With no caps on fees for prosecution, there should be no caps on indigent criminal defense

The cap in representation of the poor in New York appellate courts is, upon my information, $4,400, with an hourly rate of $75.00 per hour, irrespective of the case, unless there are "extraordinary circumstances" and a court's permission,

and with $350.00 cap for reimbursement of costs without additional permission of the court, whatever they actually are - for printing, reproduction of the record, mailing, copying.

Note that legal research through Westlaw or LexisNexis - available to state-paid prosecutors - is not available to assigned counsel.  Westlaw or LexisNexis packages can come at hundreds of dollars per hour, and enormous amounts per month.  Apparently, prosecutors are entitled to such an expense, but defense attorneys for the poor are not.

Of course, there are law libraries in courthouses, but, first, doing research through books is not very fast (and will quickly eat into those allowed 58 hours), resources of local courthouse law libraries may be limited, and - most importantly - attorneys may reside miles from those courthouses, and courthouses may have limited time for the law libraries to be open.

In other words, your assigned counsel will be at a severe disadvantage, as compared to an opponent with an online Westlaw account who can do research 24/7 and without caps on paid attorney time or expenses involved.

Moreover, note that the state makes assigned counsel FINANCE the defense - by paying them not in advance, but only in arrears, after the often multi-month representation is complete, and with no guarantee of deadlines for payment after the vouchers are submitted.

Of course, you should know that all applications for costs or fees in excess of the above amounts are, of course, "disfavored" by courts - which means, more often than not, you will get nothing over the capped limits, despite your actual expenses and despite your actual (and necessary) input of hours.

That means that on an assigned appeal in New York, the indigent client is entitled to 58.66 hours of paid representation, total.  You know that no assigned attorney will work when he or she is not being paid, so after your assigned attorney has worked his or her 58.66 total on an assigned case - you can expect... Well, nothing.  Cutting corners, that is.

58 hours, depending on the case, may not be enough even to READ the transcripts of the proceedings, much less to do proper research on issues that arise in such proceedings, while cases in Family and criminal courts can last for days, producing miles of trial transcripts - and believe my experience as an appellate attorney in New York in civil, civil rights, criminal and Family Court cases, many issues may arise requiring research, 58 hours of work is not nearly enough for any appeal.

Here are answers posted by attorneys from different states on AVVO as to how many hours an "average" appeal takes:

So, attorneys from across the country agree that it takes anywhere from 10 to several hundred hours to do an appellate brief, depending on many factors.

Only 58 of those necessary hours are compensated in New York.

Try asking your assigned appellate counsel before he or she starts working on your appeal, and during the appeal, as to what issues he or she is going to raise, how exactly - or whether - she does legal research, whether he or she is going to exceed the fees and/or expenses cap and whether he or she is going to apply for fees or expenses on top of the caps.

You have grounds for concern especially if the record is large - because of how much time goes into just reading it, spotting the issues in the record and researching the issues.

My readers report to me that, mostly, assigned appellate counsel duck such questions and, most often, do not even agree with their own clients to discuss issues they are raising on appeal, claiming that they have the record and don't need their clients' input.

Of course, no attorney will behave in this manner with a paying client, and no attorney should behave in this manner with any client.

In cases of criminal appeals, the issue amounts to a constitutional violation.

Under Gideon v Wainright the U.S. Supreme Court required representation at every meaningful stage of a criminal proceeding, and an appeal from a conviction is such a meaningful stage.

Capping such representation for the indigent based on budgetary concerns does not spell out compliance with this constitutional precedent.

New York caps on assigned representation on appeal are not the only such caps.

In federal criminal cases, compensation of assigned criminal defense attorneys is subject to guidelines.

Here are the federal maximums in compensation for criminal defense counsel as of January 1, 2016.

$10 thousand dollars for a criminal trial of a felony other than a capital (death penalty) case.

Is it a lot or not a lot?

It all depends on the number of hours required to be put into the case.

Here are the hourly rates:

So, for a felony, at the hourly rate of $129.00, an assigned criminal defense attorney is allowed a fee of $10,000 for a felony case, $2,900 for a misdemeanor case, and $7,200 for appeal from a conviction from either a felony or a misdemeanor.

Let's translate that into the number of hours an indigent criminal defendant will get out of assigned counsel in federal criminal cases.

In a felony case, a criminal defendant will get 77.51 hours of paid representation.

In a misdemeanor case - 22.48 hours.

On an appeal from either a felony or a misdemeanor - 55.81 hours, less than in New York.

An attorney, once assigned, cannot bow out of the case without court's permission, and will have to work as many hours as the case requires.

The attorney will have to be present at as many hearings as necessary, and at as many days of criminal trial as necessary.

Also, a whopping $500.00 is allowed for "computer-aided legal research" - that will be worth, probably, 3 (three, total) hours of research on Westlaw.  Otherwise, the assigned counsel will have to submit to the court a "statement of justification" of his work for the defendant

- which is an interference with effective representation of counsel and freedom of the defense counsel to decide how to build the defense.

Imagine that a criminal case is lasting for a year - usually, criminal cases run for more than a year, but let's say a year.

Over that year, the prosecution will earn an annual salary, with benefits.

Here is the rates of compensation of U.S. Attorneys, irrespectively to how many cases they handle per year:

Yet, a criminal defense attorneys who may work for the same year only and entirely on a labor-intensive case, will earn only $10,000 for a felony or $2,900 for a misdemeanor - that is lower than the current poverty levels in this country, with no benefits, by the way.

What kind of quality of criminal defense can we expect under the circumstances?

Criminal defense is notoriously "labor-intensive".  Moreover, criminal procedure laws give a criminal defendant and his counsel notoriously less time for discovery and motions than in a civil case, which makes work of a criminal defense counsel not only labor-intensive, but labor-intensive over certain periods of time.

Another big issue is that manipulating between "capped" (private) and "uncapped" (assigned) federal criminal defense attorneys may be done to influence the result of the criminal case.

I wrote on this blog about federal judges in Minnesota and Nevada who disqualified private criminal defense counsel for defendants on pretextual bases and instead assigned criminal defense attorneys to them.

In at least one of these cases, as I far as I remember the record, the defense claimed that they need to review thousands of pages provided by prosecution in discovery.

Let's see how even one thousand pages provided in discovery will impact ability the right of a federal criminal defendant to effective representation of counsel at trial.

Let's say that an attorney will need from 3 to 10 minutes to read one page, depending on density of the text and complexity of the issues raised there.  Remember that it is not just casual reading when you can skim through the text, but a reading seeking to see connections with other evidentiary facts, relevance to the case and how what you read may help your client.

With a thousand pages of discovery, the attorney will spend, then, from 3,000 to 10,000 minutes on reading 1,000 pages received in discovery.

There are 60 minutes in an hour.

Thus, an attorney will spend from 50 hours to 167 hours on just reading the discovery materials.

There are no restrictions as to how much in discovery materials is to be provided in any given criminal case - felony or misdemeanor.

In fact, the more a criminal defense counsel gets in discovery, the better - when his fees and expenses are "uncapped", of course.

Yet, under federal caps on criminal defense compensation, an assigned criminal defense counsel will only be paid for less than 23 hours of work in a misdemeanor case and for less than 78 hours of work in a non-capital felony case.

So, if an attorney needs 167 hours to just read materials he received in discovery, here goes your criminal defense in the entire case.

The attorney has no time, within the paid limits, to even READ the materials in discovery, much less, to come to talk to his client in jail, appear at court proceedings, hearings or a trial, do legal research or make motions.

When federal judges remove from the case private - "uncapped" - criminal defense attorneys and replace them with "capped" attorneys, while knowing that their "capped" compensation will not even cover reading the discovery in the case, that means only one thing - to force the "capped" attorney to either provide multiple hours of work for free (not many attorneys are capable or can be expected to engage in such sacrificial work at their own expense), or to provide the bare minimum of representation to avoid malpractice and discipline, or to steer the criminal defendant into a quick plea bargain.

This is how American prisons are filled with wrongful convictions, ladies and gentlemen.

And this is how prosecutorial, and then judicial, careers are made.

Just a little help from the judge, disqualification of an "uncapped" criminal defense counsel and assigning a "capped" counsel can make a difference between an acquittal at trial and a coerced plea bargain, another "won" case for the prosecutor, and a paved path to judgeship for that prosecutor.

Attorneys, unfortunately, do readily steer their clients into plea bargains to get the maximum payment out of a minimum hours worked, this is a very well-known scam used by many criminal defense attorneys unworthy of that name.

I received many, many, many stories from my readers, in addition of the stories I heard of the years of working in a criminal defense attorney's office and practicing, telling me how private attorneys, as well as assigned counsel, steered them to a plea bargain.

We had a lot of clients who would come and say - the previous attorney has taken all my money, can you, please, correct his mistakes for free, and the story of retainer fraud or assigned voucher fraud followed.

Criminal defendants with assigned counsel will be surprised if they FOIL the County where the prosecution was taking place for the voucher of their assigned counsel, to see how much was charged for the criminal representation.  There can be unpleasant discoveries made where, for the minimum time, the attorney would charge the maximum amount allowable - while doing nothing on the case.

So, caps on attorney fees of assigned counsel prevent indigent litigants to receive effective representation, steer them into plea bargains, and encourage voucher fraud and retainer fraud amongst attorneys.

Retainer fraud, which is a closely-related subject, is charging a large criminal retainer, doing nothing on the case, and then "arranging" for a plea bargain within a couple of months, keeping the entire retainer because of a "favorable outcome".

Similar to the retainer fraud, fee cap fraud is doing nothing (because an attorney knows that the necessary amount of hours is not going to be compensated), steering the client into a plea bargain, and then obtaining a maximum-amount voucher for no work done other than travel to court and phone calls.

What should be done?

Professor Ilya Somin offered an interesting solution - to give vouchers for assigned counsel directly to the clients.

That would cover:

(1) the choice of counsel - as an attorney that particular client has chosen and trusts, after all, an attorney-client relationship is a fiduciary relationship, and courts cannot command an indigent client who to trust, especially when trusting an obviously incompetent or dishonest attorney is unreasonable;

(2) elimination - through record of performance and client rapport - of those attorneys who do not do their work, only skim the government for moneys they did not earn;

(3) providing incentive to attorneys to work better - so that clients would choose them through the voucher system, rather than what is happening now, attorneys obtain assignments through brown-nosing assigning judges (with ties to the prosecution), usually, by doing nothing on the case.

Word of mouth coupled with social media will result in vouchers being given to only those attorneys who are known to actually work with their clients, spend time on discovery, motions and research, and make effort to win the case - not just steer the client into a quick plea and submit the voucher to get paid.

I would add to Professor Somin's choice-of-provider proposal for vouchers,

that assigned counsel should receive an advance for their work. 

It is unfair for the government to require criminal defense attorneys, but not prosecutors, to finance criminal defense - because, when assigned criminal defense counsel are finally compensated, the effective rate of compensation will be eaten by inflation.

The wrongful conviction movement is on the rise.

People's awareness of causes of wrongful convictions is also on the rise - and the "capped" assigned defense is a large contributing factor to wrongful convictions.

And, the "capped" criminal defense should be prohibited as unconstitutional - since there is no such thing as a "capped" prosecution.

On competence of criminal defense for the indigent

In Wisconsin, an assistant public defender was removed from a criminal case - a first degree murder case - for incompetence.

The trial was scheduled to begin on October 10, 2016, so all pretrial discovery and motions should have been done by this time.

At the pretrial hearing judge Ellen Bertz

grilled the privately hired defense attorney Sarah Clemment on elementary concepts of criminal law, and, reportedly, she could not give coherent answers.

The defendant Dennis Hassel is African American.

And indigent, since the case is now handled by the public defender's office.  The private attorney the judge disqualified as incompetent has been hired by the defendant using his sister's cashed-in retirement fund.

The disqualified defense attorney is, reportedly, a solo immigration attorney who complained that she did not get to see her clients because he was housed in prison far away from her.

Which, apparently, did not prevent Sarah Clemment from taking the retainer - a considerable retainer, I am sure, for representation in a 1st degree murder case.

Even though Wisconsin does not have the death penalty, a conviction for 1st degree murder carries a life sentence in the state, so the stakes are very high and require competence and diligence from a defense attorney.

Yet, while the private defense attorney was disqualified on the even of trial, and now the Public Defender's Office will have to assign a new attorney, the quality of that attorney is not guaranteed.  Whenever criminal defendants ask to assign a specific, competent, attorney, they usually are rebuffed by courts stating that their constitutional "right to counsel" under Gideon v Wainright does not include the right to choose that counsel - and a lawyer that is assigned may be no better than the one that was disqualified.

The State Public Defender's office may either provide an attorney working for the state, or, assign a private attorney, which reportedly happens in 40% of all criminal cases in Wisconsin.

Such an attorney is paid $40.00 per hour for work and $25.00 per hour for travel, the lowest reimbursement rate for criminal defense for the poor in the U.S.

For comparison, in the recent case of a temper tantrum by federal judge Nicholas Garaufis, who called it "insulting" when an associate and not partner was sent to a court conference, FIVE partners showed up to the "kiss-ass-and-make-up" conference, one of whom reportedly flew to New York City from California.  Those partners were reportedly charging at $3,000 per hour, each, at the total amount of $15,000 per hour.

That was a civil case, not a case with the stakes of a life prison sentence.

Moreover, while an assigned attorney is paid in Wisconsin $40.00 per hour of work and $25.00 per hour of travel, the cost of maintaining a private law office in the country back in 2008 (8 years ago) was already assessed at $160,000 per attorney per year, making existence of solo attorneys practically impossible.

Assigned criminal defense attorneys in Wisconsin are right in claiming that by accepting assignments of $40.00 per hour, they are subsidizing prosecution of their clients - with full funding of the prosecutor's office.

As a comparison, in non-capital federal cases, reimbursement of criminal defense attorneys for the poor is at $129 an hour, but even then, there are caps in reimbursement of assigned criminal defenders, while, naturally, there are no caps in reimbursement of salaried prosecutors, while a criminal case can last for years and require a lot more hours than the cap allows.  I will explain about caps in assigned cases in a separate blog.


With compensation rates in Wisconsin at $40.00 per hour for work and $25.00 per hour for travel, the highest-caliber criminal defense attorneys will not accept such payment rates, since such payment rates will not allow to maintain a law office or to survive, and one can imagine who represents the poor in criminal cases in Wisconsin.

Moreover, for a 1st degree murder case, and especially where the defendant is housed 134 miles from the courthouse:

housing a criminal defendant within 5 hours roundtrip from the courthouse - when the criminal defendant had a private attorney - is nothing short of deliberate.

While I will not question at this time whether private defense attorney Sarah Clemment was or was not incompetent - I have to go on the press report, and judging by the press report, she did not know answers to elementary questions of criminal defense, but I also know how such reports can be falsified - her claims that the defendant was too far away are legitimate.

I do not know how much the attorney was paid - but 5 hour roundtrips (and that's not counting the time of clearance through the prison security and time spent with the client) put a drain upon a private criminal defense attorney's time, and upon the defendant's retainer.

I wonder whether the criminal defendant was kept so far away from the courthouse to inconvenience his criminal defense counsel and make it difficult for her to present an effective defense.

After the allegedly incompetent criminal defense lawyer was disqualified by the judge on the eve of trial, I wonder who will be assigned in this case, and, if the assigned attorney is a privately assigned attorney, reimbursed at $40.00 per hour for work and $25.00 for travel, how much will it rectify the situation - or was all of this disqualification and assignment for show, so that the conviction would not be reversed for ineffective representation of counsel.

Salaries among attorneys employed directly by the Wisconsin Public Defender's office show a wide range of qualifications:

Defendant Dennis Hassel does not get to choose whether he will be represented by a $32K per year attorney or by a $98K per year attorney.

The situation has recently come to a head in the State of Louisiana where the State Public Defender's office announced the so-called "austerity plan", turning away cases because public defenders were overworked, underfunded and could not, under the circumstances, provide effective representation constitutionally required in criminal cases.

I will remind you, that is the same blessed State of Louisiana that could afford to spend money on disciplinary proceedings of two qualified family court and criminal defense attorneys, not even allowing them to work for the poor at a reduced rate - because they criticized Louisiana judges, which has nothing to do with the purpose of attorney regulation, to protect consumers of legal services.  I am talking about attorneys Nanine McCool and Christine Mire.

I must also note that there are no claims anywhere in the State of Louisiana - or elsewhere in this country - that a prosecutor's office is strapped for funds.  Prosecutors get what they need.

After the Louisiana Public Defenders' Office implemented its "austerity plan" and started to turn away cases of indigent criminal defendants, ACLU filed a federal lawsuit against the Public Defender's Office.  The lawsuit alleges that, because of lack of representation, charged criminal defendants must languish in jail indefinitely - at public expense, I must note, and losing their jobs because of absence - which is an additional constitutional violation.  Keeping people in jail because they do not have money for bail, cannot afford a lawyer and where the state cannot provide them with a lawyer, is despicable.

Because of the "austerity plan", courts in Louisiana started to FORCE assignments upon lawyers - thus causing lawyers to claim, correctly, that they are subjected to forced labor and taking their property (their time) without due process of law.

While some attorneys "grudgingly agree" to represent indigent criminal defendants at confiscatory rates of reimbursement that does not allow attorneys to cover the costs of running their offices, ($160,000 per attorney per year), and agree only not to cause trouble with judges, there are a lot of ways in criminal defense to cut corners - such as, not do proper investigations, discovery, motions, responses to motions, not to prepare properly for hearings and trials, not to visit clients in far-away correctional facilities and not answer their collect calls from jail - that will make such forced representation not only useless for the client, but of negative value, since the client will harbor an illusion of representation while the forced-labor attorney will do only enough to avoid a disciplinary prosecution.

By the way, in many states, a criminal defendant may not sue his criminal defense attorney for malpractice, even if such malpractice brought about the conviction - unless such conviction is overturned, and good luck with that, and discipline against criminal defense attorneys for not doing their jobs properly is notoriously low.  One can expect discipline against a criminal defense attorneys more if he does do his job and criticize a judge as part of that job.

Forced labor was never effective, and legal scholars agree that forcing attorneys into "pro bono" work - or work pro bono-like compensation rates - will not resolve the "justice gap" crisis, but may make it worse, for services provided under the forced labor mandate will be far from prime quality.

At present, in Louisiana the crisis of criminal defense for the indigent came to the point of the state - that regulates attorneys under the guise of protecting consumers from incompetent attorneys - orders incompetent representation in criminal cases against the indigent by assigning to criminal cases attorneys who know nothing about criminal defense, insurance or real estate attorneys.

Attorneys not qualified in criminal defense and who are forcibly assigned to criminal defense cases say that it is like "asking a dentist to do a heart surgery".

Yes, it is.

And, fast backward to the case at the beginning of this blog - Louisiana is doing exactly what Wisconsin just disqualified an attorney for, lack of specialized knowledge necessary to represent a client in a criminal defense case.

In Wisconsin it is a point of disqualification - even though there is no alternative.

In Louisiana it is a mandate of the time.

And, even though the U.S. Supreme Court has ruled long time ago, in 1969, that states have no right to enforce attorney regulation rules (and criminal unauthorized practice of law laws) in situations where states cannot provide adequate legal representation of the poor and the illiterate - attorney regulation in Wisconsin and Louisiana is alive and well, and the states of Wisconsin and Louisiana will prosecute criminally those who, without law licenses, attempt to HELP indigent criminal defendant who sit in jail awaiting a lawyer that the state claims it cannot pay for.

Now, I have a question.

We have just had three judges in three different states undergoing disciplinary proceedings for disobeying the same sex marriage precedent of the U.S. Supreme Court.

What about liability of the state to its citizens - and to criminal defendants - for disregarding TWO precedents of the U.S. Supreme Court:

Gideon v Wainright, requiring the states, since 1963, to provide a qualified "counsel" (not necessarily a licensed attorney) at every meaningful stage of criminal litigation, and

Johnson v Avery, barring the states, since 1969, from prohibiting lay individuals, not licensed attorneys, from providing legal services to the poor when the states do not have money to provide necessary services of licensed attorneys.

Will states claim "sovereign immunity" now? 

Where is the legal remedy for the massive deprivation of right to counsel in criminal proceedings across this country?

Consumers of legal services in New York and Ohio, rejoice: Ohio quickly reinstated a lawyer who was suspended for lying to the court and stealing/hiding evidence, while New York reinstated a lawyer who was disbarred after being convicted of securities fraud

On September 22, 2016, Ohio reinstated the law license of attorney Robert Paul Demarco who, according to his order of discipline of November 5, 2015, lied to the court and hid evidence given to him by opposing counsel.

So, in Ohio, an attorney can lie and steal/hide evidence, and be reinstated after less than a year, while criticism of corruption in Ohio courts leads to attorney disbarment.

Not to be outdone, on September 28, 2016 New York reinstated disbarred attorney Christopher K. Collotta who was permanently disbarred in 2008 after a criminal conviction for securities fraud in 2004.

The order of reinstatement does not explain any reasons other than that it was based "[u]pon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto".

So, apparently, an attorney who has been CRIMINALLY CONVICTED for felony FRAUD can practice law in New York - and is instantly accepted to work for a "workplace counseling" law firm Zabell & Associates, P.C.

Notably, attorney Collotta was reinstated even though he has been "delinquent" - which means he did not pay his registration fee.

Since attorney Collotta's next registration is in November of 2016, and attorneys in New York must re-register every two years, by the time of attorney Collotta's interesting no-reasons-given reinstatement he was delinquent for nearly 2 years - and even that did not prevent his reinstatement.

Consumers of legal services of attorneys and Christopher K. Collotta in New York - rejoice.

Christopher K. Collotta - who was given leniency in criminal proceedings in 2007 because he is reportedly a cancer survivor, has heart problems, was "at the bottom of the food chain" in a 13-defendant conspiracy, and "only modestly profited" from his crime - to the order of $9,000 - is back in service.

So, if he steals from you while representing you, it will be only modest - within single-digit thousands of dollars.

As I previously said on this blog, commission of a felony is regarded by New York courts, as a lesser offense than criticism of a judge.

And, no new rules of attorney discipline that came into effect today, and which are supposed to be "fairer" than the previous mess, can fix the main problem of attorney discipline in New York - corruption.

On playful definitions of sexual predators

Judge Walter Smith who resigned during a re-opened investigation regarding his sexual misconduct, see here, here, and here, will not be investigated for judicial misconduct, because he is no longer a judge.

The press presents it as judge "beating" investigation of misconduct.

Yet, there can be also a criminal investigation, and an attorney disciplinary investigation - yet, there are no reports of either.

Instead of an attorney disciplinary prosecution against former Judge Walter Smith, a retaliatory prosecution is under way of attorney-whistleblower Ty Clevenger who

• obtained and published sworn testimony of Judge Walter Smith's victim,
• brought about the first investigation of Walter Smith, and
• insisted on re-opening and speeding up the investigation when Walter Smith received just a slapped on the wrist.

And, the press playfully calls this sexual predator a "wayward" former judge.

"Wayward", "beats", a coy picture of the sexual predator with a schoolgirl posture...

What is going on?  Are we now glorifying sexual crimes against women?

"Wayward" is socially inacceptable - but not necessarily illegal.

So, the press is afraid to call a sexual predator a sexual predator even when a sworn testimony of his victim is available?

So, a new law emerges in this country - sex crimes are prohibited, unless you are a judge and you resign quickly before you can be disciplined.

And no, Judge Walter Smith is not a "wayward" former judge who "beat" his own prosecution by resigning in time.

Here is the sworn testimony of Judge Walter Smith's victim describing, in detail, how not only Judge Smith was trying to pressure her into sex, ordered her supervisor to disappear so that the judge could have time alone with her, even though she previously asked the supervisor for protection against the judge's unwanted attentions, but also how Judge Smith's law clerk was pressuring her into retracting on her claims that Judge Smith engaged in sexual misconduct towards her.

Former Judge Smith is not a "wayward" individual with a coy-girl look who "beat" some kind of puny investigation.

He is a sexual predator who needs to be brought to justice, if the judiciary wants to expect any respect to its integrity at all.

Judge Damon Keith on racism of federal court judges in Ohio: " Democracies die behind closed doors. ... I am deeply saddened and distraught by the court's deliberate decision to reverse the progress of history"

Donald Trump called out a Latino judge Gonzalo Curiel for not recusing from the case of Trump University because of the judge's background.

The judge refused to recuse, even though there was plenty in his background warranting recusal, see here and here.

We have federal judges openly claiming that their personal heritage should be used in their judicial decisions.

One judge who so claimed is a federal appellate judge Ilana Rovner, the other is one of the present-time U.S. Supreme Court Justices Sonya Sotomayor.

Here are both of judges holding beliefs that their personal heritage must be part of their judicial decision-making (the two judges on the right):

Moreover, the U.S. Supreme Court exceeded its authority to the point of allowing federal judges to act as unsworn witnesses and adjudicators and use their own personal "experiences" (which are not made part of the record and are not known to litigants), in order to decide sufficiency of pleadings in civil rights cases - cases which, under the 7th Amendment of the U.S. Constitution, demand that all issues of fact are decided by jury.

At the same time, the U.S. Supreme Court, in Batson v Kentucky, has made clear, at least in one context, that (whatever those judicial experiences are), discrimination based on race at least in criminal proceedings is constitutionally intolerable - and criminal verdicts made by juries picked with the exclusion of a certain race are unconstitutional.

Yet, in the same blessed state of Kentucky, an African American judge Olu Stevens

was suspended for trying to do his job and eradicate racism in criminal proceedings, just as the U.S. Supreme Court directed to be done in Batson v Kentucky.

Now, in the State of Ohio, another judge, a federal 94-year-old African American judge Damon Keith

not only issued a fiery dissent against his colleagues, judges whom Judge Damon Keith pretty much accused of racism in their court decision.  Judge Damon Keith also gave an interview to the press about his beliefs that led to his dissent, a very unusual situation.

Judges usually do not - and are not supposed to - make public comments about their judicial decisions.  Judge Olu Stevens of Kentucky was suspended for not only fighting racism in the courtroom, but also for making public comments about racism (even though the racism was apparent) of a white prosecutor.

Here is Judge Keith's 38-page dissenting opinion (you can use the keyword "dissenting" to find it within the pdf document starting with the majority opinion).

The majority judges whose opinion Judge Keith criticized as racist was authored by white male judges:

Danny J. Boggs

and John M. Rogers:

Here is how Judge Keith's dissenting opinion starts:

And here is how it progressed (I encourage my readers to read the dissenting opinion of Judge Damon Keith in its entirety, here I will only provide some excerpts):

Judge Damon Keith then provides life stories of 35 people, both black and white, with pictures, who were killed by white supremacists, many of them for their stance on the right of the persons of color to vote.

This is the voting law in the State of Ohio that Judge Keith describes as challenged in the lawsuit:

While describing the history of how the new law came about - and I encourage my readers to read the entirety of that account - Judge Keith, importantly, points out that, while the new law presupposes some literacy in providing the necessary information, help to illiterate voters by poll workers is prohibited by that same law:

Judge Keith points out that the standard of review on appeal in federal court is a "de novo" review of issues of law and mixed issues of law and fact:

but also deference to the factual findings of the trial court:

Judge Keith then points out that not only the district court made reasoned determinations warranting deference, but that those determinations were made after a 12-day bench trial, as a culmination of several years of litigation, and based on a lot of evidence presented to the court:

Despite the applicable standard of review of "clear error" as to factual findings of the trial court, the majority, according to Judge Keith, overruled the factual findings simply because the court could decide differently

Obviously, the only reason for the majority to depart from the clear standards of review was their desire to do so.   

Judge Keith then points out that the majority disregards the requirement of using the "totality of circumstances" approach in analyzing the disparate impact of the law on the right of the persons of color to vote, instead using what Judge Keith called a "piecemeal freeze frame approach", analyzing whether each one of the factors, taken separately, demonstrate a disparate impact - which is too much of a burden to meet, and is not required by law.

Judge Keith points out that the majority misinterpreted or misrepresented certain evidence in the case, applied a wrong legal standard to analyze the equal protection claim, fundamentally misrepresented and misapplied the disparate impact legal standard, disregarded the lower court's findings of the history of racial discrimination in voting in Ohio.

Here is Judge Keith's full conclusion about the majority's opinion:

Did Judge Keith use "the richness of his experiences" as a black person living in Ohio?

Judge Keith is, reportedly, a grandson of former slaves, and surely his family's "rich experiences" with slavery and then with racial discrimination, formed his world outlook.

Yet, the dissenting opinion of Judge Keith shows that the judge DID NOT use "the richness of his experiences" - or his family's - in that opinion.

Instead, he analyzed the majority's opinion under the law, and under the required standard of deference to the trial court's decision.

Here, the parties voluntarily chose an African American district court judge, Algernon L. Marbley,

to hold a bench trial, not a jury trial, in their case.

Then, a super-majority of white judges was appointed to decide the appeal from that case, and suddenly, all legal standards required to apply deference to the decisions of  black judge were scrapped, and two white judges, acting, without authority, as trial judges instead of appellate judges, overruled the factual findings of a black judge.

All that Judge Keith's dissenting opinion was pointing out - as "impassioned" as the press called that opinion - was that the majority did not apply the required legal standard and did not afford due deference to the lower court's factual determinations, as they were required by law.

And that was a continuation of "white supremacy", now on the bench.

The "white supremacy" in the courtroom continues not only through Judge Olu Stevens' removal in Kentucky, and overruling of Judge Algernon Marbley's case by the super-majority of white judges in Ohio federal court who disregarded applicable legal standards and acted as trial judges instead of appellate judges.

In California, white female #judgeAnne-ChristineMasullo

is currently the target of a public defender's motion to recuse based on allegations of racial bias.

Judge Masullo is listed on the website of her court as a "Family Law" supervising judge:

Here is a review I found about Judge Massullo's practices in Family Court:

Yet, Judge Massullo, a career prosecutor before coming to the bench, was assigned to the criminal case against an indigent African American man for resisting arrest.

Judge Massullo, in a pre-trial ruling, prohibited the public defender to ask prospective jurors their opinions about the Black Lives Matter movements and the police brutality - which, obviously, would allow the prosecution to keep on the jury jurors with prejudice against African Americans and their resistance to police brutality.

While the case claims to be one of robbery or attempted robbery, there exists - thank God for cell phones - evidence showing a police officer punching the defendant while he was already in handcuffs and on the floor face-down.

Nevertheless, it was the defendant who was charged with battery on police officers and not the other way around.

The alleged robbery - conspicuously - was not charged, even though it was the trigger for the whole situation, and there are claims that the allegations of robbery were made by a passenger who insulted the defendant's pregnant girlfriend - and that defendant was unarmed and did not commit robbery.

By the way, in the state of Texas last year, the jurors were given questionnaires to answer in writing as to their opinions on the Black Lives Matter movement and police brutality - while Judge Massullo prohibited a public defender in California to question prospective jurors about their opinions on the same subject even orally, during the jury selection (voir dire) stage of the criminal trial.

Knowing Judge Massullo's background as a career criminal prosecutor, as well as her reported stance on pushing people to settlements, is it her way to push the criminal defendant to reach an agreement with the prosecution, in view of the prospect of not being able to pick an impartial jury?

So, the "richness of experiences" of the nation's judges informing their decisions continues to boggle observers' minds.

What plausible reason could Judge Massullo possibly have, other than her personal bias and apparent desire, as a former career prosecutor, to help the prosecution, to block questions of a public defender to prospective jurors, in a criminal case against an African American involving police brutality, about their opinions on the movement of African Americans resisting police brutality?

I will continue to cover the subject how the "richness of experiences" based on judges' personal backgrounds "guide" their decision-making.

And how this nation's courtrooms are ruled by personal whim of judges, causing our democracy, as Judge Keith cogently stated, to "die behind closed doors".

Stay tuned.

Alabama's strange stance on same sex marriage

It is interesting to be a witness to history.

In 1999, when I came to the United States, homosexuality was a crime.

In 2003, after the U.S. Supreme Court decision in Lawrence v Texas, it was not a crime any more, see the decision here.

Fast-forward 11 years more - and the U.S. Supreme Court found that same sex marriage is a constitutional right.

After the decision, some state officials, as well as private individuals refused to accept legality of the U.S. Supreme Court decision.

A Kentucky clerk Kim Davis

went to jail - with a lot of vocal support from various groups from around the country - defending her individual right not to issue same sex marriage licenses.

Now Kim Davis is reportedly on the receiving end of a motion for $233,058 in legal fees against her for refusing to issue same sex marriage licenses.

In three states,  Alabama, Oregon and Wyoming, judges who refused to officiate at same sex marriages, or gave instructions to others not to issue same sex marriage licenses, became the targets of judicial disciplinary proceedings.

In Alabama, the target of such a disciplinary proceeding was the state's Chief Judge Roy Moore,

who defended himself on the basis that the U.S. Supreme Court's decisions are not the Supreme Law of the Land - and they are actually not, despite the fact that they are presented that way in courts, law schools and in the press.

In Oregon, the target of the disciplinary proceedings was judge Vance Day.

In Wyoming, the target of the disciplinary proceedings is judge Ruth Neely.

While Alabama, Oregon and Wyoming prosecuted its judges for disobeying the U.S. Supreme Court precedent regarding constitutionality of same sex marriages, Texas State Bar refused to prosecute its Attorney General Ken Paxton

for the same behavior, instructing county clerks not to issue same sex marriage licenses.

And, in North Carolina, a federal civil rights lawsuit against the state's magistrates refusing to issue same sex marriage licenses, was recently dismissed. 

Federal judge Max Cogburn

who dismissed the case, claimed that plaintiffs failed to show that they have standing and that they were directly harmed by law.

I have put pictures of people at the center of controversies here to show the uniting factor - race.  All of them are white.  Whether it is a mere coincidence or not, and whether the coincidence means anything, is for my readers to judge. 

Among these six states:

1. Alabama,
2. Kentucky,
3. North Carolina,
4. Oregon,
5. Texas, and
6. Wyoming

that have come on the map with controversies where state officials defied the U.S. Supreme Court decision on same sex marriage, the strangest stance is in Alabama.

While Alabama suspended its Chief Judge Roy Moore, first, during the pendency of the disciplinary proceedings against him, and then, after the trial, for the rest of his term, the same blessed State of Alabama, through its Attorney General, refused to prosecute a florist for refusing to make a flower arrangement for a same sex marriage couple.

Moreover, Alabama State Attorney General reportedly joined "a dozen other states" in refusal to prosecute businesses for discrimination against same sex couples.

Here is the timeline of Alabama State AG's reaction to the same-sex marriage decisions by federal courts and their enforceability.

In February of 2015, before the U.S. Supreme Court decided the case Obergefell v Hodges, finding a constitutional right to marry for same sex couples, Alabama State AG issued the following press-release:

On September 30, 2016, on the same day as permanent suspension of Alabama Chief Judge Roy Moore was announced for defying the U.S. Supreme Court's same sex marriage decision, the Alabama State Attorney General issued this press-release:

So, apparently, we have 13 states asserting, in an amicus brief filed in a court case in a Washington state court, that business owners have a right to discriminate against customers based on their religious beliefs.

The states that filed the amicus briefs supporting such discrimination are:

1. Alabama,
2. Arkansas,
3. Kansas,
4. Kentucky,
5. Louisiana,
6. Nebraska,
7. Nevada,
8. Oklahoma,
9. South Carolina,
10. Texas,
11. Utah, and
12. West Virginia.

The lawsuit in State of Washington court is posed as an issue of state constitutional law - whether people must shelve their religious beliefs when they open a business.

Yet, the U.S. Supreme Court has already ruled that business owners may not discriminate on the basis of race.

Since the U.S. Supreme Court upheld constitutionality of same sex marriage, it is not a big stretch of imagination to predict that discrimination on the basis of sex orientation by private business owners will be prohibited, too.

Yet, the Alabama Attorney General sends to the public interesting vibes by making the press release about his support of business owners in the State of Washington, and based on state Constitution, on the same day as the State Chief Judge Roy Moore was suspended for defying the U.S. Supreme Court decision on same sex marriage.

When one public official is de facto removed from office for nearly the same conduct as the other public official in the same state is continuing to display, that is a strange state of events, indeed.

And especially when, notably, Alabama State Attorney General joined Texas State Attorney General in the amicus brief regarding state constitutional right of private businesses to discriminate against same sex couples - that is the same Texas State Attorney General who also instructed county clerks in his state not to issue same-sex marriage licenses, and the Texas Bar would not prosecute him for misconduct.

What an interesting time we live in...