Disciplinary proceedings against Judge Kreep of San Diego, California - a political retaliation?

While reporting on judicial misconduct, I came across bad judges with pretty telling names.  I already reported on judges by the name of Free, Best and Real.

Now is the turn to report on Judge Kreep.

Judge Gary Kreep, of San Diego, California, was recently charged with 11 counts of misconduct, some valid, some not and some really petty.

Judge Kreep's behavior, as charged, is crude, on occasion improper, sexist and racist.  And, Judge Kreep engaged in ex parte communications and did not represent facts correctly during his election campaign.  Yet, the timing of the charges - 4 years after the election, the pettiness of some charges, and the fact that this particular judge was the target of blanket peremptory challenges by criminal prosecutors suggests selective enforcement of judicial discipline against Judge Kreep.

After all, he did nothing that other judges do not do - on a regular basis. Not that it is right, but, once again - anybody appearing in American courtrooms, after looking through the charges, can find that "their" judges behaved in the exact same manner, as to one, more than one, or all charges of misconduct against Judge Kreep.

Here is the description of the charges.

Judge Kreep likes to crack a joke - like this:

And he joked again with a public defender.  Like this:

And, also jokingly, of course, Judge Kreep called attorneys appearing in front of him by nicknames - just as retired Delaware County (New York) Judge Carl F. Becker did (he called an attorney a clown and a Santa Claus).  Here is Judge Kreep's jokingly invented nicknames for attorneys:

JudgeKreep also joked about an attorney's pregnancy - that the opposing counsel needs to wrap up the arguments shorter so that the pregnant attorney can go home and have her baby:

And Judge Kreep openly joked about how good a friend he was to a disabled personal friend:

I wonder how many friends Judge Kreep will have left after that particular disclosure, and how many of them will ask Judge Kreep for help - or offer help, for that matter.

And #JudgeGaryKreep joked yet again - with a criminal defendant:

Judge Kreep is a judge in San Diego, California.

The Bunny Ranch is a brothel in Nevada, which also has an online sexually explicit content.

Apparently, Judge Kreep had personal knowledge (and, maybe, experience?) of this brothel - which he readily shared in an open courtroom, jokingly of course, while accepting a plea from a young woman for prostitution and giving her a fatherly advice as to how to turn her life around.

Judge Kreep's jokingly humiliated young attorneys:

Judge Kreep jokingly - of course - referred to criminal sentences he imposed on people as "gifts":

Judge Kreep referred to cases by ethnicity of criminal defendants involved - and connected that ethnicity with attorneys appearing in front of him:

Judge Kreep is accused of using crude language in the courtroom:

Jiudge Kreep stressed Latino ethnicity of defendants and attorneys:

Amazingly, while lawyers are usually very submissive to judges, Judge Kreep was, apparently, so bad that lawyers boycotted his courtroom.

Of course, I do not know how that can technically be done without hurting clients' cases if the judge is assigned to the case - but a boycott by lawyers was reported, and, reportedly, on the day of the boycott the judge threatened a public defender that "they" will come "for her" if "they" "came for" the judge.

Here are the charges against Judge Kreep in full.

Judge Kreep is also charged for:

• misrepresentation to voters - and thus being elected by fraud (which reminds me of Albany County (New York) Supreme Court judge Christina Ryba ["ryba" means "fish" in Russian, by the way] who was FIRED from her job in the Appellate Division 3rd Department because she engaged in election fraud, but the New York State Commission for Judicial Conduct refused to find anything amiss in Ryba's behavior):

• running for judicial public office without resigning from another public office, as required by law:

• opposed a candidate for a public office (the President of the United States) while running for another public office (this charge I find questionable since a candidate for public office does not lose his voting rights by running for a public office)

(3 lengthy examples are included into the charges, you can see them fully here);

• failed to report certain expenses during his election campaign;
• used his personal credit card and his personal bank account to finance his election campaign, instead of the campaign contribution account;
• remained for six weeks as counsel of record in a federal case after taking office as a judge;
• issued reimbursement checks in a way creating an impression that the judge continued to practice law after Judge Kreep took the bench

• pre-judged a case without a hearing and while refusing to allow an evidentiary hearing that was scheduled (Count 6);
• made improper remarks about people's ethnicities - be it Latino, Mexican, Chinese (described above), or Phillipino

• obtained legal advice for cases from attorneys who did not represent any parties, and then made rulings based on that advice

• delegated authority to parties to decide cases instead of himself

• during a trial, while being a fact-finder, injected his personal experiences into the trial (4 examples are contained in the charges, Count 10);
• presided over a motion scheduled in an ex parte manner and granted it (Count 11).

Well.

All of the above, with the one exception I noted (as to voting rights of a candidate for public office) is bad.

But, I bet that readers who have any experience with American courts would say that all judges that they appeared in front of are exactly the same - and are doing exactly what Judge Kreep was doing.

• Assigning nicknames to attorneys;
• Making inappropriate, crude, sexist, racist jokes in and out of court;
• engaging in ex parte communications;
• pre-judging cases;
• injecting their own experiences into cases - same as Charges 1 through 11, with specifications, allege against Judge Kreep.

And, judges who do all of that, do not get any discipline - the absolute majority of complaints against judges are dismissed without discipline or even an investigation, in all states, including the blessed state of California, home to Judge Kreep.

Moreover, charges were filed in 2016 against Judge Kreep for his alleged misconduct in 2012 during his election campaign, 4 years after the fact.

Why Judge Kreep?  Why now?

Is it a belated revenge against Judge Kreep for being what was characterized a "legal activist" and a "high profile birther", questioning authority of President Barack Obama to be re-elected to office based on claims that he was born outside of the United States?

Also, even though charges to mention that Judge Kreep made inappropriate comments about a public defender, the bulk of the charges were because of the boycott by the City Attorneys - who usually act as prosecutors.

And, back in 2013, when Judge Kreep was just elected, by a narrow margin, it was mentioned in a high-profile legal blog that Judge Kreep "earned the ire only of prosecutors", while public defenders had no problem with the judge.  The ire that Judge Kreep somehow drew from the prosecutors resulted in a "blanket challenge" - through the use of statutory peremptory disqualification - from all criminal cases, I described what is a peremptory challenge to a judge more than 2 years ago, here.

Not to mention that Judge Kreep's opponent in his election campaign, Garland Peed, is reportedly working in the city attorney's criminal division that is boycotting the judge.

And, many Counts of the charges are outright petty.

You just don't charge a judge with an ethical violation simply because he complimented a female attorney or employee in the courtroom for being pretty.

That is really, really, really petty.

By the way, one of the counts was that Judge Kreep had ex parte communications with public defenders.

I bet that Judge Kreep would never have been charged if he did what other judges are usually doing - having ex parte communications with the prosecutors.

I can recall another case that I recently reported on - of New York judge Thomas Keefe who was forced to resign because prosecutors were not happy with him.

If defense attorneys were not happy with a judge, he would, probably, be given a badge of honor, no matter how crude, rude, sexist and racist he would be with defense attorneys.

And that is the whole problem with disciplinary prosecution of Judge Gary Kreep in California - as well as with the disciplinary prosecution of Judge Thomas Keefe in New York.

Occupational licensing continues to be used by the government to stifle political speech. Now of a financial advisor in Nebraska.

I regularly write in this blog about the use of occupational regulation, attorney regulation in particular, to stifle free speech and especially criticism of the government.

In a recent post, I covered statistics of attorneys sanctioned for criticizing judges,  about the general trend of retaliation by the government against members of the public for so much as seeking public records, and about my current petition for a writ of certiorari raising the same topic is pending with the U.S. Supreme Court (the U.S. Supreme Court required me to add to the Appendix the decision that I already included into the Appendix, and delayed docketing my petition until I comply.  I will comply - I have no choice).

Interestingly, another petition for a writ of certiorari is pending at the same time in the U.S. Supreme Court challenging the use of occupational regulation as a tool of political oppression, and that is the petition by Robert Bennie, a financial advisor who was forced to stop making political comments that he was previously making, in criticism of various public officials, including President Barack Obama, because regulators of his profession applied pressure to his company to silence him, and then fire him.

Robert Bennie filed a civil rights lawsuit claiming 1st Amendment retaliation in 2011.  The district court dismissed the case, and the U.S. Court of Appeals for the 8th Circuit affirmed the dismissal, with 2 judges in favor of affirming the dismissal, Chief Judge William J Riley

and Judge Jane Kelly (a prospective nominee to the U.S. Supreme Court instead of the deceased Antonin Scalia, whose nomination failed simply because the judge was a federal public defender in the past)

and one judge, the 86-year-old Judge Clarence Arlen Beam, 

most strongly dissenting.

While advanced age of judges may present a problem in clouding their judgment, the dissent of Judge Beam - same as the recent dissent of a 94-year-old judge Damon Keith of the U.S. Court of Appeals for the 6th Circuit on the issue of racism - demonstrated flawless competence and logic.

The push of the majority - judges Riley and Kelly - was that a person of "ordinary firmness" would have persevered and would not have been chilled by the intimidating tactics of the Nebraska Department of Banking and Finance that repeatedly insisted that Robert Bennie's employer regulate and stifle his political speech, criticism of public officials including the U.S. President - or fire him.

Robert Bennie was eventually fired, and stopped his criticism, for fear of his livelihood - after engaging in such criticism for several years.

What the majority is actually saying is that Robert Bennie is a coward - had he been stronger, he would not have stopped his criticism.

And that is a slap in the face not only to Robert Bennie, but to any whistleblower who stopped criticizing the government for fear of losing livelihood for his own benefit and for the benefit of his family and dependents.

So, for the government, 1st Amendment does not exist.

If the government violates it by retaliating - the federal court immediately obliges the government by creating a "test" which is nowhere to be found in the text of the 1st Amendment requiring the victim of government's retaliation to prove that his speech was chilled by the retaliation.

Even though the test itself is completely illegal, Robert Bennie met it by showing that his criticism was actually chilled, he stopped it because he was fired after repeated efforts of the Nebraska Department of Banking and Finance to make his employer regulate his private out-of-office conduct.

Yet, the court now invents another test on top of the previous one - which is also nowhere to be found in the text of the 1st Amendment - that not only the speech must be chilled, but that the government's behavior must be of such nature as to chill political speech of a person of "ordinary resilience".

And, the 8th Circuit's majority claims, Robert Bennie is not such a person - in other words, they say that Robert Bennie is a coward.


Had he been braver, his speech would not have been chilled, even at the cost of losing his license and livelihood.

Yet, in the same breath the majority of the 8th Circuit actually claims that Robert Bennie is BRAVER than the ordinary person - and used his resilience prior to his self-censorship (Bennie started to self-censor after being fired for continuing to engage in political speech outside of his employment) as proof that a person of ordinary firmness would not have been chilled by retaliation directed at Bennie.

And that mentality of the majority met with scathing dissent of Judge Clarence Beam:

As of July of last year, president Obama's report claimed that regulated professions occupied over 25% of the U.S. labor market.

Here is an excerpt from the Executive Summary to President Obama's report:

It is obvious that when the Nebraska state regulator of financial market applied pressure on Robert Bennie employer to regulate Robert Bennie's private political speech, that regulation had nothing to do with the declared purpose of regulation to protect consumers of Robert Bennie's services from dishonest or incompetent providers of financial advice, because Robert Bennie's political speech had nothing to do with his work, and his competence or integrity as a financial advisor had nothing to do with his political beliefs, spoken or unspoken.

Thus, at least every fourth worker (every third, by other estimates - 7 years earlier 29% of workers in the U.S. were reportedly covered with occupational licensing) in the United States may be affected with a threat of having his livelihood yanked in retaliation for political speech.   In this case the speech in question was criticism of President Obama himself.

Using occupational licensing as a machine of political oppression and stifling of political speech is being increasingly used in the United States, and has become an issue of grave public concern.

Judge Beam, in his dissent, appreciated the importance of this issue.

I wonder whether the U.S. Supreme Court will consider the case of Robert Bennie worth of its precious time.

This is what caused the ire of the State to descend upon Robert Bennie, his statement comparing himself and President Obama and reportedly saying:

"I'm a freedom-loving American and he's a communist.  I'm an honest man and he's dishonest.  He didn't tell us all of what he's going to do.  I believe he's an evil man".

To that political statement of opinion the Director of Nebraska State Department of Banking and Finance reportedly answered with an e-mail to his subordinates:

"Bob Bennie is always seen wearing a cowboy hat, so I say 'Hang Him High'".

And they did.

Occupational licensing was introduced stealthily, without requests of consumers, and without evidence-based investigation of whether regulation is needed and whether the regulation is helping to actually protect consumers.

Instead, occupational regulation is increasingly used for purposes completely unrelated with the declared purpose of regulation - instead of protecting consumers, it is used to squash the livelihood of critics of the government.

Let's remember - the government is OUR SERVANTS.

And the government is hired to do their job - within the limits of the law.

The government has no right to "Hang Us High" for criticizing it.

We need to make sure those in the government who want to use their authority unlawfully are subject to effective measures of accountability.

I will continue to monitor this story and report on it.

Stay tuned.

"Don't believe the plumber!" - or, on constiutionality of mandatory alibi disclosure to the prosecution and whether the California #JudgeEleanorHunter will be investigated for helping the prosecution obtain a wrongful murder conviction

Murder is the most heinous of known crimes.

We all have only one life, and there is no adequate remedy for taking it.

From time immemorial investigation and prosecution of murders were given by all kinds of governments the utmost serious consideration..

In our country, which is founded upon the U.S. Constitution - there are several principles, in view of the gravity of charges in murder cases, which protect all criminal defendants charged with murder - throughout the country, in all states.

I will name only a few of those federal constitutional principles, which are relevant to the case I am going to describe today.

The 5th Amendment to the U.S. Constitution grants to the criminal defendant the right to remain silent (the right against self-recrimination) - throughout the criminal proceedings.

The burden of proof is at all times in the criminal proceedings upon the prosecution.

It is the prosecution that has to produce evidence and persuade the jury that:

1) the defendant, identified by incriminating evidence and/or witnesses
2) was at a certain place
3) at a certain time, and
4) caused the death of the named victim
5) in a specific way.

Being at the time of the crime at the place of the crime is part of the proof that the person committed the crime of murder.

Yet, the accused may not have been there at the time of murder, or at all, which is called an "alibi".

It is obvious that, under the 5th Amendment, a criminal defendant does not have to prove anything - including that he was not there, and that, instead, it is the burden of the prosecution to prove, instead, that the criminal defendant was at the place of killing at the time of killing (and that he actually killed the victim).

Yet, several states, including, unfortunately, the State of New York, requires the criminal defendant, to notify the prosecution of the defendant's intent to raise the alibi defense and to provide to the prosecution with the alibi information. 

For example, New York Criminal Procedure Law 250.20(1) requires the defendant to provide the following "Notice of Alibi":

Note that in New York - as in any other state - there may be a considerable time from arraignment to the actual murder trial, including discovery, pre-trial motions and pre-trial motion hearings.

Yet, the defendant in New York must provide to the people "within 8 days of service" all information about his alibi defense - in violation of the 5th Amendment right to remain silent.

So, for example, if the People in a New York case serve upon a criminal defendant (as prosecutors routinely do) a Demand for the Notice of Alibi Defense at arraignment, the defendant must provide to the people the alibi information within 8 days of service - or lose ability to raise the alibi defense (the defense of ACTUAL INNOCENCE) at trial.

Once again, if the criminal defendant in New York does not agree to violation of his 5th Amendment right to remain silent, he must face a possibility of a wrongful conviction, because he will be PRECLUCED, procedurally blocked, from presenting the defense of actual innocence, the alibi defense

- while the proof that the defendant was at the time and place of the crime is actually part of the prosecution's burden of proof.

Yet, while criminal defendants in New York must produce to the prosecution information pertaining to their alibi defense within 8 days of service of the demand, the People are not obligated to provide to the defendant the names and addresses of witnesses who will testify that the defendant was at the scene of the crime at the time of the crime - even though People have to provide to defendant 10 days before trial (!) the list of rebuttal witnesses.

First of all, it makes no sense to claim that, when the defendant says he has a witness who can testify that the defendant is not at the place and time of the crime, while the prosecution will, after reviewing that evidence, present at trial a witness who will testify that the defendant was at the place and time of the crime, such prosecution's witness is somehow not a "rebuttal" witness - as a matter of law.

A rebuttal witness is usually the witness that testifies after the witness for the defense and rebuts what he defense witness says.

Yet, since the defense, according to the 5th Amendment, has a right to remain silent and present no witnesses at all, NORMALLY the prosecution cannot even prepare rebuttal witnesses - because, under the 5th Amendment, demanding ANY discovery from a criminal defendant is unconstitutional.

In New York though (and in all other states that require an alibi defense), since the defense is forced to disclose its alibi witnesses as early as 8 days after arraignment (if the demand for the notice of alibi is made at arraignment, which is usually the case), the witness the prosecution puts on in its direct case (not rebuttal) is factually a rebuttal witness of the alibi defense provided to the prosecution in the required notice.

Also, note the discrepancy in time - the defendant must provide the alibi disclosure to the People 8 days after arraignment if served with notice at arraignment. 

On the other hand, the People must provide the names of rebuttal witnesses to the defendant only 10 days before trial (where pre-trial preparation may take months if not years - a huge advantage improperly given to the prosecution), or not at all, because the prosecution will not disclose the identity of the de facto rebuttal witnesses who will testify that the defendant was at the time and place of the crime.

Note also at least two problems that may arise with timely production of alibi witnesses or evidence:

1) a defendant may be inable to identify such witnesses, even though he knows there are plenty of witnesses - such as, defendant's alibi is, for example, that at the alleged time of the crime he was in a crowded public place, but did not know the names of people surrounding him who saw him;  if the defendant later on learns names of such witnesses, he may be precluded from presenting them;

2) the prosecution often does not clearly identify time or place of the crime, making it impossible for the defendant to provide an alibi defense for the particular time and place - as an example, a defendant may drive through a certain place on a daily basis, but had an alibi of being at another place at a certain time of the day for a certain day, but the time and place of the crime are given within large margins (on or about 1st through 31 of October, in the town of X, without the exact location within the town of X).

As unfair as it is though, if a criminal case is tried in New York, one thing you know - since the Notice of Alibi is not only served upon the prosecution, but is also filed with the court, the judge, from early on in the proceedings, knows the identity of the defense alibi witness.

Not so in California.

In California, the notice of alibi was required, for a short time, but then the requirement was removed as unconstitutional.

So, one needs to look into the circumstances of a particular case to see whether, at the outset of a criminal trial, the judge actually knew:

1) that the defense is going to present an alibi witness; and
2) the identity of the alibi witness.

In California, an appeals court this month has reversed a murder conviction and a 114 year prison sentence of a black man, Vincent Tatum

convicted by a jury and sentenced by a white judge Eleanor Hunter,

a career prosecutor appointed by Governor Schwarzenegger in 2005.

Like the robe-tossing judge McBain I wrote about yesterday, Judge Hunter, as a career prosecutor, was raised and bred on the notion of impunity for whatever she does on the job.

So, what she did at the murder trial of plumber Vincent Tatum looks like a prosecutorial stint she learnt on the job as a prosecutor (and she prosecuted many murders, and now there is a question as to how honest were those prosecutions and convictions obtained by her).

When addressing the jury candidates at the time of voir dire (jury selection), Judge Hunter, under the guise of an explanation as to what constitutes a pre-judgement, pointed to her own personal views of pre-judgment - that she would never believe a plumber because of her own personal experiences with plumbers.

The defendant was a plumber.

The defendant's alibi witness was a plumber.

The case rested upon credibility of the alibi witness.

The prosecution - improperly and apparently without control from the judge - vouched to the jury that the alibi witness is lying.

The jury did not believe the plumber - because the judge didn't.

And convicted the defendant, also the plumber.

For murder.

And Judge Hunter - who dislikes plumbers because of her personal experiences with plumbers - sentenced a defendant plumber for 114 years in prison.

Now that the appellate court has reversed this "plumbing conviction" - and sentence of 114 years, California taxpayers, no doubt, will be asking its government, and the federal investigating authorities, the 10-million-dollar question:

• Did Judge Hunter know, before she made her extraordinary disclosure about her personal pre-judgment of credibility of plumbers - while presiding over a case where a plumber was charged with murder - that (a) the defendant was a plumber, and that (b) the defendant's alibi witness was a plumber?

It appears highly likely that she did, otherwise it is really extraordinary for a judge to, on the one hand, instruct the jury to be impartial and not to pre-judge, and, on the other hand, lead the jury by personal example and tell them that the judge herself does prejudge credibility of a certain class of people.

Actually, if Judge Hunter disbelieves ALL plumbers because of her personal experience with some of them, Judge Hunter should be taken off the bench - because otherwise litigants appearing in front of her will be forever in the dark figuring out whether Judge Hunter, because of some other personal experiences, automatically disbelieves other people, simply because they belong to certain professions, or maybe classes, or are joined by other factors uniting them with those who personally offended judge Hunter in the past.

Moreover, it is just too much of a coincidence when a judge, who was a career prosecutor in murder cases in the past, makes such an extraordinary personal observation at the time of jury selection in a murder case of a plumber - about her own prejudgment and not believing plumbers.

It is simply too much of a coincidence to claim that the judge did not know that the defendant in front of her was a plumber, and that his alibi witness to be presented later on at trial was a plumber, too.

Murder trials are extraordinary costly - because the state, at least formally, must provide extraordinary procedural protections to the accused.

If what Judge Hunter did was deliberate, she deliberately:

1) fixed a court case - which is a crime;
2) brought about a wrongful conviction and sentenced a person belonging to the class she does not like, after she brought about the wrongful conviction by her misconduct, to 114 years in prison; and
3) cost California taxpayers an extraordinary amount of money for the pre-trial proceedings, the trial (which will have to be all re-done now) and for the appeals, which would not have been necessary but for her behavior.

It is interesting to know whether Judge Eleanor Hunter will be investigated and prosecuted as an attorney, as a judge and criminally for her extraordinary misconduct.

It would also be interesting to know whether Judge Eleanor Hunter will be taken off the bench as unfit for judicial office, since she admitted that she forms pre-judgment of people's credibility based on their belonging to certain professional groups and because of personal experiences.

A judge must be able to be neutral.  Judge Hunter admitted she is not neutral if a litigant in front of her triggers her recollections about negative personal experiences, where personal experiences of judges are not part of the record, and there is no possibility for litigants to verify whether the judge's credibility determinations were or were not triggered by the judge's personal experience.

Judge Hunter is just too much of a danger to litigants.

She already cost defendant Vincent Tatum years in prison and tremendous stress.

She already cost California taxpayers hundreds of thousands of dollars spent on criminal investigation and prosecution of Vincent Tatum which will have to be all redone now.

I believe, Judge Hunter's other cases, and her cases as a prosecutor must now be thoroughly investigate to see what kind of tricks she used to pave her way to judgeship there.  It is unlikely the judge pulled a dishonest trick for the first time in her life - usually where there is immunity for corrupt acts, the immunity that covered Judge Hunter her entire career as a prosecutor as a judge, such immunity breeds what it covers - corruption.

I wonder whether Judge Hunter will be investigated whether she received any financial reimbursement to do what she did, or whether her misconduct was "gratuitous" - just to help a fellow prosecutor win a murder case.  And bring about a wrongful conviction.   No big deal, happens all the time in this country, right?

I will continue to cover this story.

Stay tuned.

On judges tasing litigants and the necessity to legislatively abolish judicial immunity

In February of this year I wrote about a Maryland judge Robert Nalley (a white man) who ordered tasering of a black criminal defendant for making constitutional arguments in court for himself.

The judge was then charged with a misdemeanor only (for assault with grave physical injury!), ordered to pay a fine, serve probation only and taken off the bench.  Still, no jail time - and just a slap on the wrist.  Barred from serving as a judge any more?  He is 72, it's not a big loss for him.

Here is Judge Nalley - bow tie and all, does not look like a dangerous violent criminal that he is, does he?

You might imagine that there can be nothing more disturbing about a courtroom proceeding than a judge ordering to taser a handcuffed litigant for making constitutional arguments to the judge.

But no - there is.

It is when the judge not only orders to taser a litigant for making arguments to the judge (including arguments pertaining to misconduct and appearance of impropriety of the judge, requiring recusal of the judge), but when the judge actually tosses his black robe and JOINS in the tasering efforts.

And that is what a Michigan judge John McBain, reportedly, just did.

Here is the official biography of this "honorable" judge.

Judge McBain was a career prosecutor before coming to the bench, he worked as a prosecutor, first in Florida, then in Michigan, since he was admitted to the bar, since 1988 and until 2002 when he was first elected as a judge.

Both prosecutors and judges in this country are given by courts a gift of absolute immunity for malicious and corrupt acts - and that sense of impunity breeds in prosecutors and judges the idea that they can do ANYTHING, literally, ANYTHING in court, with impunity.

So, Judge McBain was faced with a litigant who was charged with contempt of court - violating an order of protection.

Since such charges are criminal in nature and may involve jail time, the litigant was entitled to an attorney, an appointed attorney if he could not afford one.

There is no indication in reports regarding what the press calls a "scuffle" in the courtroom that any attorney for defendant Jacob Larson was present.

The video of court proceedings shows that the defendant appeared in front of the judge without an attorney - the only other man in the picture is the court attendant who is handcuffing the defendant.   After the court attendant roughly handles the defendant, the judge himself apparently joins, and together the two men knock the defendant down on the floor, and that is accompanied by the judge's yelling "taser him right now".

The judge was "upset" (that is the polite word) because the defendant:

1) talked about the judge's own daughter, and
2) raised the issue that the judge is "buddy-buddy" with the subject of the order of protection that the defendant allegedly violated.

Since the defendant's alleged violation of the order of protection occurred out of court, his contempt of court proceedings were entitled to an evidentiary hearing and an attorney representing him there.

Judge McBain did not assign an attorney, discussed the charges with the unrepresented defendant directly, and engaged in a verbal scuffle because defendant hurt his feelings personally - while the ONLY thing that Judge McBain could ethically do under the circumstances was to RECUSE from the action.

Instead, the judge not only ordered tasering of a litigant because the judge did not like the litigant discussing the judge's daughter and raised the issue that the judge may be too familiar with the opponent in litigation, but joined in physically overpowering the defendant.

Every concept of "neutral arbiter" of judicial proceedings, of course, was ripped off these proceedings, together with the black robe.

Judge McBain's robe should remain where Judge McBain left it - ripped off him, for good.

And, Judge McBain should also be disbarred for his behavior.

This is not a petty "ethical violation".

This is a violent outburst of a judge of 14 years and an attorney of 28 years of experience who knew better.

The judge instead:

1. had to assign counsel for the defendant - but didn't;
2. had to hold an evidentiary hearing before sending the defendant to jail - but didn't;
3. had an obligation NOT to discuss with the defendant the merits of the case until the defendant appear in court with counsel - which the judge did not do, provoking the defendant into discussing issues that were personal to the judge;
4. had to recuse because his own daughter and his personal relationship with the opponent in litigation were issues in litigation - but didn't;
5. and instead ordered handcuffing, tasering of a pro se defendant and bodily participated in the scuffle;
6. and ordered jailing the defendant while he was disqualified from doing so by his personal involvement.

The question I would also ask - why did Judge McBain toss his black robe before he joined the brutal overpowering of a litigant in the courtroom?

To confuse the viewer into believing that the second man joining the first who is tackling a defendant on the floor is simply a second court attendant, white shirt and all - instead of a judge?

So, the judge knew exactly what he was doing and thought his actions through to the point of attempting to deceive the viewers of the court recording, to beat the future charges of misconduct?

John McBain is not simply a violent man.

He is a violent man who knows that he is COMPLETELY IMMUNE for what he is doing in the courtroom during the court proceedings.

If Jacob Larson, the man the judge PHYSICALLY tackled during the court proceedings, sues judge McBain, the case will be dismissed based on judicial immunity.

And that is the best illustration of why judicial immunity MUST be abolished legislatively - because it allows the judge TO COMMIT VIOLENCE in the courtroom.

Imagine that this judge not just tackled a litigant, but shot him, right in the courtroom.

And, we do not know whether judges have guns on them during court proceedings or not.

If a judge shots a litigant or anybody else during a court proceeding, he will STILL be immune from a lawsuit.

Judge John McBain is a violent man who engaged in a physical assault upon a litigant who presented no danger to safety other than VERBALLY protesting against unlawful actions of Judge McBain.

And, Judge McBain is a product, as a prosecutor and as a judge, of a mentality that was in-bred into him over 28 years of his experience as a judge and a prosecutor, since he was admitted to the bar, for his entire legal career that anything - ANYTHING - he does in the courtroom will be covered by immunity, so he can just go ahead and do whatever he wants.

Note that the defendant raises the issue that the judge cannot simply send him to jail - even if that was expressed not in the most courteous language:

Defendant:  You cannot do this sh*t!
McBain:      Appeal it.

I described this "move up or move on" tactic regularly utilized by New York judges, on this blog:

• a tactic that is wasting taxpayer money by forcing appeals that should not have happened had the judge simply followed the law as he or she is supposed to,
• a tactic that is discriminatory against pro se litigants and non-moneyed litigants, because an appeal is a costly endeavor, and
• a tactic that destroys in litigants their belief in the rule of law and integrity of the judiciary.

So, it is the taxpayers' resources that will be wasted on appeals from Judge McBain's illegal decisions aimed at using his paid position of power, as a public servant, to fix his personal grudges against a defendant who dared to mention the judge's daughter and the judge's potential personal relationship with a litigant in open court.

Will Judge McBain be required to reimburse taxpayers of the State of Michigan for that waste?

I doubt it - unless there is public pressure to make Judge McBain do it.

Judge McBain engaged in a violent act in his courtroom apparently believing that he is immune from lawsuit for his action - and that, likely, he will not be charged or disciplined as a judge or as an attorney, because who is going to discipline him - attorneys appearing in front of him, whose licenses are in the hands of judges, just like him?

Nobody stopped the judge - on the video - from doing what he was doing.

Nobody confronted the judge - even though there are people shown sitting in that courtroom.

Everybody is afraid and thinking that WHATEVER the judge is doing is right.

Right?

What kind of country have we become that we allow this to happen in front of our own eyes, in a public courtroom?

We will see in the future whether the State of Michigan will have the decency of having Judge McBain disbarred, taken off the bench and charged with assault.

I will continue to cover this story.

Stay tuned.

Over a 1,000,000 views and a hurricane of news on the recently taboo topics of judicial misconduct and corruption

My husband and I, and our 8 pets have survived our first hurricane in South Carolina, and a week without electricity. 

When we finally got electricity - and high-speed Internet - again, I was amazed, first, that the blog has now reached over a million views:

I thank my readers for their attention to the not so easy topics I am covering on this blog.  I appreciate you attention and will strive to provide good coverage of access-to-justice issues, which include independence of court representatives and necessity for transparent, honest, unbiased and competent judiciary - something that our nation is lacking at this time, in my personal opinion, of course.

What was also amazing, after just a week of my absence from the blogging scene is the avalanche of news that have been posted on the subject of attorney misconduct, judicial misconduct and impropriety, and judicial corruption.

When I was starting this blog 2.5 years ago, the topic of attorney misconduct and judicial misconduct was a definite taboo in the news.

The fact that this topic is now discussed more and more actively, and I would say, aggressively, not only in social media, not only by us bloggers, but also by mainstream media, indicates just how influential the rapid exchange of information through social media has become.

Mainstream media has no choice but to pick up and cover these previously "taboo" topics, too.

I must add that the public is becoming very vocal as to what it does not like in its government - and I doubt that the government can ignore such a powerful voice.

For example, reportedly, over 40,000 people have signed a petition to remove from the U.S. Senate Judiciary Committee Senator Jeff Sessions from Alabama, a Trump supporter, who claimed that grabbing women by their genitals does not constitute a sexual assault.

The public considers the Senator's post in choosing the nation's federal judges and setting laws regarding federal courts too important to be entrusted to a sexist jerk, even if he is an old sexist jerk.

In Rhode Island, a female litigant has filed an ethic complaint against a judge who handled her sexual abuse lawsuit against a Catholic priest without disclosure - in his mandatory financial statement, too - that for years, Rhode Island Supreme Court Judge Francis X. Flaherty

has had a leading role in Catholic church, and thus should not have been presiding over her lawsuit against a Catholic priest alleging sexual abuse.

And, in New York, a state Supreme Court judge Michalek, convicted of a felony and disbarred, is now a "cooperating witness" in a corruption investigation against a political power broker.

And in Texas, an appellate judge was exposed for receiving $11,000 in campaign contributions from attorneys appearing in front of the judge for the past 2 years only.

And in Missouri, increased public interest in judicial elections is noted, and the question that judicial candidates are bought by those contributing to their election campaigns, is publicly raised and debated.

And, finally, New York Times raises the issue of improper failure to recuse by U.S. Supreme Court justices and questionable exercise of discretion by the U.S. Supreme Court.

New York Times correctly questions

• why the U.S. Supreme Court Justice Elena Kagan did not recuse from the "Affordable Care Act" case after participating in that case as a representative of the U.S. Justice Department, and
• why the U.S. Supreme Court justices Stephen Breyer and John Roberts did not recuse from cases of corporate litigants whose corporate stock they held; and
• why the U.S. Supreme Court self-servingly refused to take a 1st Amendment case about protests on the plaza in front of that same U.S. Supreme Court.

Corrupt judicial candidates, conflicts of interest in the judiciary, in its top echelons - the top state courts and even in the U.S. Supreme Court justices - topics which were only hushed and tabooed now plunge into mainstream.

You know why?

The American public is not dumb, and it does not want to receive in its courtrooms - instead of fair resolution of disputes - abuse by bought judges.

Through exchange on social media, through its own experiences in the courtroom, it sees that the "presumed integrity" of the "honorable" judiciary that gives itself immunity from malicious and corrupt acts is a mockery of the rule of law that the American public as the employer of its judges, is entitled to.

And, the movement to clean up the judiciary and make it more transparent, more accountable to the people, and actually adhering to the rule of law instead of the rule of "discretion" (whim) is on the rise, too.

I am glad the tide has started to turn, at least judging by the news.

And, I believe that, propelled by instant information sharing in the social media, possibility of real reforms of our judicial system does not seem a utopia any more.