A certiorari petition to the U.S. Supreme Court from California attorney Charles Kinney echoes dissent of California Supreme Court Judge Kennard in 2000, my pleadings in federal court in 2013 and U.S. Supreme Court cases decided in 2015 and 2016. What will the U.S. Supreme Court say?

I was alerted by a reader of a case pending in front of the U.S. Supreme Court, Docket No. 16-606, challenging attorney regulation on antitrust grounds:

There is no link on the site of the U.S. Supreme Court to the petition for the writ of certiorari, as the Petitioner is Pro Se - but the author of the petition kindly provided a copy of his petition to me for publication.

Questions for review Nos. 2 and 3 of the petition directly challenge legitimacy of attorney regulation from the point of view of federal antitrust laws (civil and criminal), which now include:

• the so-called Sherman Act,
• the 2015 decision of the U.S. Supreme Court North Carolina Board of Dental Examiners v Federal Trade Commission, 574 U.S. __ (2015), and
• the Federal Trade Commission interpretation of that decision and its advice to staff of October 13, 2015 based on that decision.

Petitioner, attorney Charles Kinney, an attorney with 35 years of experience, challenges that

Attorney Kinney also raised in his petition the issues of:

1) accuser-adjudicator (interested prosecutor) conflict in attorney disciplinary proceedings in California, where both the prosecutors and the hearing officers are appointees of the market participant State Bar of California, a professional corporation of California licensed attorneys, competitors of those sought to be disciplined;

recently the U.S. Supreme Court, in Williams v Pennsylvania, decided in June of 2016, declared proceedings decided by accusers-ajudicators as a violation of due process rendering such decisions void;

2) political motivation in deciding attorney disciplinary cases, and deciding cases in a way that hurts the public

that includes

• backroom selection of judges;

• corruption of judges by litigants paying part of judicial salaries and providing benefits to the judiciary, and

• improper use of attorney disciplinary proceedings, in violation of attorneys due process of law, and without any lawful basis for discipline, as a sword used to eliminate whistleblowers of judicial misconduct, rather than, as it is supposed to be, a shield of consumers against dishonest or incompetent attorneys;

• improper use of vexatious litigant orders and blocking whistleblowers from access to court; and

• operation as organized crime requiring its members to commit criminal acts in order to "belong":

Attorney Kinney calls

• consolidation of the judiciary and California State Bar as an organized crime entity,
• corruption within the California judiciary,
• the use of vexatious litigant and attorney disciplinary process to eliminate whistleblowers of such corruption, and
• rewards by the judiciary/California State Bar of "like-minded" attorneys supporting and condoning the functioning of California judiciary and California State Bar as an organized crime entity

as cancer, and indicates in his petition that cancer is sometimes difficult to discern when it just starts, but only when it grows (and, I will add, often when it becomes terminal for the system where it has grown and metastasized):

Attorney Kinney describes his specific situation and points out that discipline imposed upon him for the benefit of judges and California State Bar bureaucrats actually hurt the public and constituted a group boycott of whistleblower attorneys:

Attorney Kinney describes California disciplinary rules that allow attorney disciplinary cases to be investigated, prosecuted and adjudicated by active market participants, without statutory approval or active state supervision, in violation of the Sherman Act and North Carolina Dental:

Attorney Kinney asserts a very basic, foundational jurisdictional principle of the rule of law that a court of law does not have authority to issue orders inconsistent with state and federal statutes and state and federal Constitutions:

and argues that attorney discipline imposed in violation of statutes, rules of procedure in the disciplinary case, based on void and unconstitutional court orders and with violations of the attorney's due process of law are void as being jurisdictionally defective and invalid:

Attorney Kinney legitimately raises the issue that when competitors, without a statutory approval by the California Legislature and without active state supervision by a neutral state entity, block an experienced attorney from doing his job, that is a matter of public concern:

The petition raises issues of violation of 1st (free speech) and 14th (due process) Amendments, and stresses that denial to an attorney of a right to appeal the order of discipline, and especially when such denial is done by an active market participant, requires strict scrutiny and warrants review by the U.S. Supreme Court:

The petition raises an interesting question of law where the decision of administrative hearing officer becomes "final" when the California supervising court simply remains silent - so there is no judicial review in attorney disciplinary process in California:

I wrote in my previous blog about

• the legendary the California State Bar and of the California judges, who retaliated with disbarment and solitary confinement against  an elderly attorney-whistleblower Dr. Richard Fine, J.D., PhD for correctly exposing judges of California courts in Los Angeles for corruption - accepting, for years, large annual payments (over $40,000 per year) from Los Angeles County, a litigant appearing in front of them, as an addition to their salary;
• the recent - ongoing - federal criminal case against Los Angeles court clerks running a corruption ring and selling lower DWI convictions (of course, with pretended claims that judges did not know and were not involved);
• the recent attack of the California State Bar on one of their own insiders when he blew a whistle about California State Bar's corruption, waste and misuse of funds collected, by permission of the government, allegedly to carry out its delegated duties of attorney regulation;
• the recent denial to California State Bar of authority to collect attorney registration fees by California State Legislature and the illegal overruling of the denial by the nest of corruption and the parent of the California State Bar - California State Supreme Court;
• about recent unlawful discipline upon California attorney Martin Reiner for "disobedience" of an unlawful order and correctly characterizing the order of discipline as unconstitutional, and thus unlawful and void.

I also wrote that California State Supreme Court has long ago made attorney regulation and discipline senseless by claiming that representation by a criminal defendant by a suspended attorney - in violation of regulations and criminal laws against unauthorized practice of law - does not deprive the criminal defendant of effective representation of COUNSEL, for purposes of constitutional right to counsel under the 6th Amendment of the U.S. Constitution, Gideon v Wainright.

When the same State of California claims that constitutional right to "counsel" under the 6th Amendment of the U.S. Constitution may be satisfied by an unlicensed attorney, the whole idea of licensing for protection of consumers becomes a mockery - and a trick designed to protect the legal elites from competition.

I am not the only one who is raising the issue of corruption in California judiciary and State Bar.

Recently, a two 1.5 hours documentary videos were produced and posted in public access on YouTube, Scandal in the State Bar, Part I and Part II - providing a unique insight into the details of such corruption.

Part II  - describes selective enforcement of attorney discipline against solo and and small-firm attorneys, while also describing, as a comparison, lack of discipline against three attorneys connected to the State Judicial Council and to a non-profit that provides benefits for judges and where the State Bar's "special prosecutor" sat on the same Board as the attorney he was supposedly "investigating" - which resulted in no mandatory reciprocal discipline at all, even though these three attorneys were all disciplined (also very lightly considering their misconduct) in federal court for a disbarring offense - a $489 million dollar fraud upon the court (forgery of an foreign court decision).

The difference in draconian discipline against solo attorneys and lack of discipline against the three connected attorneys (I will run a separate blog about that story) is personal connections to the judiciary, political donations, and the fact that the law firm of Thomas Girardi, one of the connected attorneys subject at that very time to a state reciprocal disciplinary investigation of his fraud upon the federal court for which he was already disciplined (and usually reciprocal discipline is automatic, without an investigation) reportedly serenaded - literally - the Chief Judge of California State Supreme Court by paying for performance of the entire philharmonic orchestra and opera singer in front of the invited judge.

I am currently researching some episodes and claims made in that video and may follow up with blogs regarding more judicial corruption in the California judiciary and State Bar and more cases of retaliation against attorney whistleblowers, or civil rights attorneys who are usually the targets of retaliative discipline.

I also repeatedly write on this blog about judicial misconduct and retaliation against attorney whistleblowers who dare to expose such misconduct, which is happening across the United States.

The so-called "mainstream" media and the timid "professional" law review authors, blawgers and law professors prefer not to cover this topic of - as Attorney Charles Kinney correctly says - cancer rotting the American judiciary and legal profession from within, or cover it with unwarranted curtsies towards the judiciary, with claims, unsupported by evidence, that "the majority of judges are honest hard working people, but there are some rare bad apples".

The "honorable" legal profession, seized by fear, prefers, in their majority, to keep their licenses and remain silent - even if a client or two (or three, or more) will, as a result of their silence lose their cases through review by biased and corrupt judges.

California is not unique in silencing whistleblowers.

New York silenced many - from

• attorney John Aretakis (suspended in 2008, without a right of automatic reinstatement, and remains suspended) for exposing sexual abuse by Catholic priests, to
• Doris and George Sassowers,  disbarred (George in 1987) and suspended (Doris in 1991) when Doris Sassower started to challenge corruption in New York judicial nomination and election process, to
• Frederick Neroni (disbarred in 2011) and Tatiana Neroni (suspended in 2015) - for exposing and challenging judicial misconduct in motions to recuse and in assigned criminal appeals.

Therefore, I've made it a point, since this blog has started in 2014, to name the culprits of judicial misconduct, the attorney whistleblowers who are unfairly made to suffer for doing their professional duty - reporting judicial misconduct in order to secure impartial access to court for their clients (and for themselves, if they proceed in certain cases pro se), and to follow the tendency, which has grow not only into cancer, but into an epidemic of retaliation against attorneys trying to do their jobs and challenge judicial misconduct.

I wrote previously that my own petition for the writ of certiorari was filed, docketed, Docket No. 16-664, is also currently pending in front of the U.S. Supreme Court, and is also raising issues of improper attorney discipline used as a sword against whistleblowers, and as an unconstitutional content-based regulation of speech, having an effect of widening the already wide "justice gap" in the United States, to the public's detriment.

It remains to be seen whether the U.S. Supreme Court will finally take for review a case of attorney-whistleblower discipline, or let the cancer metastasize further without treatment.

We will learn about that soon.

Attorney Kinney's petition is distributed for the U.S. Supreme Court's conference for January 5, 2017.

My petition awaits answer or waiver of answer by my opponent, and its fate, whether the review on the merits will or will not be given, will be decided by the U.S. Supreme Court.

Wrongful application of discipline against attorneys for doing their jobs and exposing judicial misconduct hurts not only attorneys.

In Pennsylvania, for example, attorneys' silence as to judicial misconduct, out of fear of retaliation, already resulted in many years of illegal incarceration of children - and a suicide of at least one child.

Yet, the Pennsylvania judiciary continues to retaliate against civil rights attorneys - such as civil rights solo attorneys Andy Ostrowski and Don Bailey - and went so far as criminally convicted the State of Pennsylvania elected Attorney General when she exposed judicial misconduct and corruption, while continuing to hide from the public the names of those involved in judicial and prosecutorial misconduct that Kathleen Kane's investigation uncovered.

The anticompetitive and retaliative use of attorney discipline against civil rights, Family Court, criminal defense and other solo and small-firm attorneys working for the poor widens the already wide justice gap and hurts - badly - the most vulnerable members of the public who could benefit by such attorney's services.

After all, those who pay for philharmonic orchestras and opera singers to serenade Chief Judges of State Courts do not usually represent the poor in Family Court, criminal, foreclosure, landlord-tenant or consumer debt cases.

In 2000, Judge Joyce L. Kennard (who now retired) issued a seminal dissent in a California Supreme Court decision In Re Rose that has stated much of what the U.S. Supreme Court has stated in its majority opinion in North Carolina Dental in 2015.

I would like to provide Judge Kennard's dissenting opinion here in full, with comments:

In his currently pending petition for the writ of certiorari in the U.S. Supreme Court Attorney Charles Kinney raises exactly that same issue - denial to California disciplined attorney of any judicial review whatsoever:

In 2000, Judge Kennard raised in her dissent the issue that procedures denying disciplined attorneys in California the right to judicial review are unconstitutional under the California State Constitution.

Attorney Kinney contends in his currently pending petition before the U.S. Supreme Court that attorney regulation in California is void as unconstitutional also under the U.S. Constitution:



Moreover, in 2000, Judge Kennard raised the issue of equal protection of attorneys, as holders of occupational licenses - as opposed to holders of other occupational licenses (the issue which I, without knowing of Judge Kennard's opinion, raised on my own on behalf of my husband in federal case Neroni v Zayas, dismissed "for failure to state a claim", dismissal affirmed on appeal in a summary non-precedential order, and dismissal resulted in imposition of an anti-filing injunction upon my husband in the U.S. District Court for the Northern District of New York):

Compare with the twelfth cause of action in Neroni v Zayas (starts at p. 69 of the Amended Complaint):

Here is what the U.S. District Judge Lawrence E. Kahn said about the 12th Cause of Action in Neroni v Zayas - the one that coincided with the dissenting opinion of 2002 by Judge Kennard, of the Supreme Court of the State of California in In Re Rose:

for cheerful starters, Judge Kahn immediately pointed out that the entire complaint of my husband is related to his disbarment

- thus from the very start painting my husband as being below the law - even though many causes of action, as the 12th Cause of Action was, was challenging discrimination of attorney regulation with regulation of other regulated professions in New York.


In no less cheerful "Background", in the very first phrase, Judge Kahn claimed that the Amended Complaint in Neroni v Zayas, as a whole, is "lengthy, convoluted, digressive and redundant" (of course, every civil rights case is subject to a dismissal - as Judge Kahn did) for "failure to state a claim" which federal courts interpret as failure to allege ENOUGH facts - under such circumstances, federal courts invite redundancy as a precaution, but here is the excerpt from Judge Kahn's order of dismissal:

Such a start of a court order usually spells out for the litigant that the litigant should not expect impartiality from such a judge - and especially in a case where pleadings must be LIBERALLY construed IN FAVOR of a non-moving party, in other words, by blasting the civil rights complaint that I drafted for my husband as:

• lengthy,
• convoluted,

• digressive, and

• redundant

As you can see from dictionary definitions of "convoluted", "digressive" and "redundant", these three attributes, combined with "lengthy", produce a very interesting impression of Judge Kahn's judicial review of the civil rights lawsuit for purposes of a motion to dismiss:

• I made the complaint unnecessarily long (lengthy);
• I veered from the main topic of the complaint (the topic which is for the Plaintiff to decide and not the judge, but Judge Kahn, by using the word "digressive" implies he understands what is the "main" topic of the complaint from which I allegedly "digress"), yet, then Judge Kahn claims that the complaint is both:
• "convoluted" (too complex - for his understanding, apparently), and
• "redundant" at the same time.

What I read in these four epithets is - judicial frustration: "why do I have to read these 87 pages from a disbarred attorney who does not have any rights anyway, no matter what he says"?

If that is "liberal construction" of my pleadings in my client's favor, required by law, then, I am Santa Claus.  Well, you be the judge how convoluted, digressive or redundant the civil rights lawsuit actually was, here it is once again.

And, here is what Judge Kahn, lilberally construing the 12th Cause of action in my client's favor, said about it - and the 2nd Circuit affirmed:

The only thing that Judge Kahn  understood from reading the 12th cause of action is:

• that it seeks a declaration that attorney disciplinary system in New York is unconstitutional
• through a "rambling assemblage of words".

Here is, once again, the "rambling assemblage of words", the 12th Cause of Action in Neroni v Zayas:

It contains just 9 paragraphs, and I wonder what exactly Judge Kahn found as "rambling assemblage" and did not understand.

Actually, the 12th Cause of Action in Neroni v Zayas is nearly identical to the dissenting opinion of Judge Kennard in In Re Rose regarding discrimination against attorneys by the State of California as opposed to regulation of other licensed professions:

Apparently, what constituted a "startling anomaly" for Judge Kennard, of the California State Supreme Court, was business as usual for federal U.S. District Court judge Judge Lawrence E. Kahn who considered a clearly worded challenge to this "startling anomaly" a "rambling assemblage of words" - and dismissed it.

Of course, possibly, Judge Kahn's problem was not that Neroni v Zayas was a "rambling assemblage of words", but that it spelled out too clearly - as the petition of California Attorney Charles Kinney to the U.S. Supreme Court does - the woeful problems of how attorneys are regulated in New York:

the conflicts of interest and interest to quash competition through attorney disciplinary proceedings:

At the time I wrote these words, Dr Hany Ghaleb, likely on behalf of Carol Malz, got even with me and brought a disciplinary proceeding against me that eventually resulted in my suspension.

Here is what I said in Neroni v Zayas in February of 2013, in the 10th Cause of Action (as one of the examples) - directly coincides what the U.S. Supreme Court said in North Carolina Dental in February of 2015, 2 years later (even though the dismissal of Neroni v Zayas is still resulting, at this time, in an anti-filing injunction against my husband as if the claims now recognized by a U.S. Supreme Court precedent are somehow "frivolous"):

And here is what the U.S. Supreme Court stated regarding regulating a profession by super-majorities of competitors of those sought to be regulated, disciplined and deprived of their right to practice their profession and earn a living:

 And, "active supervision", as the Federal Trade Commission explained in October of 2015, is not supervision by holders of the same occupational licenses (like "supervision" of attorney disciplinary committees by judges, themselves licensed attorneys):

What Judge Kahn obviously also did not like - which was also spelt out much too clear was:

• that attorneys in New York are not provided with
• rights to discovery and jury trial

• elevated standard of proof, as in forfeiture proceedings:

• denial of right to appeal (rules of attorney discipline were amended in 2015 to allow some discovery, but not as much as allowed in other civil cases, and still no right of appeal);

• disparity in standards of proof between revocation and reinstatement of attorney license:

• improper use of collateral estoppel (denial of a due process hearing before revocation of the license) in attorney disciplinary proceedings - which was done to John Aretakis, the attorney who outed sexual abuse of children by Catholic priests, and was immediately suspended in 2008 without a hearing, then to my husband in 2011 and, after I filed Neroni v Zayas and challenged such a use of collateral estoppel, on behalf of my husband, as a due process violation, it was done to me in 2015:

In connection with our claims in Neroni v Zayas of constitutional infirmities of attorney disciplinary proceedings in New York, such as: 

1. the lack of right to discovery,
2. lack of right to a proper evidentiary hearing (jury trial), especially when a collateral estoppel is applied to a proceeding which is deemed criminal in nature,
3. no right to subpoena and confront witnesses,
4. no right to appeal,
5. low evidentiary standard of proof, not matching the criminal or quasi-criminal nature of the proceedings;
6. a disparity of standard of proof between revocation (preponderance of the evidence) and reinstatement (clear and convincing evidence) of attorney licenses,
7. secret formation and
8. anti-competitive composition of attorney disciplinary boards and
9. lack of mechanisms of recusals for conflict of interest -
10. I rose in Neroni v Zayas the issue of separation of powers, which was at the root of all those above mentioned constitutional infirmities:

that all those procedural constitutional infirmities are created by the disciplinary court that, at the same time,

• appoints investigators and prosecutors,
• legislates procedural and substantive rules of disciplinary proceedings,
• is considering disciplinary prosecutors as its own "arm", thus merging with the prosecutor and presenting an "accuser-adjudicator" problem (prohibited by the U.S. Supreme Court in Williams v Pennsylvania in 2016); and
• adjudicates attorney disciplinary proceedings.

My "problem", as Neroni v Zayas clearly reveals, is not that Neroni v Zayas was a "rambling assemblage of words", as Judge Kahn said, but that the challenge was too clear, too comprehensive, and too true - and required overhaul of the entire attorney disciplinary system in New York (which was a concern expressed on behalf of defendants in that case in their pleadings).

By the way, here is how Judge Kahn "resolved" the 10th Cause of Action in Neroni v Zayas, challenging composition of attorney disciplinary committees on:

1. antitrust grounds - where the U.S. Supreme Court later agreed with my position in 2015 in North Carolina Dental; and on
2. accuser-adjudicator/interested prosecutor grounds - where the U.S. Supreme Court later agreed with my position in 2016 in Williams v Pennsylvania:

you will simply not find a decision on the 10th cause of action (composition of the attorney grievance committee of a super-majority of market participants) - a convenient way out by Judge Kahn.

My "problem" in Neroni v Zayas was that I was asking "too much":

My other big problem was that I was right, and as Judge Andrew Napoletano said in his book, it is dangerous to be right when the government is wrong 

- or to be right ahead of the government whose operatives have no ideas of their own, but prefer to steal yours - and then demonize and harass you so that the stealing of ideas would not be so obvious.


For example, in the 9th cause of action in Neroni v Zayas, I claimed, on behalf of my husband as client, equal protection violation because of disparity of rules of attorney discipline between four intermediate appellate courts in New York.

This cause of action was drafted and asserted by me on behalf of my husband in January (initial complaint) and then February (amended complaint) of 2013.

In March of 2014, Judge Kahn dismissed this cause of action for failure to state a claim while ignoring to even mention it in the order of dismissal.

After obtaining dismissal of that cause of action, in March of 2015, the then-Chief Judge Lippman (co-Defendant in Neroni v Zayas) announced formation of "New York State Commission on Attorney Discipline", populated it with a super-majority of market players, and with some co-defendants from Neroni v Zayas, and the Commission, together with Lippman, shamelessly promoted contents of challenges plagiarized from Neroni v Zayas (that Lippman and codefendants claimed are frivolous, and obtained a dismissal from the federal court) as Lippman's and the Commission's own move towards "uniformity and fairness", which the legal community lauded as the Commission's "boldest recommendations".

Moreover, after the new rules of attorney discipline were already in place, Lippman fought tooth and nail against my husband's appeal of the dismissal, and against my husband's motion to vacate dismissal of Neroni v Zayas based specifically on the Commission's "Report and Recommendations" and on introduction of new rules of attorney discipline, 22 NYCRR 1240, promoting many of proposals that I drafted on my husband's behalf in Neroni v Zayas, and which were dismissed by Judge Kahn, at Judge Lippman's request, as frivolous.

So, I was right - but I was not the "right" (connected) person to be right, and I was right "ahead of time".

Being not the "right" person to be "right" and being right ahead of time is punishable in New York.

And, it is not punishable, and is even laudable in New York to:

• claim to a court of law that my ideas in Neroni v Zayas are "frivolous", incomprehensible rambling, 
• have them dismiss as "rampant assemblage of words",
• then turn that "rampant assemblage" into a pioneering move toward "uniformity and fairness",
• announce the plagiarized ideas, without attribution to Neroni v Zayas or its drafter, as "move towards uniformity and fairness" in attorney regulation, which was paraded as "boldest recommendations" of the Commission,
• implement those "incomprehensible rambling" ideas, at least some of them, into new court rules of attorney discipline, 22 NYCRR 1240,
• and then fight an appeal of dismissal of the source of 22 NYCRR 1240, and fight the motion to vacate the true source of 22 NYCRR 1240, while the motion was made on obvious grounds - if it is a new pioneering positive ideas implemented into the new rules of attorney discipline by the very defendants in Neroni v Zayas - how come Neroni v Zayas should remain dismissed as frivolous and be the basis of an anti-filing injunction, blocking its author from filing new civil rights lawsuits without court approval?

By the way, the fight against my ideas in Neroni v Zayas continued

• not only despite acceptance by defendants of many of those ideas in 22 NYCRR 1240, but also
• despite recognition of the U.S. Supreme Court of my 10th Cause of Action in Neroni v Zayas (anti-competitive composition of attorney disciplinary committees) in North Carolina Dental in 2015 and
• despite recognition by the U.S. Supreme Court of my challenge in Neroni v Zayas of interested prosecutor/separation of power/ attorney-adjudicator infirmity through Williams v Pennsylvania in 2016.

In fact, defendants continue to fight my husband's now pro se motion to vacate dismissal of Neroni v Zayas in the U.S. District Court for the Northern District of New York - which is frivolous and in complete defiance of existing law and common sense, but defendants in Neroni v Zayas have a lot of power, and, as I have learnt about the legal profession during the years that I worked in it, and during the years that I researched it, in the legal profession, claims of the rule of law, justice and fairness are smoke and mirrors, and the real rule is by connections, fear and greed.

I am looking forward to see whether the U.S. Supreme Court will accept for review attorney Kinney's and my own petition for a writ of certiorari asking the U.S. Supreme Court for not much really - for fairness and consistency in application of its own precedents, and for enforcement of the U.S. Constitution to the profession that is supposed to secure for all Americans a vital constitutional right, the right to impartial judicial review.

Whatever the decision of the U.S. Supreme Court, I will announce it - and will continue to monitor conceptual development, or rather, falling apart, of attorney regulation in the United States.

Yet, there is a silver lining in all of this mess.

If they stole my ideas and implemented at least some of them, even in a castrated form, as New York did with my ideas from Neroni v Zayas in 22 NYCRR 1240, they are afraid.

Afraid that another, further lawsuit, from somebody else, on the same subject, will be more successful than ours was.

And it will be.

The wheels of justice go forward - even if slowly and not so steadily.

Alabama suspends its Chief Judge for defying one U.S. Supreme Court precedent - and immediately puts a man to torturous death in violation of another U.S. Supreme Court precedent. The rule of law. Right.

This past Thursday, on December 8, 2016, Alabama executed Ronald Bert Smith, Jr. in a 30-minute (!) procedure during which Ronald Berth Smith, Jr., reportedly, coughed, heaved, clenched his fists, raised his head and opened his eyes, obviously expressing distress.

He was slowly put to death anyway.

Ronald Bert Smith, Jr., was not sentenced to death by a jury.

According to his petition to the Supreme Court of Alabama, the jury sentenced him to life without parole.

But, in Alabama, a judge is allowed to override a jury verdict, and Smith’s sentencing judge did just that – overrode the jury verdict of life in prison without parole, and imposed a death sentence.

The execution was set at December 8, 2016.

In 1988 in a dissent, Justice Thurgood Marshall claimed that death sentences by judicial override are unconstitutional.

On January 12, 2016, 11 months BEFORE the execution, that dissent became a majority opinion, when the U.S. Supreme Court decided Hurst v Florida and struck as unconstitutional  imposition of the death penalty by judicial decision.

And, in that case, the U.S. Supreme Court stated exactly this, in its majority holding:

The holding in Hurst is pretty straightforward - a judge may not make additional findings,  and in Hurst the death sentence was overruled, even though the jury recommended it to the judge - only because the judge made additional finding of aggravating circumstances.

In Ronald B. Smith's case, the jury DID NOT recommend a death sentence - only life without parole, so the death sentence by judicial override in Smith's case was unconstitutional "a fortiori" - even more so than in Hurst.

And that is exactly what Smith's lawyers argued in his habeas petition from the beginning:

until the end:

Yet, Alabama Supreme Court denied the stay, and then, when Smith asked the U.S. Supreme Court for a stay, the Alabama Attorney General asked the U.S. Supreme Court to disregard Hurst, because it allegedly does not apply (it obviously does), and because Smith allegedly "waited too long to invoke it".

Think about it.

A person has a constitutional right to live, not to die, he is still alive - as of December 6, 2016 - but he, according to Alabama Attorney General, took too long to refer to the law allowing him to live.

Well, I wrote about a federal judge, Richard Kopf of Nebraska, who invented three reasons why he would knowingly allow to execute an innocent person - and "waiting too long" to invoke the condemned person's right to live was one of them.

In Smith's case there was no question of guilt, only that the jury gave him life without parole, and the judge did not have a constitutional right to override that sentence and impose a death penalty.

But, on December 6, 2016, when the Alabama Attorney General Luther Strange

asked the U.S. Supreme Court not to follow its own precedent, Alabama had, 2 months prior, suspended from office its own Chief Judge - for not following another U.S. Supreme Court precedent, declaring same sex marriage constitutional.

Here is some of Alabama AG's claims in his pleadings to the U.S. Supreme Court:

By not being "retroactive", Alabama AG, this man with innocent baby blue eyes, claimed that if a court declared that a criminal death sentence verdict is unconstitutional, it means that only the new death penalties imposed are unconstitutional, but the "old" death penalty verdicts can proceed anyway.

Under the same logic, if a gay couple was denied the right to marry before the U.S. Supreme Court decision in Obergefell in June of 2015, it's a done deal, a court of law denied couples their right to marry at the time when it was legal to deny gay couples a right to marry, and the couple is now collaterally estopped from claiming that right anew, since the new precedent, Obergefell, does not have a "retroactive effect", and all old court decisions denying gay couples their right to marry are legal and enforceable after it was declared unconstitutional.

I wonder if Alabama AG wants to try that logic out with LGBT community.

Yet, based on the same logic, a man, this man,

was tortured and killed.

Alabama AG Luther Strange presented to the U.S. Supreme Court also these arguments:

I love the language - the use of the word "eligible" - like "eligibility" for death penalty is an eligibility for some benefit.

Actually, Alabama AG stretched the truth in his pleading - because in Hurst the jury actually recommended the death penalty, and the court still reversed it, because a judge made his own factual findings.

In Smith, the jury did not recommend the death penalty, barring the judge from having a constitutional ability to still recommend it, so claiming that the jury made a finding necessary for a death penalty in a decision where they did not recommend the death penalty was completely inappropriate.

So, the highest-ranking judge in the State of Alabama defied a U.S. Supreme Court precedent on gay marriage - and lost his position.

Just two months after that, the highest-ranking prosecutor in the State of Alabama asks the U.S. Supreme Court to disregard - without overruling - its own precedent on death penalty, and the U.S. Supreme Court obliges - and the Chief Judge denies Smith his "courtesy" vote to stay the execution, which he earlier granted to another condemned prisoner, and granted him life, under the same circumstances.

So, apparently, not all U.S. Supreme Court precedents are binding and must be honored by state public officials, and, what is worse, the U.S. Supreme Court itself participates in instilling disrespect to its own precedents by refusing to follow even the most recent of them - and even to save a person's life.

The gay community gained political clout, and defying it is now dangerous even for a top state judge?

But, a condemned individual has no clout - and thus, a precedent clearly stating that he must be allowed to live, can be disregarded at the very same time?

The U.S. Supreme Court, by refusing to impose the stay, apparently agreed with this logic.

And allowed Alabama to kill Ronald B. Smith, Jr. 

Knowing about the unconstitutional judicial override in how his death sentence was imposed.

Knowing of the long-standing international boycott of American prisons seeking drugs for execution.

Knowing that states try to avoid this boycott and import drugs illegally, or use drugs not meant for execution - thus experimenting on condemned prisoners.

Knowing that several recent executions turned into slow torture - as, Ronald B. Smith Jr.'s execution did.

Alabama AG Luther Strange made this announcement after the illegal torturous execution of Ronald B. Smith, Jr.:

What was important for AG Luther Strange was that "justice was finally served".

It was not important that the way it was served was unconstitutional.

Once again - Chief Judge Roy Moore of the same blessed State of Alabama, was suspended in September 2016 from his high position for the remaining part of his term for "defiance" of a U.S. Supreme Court precedent on gay marriage - which, once decided, the Alabama Judicial Council claimed was instantly applicable, without any retroactive bar nonsense, to all gay couples in all states.

Yet, a later-decided U.S. Supreme Court precedent on death penalty did not prevent the same blessed State of Alabama from torturing a man to death, even though his death sentence was illegal under a U.S. Supreme Court precedent.

By the way, in the suspension order of Roy Moore, on page 37 at the bottom of the page, the Alabama Judicial Council said the following:

So, after the U.S. Supreme Court decided, in January of 2016, Hurst v Florida, declaring unconstitutional judicial imposition of death penalty, that decision became binding on Alabama Supreme Court.

Equality under the law and a nation under the rule of law is a very easy notion.

Either all laws equally apply to all citizens, or there is no rule of law in this country.

The torturous death of Ronald Bert Smith, Jr., where all state actors involved - from the Attorney General to the executioners - collectively defied one U.S. Supreme Court, after the Chief State judge was suspended for defying another U.S. Supreme Court precedent - is proof that there is no rule of law, or equal protection of laws, in this country, and that laws in this country are imposed on a whim.

Or - "courtesy" - given or withheld at whim - of various public officials.

And that is not the rule of law.

That is the rule of men.

At its worst.

Delaware County paid off the second victim of its former Deputy Sheriff Derek Bowie - at taxpayer's expense - and Derek Bowie is "unreachable", and may be armed and looking for more victims. Beware.

I wrote on this blog about the federal lawsuit against Delaware County police officer Derek Bowie who was continuously involved in violent acts, but was never charged with a crime - because he is the nephew of the long-time Delaware County District Attorney's investigator Jeff Bowie.

You can read all the blogs I posted about Derek Bowie, his misconduct in that lawsuit and depositions of Derek Bowie, by word-searching for "Derek Bowie" or "Kylie Smith" in the word-search window on the right of this blog.

Derek Bowie was sued for, allegedly, assaulting and causing injuries, including broken ribs, of Kylie Smith.

Derek Bowie was also sued by Barbara O'Sullivan for an assault later the same year, in September of 2014, with a police vehicle. Barbara O'Sullivan looks, interestingly, as a lookalike of Kylie Smith - which would have presented a great comparison for the federal jury, had Kylie Smith gone to trial, if Barbara O'Sullivan would come to that trial and sit in the front row.

Barbara's lawsuit was dismissed recently by Judge John F. Lambert because Barbara allegedly "contumaciously" (Judge Lambert's words) did not comply with discovery that came from Derek Bowie's taxpayer-paid attorneys to whom Judge Lambert illegally reopened Derek Bowie's default, and thus taking Barbara's victory out of her hands, after she already had it.

The discovery that sought evidence from a criminal case that Judge Lambert himself sealed, and that was destroyed by the fire of Barbara's house that nobody investigates because one of the most likely arson suspects is the same Derek Bowie.

So - Barbara "contumaciously" and wilfully did not comply with discovery and should be punished with dismissal of her lawsuit against Derek Bowie for vehicular assault because she did not reveal contents of proceedings sealed by the same judge who punished her for contumacious non-disclosure, and because her house was burnt down, together with the documents that she was supposed to provide in disclosure.  And that is all her fault - according to Judge Lambert.

There was no investigation of the house fire - but Judge Lambert already ruled that it was all her fault, by punishing her with dismissal of a lawsuit because of "contumacious nondisclosure" of documents that perished in that house fire.

Now that Judge Lambert's clerk Mark Oursler was pushing to have Barbara stipulate to discontinuance of the embarrassingly frivolous counter-claim by Derek Bowie against her, written by his attorneys without consultation with Derek Bowie (according to Derek Bowie's testimony at Barbara's daughter's trial that resulted in her acquittal by jury), Derek Bowie's free lawyers (free to him, not to Delaware County taxpayers) asked Judge Lambert to delay a conference because - guess what? - they allegedly could not find Derek Bowie.

Despite their "efforts" to find him, as revealed in their letter to the court.

The conference of December 2, 2016 was adjourned.

On December 12, 2016 a trial in Kylie Smith's case was scheduled in Syracuse, in the U.S. District Court for the Northern District of New York.

Delaware County, as supervisor of Derek Bowie, was stipulated out of the lawsuit, after it claimed that Derek Bowie did not act in his official capacity when he allegedly beat up Kylie Smith, broke her bones, and sat on her broken ribs, which, had a rib pierced her lung, could have resulted in her death.

Delaware County claimed in the federal lawsuit that Derek Bowie's infliction of injuries upon Kylie Smith was out of personal reasons.

And, Delaware County got rid of Derek Bowie.

But, Derek Bowie was never criminally charged with assault on Kylie Smith, or on Barbara O'Sullivan.

Not by the Delaware County District Attorney, for assault on Barbara O'Sullivan, not by the Broome County District Attorney - where the assault happened on Kylie Smith.

After all, his uncle is a long-time investigator for Delaware County DA's office, how can they possibly enforce the law and hurt his nephew?

While Frank Miller's law firm claimed to Judge Lambert that they could not find Derek Bowie

who reportedly is employed as a police officer in Deposit and is very much find-able there, it was interesting who he will be located for the federal jury trial scheduled for December 12, 2016?

Now, that is a moot question - because, Delaware County taxpayers, rejoice, Derek Bowie has settled the case with Kylie Smith (or, rather, Delaware County's insurance carrier, that has a 1 million dollar liability limit, settled for him), on December 7, 2016, and the federal case is dismissed.

So, Delaware County taxpayers paid for free lawyers for a dirty cop who assaulted two women - and escaped with no liability, and was "deposited" (pun intended) from the Delaware County Sheriff's Department back to the Deposit police department, from where he initially came from in the first place - without any credentials other than being the nephew of the Delaware County DA's investigator Jeff Bowie.

Derek Bowie's victims had to either hire their own attorney (Kylie Smith) or proceed pro se (Barbara O'Sullivan), with predictable results - that the represented Kylie Smith got something in the settlement, and unrepresented Barbara O'Sullivan got nothing, other than an insult of a punishment for not being able to produce documents that are either sealed by court order or perished in her house fire that she barely escaped with her life.

Great job, Judge Lambert.

Great job, Delaware County.

Great justice for victims of dirty cops.

One keeps wondering - why respect to police is at its lowest in this country.

Yet, the question remains - that a man who was sued by two look-alike women for violent acts, who escaped civil liability because his taxpayer-paid attorneys either paid off the victim, or used their connection with the judge to have the second lawsuit disappear - a man who, according to testimony at depositions, may have been involved in violence against women and animals (there were allegations that he killed a dog of a tenant in the residential complex where he lived), remains armed, vested with power of a police officer, having possession of a gun, taser, police vehicle - and a German Shepherd dog,

is out there on the dark roads of rural Delaware and Broome Counties, likely looking for more victims.

And that, residents of Delaware and Broome Counties, is an issue of great public concern.

One thing is the well-known corruption of Delaware County and its law enforcement and judiciary system from top to bottom - that recently culminated in a lavish party for a felony suspect/court employee held in the courthouse, and endorsed by the very Sheriff who was supposed to investigate the suspect, and the very judges who were supposed to preside over the court proceedings prosecuting her.

People are either not aware of that corruption, or feel helpless to change anything.

Well, they tried - they elected Judge Gary Rosa, but he turned into a twin of the previous corrupt Judge Carl F. Becker as soon as he donned the black robe.

Quite another thing is when corruption is causing actual people to be hurt, physically hurt, violently hurt, and when such corruption leaves a man who has committed violent crimes against two women, on the streets, vested with power, armed and dangerous, and having authority to stop YOU, in the middle of the night, on a lonely country road.

And THAT is a very big problem.

If Derek Bowie tried to ram a police vehicle into a woman videotaping him on a tablet, simply because the woman looked like his girlfriend who sued him for violent assault, who knows how many more people Derek Bowie has a grudge against, and how many more "lookalikes" should be very afraid of his presence.

Petition the Broome and Delaware County DAs, demanding to prosecute Derek Bowie for his criminal conduct.

Demand a special, out of the area, neutral investigator and prosecutor of Derek Bowie.

That may save more people from future injury - and may save lives.

  

California did to attorney Henry James Koehler IV what New York did to attorney Joel Brandes - and California and New York did a disservice to litigants in Family Court deprived of services of two legal trailblazers

Attorney Jim Koehler of California, who is 82 now (born in 1934)

is a skilled and famous family court attorney fighting for father's custodial rights - a movement that is picking up force in this country.

Attorney Koehler has been at the outset of the father's movement for joint custody of their children, and, according to his own statement, is behind enacting laws that introduced the concept of joint custody in 37 states, see video at 1:00:00.

What happened to attorney Jim Koehler at the hands of California State Bar, in his own words and words of reporters, is described in this video, starting at 59:00.

In 1980, at the age of 46, 9 years before his admission to California State Bar, when Jim Koehler was an attorney in federal court and in other states, he has reportedly won custody of his own son, and, reportedly, the publicity of the case brought him clients, fathers fighting for custody of their children.

When Jim Koehler became famous and started to attract more and more clients, fathers who wanted to pursue custody of their children, Jim Koehler experienced a backlash - he says, from a feminist movement who claimed that "a woman needs a man like a fish needs a bicycle".

This position expressed by NOW (National Organization of Women) in 2000 did not change much by 2006 when NOW argued against a joint custody with fathers by default - while, obviously, presuming that only a mother can get the child's custody by default. 

Attorney Jim Koehler was in the way of that anti-father feminist movement.

Attorney Koehler believes that the anti-father, feminist culture "seeped right into the State Bar", and attorney Koehler began to be targeted by the California State Bar, to the point that his own attorney had to go to the California State Bar's trial counsel with a demand to stop targeting Jim Koehler - because women prosecutors were, according to Jim Koehler taking his clients to lunch, trying to get complaints against Jim Koehler out of them.

In 1992 California State Bar punished Koehler with a 6-months' suspension for not performing in "client matters" in a timely manner where Koehler, according to his version of events (video at 1:01:00 to 1:03:34, acted in supervisory capacity, and his subordinates failed to do their jobs - one of the subordinates in question later became, according to Jim Koehler, a Family Commissioner.

He was also disciplined at that time for "commingling funds" in his escrow account - by his own version of events, for helping his clients by putting his own funds into the escrow account to help out to defray client costs.

In 1999, California State Bar punished Jim Koehler with a 60-day suspension for "improperly withdrawing" from a client's case.  Jim Koehler says though that he did withdraw from the case legally, that he has signed, as well as his client, a substitution of attorneys, but the mistake that Jim Koehler has made is that he entrusted the filing of the substitution to his client, a doctor with a brain tumor who at times acted erratically, and his non-appearance in court was qualified as improper withdrawing from the case.

During the 2 months of suspension, Jim Koehler worked as a paralegal (which is allowed in California) on a certain case, and after his suspension ended (automatically) and Jim Koehler was reinstated, Jim Koehler reportedly continued to work on the same case as an attorney of record for that client, a military father seeking visitation with his children.

According to Jim Koehler, when Jim Koehler won the case, the client and his mother did not want to pay the bill.  That actually happens often in the practice of law.

Jim Koehler had to sue for his fee.

The attorney in the lawsuit went through documents going back years, took one document to the bar, and, according to Jim Koehler, "lobbied the bar ferociously" for the period of 2 years to file charges against Jim Koehler.

In 2009, a disciplinary court ruled that Jim Koehler engaged in unauthorized practice of law (UPL) 10 years prior based on what he wrote in one letter and one note.  

All of taxpayers money expended upon that disciplinary proceeding was spent, and the proceeding was commenced because of one letter and one note written by a paralegal, because his wealthy client (the mother of the client who reportedly promised to pay the bill reportedly had a fortune of over 25 million dollars) refused to pay the bill.

The judge recommended disbarment of Jim Koehler even though he has stated that he had a "serious difficulty believing" Koehler's clients who obviously turned Koehler into disciplinary proceedings for a mickey-mouse claim dating back 10 years, in order not to pay a current bill for successful representation in a custody case.

At that background, the decision to order Koehler inactive was,, according to Jim Koehler himself, "a complete disconnect from the evidence - as if the trial has never occurred".

Jim Koehler believes that there is an "incredible pressure upon every of the Hearing Department Judges to find culpable every lawyer that comes before them".

Jim Koehler also believes that the judge's decision - which was a "disconnect" from the evidence is a result of the fact that Hearing Judges in the Bar Court are not elected, they are appointed, and the judge's salary is paid by the prosecutors, the State Bar, and the judge makes money for the State Bar by every culpable case where he finds against an attorney and orders the attorney to pay the costs of litigation.

Judge Honn who made the decision that was a "disconnect with the evidence", was reappointed - again - to the State Bar Court in 2014, and here is his official history of appointments, reported at that time:

So, here is the history of appointments of Judge Honn, as a timeline

• 2003 - appointed as a hearing officer for the California State Bar;
• 2004 - reappointed for a 6-year term;
• 2010 - after the "disconnected" decision against Jim Koehler, reappointed for another 6-year term;
• 2014 - before the expiration of his 6-year term, Judge Honn was promoted, appointed as a Review Judge of the State Bar Court.

Apparently, making decisions which are "disconnected from the record" despite serious doubts in veracity of witnesses pays off up the career ladder.

The three appellate review judges of Jim Koehler's discipline in 2009 were women feminists (one of them became presiding judge of State Bar Court in 2014).

Jim Koehler describes the attitude of three appellate judges as: "how dare you appeal that because you are guilty, and all that is left is a hanging"?

I recognize the attitude.

The U.S. Supreme Court denied certiorari review.

That the alleged violations that led to disbarment (inactive status) is an understatement of the century.

Not only Jim Koehler worked under the supervision of an attorney at the time, but, one of his transgressions was to tell the client to call him one week before the expiration of his suspension, which was clearly meant to help, not hurt the client, and was clearly projected into the time when Koehler lawfully resumed the practice of law.

The official version of events, according to the disciplinary order, was that Attorney Henry James Koehler IV (Jim Koehler) was suspended for 60 days in 1999, and, despite suspension, allegedly continued to give legal advice to client and even signed a retainer agreement with one client - even though the retainer agreement provided for services of another attorney, and for services of suspended attorney Koehler only as a paralegal.

Yet, even if Jim Koehler's actions qualified as unauthorized practice of law (UPL) in California, the statute of limitation in 2010, when he was brought in for attorney discipline based on that episode, would not have applied.

Jim Koehler was never criminally prosecuted UPL, and no self-respecting criminal prosecutor would have charged him for the nonsense the State Bar charged him with.

Yet, attorney Koehler was disbarred for allegedly giving legal advice during his 60-day suspension - in reality, Jim Koehler was guilty for providing good lawful legal representation to, as Jim Koehler indicates, a wealthy client who thought that it is cheaper to pay for an attorney to oppose a fee lawsuit and turn Koehler into the bar than to pay his bill.

Attorney Koehler actually said that his communication with his former clients (parents in a custody battle) were "tea and sympathy" comments and not legal advice.

Yet, in the order of disbarment, despite "serious doubts" about credibility of the accusers, appointed judges paid by the prosecutors (the State Bar), and prosecutors who were Jim Koehler's competitors, applied the so-called Rule 1.7(b)  - the "3 strikes" rule.

This was the 4th disciplinary action against Jim Koehler - and it resulted in an automatic disbarment.

The State Bar decided to end the "career of a legal maverick who blazed a path towards greater gender equality in family courts of the State of California and the nation" (video at 1:09:52).

A similar story - where work as a paralegal is used to discipline an attorney, has recently developed in New York.

Same as in California, paralegal work in New York is not licensed and is not considered the practice of law.

Moreover, in 2014, a judge, Chenango County Supreme Court Justice Kevin Dowd, has ruled that an unlicensed paralegal can draft legal pleadings, and an attorney for whom he worked may charge a legal fee for those pleadings, drafted by an unlicensed paralegal without any attorney supervision.  

Of course, the paralegal in question worked for Richard Harlem of Oneonta, NY, son of a retired late State Supreme Court Justice and Chief Administrative Judge of the 6th Judicial District (who was involved in his own improprieties, but escaped unscathed due to his connections).  

Richard Harlem "coincidentally" was at the time of the decision and long prior, and, reportedly, still is, also a landlord for the influential New York State Senator James Seward, and friends of Senator Seward cannot do wrong - as shown by the history of ascension of Senator Seward's former "legislative counsel" Robert Mulvey, an anti-gay judge who was promoted to the Chief Administrative Judge of the 6th Judicial District, the seat occupied in the past by Richard Harlem's father, then required from assigned judges to rule in cases as he wanted them to rule and demoted them for disobedience, like he did with Judge Biaggio DiStefano of Madison County, and who received a quick promotion to the Appellate Division to preside over the same case in which he was assigning judges in the trial court, a complete disqualification - and toss an appeal on a forged technicality - Senator Seward's former counsel Robert Mulvey helping out Senator Seward's landlord Richard Harlem.  Nothing too corrupt.

In 2016, the New York State Court of Appeals ruled that a disbarred attorney, an expert in Family Law, should not be reinstated because he was providing paralegal services - which the court deemed unauthorized practice of law for Joel Brandes, but not the practice of law for anybody else.

So, New York and California are brother states in corrupt use of attorney discipline against experts who influential attorneys in the state want out of the picture.

Both in the case of attorney Joel Brandes in New York and attorney James Koehler in California, skilled family court attorneys are prevented by contrived disciplinary decisions from practicing and helping people, while the whole justification for existence of attorney regulation and licensing is protection of consumers.

Who is being protected when trailblazers like Joel Brandes and Jim Koehler are kept away from protecting people's rights in court?