I've just blogged about the continued standoff between the Ohio federal judge Dan Polster and the New Jersey attorney John McDermott.
I would like to separately emphasized one of the most important aspects of this standoff:
the compelled self-incrimination that Judge Polster is requiring of John McDermott.
John McDermott is not admitted in Ohio state courts, or in Judge Polster's federal court.
Judge Polster, as an accuser, is accusing John McDermott of giving improper legal advice to his brother, specifically, not to appear at a case management conference in that court.
If that was true, for John McDermott that would have constituted a criminal offense of unauthorized practice of law.
So, when Judge Polster is absolutely requiring that John McDermott come and answer charges against him charging him practically not only with contempt of court, but with engaging in the crime of unauthorized practice of law, and Judge Polster issued an order punishing John McDermott with $500/day fines until he comes to the court and waives his right to remain silent on the issue protected by the 5th Amendment, there is a whole additional level of illegality there.
Once again, I wonder whether Judge Polster will be disciplined for his actions against John McDermott, because he appears to be completely lacking the necessary temperament, knowledge, competence or integrity of a judge.
Thursday, June 16, 2016
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 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.
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.
Wednesday, June 15, 2016
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:
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?
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:
- somebody else's right before you were similarly violated;
- 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;
- after the above improbable events, then the U.S. Supreme Court should have agreed to take and review the case, and
- 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?
Monday, June 13, 2016
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.
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.
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