Williams, but also wrote a separate concurring opinion where he blasted everybody who stood in the way of the death penalty in a case he obtained by fraud:

1) the habeas corpus judge who ordered an evidentiary hearing when the co-defendant confessed to fraud by DA Castille's office, ordered testimony of the trial prosecutor, subordinate of Castille, and ordered the DA's office to turn over the case file for the judge's review;

2) the federal public defenders who fought for Terrance Williams' life, accusing them of having an "anti-death penalty agenda" and of engaging in scurrilous and frivolous litigation.

The State of Pennsylvania fought for its right to kill Terrance Williams, even after it was established that the verdict in a 1st degree murder case and the death penalty was obtained by fraud - and the only thing that so far saved Terrance Williams' life is a moratorium on death penalty imposed by governor Wolfe - and the State of Pennsylvania even took the right of the governor to impose such a moratorium to court, and, fortunately, lost - but the moratorium is only "temporary".

In Williams v Pennsylvania, the state of Pennsylvania shamelessly claimed that DA (turned judge in the future) Castille's signing off on request to the court to seek death penalty of Terrance Williams required no more thought and time than "reading a half page", and that it was "simply an adminsitrative decision" that did not truly involve DA Castille as a prosecutor in that case:

"According to Pennsylvania, [DA Castille's] approval of the trial prosecutor’s request to pursue capital punishment in Williams’s case amounted to a brief administrative act limited to “the time

it takes to read a one-and-a-half-page memo.” 

The court stated to that:

"In this Court’s view, that characterization cannot be credited.

The Court will not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part.

Chief Justice Castille’s own comments while running for judicial office refute the Commonwealth’s claim that he played a mere ministerial role in capital sentencing decisions.

During the chief justice’s election campaign, multiple news outlets reported his statement that he “sent 45 people to death rows” as district attorney." 

The mere fact that the government attorneys even asserted in court papers that a decision whether to seek the death penalty is for the elected public official, a District Attorney, no more than an administrative act requiring only time to read the application memo is a condemnation enough of how the death penalty is handled in this country.

But, Judge Castille's singular determination to have Terrance Williams' killed off, even by presiding as a judge over his 4 habeas corpus petitions - and to blast anybody who tries to prevent that from happening - combined with the fact that Judge Castille presided of the court that for years and decades handled attorney regulation and access to court for the litigants in the State of Pennsylvania - and suspended and revoked licenses of multiple criminal defense and civil rights attorneys while remaining a CRIMINAL who should have been DISBARRED and CRIMINALLY PROSECUTED for multiple FELONIES (and who still wasn't, and was not even adequately criticized in Williams v Pennsylvania by the U.S. Supreme Court) - is a condemnation to the attorney regulation system as it exists today. 

Everything to kill a human being, even when the conviction and death penalty was obtained by fraud.

Imagine if the case of Terrance Williams was to be retried today.

Imagine the evidence of sexual abuse of Terrance Williams be presented to the jury today.

I doubt that Terrance Williams would have been convicted of any crime other than manslaughter - and will, probably, be sentenced to the time served and let out a free man.

How can a "legal commentator" and a journalist, with a straight face, use this case as an illustration that Donald Trump is wrong in raising appearance of impropriety of Judge Curiel presiding over a civil case of fraud against Trump University, is beyond me.

Yet, let's remember:

1) appearance of impropriety is a statutory and a constitutional threshold for judicial disqualification which is NOT set in stone and is decided on a case by case basis.

2) The statute providing a basis to seek such a disqualification is 28 U.S.C. 455(a), where it only states that a judge should disqualify himself if there is an appearance of impropriety for presiding.

It is for the party to bring up the facts, and cases are being decided on a case-by-case basis.

Which is, in my view, an unconstitutionally vague statute because it allows the courts to, basically, write the statutory law on a case-by-case basis, which is not allowed by the U.S. Constitution, Article III and I.

So, the statute needs to be re-written to provide a better guidance to the courts.

3) What constitutes a constitutionally intolerable appearance of impropriety or bias, is not set in stone.

Only in two U.S. Supreme Court decisions have so far carved out more or less definite rules of constitutional judicial disqualification:

Caperton v A.T. Massey Coal, Inc. (2009) - regarding major financial donations of a party's attorney to the presiding judge's election campaign; and

Williams v Pennsylvania (2016) where the presiding judge was also a prosecutor in the same case - the three dissenting judges (Chief Judge Roberts, Justices Alito and Thomas) actually tried to oppose even that issue claiming that it was not the same case since habeas corpus is technically a different, "civil" proceeding, and a collateral attack on the criminal proceeding - even though it reinstated the death penalty in the criminal case.

Neither Caperton v A.T. Massey Coal, nor Williams v Pennsylvania set a barrier for other bases of constitutionally intolerable judicial disqualification to be brought up.

By conflating the absolutely egregious death penalty case of Terrance Williams with the issues in Donald Trump's criticism of Judge Curiel and the backlash in the mainstream media against Donald Trump for such criticism (without proper investigation of Judge Curiel's background), the attempt is being made to impress upon the American public that judicial disqualification cannot be sought in majority of cases, and can be sought only when cases are absolutely egregious, such as a prosecutor turning a judge and seeking, as a judge, the death penalty that he first - and fraudulently -  sought as a prosecutor.

That is not so.

Such an argument does a disservice to the Terrance Williams' case, as well as to the right of the public to publicly criticize the government, including judges - and to the right of litigants to raise issues of judicial misconduct and impropriety in and out of court.

Judicial misconduct is not reduced to death penalty cases.

You do not have to be on death row, fraudulently put there by a prosecutor-turned-judge - to be able to raise the issue of appearance of impropriety.

It is already a dangerous task to seek disqualification of a judge.

Attorneys are being sanctioned in this country left and right for challenging improper behavior of judges by jail time, contempt proceedings, handcuffing, financial sanctions and suspension of their law licenses.   I am one of attorneys suspended for making a motion to recuse on appearance of impropriety basis for a pro bono client in a family court case. 

It has been reported to me when I was still practicing, and it is reported to me now as the author of this blog by my readers, that it is practically impossible to find an attorney who would be willing to make a motion to recuse now, not because there is no merit for such a motion, but simply out of fear and self-preservation of attorneys who refuse to do that.

Law professors are telling law students, before they even become attorneys, that challenging a judge for misconduct is a "career suicide", so new attorneys are entering the profession, burdened with enormous debt, while knowing that if they fight for their clients and challenge a judge, they can be left blacklisted, and without a job or prospect of a good job - for life.

A good incentive not to make such motions.

It also "helps" instill the fear not to seek judicial disqualification because courts increasingly use their contempt power in criminal cases to exclusively punish defense attorneys and not prosecutors (because judges are predominantly former prosecutors).

And it "helps" to instill such fears because courts legislated across the country and established "court rules" allowing the to punish attorneys for "frivolous conduct" - for raising issues of appearance of impropriety or judicial misconduct.

So, where a criminal defense attorney is at least somewhat protected from such rules and can "only" be punished through a contempt proceeding (which nevertheless still happens), an attorney in a civil case, such as that of Trump University, runs the risk of being sanctioned by the challenged judge, and having to pay thousands of dollars of the opponent's legal fees if the challenged judge considers the challenge "frivolous".

Understanding that, the reluctance of Trump's attorneys to make a motion to recuse Judge Curiel is a matter of self-preservation and not of merits of the issue.

And, trying to portray Judge Curiel in a press as an angel with a halo who is attacked by a demented bully - while the judge appears from my research, I will post blogs about it separately, to be a relentless case-fixer for those who wine and dine him - is a disservice to the public.

Donald Trump - clumsily, as he does many things - introduced the issue of judicial disqualification in a presidential campaign.

THAT is what the legal establishment is afraid of.

THAT is why it has become the main topic for several days of media frenzy.

THAT is why the public needs to be brainwashed, so that it should lose even the idea of daring to file a motion to disqualify a judge on an appearance of impropriety basis.

The illustration as to how scared - or misinformed - the public is as to the issue of judicial disqualification and rights of litigants and citizens to raise that issue in and out of court is right on this blog.

This blog is DEDICATED to the issues of judicial misconduct and disqualification.

There is a definite public interest to those issues, as my blog has 1 to 4 thousand views per day on this blog.

In Russia, blogs with such number of views are required to be registered as "official", or mainstream, media sources.

Yet, I have very few public comments on the blog, and most of the comments I have are from anonymous commentators.

People are afraid to have their views on the subject known, under their own names.

People are writing to me, as my readers, and are complaining about certain actions of certain judges, and of their inability to find an attorney who would represent them.

I cannot represent them - I am suspended.

Yet, I can publish their stories.

Most people, when I ask them to send court documents to publish their stories, refuse to do that despite their complaints to me.

I honor their wishes for me not to disclose their identities, if they disclose their identities to me, but do not want to be known.

But, once again, this demonstrates the level of fear pertaining to the issue of raising to a journalist the issue of judicial disqualification.  People are afraid to make that issue public.

Moreover, I have a petition as a featured post in the upper right corner of this blog, about opposition to judicial retaliation.

The petition did not even reach 100 votes yet, even though it has been around for 3 weeks.

Why?

Because people are either afraid to put their name on it,or are conditioned by the media frenzy to think that the majority of judges are proper and honest, or that they can only seek judicial disqualification in cases like Caperton v Massey or Williams v Pennsylvania, and all other people who are seeking to disqualify a judge are wrong.

People DO HAVE a right to raise appearance of impropriety of a judge - as THEY UNDERSTAND IT, RIGHT OR WRONG - PUBLICLY and in court.

That right is constitutional.

It is protected by the 1st Amendment and the due process to a fair trial and fair adjudication by a neutral and impartial judge.

Judges are public SERVANTS.

People in the U.S. are part of the popular sovereign - "We the People".

We, as taxpayers and part of the popular sovereign surely have a right to raise an issue if our sovereign is misbehaving - as WE understand it.

Every bad thing has a silver lining though.

The commentator who linked the case of Williams v Pennsylvania to Donald Trumps' allegedly improper criticism of Judge Curiel made a point against herself:

"Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias."

Watch the language.

The U.S. Supreme Court "waded into the murky discussion over judicial bias".

1)  Not very respectful of the U.S. Supreme Court, is it?  So, why Judge Curiel deserves presumptive respect and the U.S. Supreme Court justices don't?  Because they discuss the issue of judicial bias in a cut-and-dried case of judicial bias?

2) Why "waded" into a "murky discussion"?

The only thing murky that the U.S. Supreme Court did was that it did not call a spade a spade and did not brand DA/Judge Ronald Castille - or his subordinate trial prosecutor, or the Pennsylvania state court that allowed participation of Judge Castille in the case, for years - for misconduct.

Otherwise, the analysis is strict and straightforward, and cleanly states that a prosecutor may not be a judge in the case pertaining to prosecutor's (or his office's) own decisions.

3) The commentator implicitly ascribes to the U.S. Supreme Court an ulterior motive - deciding a case not on its merits, but, by its timing, in order to influence public out-of-court debate that has become part of a presidential campaign.

And, the commentator claims that anybody "with a wireless connection" can discern that ulterior motive of the court.

Duh?

Is that the same commentator who claims that Donald Trump may not discern any ulterior motive from the actions of a judge whose parents were Mexican immigrants, and who is repeatedly deciding the case against Trump University, after Trump made offensive statements about Mexicans and Mexican immigrants?

Somehow, "nobody with a wireless connection" MAY discern an ulterior motive from actions from that judge - and Trump should be rolled into asphalt for raising the very issue that the U.S. Supreme Court justice raised 15 years ago claiming that a "wise Latina woman" can decide cases differently than a "white man".

But, at the same time, "nobody with a wireless connection" can MISS the ulterior motive in U.S. Supreme Court justices to connect a death penalty case to Donald Trump's statements in his presidential campaign?

How come "anybody with a wireless connection" are expected to do diametrically opposite things - discern ulterior motives in judges deciding a case for political reasons, where the case has NO connection with Donald Trump or his statements against Judge Curiel, but at the same time thrashing Trump for raising an appearance of an ulterior motive a judge based on his background?

And, this delightful lack of logic only reveals the ulterior motive of this entire JudgeCurielAnnointing/TrumpThumping campaign - to DIMINISH the importance of the CONSTITUTIONAL RIGHT of criticizing a judge, in and out of court, based on the party's PERCEPTION of APPEARANCE of impropriety.

PERCEPTION of APPEARANCE of impropriety is the basis of making a motion to recuse, and the barrier for constitutionally protected out-of-court speech is even lower.

Don't let your right to criticize the government to be eradicated by those who will judge how the modern-day "cattle", "anybody with a wireless signal" MUST perceive judicial decisions.

People must use their own brain, and not the brain-washing by the bought-up talking heads, to see what is proper and what is not proper for the government, including judges, to do.

If "nobody with a wireless signal" can miss the ulterior motive of the U.S. Supreme Court in attempting to exert influence over the outcome of a presidential campaign - why nobody yet filed for impeachment of those judges?

Isn't that a valid question to the commentator of the Slate's article?