The U.S. Supreme Court just ruled that domestic abusers cannot buy guns.
Police officers very often engage in domestic abuse - given the stress of the job and the usual impunity.
But, now police officers can be ousted from the force relatively simply - by their battered spouses who have had it.
Because, if the law is to be applied equally, a police officer who is a domestic abuser also cannot have a gun - cannot be given a gun by an employer, on the same rationale as in Voisine v US.
Right?
Monday, June 27, 2016
Montana Judge Jeffrey Langdon's sanctions against Attorney Robert Myers are unconstitutional in view of two U.S. Supreme Court precedent
I've just posted a blog about the witch-hunt by the Montana attorney disciplinary authorities against judicial candidate, attorney-whistleblower of judicial misconduct Robert Myers, orchestrated by alcoholic vengeful #JudgeJeffreyLangdon.
The media jumped upon the sensational opportunity to describe sanctions imposed upon Robert Myers by the very judge who he challenged with a motion to recuse, a complaint to judicial conduct authorities, and who he subpoenaed to testify (and the judge quashed his own subpoena).
Yet, I do not see the media discussing that, in view of two recent U.S. Supreme Court precedents, sanctions imposed by Judge Jeffrey Langdon upon attorney Robert Myers are invalid - under a 2015 1st Amendment precedent and under a 2016 due process precedent:
Reed v. Town of Gilbert (June 18, 2015) - content-based regulation of speech is subject to strict scrutiny, and discipline imposed upon an attorney for truthful criticism of a judge was never subjected to strict scrutiny and could never pass strict scrutiny, and
Williams v Pennsylvania (June 9, 2016) - it is a violation of due process, voiding the judicial decision, when a judge acts also as an accuser, and Judge Langdon imposed sanctions upon attorney Myers based on Judge Langdon's own order to show cause where Judge Langdon acted as an accuser, prosecutor and judge.
Judge Langdon also had the audacity of determining credibility of Attorney Myers in his claim against the judge himself, for purposes of sanctioning him (and his wife, since sanctions were based on her income, too), $10,000.
Apparently, Montana disciplinary authorities do not read U.S. Supreme Court precedent, otherwise they wouldn't have started the wasteful and unconstitutional disciplinary investigation in 2016 after Reed (2015) and they would definitely have stopped such an investigation had they read and properly applied Williams v Pennsylvania (June 9, 2016).
The media jumped upon the sensational opportunity to describe sanctions imposed upon Robert Myers by the very judge who he challenged with a motion to recuse, a complaint to judicial conduct authorities, and who he subpoenaed to testify (and the judge quashed his own subpoena).
Yet, I do not see the media discussing that, in view of two recent U.S. Supreme Court precedents, sanctions imposed by Judge Jeffrey Langdon upon attorney Robert Myers are invalid - under a 2015 1st Amendment precedent and under a 2016 due process precedent:
Reed v. Town of Gilbert (June 18, 2015) - content-based regulation of speech is subject to strict scrutiny, and discipline imposed upon an attorney for truthful criticism of a judge was never subjected to strict scrutiny and could never pass strict scrutiny, and
Williams v Pennsylvania (June 9, 2016) - it is a violation of due process, voiding the judicial decision, when a judge acts also as an accuser, and Judge Langdon imposed sanctions upon attorney Myers based on Judge Langdon's own order to show cause where Judge Langdon acted as an accuser, prosecutor and judge.
Judge Langdon also had the audacity of determining credibility of Attorney Myers in his claim against the judge himself, for purposes of sanctioning him (and his wife, since sanctions were based on her income, too), $10,000.
Apparently, Montana disciplinary authorities do not read U.S. Supreme Court precedent, otherwise they wouldn't have started the wasteful and unconstitutional disciplinary investigation in 2016 after Reed (2015) and they would definitely have stopped such an investigation had they read and properly applied Williams v Pennsylvania (June 9, 2016).
Montana supports alcoholic vengeful rogue #JudgeJeffreyLangdon to intimidate, punish for whistleblowing, prevent voter education and prevent election of an honest judicial candidate Robert Myers
According to Montana media sources, a Montana state #JudgeJeffreyLangton, through his law clerk, has turned his political opponent in election campaign, attorney Robert Myers, into disciplinary authorities for the contents of his election campaign ads - disclosing that Judge Langton is dishonest, engaged in ex parte communications and, instead of recusing from the case when caught in engaging in ex parte communications, silenced witnesses and retaliated against the attorney who brought up the issue of ex parte communication - Robert Myers, the judges opponent in the election campaign.
Judge Langton has a history of behavior making him grossly unfit for the bench - in addition to what attorney Myers raised.
Here is Judge Langton, on the right, in a 2005 picture.
In 2005, Judge Jeffrey Langdon was censured and suspended for 31 days (the horror!) for (1) after he pled guilty to driving under the influence, (2) sentenced to probation and (3) violated his term of probation. (The headline refers to another judge, I will run a separate blog dedicated to that particular male chauvinist pig in black robe compared to whom #JudgeAaronPersky is a paragon of propriety).
As to Judge Langdon, consider that usually when people violate probation, they are sent to jail.
Not so for Judge Langdon. The system protected him. Just a censure and a 31-day suspension from the bench.
Here is another article about Judge Langdon describing that he continued drinking in defiance of a court order.
Judge Langdon not only drank after the court prohibited him to do so, placing him on probation, but drunk to the point that he was found by police as "passed out" near his hotel room.
There was a recall effort at the time of Judge Langdon's censure, which apparently, was unsuccessful, so Judge Langdon continued on the bench.
When imposing the censure, the presiding judge reportedly stated to Judge Langdon: "Judge Langton, your past habitual intemperance is a constitutional basis for censure".
This is what Judge Langdon reportedly said at imposition of the discipline of censure:
Instead, Judge Langdon is allowed to:
1) decide a motion to recuse against himself;
2) quash a subpoena against himself;
3) punish an attorney for making a motion to recuse (for catching the judge red-handed in an ex parte communication, with documentary evidence of such ex parte communication) $10,000 based on attorney's behavior AFTER the proceedings in front of judge Langdon concluded.
All of the above indicate that Judge Langdon is not simply bias - he is enraged at attorney Myers and should never be near his cases.
Judge Langton has a history of behavior making him grossly unfit for the bench - in addition to what attorney Myers raised.
Here is Judge Langton, on the right, in a 2005 picture.
In 2005, Judge Jeffrey Langdon was censured and suspended for 31 days (the horror!) for (1) after he pled guilty to driving under the influence, (2) sentenced to probation and (3) violated his term of probation. (The headline refers to another judge, I will run a separate blog dedicated to that particular male chauvinist pig in black robe compared to whom #JudgeAaronPersky is a paragon of propriety).
As to Judge Langdon, consider that usually when people violate probation, they are sent to jail.
Not so for Judge Langdon. The system protected him. Just a censure and a 31-day suspension from the bench.
Here is another article about Judge Langdon describing that he continued drinking in defiance of a court order.
Judge Langdon not only drank after the court prohibited him to do so, placing him on probation, but drunk to the point that he was found by police as "passed out" near his hotel room.
There was a recall effort at the time of Judge Langdon's censure, which apparently, was unsuccessful, so Judge Langdon continued on the bench.
When imposing the censure, the presiding judge reportedly stated to Judge Langdon: "Judge Langton, your past habitual intemperance is a constitutional basis for censure".
This is what Judge Langdon reportedly said at imposition of the discipline of censure:
"My actions, which I daily regret, fell far short of my ethical obligations," he said.
The judge said he isn't blaming his conduct "on alcoholism, job stress or personal misfortunes.
"I chose to drink and I sometimes chose to drink irresponsibly. ... I accept full responsibility and accountability for that misconduct and I alone am responsible for the consequences of my actions.
He said the court-ordered alcohol treatment program he completed gave him "the basic training I needed to start up the steep trail to a better, sober and spiritually centered life."
And, of course, in his statement he referred to God in his statement to the court, as judges do when they want to get some political capital or avoid accountability for misconduct, and claimed that the "experience" will make him a better person and a better judge.
Right.
By the way, the recall effort was supported by a pastor:
The pastor correctly stated that a judge who is drinking, driving and defying court orders by more drinking is an "unfortunate example to our your people and people who have a drinking problem".
That is an understatement of the century, especially for "people who have a drinking problem" and are sent to years in jail for the same offense that Judge Langdon was just censured and not jailed at all.
Apparently, all of the above statements were just bluff to appease the court and retain the job.
In 2012, whether drunk or not, Judge Langdon got involved in a reportedly documented ex parte communication.
An attorney of the party not included into the communication, asked him to recuse.
Judge Langdon refused.
The attorney - Robert Myers - appealed.
The appeal was denied.
The attorney filed a complaint with judiciary disciplinary Commission, the very body who was already very much acquainted with Judge Langdon.
The complaint was dismissed.
Apparently inspired by all of that support, Judge Langdon sanctioned attorney Robert Myers $10,000, and put into the amount of sanctions a consideration regarding Robert Myers' wife's income.
So, Robert Myers' wife, apparently, was made financially responsible for sanctions of her husband.
The history is silent as to whether Judge Langdon was drunk - as he has a habit to be - when making that retaliative decision.
So, let's check how many avenues were exhausted with no real discipline against Judge Langdon:
- Criminal proceedings - no real accountability (Judge Langdon's breath test when he was arrested for drunk driving was reportedly twice the legal limit in Montana, not a petty violation, a serious crime exposing motorists and passengers' lives to danger);
- Probation violation proceeding - no accountability at all, usually violators of probation go straight to jail, Judge Langdon didn't;
- Judicial disciplinary proceeding - resulting in a "censure", like a tongue-lashing, "go forth and do not sin again";
- A recall effort - not successful;
- A motion to recuse - when caught in documented ex parte communication; Judge Langdon chose to preside over that motion himself and deny it;
- Appeal of Judge Langdon's decision refusing to recuse - denied;
- A disciplinary complaint against Judge Langdon regarding the ex parte communication - dismissed, apparently, Montana, same as New York, considers ex parte communications as proper conduct for its judges - at least, for some of them.
Instead, Judge Langdon is allowed to:
1) decide a motion to recuse against himself;
2) quash a subpoena against himself;
3) punish an attorney for making a motion to recuse (for catching the judge red-handed in an ex parte communication, with documentary evidence of such ex parte communication) $10,000 based on attorney's behavior AFTER the proceedings in front of judge Langdon concluded.
All of the above indicate that Judge Langdon is not simply bias - he is enraged at attorney Myers and should never be near his cases.
There was one more way to get Judge Langdon off the bench - to defeat him in the re-election campaign.
That's what attorney Robert Myers undertook to do.
But, to defeat Judge Langdon, attorney Myers had to inform the voters why Judge Langdon is bad news.
So, that's what he did - he ran some campaign ads explaining just that, what Judge Langdon did.
Judge Langdon, whether drunk or sober, decided to play dirty with his political opponent - and immediately had his law clerk send the transcript of attorney Myers' campaign ads to the attorney disciplinary committee.
And, of course, attorney disciplinary authorities of the State of Montana did not look that the judge who referred the attorney was an alcoholic, or that the attorney was right all around that the judge engaged in misconduct (whether he was punished for it or not) and personal retaliation instead of doing his job.
Instead, the disciplinary authorities of the State of Montana targeted the judicial candidate Robert Myers and started a disciplinary investigation against him which, as we know from multiple recent cases of retaliation against attorneys who raise issues of judicial misconduct (#AndyOstrowski and #DonBailey in Pennsylvania, #PaulOgden in Indiana, #ChristineMire in Louisiana, myself in New York), can very well lead to suspension or total loss of law license and livelihood.
So - attorney Myers filed a federal lawsuit for injunctive relief.
The lawsuit raises important issues of 1st Amendment and judicial retaliation. I will report on the case and on the pending motions in the case(for preliminary injunctive relief by attorney Myers and to dismiss by disciplinary authorities) in separate blogs.
Yet, the issue remains that NO MATTER WHAT a judge does - in any state, I have been reviewing information about judicial misconduct across the country for several years - the system, the government which is OUT public servants, in OUR employ, financed by OUR money and who must act for OUT benefit, instead vigorously protects a seating alcoholic judge (who insists to commit misconduct, stifle witnesses and engages in retaliation against whistleblowers despite all of his pledges at the censure hearing to be a "better judge") and viciously attacks whistleblowers.
And, I do not see millions campaigning for recall and impeachment of Judge Langdon - or any other judges who engage in retaliation against whistleblowers of their misconduct.
Instead, we see young future elite lawyers of America argue for continuing support of "judicial discretion" -
- that's the discretion Judge Langdon used to refuse to recuse when caught in the ex parte communication,
- that's the discretion the appellate court used in denying the appeal from that refusal and allowing Judge Langdon to proceed on the case,
- that's the discretion judicial disciplinary authorities used in not prosecuting judge Langdon and dismissing attorney Myers' complaint against him, and
- that's the discretion the attorney disciplinary authorities (who claim quasi-judicial power and absolute judicial immunity in federal court) use to prosecute attorney Myers and not attorney Langdon.
Yet, we do not see open letters from law students condemning THAT use - or, rather, gross abuse, of judicial discretion.
It is up to us, the people, to root out the bad apples like Judge Langdon.
And that should start from opposing discipline against Robert Myers in the media.
Privileged kids of Stanford Law support Stanford alumni Judge Persky's right to support privileged rapists from Stanford U
Exactly one day after law professor Michele Dauber posted a letter supporting #TheRecallofJudge Persky, 53 (allegedly) graduates of the elite Stanford Law School published their own letter, opposing the recall.
The law graduates were just the last ammunition used by defenders of the biggest privilege of the American judiciary (to be able to rule on a whim) to preserve that privilege. I discussed the efforts of other defenders to preserve this privilege in my previous blog here.
Here is the entire 2016 Stanford Law Class - predominantly white kids.
The math of how many of Stanford Law Graduates of 2016 have signed the letter and who exactly signed the letter remains fuzzy.
"Stanford Daily" says 53 graduates signed the letter.
The "open letter" itself was signed by just EIGHT (8) named graduates who claimed that 48 more graduates also signed, without disclosure of their names, that makes the total 56.
I guess, law school education or journalism does not require to be current on elementary school level math.
So, we do not know who are the alleged 48 additional students who allegedly signed the "open letter" of Stanford Law Students to Law Professor Michele Dauber asking her to halt her POLITICAL activity in appealing to California voters to recall Judge Persky in accordance with the process provided by the California State Constitution.
Since the 48 additional names remain undisclosed, it is safe to assume such signatures never existed.
Otherwise, neither Professor Dauber nor anybody else should be persuaded or impressed by appeals from anonymous sources to halt their political activity to recall a judge.
And, it is a shame for the 8 named graduates to employ "strength in numbers" by adding anonymous votes to their open letter. Surely after graduating from an elite law school such graduates would know better than to impress the public with conjured votes.
The timing of the graduates' appeal is no less suspect.
The "open letter" was penned and published in June of 2016, when the only thing the "most recent graduates" of any law school are concerned about is the bar-prep course.
To engage in a coordinated campaign of creating a very carefully worded letter and to go around and obtain 56 signatures of people who are scattered after graduation (unless conveniently kept together in a Bar-Bri bar-prep course where they have to come to law school every day) is a job a bar-prep student can ill afford.
Moreover, what is also extremely suspicious in how the "open letter" came about is:
1) the background and racial/ethnic composition of the "drafting group";
2) refusal of the drafters of the letter to address the issue of abuse of discretion as judicial misconduct and to address "discretion" as potential source of corruption; and
3) focus of the drafters only on the borderline legality of Judge Persky's decision (even though it can still be abuse of discretion, which drafters refused to address), and
4) speculation on public feelings regarding racial discrimination in the criminal justice system, and needs for leniency to prevent mass incarceration.
First of all, let me address the background of the drafters.
I would understand if the issues of race discrimination, the need of mercy to criminal defendants would be raised if the person given mercy was an African American defendant, a defendant belonging to the class of defendants disproportionately targeted by the criminal system, disproportionately convicted and disproportionately incarcerated.
I would understand if NAACP or Al Sharpton would be raising the issue, but they don't, because the issue is actually of "white privilege", of a white judge, athlete-alumni of Stanford U giving an inappropriate break to athlete-alumni of Stanford U.
6 months, 3 months for good behavior, for raping an unconscious woman. Because of the rapist's youth, no prior criminal record and intoxication.
The Stanford Law graduates who have signed the open letter, or who were forced to sign the letter, or whose identities were used to sign the letter (and I will provide their own information revealed by them in their own LinkedIn profiles or revealed by various programs awarding to them different fellowships and other awards), are no novices in the law or in the criminal justice system.
They MUST know from their criminal law course that:
1) intoxication is an affirmative defense for the jury;
2) that the jury already heard the case and convicted the rapist, which means the defense of intoxication was rejected; and
3) they must be aware that at sentencing, the sentencing judge may not defy the jury's findings.
Moreover, a judge is in no way bound by probation report, and probation officers, who are not attorneys, have no power to impose their wishes upon the judge in sentencing decisions.
And, they must be aware that the judge's "discretion" at the sentencing is severely circumscribed by the severity of the crime and by the jury finding of "guilty", rejecting the defense of intoxication.
If the jury rejected the defense of intoxication, the judge could not overrule the jury and award a lenient sentence BECAUSE of intoxication as a guilt-diminishing factor.
Let's also consider the fact that all of the signing graduates are one month away from the bar exam and several months away from being admitted to the bar BY THE JUDICIARY, and thus have a very heavy interest in PLEASING THE JUDICIARY in order to succeed in their profession.
Let's consider also the fact that people who go and are admitted into Stanford Law are looking at careers as judges themselves, and thus have a future self-interest to protect their own future privileges, the biggest one of which is the "discretion" of ruling in favor of one party over another where a judge cannot be openly accused of corruption, even though corruption is screaming from the way "discretion" is applied.
Of course, "judicial corruption" is a taboo word combination in law school courses, for law students, law professors of ethics, and for lawyers.
It doesn't help removing the distinct sour taste from reading the letter to learn that the group includes the daughter of the former (until 2013) Attorney General of Washington State Rob McKenna, Madeleine McKenna, who has experience in handling a "statewide voter outreach program" in her father's recent run for a Governor.
Not only McKenna the father (a licensed attorney with apparent high political ambitions) will benefit in having his daughter brown-nose the judiciary and add support judicial discretion, but a State Attorney General's position is usually a stepping stone for something higher - the Governor, a Senator, or - a state or federal judge.
So, the daughter is arguing for the well-being of her father, and NOT about well-beings of minority criminal defendants who will not be given mercy or leniency by the likes of Judge Persky anyway.
And, Madeleine McKenna's friends are standing in line to support her campaign and, through that support, to put caviar on their own meal ticket, for years to come.
Here are the name of the drafters of the letter and some of their background information that I was able to find online.
Akiva Freidlin
Here is Mr. Freidlin's experience, as stated by himself on his own LinkedIn profile:
Jeannie Leider, a Public Interest Fellow in Stanford Law School 2015-2016
Here is Jeannie Lieder's description from her Public Fellow award announcement:
Madeleine McKenna, daughter of Washington State Attorney General Robert McKenna who ran for Governor of the State of Washington in 2012; Madeleine McKenna, according to her LinkedIn page, ran a "voter outreach program" for her father
The law graduates were just the last ammunition used by defenders of the biggest privilege of the American judiciary (to be able to rule on a whim) to preserve that privilege. I discussed the efforts of other defenders to preserve this privilege in my previous blog here.
Here is the entire 2016 Stanford Law Class - predominantly white kids.
The math of how many of Stanford Law Graduates of 2016 have signed the letter and who exactly signed the letter remains fuzzy.
"Stanford Daily" says 53 graduates signed the letter.
The "open letter" itself was signed by just EIGHT (8) named graduates who claimed that 48 more graduates also signed, without disclosure of their names, that makes the total 56.
I guess, law school education or journalism does not require to be current on elementary school level math.
So, we do not know who are the alleged 48 additional students who allegedly signed the "open letter" of Stanford Law Students to Law Professor Michele Dauber asking her to halt her POLITICAL activity in appealing to California voters to recall Judge Persky in accordance with the process provided by the California State Constitution.
Since the 48 additional names remain undisclosed, it is safe to assume such signatures never existed.
Otherwise, neither Professor Dauber nor anybody else should be persuaded or impressed by appeals from anonymous sources to halt their political activity to recall a judge.
And, it is a shame for the 8 named graduates to employ "strength in numbers" by adding anonymous votes to their open letter. Surely after graduating from an elite law school such graduates would know better than to impress the public with conjured votes.
The timing of the graduates' appeal is no less suspect.
The "open letter" was penned and published in June of 2016, when the only thing the "most recent graduates" of any law school are concerned about is the bar-prep course.
To engage in a coordinated campaign of creating a very carefully worded letter and to go around and obtain 56 signatures of people who are scattered after graduation (unless conveniently kept together in a Bar-Bri bar-prep course where they have to come to law school every day) is a job a bar-prep student can ill afford.
Moreover, what is also extremely suspicious in how the "open letter" came about is:
1) the background and racial/ethnic composition of the "drafting group";
2) refusal of the drafters of the letter to address the issue of abuse of discretion as judicial misconduct and to address "discretion" as potential source of corruption; and
3) focus of the drafters only on the borderline legality of Judge Persky's decision (even though it can still be abuse of discretion, which drafters refused to address), and
4) speculation on public feelings regarding racial discrimination in the criminal justice system, and needs for leniency to prevent mass incarceration.
First of all, let me address the background of the drafters.
I would understand if the issues of race discrimination, the need of mercy to criminal defendants would be raised if the person given mercy was an African American defendant, a defendant belonging to the class of defendants disproportionately targeted by the criminal system, disproportionately convicted and disproportionately incarcerated.
I would understand if NAACP or Al Sharpton would be raising the issue, but they don't, because the issue is actually of "white privilege", of a white judge, athlete-alumni of Stanford U giving an inappropriate break to athlete-alumni of Stanford U.
6 months, 3 months for good behavior, for raping an unconscious woman. Because of the rapist's youth, no prior criminal record and intoxication.
The Stanford Law graduates who have signed the open letter, or who were forced to sign the letter, or whose identities were used to sign the letter (and I will provide their own information revealed by them in their own LinkedIn profiles or revealed by various programs awarding to them different fellowships and other awards), are no novices in the law or in the criminal justice system.
They MUST know from their criminal law course that:
1) intoxication is an affirmative defense for the jury;
2) that the jury already heard the case and convicted the rapist, which means the defense of intoxication was rejected; and
3) they must be aware that at sentencing, the sentencing judge may not defy the jury's findings.
Moreover, a judge is in no way bound by probation report, and probation officers, who are not attorneys, have no power to impose their wishes upon the judge in sentencing decisions.
And, they must be aware that the judge's "discretion" at the sentencing is severely circumscribed by the severity of the crime and by the jury finding of "guilty", rejecting the defense of intoxication.
If the jury rejected the defense of intoxication, the judge could not overrule the jury and award a lenient sentence BECAUSE of intoxication as a guilt-diminishing factor.
Let's also consider the fact that all of the signing graduates are one month away from the bar exam and several months away from being admitted to the bar BY THE JUDICIARY, and thus have a very heavy interest in PLEASING THE JUDICIARY in order to succeed in their profession.
Let's consider also the fact that people who go and are admitted into Stanford Law are looking at careers as judges themselves, and thus have a future self-interest to protect their own future privileges, the biggest one of which is the "discretion" of ruling in favor of one party over another where a judge cannot be openly accused of corruption, even though corruption is screaming from the way "discretion" is applied.
Of course, "judicial corruption" is a taboo word combination in law school courses, for law students, law professors of ethics, and for lawyers.
It doesn't help removing the distinct sour taste from reading the letter to learn that the group includes the daughter of the former (until 2013) Attorney General of Washington State Rob McKenna, Madeleine McKenna, who has experience in handling a "statewide voter outreach program" in her father's recent run for a Governor.
Not only McKenna the father (a licensed attorney with apparent high political ambitions) will benefit in having his daughter brown-nose the judiciary and add support judicial discretion, but a State Attorney General's position is usually a stepping stone for something higher - the Governor, a Senator, or - a state or federal judge.
So, the daughter is arguing for the well-being of her father, and NOT about well-beings of minority criminal defendants who will not be given mercy or leniency by the likes of Judge Persky anyway.
And, Madeleine McKenna's friends are standing in line to support her campaign and, through that support, to put caviar on their own meal ticket, for years to come.
Here are the name of the drafters of the letter and some of their background information that I was able to find online.
- Akiva Freidlin,
- Emi Young,
- Ginny Halden,
- Jeannie Lieder,
- Madeleine McKenna,
- Michael Skocpol,
- Nick Rosellini, and
- Vina Seelam
Akiva Freidlin
Here is Mr. Freidlin's experience, as stated by himself on his own LinkedIn profile:
Emi Young's experience, as listed on her own LinkedIn page:
Virginia "Ginny" Halden, recipient of Deborah L. Rhode Public Interest Award
Jeannie Leider, a Public Interest Fellow in Stanford Law School 2015-2016
Here is Jeannie Lieder's description from her Public Fellow award announcement:
Madeleine McKenna, daughter of Washington State Attorney General Robert McKenna who ran for Governor of the State of Washington in 2012; Madeleine McKenna, according to her LinkedIn page, ran a "voter outreach program" for her father
Madeleine McKenna's education and experience as described on her LinkedIn page:
Here is education and experience of Michael Skocpol, as posted on his own LinkedIn page:
Michael Skocpol is the son of Harvard professor of sociology Theda Skocpol, the former Dean of Harvard Graduate School of Arts and Sciences.
The racial composition of the "drafting" group (even though a more adult drafter's hand is all over the "open letter") appeared to have been very carefully arranged.
Same as appointments for courts, same as partnerships in large law firms, a small number of dark-skinned individuals are thrown in to be able to call "diversity".
That strategy was clearly employed in the "drafting group" where out of 8 "drafters", 7 are white and only 1 is of Indian (not Native American) origin - where Indians are not the discriminated minorities the letter drafters are using to achieve the results desired by the judiciary, to eliminate the precedent of constitutional recall of a judge for abuse of discretion screaming of corruption and "white privilege" racial pre-judgment.
Of course, in this particular situation, careful attention was paid also to the gender composition of the group. Out of 8 of the alleged "drafters" of the open letter, the majority, 5 of them, are female.
5 females, future lawyers, possibly, future judges, graduates of an elite school, oppose recall of a judge who defied the jury verdict of a white man who raped an unconscious woman and gave him a lenient sentence based on the factor (intoxication) that the jury rejected as a defense at trial.
As I mentioned above, the main focus of the "open letter" is "judicial independence", the judge's right to exercise "discretion" and that the recall of a judge because he made a decision that was within his discretion to make will undermine not only judicial independence, but will jeopardize the much needed mercy to indigent and minority defendants.
In fact, judicial mercy at sentencing MUST be severely circumscribed.
First, because a wide latitude of sentencing choices (the prosecution asked for 6 years, Judge Persky gave 6 months, 3 months for good behavior), when such discretion is exercised in the matter of white privileged kids and not exercised in the matter of minority and/or indigent defendants, the public has a legitimate reason to treat such decisions as having an appearance of being corrupt.
Second, the 8 drafters must know (and especially Madeleine McKenna, the daughter of a former prosecutor from 2004 to 2013) that judicial discretion at sentencing after a jury trial is usually exercised the other way - judges usually PUNISH criminal defendants for going to trial instead of entering plea bargains, often with maximum prison sentences.
Since in this case, the discretion that Judge Persky exercised was contrary to the general trend of how that judicial discretion is usually exercised towards indigent, non-white and non-moneyed/privileged defendants, such smart people as 8 Ivy League law school graduates, one of them a son of an accomplished Harvard University professor, most of them also with Ivy League undergraduate degrees, cannot play dumb by claiming that giving a break to a white privileged kids was a proper exercise of "judicial mercy" that should not be restricted.
A sentencing judge should not be allowed to COMMUTE the sentence - that kind of MERCY is the authority of the GOVERNOR, in rarest of cases.
The sentencing judge should apply strict, equal sentences after the jury has reached the verdict of guilty, and should not have the power to cancel the jury verdict.
One of the most piece in the "open letter" is:
"[m]any of us, like you, believe that justice called for a stiffer sentence in his case. But we think humility requires us to recognize that we won’t always be able to distinguish between legitimate and illegitimate exercises of judicial mercy."
Well, everybody has their own right to think the way they want to think, California voters included.
And, the established democratic procedure, a recall, will show whether the public is able or not able to distinguish between legitimate and illegitimate exercises of judicial mercy.
At this time, the public obviously thinks that the prosecutor, the attorney for the People, failed them by not filing an appeal, as well as that the judge is racist and corrupt in favor of wealth and privilege and should not be allowed to decide cases requiring NEUTRALITY.
Why not let the public decide, as is allowed by the California Constitution - whether to recall the judge or not?
And - why try not to influence the public directly, but to direct their letter to the influential law professor asking her to withdraw her support of the recall campaign?
Is it because those powerful adults who apparently pulls the strings of the 8 alleged "drafters" of the "open letter" are actually afraid that they will not like what the public vote is going to be?
Then, why not try to start their own campaign - to change the California State Constitution to remove the recall provision from it?
All in all, the "open letter" leaves an aftertaste that it was a career-enhancing opportunity for the 8 alleged drafters that they could not pass by, and that all 8 of them are looking to receive material, monetary and non-monetary benefits, in their immediate and remote career, from jumping into the fray defending judges' right to act on a whim.
Because, as I said above, these graduates of an elite law school will derive their financial wealth and political influence from such "judicial discretion" in the years to come, and may exercise that discretion themselves when they become judges (which is the career goal of many Ivy League-educated attorneys).
Of course, we have freedom of speech (supposedly) in this country, and the Standford Law School graduates are entitled to their own opinion.
But, when they use the prestige of their education, the numbers of unidentified co-signors in their plea to support the most treasured boon of judicial position - judicial discretion - at the time when judges' associations are lobbying against recall of Judge Persky in order not to lose that coveted privilege (and source of corruption) and at the time when they are just about to be licensed by the very judiciary whose privileges to act on a whim they are supporting, the totality of how they expressed their opinion - stinks and makes their arguments less than good faith, to put it mildly.
I will continue to follow the legal careers of these 8 aspiring brown-nosers of the judiciary with keen interest and will report it on this blog. I am very much interested to see what was - likely - offered to this group in exchange for the "open letter".
For news about this group of 8 - stay tuned.
Same as appointments for courts, same as partnerships in large law firms, a small number of dark-skinned individuals are thrown in to be able to call "diversity".
That strategy was clearly employed in the "drafting group" where out of 8 "drafters", 7 are white and only 1 is of Indian (not Native American) origin - where Indians are not the discriminated minorities the letter drafters are using to achieve the results desired by the judiciary, to eliminate the precedent of constitutional recall of a judge for abuse of discretion screaming of corruption and "white privilege" racial pre-judgment.
Of course, in this particular situation, careful attention was paid also to the gender composition of the group. Out of 8 of the alleged "drafters" of the open letter, the majority, 5 of them, are female.
5 females, future lawyers, possibly, future judges, graduates of an elite school, oppose recall of a judge who defied the jury verdict of a white man who raped an unconscious woman and gave him a lenient sentence based on the factor (intoxication) that the jury rejected as a defense at trial.
As I mentioned above, the main focus of the "open letter" is "judicial independence", the judge's right to exercise "discretion" and that the recall of a judge because he made a decision that was within his discretion to make will undermine not only judicial independence, but will jeopardize the much needed mercy to indigent and minority defendants.
In fact, judicial mercy at sentencing MUST be severely circumscribed.
First, because a wide latitude of sentencing choices (the prosecution asked for 6 years, Judge Persky gave 6 months, 3 months for good behavior), when such discretion is exercised in the matter of white privileged kids and not exercised in the matter of minority and/or indigent defendants, the public has a legitimate reason to treat such decisions as having an appearance of being corrupt.
Second, the 8 drafters must know (and especially Madeleine McKenna, the daughter of a former prosecutor from 2004 to 2013) that judicial discretion at sentencing after a jury trial is usually exercised the other way - judges usually PUNISH criminal defendants for going to trial instead of entering plea bargains, often with maximum prison sentences.
Since in this case, the discretion that Judge Persky exercised was contrary to the general trend of how that judicial discretion is usually exercised towards indigent, non-white and non-moneyed/privileged defendants, such smart people as 8 Ivy League law school graduates, one of them a son of an accomplished Harvard University professor, most of them also with Ivy League undergraduate degrees, cannot play dumb by claiming that giving a break to a white privileged kids was a proper exercise of "judicial mercy" that should not be restricted.
A sentencing judge should not be allowed to COMMUTE the sentence - that kind of MERCY is the authority of the GOVERNOR, in rarest of cases.
The sentencing judge should apply strict, equal sentences after the jury has reached the verdict of guilty, and should not have the power to cancel the jury verdict.
One of the most piece in the "open letter" is:
"[m]any of us, like you, believe that justice called for a stiffer sentence in his case. But we think humility requires us to recognize that we won’t always be able to distinguish between legitimate and illegitimate exercises of judicial mercy."
Well, everybody has their own right to think the way they want to think, California voters included.
And, the established democratic procedure, a recall, will show whether the public is able or not able to distinguish between legitimate and illegitimate exercises of judicial mercy.
At this time, the public obviously thinks that the prosecutor, the attorney for the People, failed them by not filing an appeal, as well as that the judge is racist and corrupt in favor of wealth and privilege and should not be allowed to decide cases requiring NEUTRALITY.
Why not let the public decide, as is allowed by the California Constitution - whether to recall the judge or not?
And - why try not to influence the public directly, but to direct their letter to the influential law professor asking her to withdraw her support of the recall campaign?
Is it because those powerful adults who apparently pulls the strings of the 8 alleged "drafters" of the "open letter" are actually afraid that they will not like what the public vote is going to be?
Then, why not try to start their own campaign - to change the California State Constitution to remove the recall provision from it?
All in all, the "open letter" leaves an aftertaste that it was a career-enhancing opportunity for the 8 alleged drafters that they could not pass by, and that all 8 of them are looking to receive material, monetary and non-monetary benefits, in their immediate and remote career, from jumping into the fray defending judges' right to act on a whim.
Because, as I said above, these graduates of an elite law school will derive their financial wealth and political influence from such "judicial discretion" in the years to come, and may exercise that discretion themselves when they become judges (which is the career goal of many Ivy League-educated attorneys).
Of course, we have freedom of speech (supposedly) in this country, and the Standford Law School graduates are entitled to their own opinion.
But, when they use the prestige of their education, the numbers of unidentified co-signors in their plea to support the most treasured boon of judicial position - judicial discretion - at the time when judges' associations are lobbying against recall of Judge Persky in order not to lose that coveted privilege (and source of corruption) and at the time when they are just about to be licensed by the very judiciary whose privileges to act on a whim they are supporting, the totality of how they expressed their opinion - stinks and makes their arguments less than good faith, to put it mildly.
I will continue to follow the legal careers of these 8 aspiring brown-nosers of the judiciary with keen interest and will report it on this blog. I am very much interested to see what was - likely - offered to this group in exchange for the "open letter".
For news about this group of 8 - stay tuned.
Saturday, June 25, 2016
No - don't acknowledge that the attorney was never suspended as a matter of law, my money depends on it!
There can be stupid.
And there can be STUPID.
And there can be VERY STUPID.
The EXTRA VERY STUPID is what I saw today in the "legal" argument of attorney Woodruff Carroll, lover of teen chats, the one who "lacks a filter" (not my expression).
By the way, Carroll's enthrallment with sex got the better of him when he used a sexual term "quickie" in a Memorandum of Law - claiming that he has made a "quickie motion".
I will repeat here Carroll's statements that I already posted earlier which prompted observers of his failed election campain for a City Council state that Carroll "lacks a filter" - and that's a huge understatement:
Carroll, together with former magistrate Peebles (whose term expired on May 16, 2016, but Peebles still continues as the Magistrate of the Northern District of New York) did employ that tactic -
with the indigent plaintiffs of the Argro case.
In fact, Carroll used that strategy beautifully where the Plaintiffs went to the hearing to finally kick Carroll out and ended up settling the case for "quick cheap money" (Carroll's words, not mine)
after a "brilliant speech of Magistrate Peebles) (Carroll's words, not mine, repeated at least 3 times in his pleadings), and after Carroll told them that Peebles will be pissed off with them if they do not settle (Carroll's words, not mine).
To say that Carroll is exceptionally stupid, even for a privileged attorney, is an understatement of the century - he admits A LOT that a corrupt, but "prudent" attorney would prefer to conceal.
But, Carroll surpassed even his own record level of stupidity in his pleading when he claimed that my suspension should not be "reversed" (or deemed as "never happened" because there is no public order of suspension, as I argued) - because Carroll bet money on my suspension.
Carroll does not even try to call me by name, I am "she" and "her" in the majority of his sentences in the pleadings.
Here is Carroll's argument, in all its unadorned glory:
Carroll argued the above on behalf of the person who provided to the court an affidavit that she wanted to hire me (with or without a license) and provided a written statement that she wanted to fire Carroll - which the court did not allow her to do, and forced her to accept Carroll's services anyway.
Carroll states in his "affidavit" - without supporting affidavits of his coerced clients - that now the very people who told me that they are prejudiced by my suspension and want me back on the case, license or no license, actually do not want my suspension to be deemed what it is - a nullity - because they will be financially hurt then.
Just imagine that.
Do not apply the law, your Honor, it will hit me in the pocket.
Lacks a filter, indeed.
And there can be STUPID.
And there can be VERY STUPID.
The EXTRA VERY STUPID is what I saw today in the "legal" argument of attorney Woodruff Carroll, lover of teen chats, the one who "lacks a filter" (not my expression).
By the way, Carroll's enthrallment with sex got the better of him when he used a sexual term "quickie" in a Memorandum of Law - claiming that he has made a "quickie motion".
I will repeat here Carroll's statements that I already posted earlier which prompted observers of his failed election campain for a City Council state that Carroll "lacks a filter" - and that's a huge understatement:
Carroll, together with former magistrate Peebles (whose term expired on May 16, 2016, but Peebles still continues as the Magistrate of the Northern District of New York) did employ that tactic -
"scare 'em a little bit and get 'em motivated"
with the indigent plaintiffs of the Argro case.
In fact, Carroll used that strategy beautifully where the Plaintiffs went to the hearing to finally kick Carroll out and ended up settling the case for "quick cheap money" (Carroll's words, not mine)
after a "brilliant speech of Magistrate Peebles) (Carroll's words, not mine, repeated at least 3 times in his pleadings), and after Carroll told them that Peebles will be pissed off with them if they do not settle (Carroll's words, not mine).
To say that Carroll is exceptionally stupid, even for a privileged attorney, is an understatement of the century - he admits A LOT that a corrupt, but "prudent" attorney would prefer to conceal.
But, Carroll surpassed even his own record level of stupidity in his pleading when he claimed that my suspension should not be "reversed" (or deemed as "never happened" because there is no public order of suspension, as I argued) - because Carroll bet money on my suspension.
Carroll does not even try to call me by name, I am "she" and "her" in the majority of his sentences in the pleadings.
Here is Carroll's argument, in all its unadorned glory:
Carroll states in his "affidavit" - without supporting affidavits of his coerced clients - that now the very people who told me that they are prejudiced by my suspension and want me back on the case, license or no license, actually do not want my suspension to be deemed what it is - a nullity - because they will be financially hurt then.
Just imagine that.
Do not apply the law, your Honor, it will hit me in the pocket.
Lacks a filter, indeed.
The defenders of Judge Persky - market players in the legal profession
4 days ago, on June 21, 2016, a Stanford Law School law professor Michele Dauber published a letter in The Washington Post supporting recall of judge Aaron Persky, a former Stanford Lacrosse team captain, for giving a super-lenient sentence to Brock Turner, a Stanford swimmer.
Professor Dauber argued that Judge Persky practically contested and corrected through his sentence a jury verdict for felonies, one of them carrying a mandatory minimum sentence of 2 years in prison with no probation allowed.
For the sake of fairness, other reports indicated that under California law, Judge Persky did not violate sentencing guidelines, that he was allowed to consider "unusual circumstances" to reduce the sentence and give probation. Turner's youth, level of intoxication and lack of prior criminal record were used by Judge Persky as "unusual circumstances" to reduce his sentence.
Yet, Professor Dauber clearly pointed out in her letter that Judge Persky:
Judge Persky has defenders.
The first, as described above, is the Santa Clara County Public Defender Ronald O'Connor who is "appalled" by the recall efforts which, in his opinion, undermine the cornerstone of judicial process - judicial independence.
The second is a prominent constitutional law professor Erwin Chemerinsky.
Professor Chemerinsky is entitled to much less credit as an impartial scholar though after he allowed himself to be bought by the BarBri enterprise.
Professor Chemerinsky's reaction to public efforts to recall Judge Persky is this:
"'I think the public should express its outrage through all of the means that views are expressed: comments to the press, news conferences, petitions, demonstrations, op-eds,' said Erwin Chemerinsky, dean of UC Irvine’s law school. 'People should express their views, but a recall is not the answer and is a real threat to judicial independence.'"
Huh?
The recall effort is allowed and is following the procedure provided for by the California State Constitution. Surely, a prominent constitutional law professor such as Erwin Chemerinsky must know that the process is lawful.
The next thing to consider is that Erwin Chemerinsky is a practicing attorney and, as the majority of practicing attorneys in this country, will not be caught saying anything against a judge that will have a potential of actually hurting the judge.
So, Chemerinsky, while calling Judge Persky's decision “outrageous,” “misguided” and “grossly inadequate,” allows the sovereign employer of that judge, "We the People" of the State of California, only one recourse against Judge Persky's behavior: running at the mouth, with no potential of having any impact on the judge.
That's a gross disrespect to democratic process of recall of judges, provided in the California State Constitution.
Reportedly, the president of the California Judges Association, called the looming recall “potentially catastrophic,” claiming that "[a]ny effort to recall any judge in this country for making a legally valid ruling, no matter how popular or unpopular, presents a potentially catastrophic threat to our system of justice”, and added that “[i]f judicial officers are forced to fear the masses, then American justice and individual constitutional rights will be decided by judges surveying the crowd to preserve his or her own livelihood and personal well-being.”
But - the public is outraged exactly because it smelled the rat and believes that Judge Persky's decision is corrupt and that the judge is "surveying the crowd" - the rich white crowd - "to preserve his or her own livelihood and personal well-being".
The problem that has come to the fore in Judge Persky's case is the so-called "judicial discretion", and how much of it can judges be allowed in deciding cases - at least where issues of fact are already decided by juries.
Sexual assault on an unconscious victim is completely reprehensible.
Yet, reportedly, "current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist", and that's what California lawmakers seek to correct, after the public outcry over Judge Persky's lenient sentence motivated by Judge Persky's camaraderie with an athlete from the judge's alma mater, as well as by Judge Persky's apparent personal beliefs that the victim's own behavior is to blame - a belief that was demonstrated in a prior 2011 case, too.
Let us ask a question - who wrote the law that is on the books now?
The one making a long prison sentence mandatory when "force is used", but no when the victim is unconscious or severely intoxicated and unable to resist?
How come sexual intercourse with an unconscious victim is not forcible rape?
And, aren't the lawmakers in the State of California predominantly white male lawyers? Who only responded to close the loophole after an international public outcry?
Two public defenders actually launched a petition against recall.
They reportedly said:
"The punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion, will deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal... We fear that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.”
So, the concern is that:
Yet, that does not take away from the District Attorney an ability to reduce crimes through plea bargaining, it only restricts the judge from giving too lenient sentences for serious crimes after juries have already spoken.
Judges in criminal courts are mostly former prosecutors, and are mostly pro-prosecution.
In this case, I cannot say that judge Persky is NOT pro-prosecution, he is just MORE pro-Stanford (former) athlete and pro rich white privileged criminal defendant.
After all, who knows what Judge Persky's plans for the future career are, and who knows what Brock Turner's family, or its friends, can offer Judge Persky in return for the lenient sentence. Future will show.
But, anyway, all criminal defense attorneys, including the public defenders who launched the campaign in support of Judge Persky, know that once you go to trial, in case you lose your client most likely faces a maximum sentence, not a lenient judge like Persky.
That is the rule, Persky's lenient sentence to a rich white kid was the exception.
So, claiming that the Perskys of the California court system will be somehow intimidated into giving tougher sentence, and that it will affect minorities is a lame argument at best - because that is already happening, and what Turner got is exactly the opposite of the current trend.
Arguing that judges in criminal courts will be restricted in their discretion to give mercy which they never give, and opposing the limitation of judicial discretion to impose sentence of a convicted rapist is simply asking for attention and favors from the judicial system.
It is apparent that all defenders of Judge Persky are practicing attorneys who stand to gain from their support of judicial whims and who stand to lose from judicial disfavors exercised through the same judicial discretion they fight hard to preserve.
It is my firm belief thought that, given the backgrounds and patterns of behavior of most judges, allowing judges too much discretion allows them to assert privileges of their friends and members of their own social class and undermines people's trust in the integrity of the judiciary.
I will publish a separate story about yet another set of opponents of recall of Judge Persky - Stanford Law School graduates, the most recent class.
Stay tuned.
Professor Dauber argued that Judge Persky practically contested and corrected through his sentence a jury verdict for felonies, one of them carrying a mandatory minimum sentence of 2 years in prison with no probation allowed.
For the sake of fairness, other reports indicated that under California law, Judge Persky did not violate sentencing guidelines, that he was allowed to consider "unusual circumstances" to reduce the sentence and give probation. Turner's youth, level of intoxication and lack of prior criminal record were used by Judge Persky as "unusual circumstances" to reduce his sentence.
Yet, Professor Dauber clearly pointed out in her letter that Judge Persky:
- minimized trauma to the victim, and used for purposes of giving leniency to the rapist "character letters" openly blaming the victim;
- "verged on questioning the jury’s verdict, calling the trial an 'imperfect process' and saying that Turner should not be 'penalized' for failing to fully accept the findings of guilt" - thus acting as an advocate for Turner;
- was not impartial, to which the prosecutor agrees where, while not filing an appeal fearing it will fail because Judge Persky was within his "discretion", the prosecutor did ask the court to remove Persky from another sex assault case claiming he has lost confidence in Persky's impartiality.
The case from which Judge Persky was removed was identical to the Turner case, where a male nurse is accused of sexually assaulting an anesthesized woman:
Persky's lenient sentence caused an unheard of response - potential jurors refuse to sit in his courtroom, apparently believing that so doing is a waste of time and that he is unable to preside impartially.
Professor Dauber pointed out that under the California State Constitution, judges are subject to recall.
That's exactly what people of the State of California, led in their effort by U.S. Representative Jackie Speier and state legislative representatives, want to do - recall judge Persky based on the state Constitution.
By the way, here is Judge Persky's statement at the sentencing hearing explaining his reasons for the lenient sentence.
Professor Michele Dauber, being reportedly, friend of the victim in the Turner case, is surely not impartial.
Yet, neither is Judge Persky.
Both Michele Dauber and Judge Persky appear to be advocates - Judge Persky for Stanford athletes and for young white males raping females, and Michele Dauber - for her raped friend.
Yet, it is not Michele Dauber alone who want the recall of Judge Persky, it is the millions of people who signed the recall petition and the legislators in the State of California.
Nor is it unlawful to do the recall - since it is specifically permitted by the California State Constitution.
Here is what the public defender of Santa Clara County says about Judge Aaron Persky:
"Aaron Persky is widely held by both prosecutors and defense attorneys to be one of the most fair and thoughtful jurists on the bench.
A good and decent man’s reputation is irreparably damaged, his physical safety and that of his family is in serious danger, and the very integrity of the criminal justice system he so faithfully served is in jeopardy."
The sentence of Brock Turner and Judge Persky's conduct at the sentencing hearing does not describe a "good and decent man" though. It describe a white judge who favored a white athlete from the judge's former alma mater, put down the victim of a sexual assault and argued that the jury verdict that Judge Persky was law-bound to enforce, might not be proper.
The first, as described above, is the Santa Clara County Public Defender Ronald O'Connor who is "appalled" by the recall efforts which, in his opinion, undermine the cornerstone of judicial process - judicial independence.
The second is a prominent constitutional law professor Erwin Chemerinsky.
Professor Chemerinsky is entitled to much less credit as an impartial scholar though after he allowed himself to be bought by the BarBri enterprise.
Professor Chemerinsky's reaction to public efforts to recall Judge Persky is this:
"'I think the public should express its outrage through all of the means that views are expressed: comments to the press, news conferences, petitions, demonstrations, op-eds,' said Erwin Chemerinsky, dean of UC Irvine’s law school. 'People should express their views, but a recall is not the answer and is a real threat to judicial independence.'"
Huh?
The recall effort is allowed and is following the procedure provided for by the California State Constitution. Surely, a prominent constitutional law professor such as Erwin Chemerinsky must know that the process is lawful.
The next thing to consider is that Erwin Chemerinsky is a practicing attorney and, as the majority of practicing attorneys in this country, will not be caught saying anything against a judge that will have a potential of actually hurting the judge.
So, Chemerinsky, while calling Judge Persky's decision “outrageous,” “misguided” and “grossly inadequate,” allows the sovereign employer of that judge, "We the People" of the State of California, only one recourse against Judge Persky's behavior: running at the mouth, with no potential of having any impact on the judge.
That's a gross disrespect to democratic process of recall of judges, provided in the California State Constitution.
Reportedly, the president of the California Judges Association, called the looming recall “potentially catastrophic,” claiming that "[a]ny effort to recall any judge in this country for making a legally valid ruling, no matter how popular or unpopular, presents a potentially catastrophic threat to our system of justice”, and added that “[i]f judicial officers are forced to fear the masses, then American justice and individual constitutional rights will be decided by judges surveying the crowd to preserve his or her own livelihood and personal well-being.”
But - the public is outraged exactly because it smelled the rat and believes that Judge Persky's decision is corrupt and that the judge is "surveying the crowd" - the rich white crowd - "to preserve his or her own livelihood and personal well-being".
The problem that has come to the fore in Judge Persky's case is the so-called "judicial discretion", and how much of it can judges be allowed in deciding cases - at least where issues of fact are already decided by juries.
Sexual assault on an unconscious victim is completely reprehensible.
Yet, reportedly, "current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist", and that's what California lawmakers seek to correct, after the public outcry over Judge Persky's lenient sentence motivated by Judge Persky's camaraderie with an athlete from the judge's alma mater, as well as by Judge Persky's apparent personal beliefs that the victim's own behavior is to blame - a belief that was demonstrated in a prior 2011 case, too.
Let us ask a question - who wrote the law that is on the books now?
The one making a long prison sentence mandatory when "force is used", but no when the victim is unconscious or severely intoxicated and unable to resist?
How come sexual intercourse with an unconscious victim is not forcible rape?
And, aren't the lawmakers in the State of California predominantly white male lawyers? Who only responded to close the loophole after an international public outcry?
Two public defenders actually launched a petition against recall.
They reportedly said:
"The punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion, will deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal... We fear that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.”
So, the concern is that:
- judicial discretion in sentencing will be legislatively restricted, and
- that legislative restriction of judicial sentencing will restrict judges in extending mercy to criminal defendants, and
- that will "disproportionately impact the underprivileged and minorities", and
- will "perpetuate mass incarceration".
It is correct that what is legislatively sought now is to restrict judicial discretion in sentencing.
Yet, that does not take away from the District Attorney an ability to reduce crimes through plea bargaining, it only restricts the judge from giving too lenient sentences for serious crimes after juries have already spoken.
As to judge's ability to exercise "mercy", affecting minorities and perpetuating mass incarceration, which will allegedly be affected by the recall efforts of Judge Persky, such claims are questionable at best.
According to the California Attorney General, violent crimes are actually decreasing at present.
In the same 2013, there were 213,390 total convictions and 38,034 convictions for violent offenses (p. 53 of the report).
Not all felonies are violent crimes - fraud and theft are also felonies.
Only 2.3% of felonies are tried in state courts, the majority of convictions are through plea bargains.
The majority of cases that are tried are tried by private criminal defense attorneys on behalf of those defendants who can afford those expensive private criminal defense attorneys.
Thus, claims that restricting a judge's discretion at sentencing after a jury trial will somehow disproportionately affect minorities or "perpetuate mass incarceration" are simply not credible.
What is more credible is that two public defenders want to get into good graces with the judiciary by launching the petition in support of Judge Persky.
What is also credible is that all judges publicly recognized that the most cherished part of their jobs is ability to act on a whim - the so-called "judicial discretion".
To say that restricting judicial discretion after jury trials is restricting acts of mercy, and especially when that is coming from public defenders, is defying reality.
Judges most often punish criminal defendants for going to trial, making them serve the maximum of the allowed sentences, and that is the opposite of what Judge Persky did with the privileged white rapist Brock Turner.
Judges in criminal courts are mostly former prosecutors, and are mostly pro-prosecution.
In this case, I cannot say that judge Persky is NOT pro-prosecution, he is just MORE pro-Stanford (former) athlete and pro rich white privileged criminal defendant.
After all, who knows what Judge Persky's plans for the future career are, and who knows what Brock Turner's family, or its friends, can offer Judge Persky in return for the lenient sentence. Future will show.
But, anyway, all criminal defense attorneys, including the public defenders who launched the campaign in support of Judge Persky, know that once you go to trial, in case you lose your client most likely faces a maximum sentence, not a lenient judge like Persky.
That is the rule, Persky's lenient sentence to a rich white kid was the exception.
So, claiming that the Perskys of the California court system will be somehow intimidated into giving tougher sentence, and that it will affect minorities is a lame argument at best - because that is already happening, and what Turner got is exactly the opposite of the current trend.
Arguing that judges in criminal courts will be restricted in their discretion to give mercy which they never give, and opposing the limitation of judicial discretion to impose sentence of a convicted rapist is simply asking for attention and favors from the judicial system.
It is apparent that all defenders of Judge Persky are practicing attorneys who stand to gain from their support of judicial whims and who stand to lose from judicial disfavors exercised through the same judicial discretion they fight hard to preserve.
It is my firm belief thought that, given the backgrounds and patterns of behavior of most judges, allowing judges too much discretion allows them to assert privileges of their friends and members of their own social class and undermines people's trust in the integrity of the judiciary.
I will publish a separate story about yet another set of opponents of recall of Judge Persky - Stanford Law School graduates, the most recent class.
Stay tuned.
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