In Marbury v Madison, a seminal 1803 case, the U.S. Supreme Court has held that an unconstitutional law is void.
"Void" means a nullity - like the law has never been made.
It means that, once a court of law pronounces any law unconstitutional, it is as if that law has never been passed, and has never been legal.
In January of 2016, the U.S. Supreme Court found the Florida death penalty law unconstitutional.
It should mean - under Marbury v Madison - that the Florida death penalty law is void and a nullity, as if it has been never enacted, and that all death sentences under that law are similarly void.
Yet, today the Florida Supreme Court reversed only those death penalty sentences that were made after 2002, or whose appeals were still pending in 2002 - indicating that the decision of the U.S. Supreme Court will not be made retroactive before that date for other death sentences.
Which raises an issue - did the Florida Supreme Court invent a new definition for "void"?
And, how many more people should be unlawfully executed, in addition to the one already unconstitutionally executed (Ronald Bert Smith Jr., in Alabama, even though his death sentence was imposed by a judge and not a jury, in contradiction with the January U.S. Supreme Court precedent), because their sentences were unconstitutionally made "too long" of a time ago?
Thursday, December 22, 2016
The government's bait-and-switch for attorneys working for the poor
When I was entering law school, we had a week-long orientation.
My future law school classmates, kids with stars in their eyes, told me during that orientation, that their purpose in life is to serve the people, the indigent, those deprived by the government or "by the rich" and "by the corporations", of their civil rights.
Yet, by the end of law school, reality settled in in the form of student loans, and my law school class, those kids who were so eager to work for the poor and against infringements upon civil rights by the government, "the rich" and "the corporations", went, in their overwhelming majority, to work for the government, the rich, and the corporations.
In the law review article by law professor Professor Lisa Nicholson - who provides excellent references to other materials and excellent statistics, but makes illogical conclusions from her own information (that the "justice gap" should be bridged by forced labor of attorneys and by increase of attorney registration fees and bar dues) - Professor Nicholson provides astounding figures:
The legal elite, including the judiciary, continue to pay the lip service to those attorneys who serve the poor, while their actions, to the contrary of their words, speak louder than those false declarations.
The value of bar exam preparation, or of bar exam passage, under those circumstances is zero, and poor performance on subjects that have nothing to do with representation of the poor in criminal, family or civil courts, should not preclude attorneys who do want to serve the poor from practicing law.
It is apparent that the legal elite does not care about the fate of indigent litigants, or about the fact that regulation of attorneys under the guise of protecting the clients do not protect 61 million pro se litigants who, as a result of that regulation, and the resulting monopoly established by the legal profession for itself, cannot afford a court representative.
And, it is apparent that, despite all odds, there are still people who want to serve the poor - but who are undercut by the government every step of the way, despite lip service of "supporting" those who want to do "public service" and represent the poor in court.
I am confident that 200 years from now, when none of us currently living are alive any more, regulation of attorneys that created
I only hope that the inevitable agony of attorney regulation, happens quicker and results in less trauma and loss of rights to the people.
My future law school classmates, kids with stars in their eyes, told me during that orientation, that their purpose in life is to serve the people, the indigent, those deprived by the government or "by the rich" and "by the corporations", of their civil rights.
Yet, by the end of law school, reality settled in in the form of student loans, and my law school class, those kids who were so eager to work for the poor and against infringements upon civil rights by the government, "the rich" and "the corporations", went, in their overwhelming majority, to work for the government, the rich, and the corporations.
In the law review article by law professor Professor Lisa Nicholson - who provides excellent references to other materials and excellent statistics, but makes illogical conclusions from her own information (that the "justice gap" should be bridged by forced labor of attorneys and by increase of attorney registration fees and bar dues) - Professor Nicholson provides astounding figures:
- over 60 million people in the U.S., per year, cannot afford legal representation, and
- while the legal profession claims that it is not a business, and that its main purpose is to "serve the public" rather than work towards a bottom-line, the legal profession is stratified - with an overproduction of lawyers, and great competition over positions in rich law firms, and, on the other hand, with shortage of lawyers for the poor (1 full time attorney working for the poor per 14,000 of indigent litigants).
- The promise of 42 U.S.C. 1988 to attract attorneys into representing the poor without pay in civil rights lawsuits against the government, in the hope of being reimbursed at the end of litigation, results in:
- dismissals of most of civil rights actions based on this or that judicially created barrier - so the attorney who undertook litigation for free, does not get paid under 42 U.S.C. 1988;
- sanctions imposed upon civil rights attorneys for plaintiffs for "frivolous conduct" - "frivolous conduct" being either novel constitutional arguments, or constitutional argument based on precedent that courts do not want to acknowledge - naturally, the civil rights attorney does not get paid under 42 U.S.C. 1988 and remains with nothing;
- clients in civil rights litigation, those same clients who did not pay the attorney at the outset, pointing out that either they will pay themselves, or the attorney will be reimbursed through 42 U.S.C. 1988, do not pay, fire the attorney before the end of litigation, and settle the case on a condition that they do not apply for attorney fees under 42 U.S.C. 1988 - and courts rule that attorney fees of the attorney who was cheated out of them, do not belong to the attorney, but to the client, because 42 U.S.C. 1988 gives the clients, and not the attorneys, to apply for legal fees, and, if the attorney was fired for cause or for no cause, the attorney has no recourse to use 42 U.S.C. 1988 and get paid. Under 42 U.S.C. 1988 an attorney who did not represent the client from the beginning to the end of litigation, do not have any rights (and they can be dismissed by the client without cause at any time during litigation) - and the client, being an indigent, will provide no hope of recovery; so the civil rights attorney can easily get cheated out of his or her payment under 42 U.S.C. 1988;
- even when clients do not want to discharge the civil rights attorney, the court can revoke the attorney's license and deprive the clients of their civil rights attorney - and the attorney of his or her legal fee for years of representation under 42 U.S.C. 1988;
- even when a civil rights attorney represented a client from beginning to end of litigation, the court may, out of spite, delay ruling upon the legal fee, forcing the attorney into bankruptcy - as it happened to California civil rights attorney Patricia Barry, the attorney who gave all women in the U.S. the gift of protection of law from sexual harassment in the workplace, and who, after winning the case in the U.S. Supreme Court, was waiting, on remand, for 1.5 years for a decision on legal fees under 42 U.S.C. 1988, while she was experiencing financial hardships and finally had to file for bankruptcy.
2. Solo and small firm attorneys, criminal defense, Family Court and civil rights attorneys are predominantly targeted with attorney discipline.
3. Many judges are treating solo and small-firm attorneys in an openly derogatory fashion, calling them, as the now-retired Delaware County (NY) Judge Carl F. Becker did - "bargain basement" attorneys and that "you get what you pay for" - meaning, that the underpaid public service attorneys necessarily are bad quality attorneys.
4. Extraordinary things are done by courts to attorneys working for the poor.
Yet, despite underpaying, overworking and treating attorneys for the poor like shit - excuse my elaborate French - the government continued to lure - until recently - those "bargain basement attorneys" into low-paid public service positions by a promise that their oversized debts for law school education, their student loans, will be forgiven if they work for 10 years in public service and pay their loans during that time.
But then, the government, the U.S. Department of Education, now decided that it is not fiscally prudent to honor that commitment - the commitment upon which thousands of law school graduates relied when entering law school and when entering public service instead of lucrative mammoth rich law firms.
And, the American Bar Association is now suing the U.S. Department of Education - while at the very same time revoking certifications of certain law schools, which leads to revoking of student loan support of all students, not just those who plan to enter public service, and leaves students already halfway through the school, or close to graduation, without a degree - or hope of receiving one, simply because the school allegedly does not adhere to the "standards" of ABA, a corporation with foreign financing.
Since Charlotte Law School was oriented at the so-called "non-traditional" students, those who enter law school at an older age, not right after college, or who continue to work and study - and who are more likely to go not into the high-rise mammoth law firms, but into representation of the poor, and since Charlotte Law Schools offers 13 law clinics teaching its students how to represent the poor, it is quite disturbing that the killing of the law schools overproducing lawyers starts from those schools who produce lawyers working for the poor - under any pretexts.
Bar passage rate is NOT a good predicting factor of the quality of law students.
Bar exams are highly stressful, timed, and law professors preparing law students for such bar exams (and for law school finals) openly call exams "brain dumps" - meaning that students will forget all that they dumped on the test sheets after they took the exam.
It is apparent that the legal elite does not care about the fate of indigent litigants, or about the fact that regulation of attorneys under the guise of protecting the clients do not protect 61 million pro se litigants who, as a result of that regulation, and the resulting monopoly established by the legal profession for itself, cannot afford a court representative.
And, it is apparent that, despite all odds, there are still people who want to serve the poor - but who are undercut by the government every step of the way, despite lip service of "supporting" those who want to do "public service" and represent the poor in court.
I am confident that 200 years from now, when none of us currently living are alive any more, regulation of attorneys that created
- overproduction of attorneys for the rich (over 110,000 law schools students are reported as of this year alone),
- underproduction of attorneys for the poor, and
- persecution of attorneys for the poor by attorneys for the rich under the guise of "regulating" the legal profession,
will be a shameful thing of the past.
I only hope that the inevitable agony of attorney regulation, happens quicker and results in less trauma and loss of rights to the people.
The failed promise of the limited scope representation and presumption of knowledge of the law
On December 16, 2016, New York Court Administration issued an administrative order of December 16, 2016 officially (but conditionally - by permission of court) allowing "limited scope representation" by attorneys.
In view of all of the above problems, New York Chief Administrative judge coughed up this kind of relief:
There is nothing revolutionary about the administrative order.
Attorneys ghost-wrote for unrepresented clients behind the scenes forever, and provided, also forever, one-time consultations on certain issues of an ongoing case.
The only difference the administrative order makes is that it will now allow representation of a client for one appearance - or for one motion - in court, but also, with court permission and at the court's discretion.
It could have been good and bad - had the procedure of how the "limited representation" been clearly set, which it hadn't been - for both clients, and good and bad for attorneys, too.
The bad is that an attorney would bear liability only for a portion of representation in litigation - and can thus make motions or appearances with a view to "perform" only for purposes of this motion or appearance - and not to fulfill a larger role to win the entire litigation.
Moreover, it is impossible, with a patchwork of attorneys performing discreet small tasks on the case to establish malpractice liability of that attorney - because, with few exceptions, it is impossible to establish for purposes of malpractice that it is the particular attorney's mistake at the particular stage of litigation that substantially caused the loss of an otherwise meritorious case for the client.
Moreover, if the client's case in the same litigation presents a patchwork of attorneys appearing "for one appearance" or for "one motion", which appearances are interspersed with no appearances at all, the case thus presents a potential problem of "too many cooks that spoil the broth" and ruin the case instead of helping, because each attorney will come with his or her own strategy.
The patchwork of representation though provides an excuse for judges to not consider the otherwise pro se status of litigants and to rule as if the litigant is represented by "competent counsel" - which is usually an excuse for courts to claim that, if any issues were not raised in litigation (and a "patchwork counsel" is likely not to raise a lot of issues, restricting him- or herself to just one narrow portion of litigation), that is because it was not malpractice, but some kind of "strategy" of "competent counsel".
Of course, judges do not want to deal with pro se litigants - to the point that New York judges claimed, and received this year, a large increase in their already high salaries claiming difficulties in handling the ever raising number of pro se litigants in their caseloads.
And, the order is good for attorneys who, once they have the risk of appearing in a case were - unfairly - kept by courts as slaves of their non-paying clients, because New York law allows withdrawal from a case only:
The only "value" of the order is a declaration that New York State Court system cannot miss the writing on the wall and is starting to "unbundle" legal services by allowing a "break-up" representation.
The judiciary is resisting still the idea that it is the judiciary that actually CAUSES the justice gap by not allowing representation of those who cannot afford an attorney by anybody but a licensed attorney.
Such a requirement, of court representation only by a licensed attorney is, first, contrary to the long-standing U.S. Supreme Court precedent Johnson v Avery, providing that
where the state cannot ensure legal representation,
(and such lack of legal representation results in massive loss of legal rights by the poor - which is what the administrative order of December 16, 2016 admits in its "Whereas" part):
- the state has no right to prohibit legal representation by unlicensed individuals.
Second, there is a fundamental constitutional right to privacy and autonomy in personal decisions of competent adults that restriction of court representation to only licensed attorneys violates. Who will represent a person in court, is a personal decision of the litigant, and the government has no right to demand from the litigant that the litigant either accepts from the government its help to pre-approve, through licensing process, who the litigant wants to represent him/her in court - or have no representation at all.
As I stated in this blog previously, occupational licensing is help in checking out potential providers' backgrounds, training and moral character, and, as with any other type of help, a competent adult should be able to either accept it or reject it.
Third, in New York as well as in federal courts, an "expert" does not have to be licensed or formally educated to testify in court as an expert - an expert can be qualified as an expert without any formal education or licensing whatsoever, "by knowledge, skills and experience", and based on self-education alone.
And fourth, but not last in importance, is the principle of presumption of knowledge of the law upon which enforcement of all laws in this country rests.
It is disingenuous (illogical, arbitrary, irrational and stupid) for the government to claim, on the one hand, that a person appearing Pro Se in court, without counsel, is PRESUMED to know ALL the laws, and that, for that reason, a Pro Se litigant's lack of knowledge of the law is no defense - and at the very same time claim that the Pro Se litigant does not know the law that he or she is presumed to know - enough to choose his own court representative, out of other members of the public, licensed or unlicensed, who are all also PRESUMED to know the law.
Under presumption of knowledge of the law, all the claims of lack of sophistication of litigants that are advanced by opponents of attorney regulation fall on their face.
What kind of extra sophistication is needed by a person presumed to know ALL the laws in order to hire another person, also presumed to know ALL the laws - whether the person choosing and the person chosen are licensed to "practice law" or not - and especially that what constitutes the "practice of law" is not defined by statute in New York at all, or with any degree of clarity.
Of course, the legal profession is the only profession that shot itself in the foot by claiming, at the same time, that:
Yet, this is a situation when the government, after it said that a legal presumption "A" exists, cannot now oppose the legal presumption "B" following from the legal presumption "A", that people presumed to know the law can choose whoever they want, licensed or unlicensed to practice law, and that unlicensed individuals are also presumed to know the law, and are thus perfectly fit, as a matter of law, to represent anybody in court or give to anybody legal advice, based on the law that they are presumed to know.
Of course, the government never recognizes that it is wrong easily.
Instead of recognizing that attorney regulation is a stillborn child of the legal profession in order to protect itself from competition and secure high fees - and that this stillborn project backfired by depriving millions of people of court representatives of their choice, resulting in massive loss of basic human rights to custody of children, property, shelter, liberty and sometimes life - the legal profession is digging in and is trying to invent runarounds the writing on the wall.
The "limited representation" rule introduced in New York is yet another of such runarounds.
Yet, the law, to be enforceable, should not be arbitrary and irrational.
And, therefore, pure logic requires that, in application to the presumption of knowledge of the law for law enforcement and the presumption of no knowledge of the law for choice of counsel and for the "practice of law" by unlicensed individual - that such arguments are inherently incompatible and thus irrational, void and cannot support laws, as a matter of due process of law.
The government cannot cancel presumption of knowledge of the law - because then chaos will ensue, and laws will become unenforceable.
But, the government cannot also maintain, as a matter of due process of law, that the same people who are presumed to know the law for purposes of being held accountable for its violation, are not presumed to know it enough to choose their own advisor about that law in and out of court, or that the advisor, who is also presumed to know the law, whether the advisor is licensed or not, is presumed to not know the law when he/she is not licensed to practice law (while what is the "practice of law" is not defined by statute).
It is time to point out that regulation of attorneys is conceptually unsustainable, not to mention unconstitutional, as depriving people of their access to court, aided by representatives of their own choosing - and it is high time for the government to recognize it, instead of beating around the bush and inventing half-measures that hurt rather than help bridge the "justice gap" caused by attorney regulation.
Attorneys ghost-wrote for unrepresented clients behind the scenes forever, and provided, also forever, one-time consultations on certain issues of an ongoing case.
The only difference the administrative order makes is that it will now allow representation of a client for one appearance - or for one motion - in court, but also, with court permission and at the court's discretion.
It could have been good and bad - had the procedure of how the "limited representation" been clearly set, which it hadn't been - for both clients, and good and bad for attorneys, too.
The bad is that an attorney would bear liability only for a portion of representation in litigation - and can thus make motions or appearances with a view to "perform" only for purposes of this motion or appearance - and not to fulfill a larger role to win the entire litigation.
Moreover, it is impossible, with a patchwork of attorneys performing discreet small tasks on the case to establish malpractice liability of that attorney - because, with few exceptions, it is impossible to establish for purposes of malpractice that it is the particular attorney's mistake at the particular stage of litigation that substantially caused the loss of an otherwise meritorious case for the client.
Moreover, if the client's case in the same litigation presents a patchwork of attorneys appearing "for one appearance" or for "one motion", which appearances are interspersed with no appearances at all, the case thus presents a potential problem of "too many cooks that spoil the broth" and ruin the case instead of helping, because each attorney will come with his or her own strategy.
The patchwork of representation though provides an excuse for judges to not consider the otherwise pro se status of litigants and to rule as if the litigant is represented by "competent counsel" - which is usually an excuse for courts to claim that, if any issues were not raised in litigation (and a "patchwork counsel" is likely not to raise a lot of issues, restricting him- or herself to just one narrow portion of litigation), that is because it was not malpractice, but some kind of "strategy" of "competent counsel".
Of course, judges do not want to deal with pro se litigants - to the point that New York judges claimed, and received this year, a large increase in their already high salaries claiming difficulties in handling the ever raising number of pro se litigants in their caseloads.
And, the order is good for attorneys who, once they have the risk of appearing in a case were - unfairly - kept by courts as slaves of their non-paying clients, because New York law allows withdrawal from a case only:
- by a sworn permission of the client, or
- by a court order - permission of the court,
and courts are notorious not to give such permission to withdraw "only" for client non-payment.
I was ordered by Judge John F. Lambert, assigned judge in Delaware County Supreme Court, to handle a trial for a non-paying client, even though the opponent presented in the trial ample evidence of her ability to pay - and I was supposed to litigate AGAINST those claims, while not being paid myself.
Of course, such attitude of courts, enslaving an attorney to non-paying clients, backfired since attorneys reacted to such court practices in two ways:
- either by not taking cases at all whenever they would sense that the client will not be able to afford to pay throughout a potentially long litigation, or
- claim huge and immediate down-payments at the outset of representation to offset the risk of future non-payment -
both of which tactics, which were reasonable on behalf of attorneys, in response to unfair laws and court practices forcing them to work for free - made it impossible for many people to obtain an attorney to represent them.
Supposedly, again, had the procedure for the December 16, 2016 administrative court order set through, pro se litigants would have benefitted from at least a patchwork of attorneys appearing at some stages of litigation, if the pro se litigant cannot afford their appearance at all stages.
I already wrote that this "partial" decision of a problem is not necessarily a good thing.
Imagine a doctor overseeing only a portion of a course of treatment, otherwise allowing the patient to self-medicate and self-treat - what good will such a strategy produce.
So, even if the procedure for "limited scope representation" would be set up - which it wasn't - it would have provided questionable benefits, if any benefits at all.
Despite the claim that the reason for the "limited scope" court order is to help pro se litigants, the benefits from such order will be obtained by judges who will be freer in their decisions because of a "competent counsel" representing the otherwise pro se litigants at a certain stage of litigation, and because they do not need to "deal" with a pro se litigant, and to attorneys who will now have the ability (at least theoretically) to undertake a case without considering the risk of non-payment.
In reality though, the "right" - of the client to have a "limited scope representation", or of attorney to engage in such representation - is not that straightforward, as per Administrative Order of December 16, 2016.
It is conditioned on three things:
- the attorney taking a "certified CLE course" for limited representation - and thus putting a bull's eye on him- or herself if the attorney then would decide not to do the "limited scope representation" by leave of court, but give behind-the scene consultations and occasionally ghost-write pleadings for a pro se litigant;
- having a specific "limited scope" retainer agreement spelling out the terms of limited representation - which is fair to both sides; and
- have permission of court to proceed with a limited-scope representation
Now, how will this permission of court work in practice?
A counsel usually does not appear in court unless the client signed a retainer agreement and paid the initial amount - and thus hired the attorney.
But, if the attorney feels that the "limited-scope retainer" can be made subsequently unenforceable by the court's denial of permission to proceed only as a "limited scope", not a "full scope" attorney of record, the attorney can still stick to the previous strategy - either abstain from representation or charge a large down-payment to protect him-/herself from the risk of non-payment further in litigation - the very strategy, caused by court's orders of free representation that made the administrative order necessary in the first place.
Attorneys can see this "permission of court" condition as a trap - because no procedure was prescribed in that order for an attorney
- FIRST appearing before the court in writing to ask for permission to proceed on a limited scope representation without actually representing the client;
- then signing a court-approved "limited scope representation" retainer agreement, and
- only then actually appearing on behalf of the client.
The only "value" of the order is a declaration that New York State Court system cannot miss the writing on the wall and is starting to "unbundle" legal services by allowing a "break-up" representation.
The judiciary is resisting still the idea that it is the judiciary that actually CAUSES the justice gap by not allowing representation of those who cannot afford an attorney by anybody but a licensed attorney.
Such a requirement, of court representation only by a licensed attorney is, first, contrary to the long-standing U.S. Supreme Court precedent Johnson v Avery, providing that
where the state cannot ensure legal representation,
(and such lack of legal representation results in massive loss of legal rights by the poor - which is what the administrative order of December 16, 2016 admits in its "Whereas" part):
- the state has no right to prohibit legal representation by unlicensed individuals.
Second, there is a fundamental constitutional right to privacy and autonomy in personal decisions of competent adults that restriction of court representation to only licensed attorneys violates. Who will represent a person in court, is a personal decision of the litigant, and the government has no right to demand from the litigant that the litigant either accepts from the government its help to pre-approve, through licensing process, who the litigant wants to represent him/her in court - or have no representation at all.
As I stated in this blog previously, occupational licensing is help in checking out potential providers' backgrounds, training and moral character, and, as with any other type of help, a competent adult should be able to either accept it or reject it.
Third, in New York as well as in federal courts, an "expert" does not have to be licensed or formally educated to testify in court as an expert - an expert can be qualified as an expert without any formal education or licensing whatsoever, "by knowledge, skills and experience", and based on self-education alone.
If an expert qualifies for court testimony to influence the court and the jury without any formal training - and that includes expert in law - there is no reason to heighten that standard for representation in the same court.
And fourth, but not last in importance, is the principle of presumption of knowledge of the law upon which enforcement of all laws in this country rests.
It is disingenuous (illogical, arbitrary, irrational and stupid) for the government to claim, on the one hand, that a person appearing Pro Se in court, without counsel, is PRESUMED to know ALL the laws, and that, for that reason, a Pro Se litigant's lack of knowledge of the law is no defense - and at the very same time claim that the Pro Se litigant does not know the law that he or she is presumed to know - enough to choose his own court representative, out of other members of the public, licensed or unlicensed, who are all also PRESUMED to know the law.
Under presumption of knowledge of the law, all the claims of lack of sophistication of litigants that are advanced by opponents of attorney regulation fall on their face.
What kind of extra sophistication is needed by a person presumed to know ALL the laws in order to hire another person, also presumed to know ALL the laws - whether the person choosing and the person chosen are licensed to "practice law" or not - and especially that what constitutes the "practice of law" is not defined by statute in New York at all, or with any degree of clarity.
Of course, the legal profession is the only profession that shot itself in the foot by claiming, at the same time, that:
- court representation, and legal services in general, need to be regulated because regulation (of attorneys by attorneys, in a classic "fox guards the chicken coup" scheme) allegedly helps protect unsophisticated consumers who do not know the law and do not know how to distinguish a good provider of legal services from a bad provider without government's help through attorney licensing; and, at the very same time, that
- every person suing in U.S. state and federal courts, including illiterate, the poor and the people who do not know the English language, is presumed to know all laws, regulations and ordinances of the United States, several states, down to separate townships.
Unlike lawyers, plumbers, as a licensed profession, did not put on the books laws claiming that everybody is presumed to know about plumbing.
And, unlike lawyers, doctors did not put on the books laws claiming that everybody is presumed to know about medicine, down to neurosurgery techniques.
But, plumbers and doctors are not dominating courts and state and federal legislatures and administrative agencies that produce and enforce the principle of presumption of knowledge of laws - the knowledge of which is the "merchandise" licensed attorneys deal in.
And, of course, the presumption of knowledge of the law is a "legal fiction" created and maintained for convenience of law enforcement - because, if people claim they did not know the law they are accused of having violated, laws will become unenforceable, and chaos will ensue.And, unlike lawyers, doctors did not put on the books laws claiming that everybody is presumed to know about medicine, down to neurosurgery techniques.
But, plumbers and doctors are not dominating courts and state and federal legislatures and administrative agencies that produce and enforce the principle of presumption of knowledge of laws - the knowledge of which is the "merchandise" licensed attorneys deal in.
Yet, this is a situation when the government, after it said that a legal presumption "A" exists, cannot now oppose the legal presumption "B" following from the legal presumption "A", that people presumed to know the law can choose whoever they want, licensed or unlicensed to practice law, and that unlicensed individuals are also presumed to know the law, and are thus perfectly fit, as a matter of law, to represent anybody in court or give to anybody legal advice, based on the law that they are presumed to know.
Of course, the government never recognizes that it is wrong easily.
Instead of recognizing that attorney regulation is a stillborn child of the legal profession in order to protect itself from competition and secure high fees - and that this stillborn project backfired by depriving millions of people of court representatives of their choice, resulting in massive loss of basic human rights to custody of children, property, shelter, liberty and sometimes life - the legal profession is digging in and is trying to invent runarounds the writing on the wall.
The "limited representation" rule introduced in New York is yet another of such runarounds.
Yet, the law, to be enforceable, should not be arbitrary and irrational.
And, therefore, pure logic requires that, in application to the presumption of knowledge of the law for law enforcement and the presumption of no knowledge of the law for choice of counsel and for the "practice of law" by unlicensed individual - that such arguments are inherently incompatible and thus irrational, void and cannot support laws, as a matter of due process of law.
The government cannot cancel presumption of knowledge of the law - because then chaos will ensue, and laws will become unenforceable.
But, the government cannot also maintain, as a matter of due process of law, that the same people who are presumed to know the law for purposes of being held accountable for its violation, are not presumed to know it enough to choose their own advisor about that law in and out of court, or that the advisor, who is also presumed to know the law, whether the advisor is licensed or not, is presumed to not know the law when he/she is not licensed to practice law (while what is the "practice of law" is not defined by statute).
It is time to point out that regulation of attorneys is conceptually unsustainable, not to mention unconstitutional, as depriving people of their access to court, aided by representatives of their own choosing - and it is high time for the government to recognize it, instead of beating around the bush and inventing half-measures that hurt rather than help bridge the "justice gap" caused by attorney regulation.
California sets a new low - standard - on judicial bias, defying the public's reasonable perception of bias in #JudgeAaronPersky's case
There is a constitutional right to impartial judicial review in all proceedings, civil and criminal.
The public all across the U.S., and in California, claimed, through petitions to remove #JudgeAaronPersky, that Judge Persky made a super-light sentence of the rapist of an unconscious woman Brock Turner because Judge Persky identified with Brock Turner as a young white athlete of Judge Persky's own alma mater.
What constitutes bias (lack of impartiality) is an objective standard judged by the perception of a "reasonable observer".
Hundreds of thousands of reasonable observers, members of the public told California Judicial Qualifications Commission what their reasonable perception is - that Judge Persky was, in fact biased in Brock Turner's sentencing.
Of course, in a similar case in New York, when improper refusal of New York Commission for Judicial Conduct was raised in federal court, federal judge Mae D'Agostino, without disclosure that she was the Chairwoman of the New York State-Federal Judicial Council (NYSFJC), ruled that members of the public who have filed complaints about judicial misconduct, do not have a right to claim impropriety of non-prosecution on their meritorious complaints.
While a victim of judicial misconduct can be said not to be neutral and impartial as a "reasonable observer" assessing judicial bias, petitioners, members of the public, were not victims, they were the reasonable observers who were assessing Judge Persky's behavior - and found it biased.
Moreover, Judge D'Agostino's and the 2nd Circuit's rulings referenced in Judge D'Agostino's decisions on the issue of judicial bias or non-prosecution of complaints against state judges cannot be deemed unbiased in themselves, because both the Chief Judge of the 2nd Circuit appoints judges to the New York State-Federal Judicial Council, and Mae D'Agostino presided over that Council, without disclosure of their participation in that organization.
Only anecdotal evidence is available about NYSFJC (and other "chapters" of State-Federal Judicial Council, including California SFJC).
Nominations are "being solicited", attorneys self-report "serving" upon "advisory committees" of the SFJC and advising judges, members of SFJC, while appearing in front of them in cases, some mysterious "matters of mutual interest and concern" between state judges who appear as defendants in civil rights actions in front of federal judges are reported.
The State of New York Office of Court Administration, in response to my Freedom of Information Request, only coughed up one (ONE) document of NYSFJC (despite 46 years of existence of state federal judicial councils at the very least)
- and that document indicated that New York Chief Judge and the Chief Judge of the 2nd Circuit appoint judges to the Council, and that Judge D'Agostino - obviously appointed by the 2nd Circuit Chief Judge - "served" as a Chairwoman of this shadow organization, existence of which is not supported by any laws, and purpose of which is clearly to fix court cases.
So, since
Apparently, the existing structure of state courts, and checks and balances of constitutionality of what the state government is doing through the Civil Rights Act, was not enough - or satisfactory - for the U.S. Supreme Court Justice Burther, and he decided to tweak the system behind the scenes, with ALL state and federal courts following the "suggestion".
Here's what State Federal Judicial Councils are created to do:
So, when state and federal judges communicate behind the scenes - like in Bracci v Becker, for example, where federal judges, member and Chairperson of the Council, presided over the case, while state judges (likely members of the council - membership has not been disclosed to me by either the state court system on a FOIL request, or the federal court system, on a FOIA request), defendants in the case, received a favorable decision from the Chairperson of the Council - and while the appointing court for the Council, the 2nd Circuit, created decisions that "slightly modify the law" in order to help fix those cases,
as well as presided and actually helped "eliminate sources of friction between state and federal law officers" - in other words, blocked civil rights lawsuits against state judges.
Of course, judges, under the doctrine of separation of power, pursuant to state Constitutions (for state judges) and under Articles I and III of the federal Constitution (for federal judges), do not have the right to modify the law - "slightly" or at all, for that matter, since that would be treason, violation of judges' constitutional oath of office given when taking the judicial office.
And, 1970, when the Councils were thought-up by the judiciary and started to mushroom, without any legal basis or authority, is, coincidentally, the time of increasing civil rights movement and increasing civil rights lawsuits.
In his article, Judge Jack Weinstein, of course, under the guise of trying to "meet the needs of the American people", points out at the "overwhelming bulk of cases" that "states must, and should, continue to handle".
But, Jack Weinstein, again, under the guise of better use of "joint resources" of state and federal judicial system, suggests to use "various methods for effectively utilizing joint resources" - but admits that such "methods" "may raise constitutional ... difficulties".
"Constitutional difficulties" is just another way of saying that such methods of "utilizing joint resources" by state and federal systems may be unconstitutional.
And, judging that the judicial decisions "slightly modifying the law" emerged starting with 1970:
Judge D'Agostino first slightly "tweaks" the U.S. Supreme Court precedent in Marbury v Madison claiming that under that precedent courts "may" strike down unconstitutional laws - instead of a clear statement in Marbury v Madison that unconstitutional laws are VOID, and when the law is VOID, it is as if it never existed, whether courts do or do not choose to strike them as unconstitutional.
Then, Judge D'Agostino claims that Younger, a plurality, not a majority opinion, with a very strong dissent, is a "binding Supreme Court precedent that [her court] is required to follow" - even though Younger modifies the Civil Rights Act by forcing civil rights plaintiffs into exhaustion of state court remedies, a condition that is not contained in the Civil Rights Act, and the U.S. Supreme Court certainly did not, under Article III, have the power to usurp the U.S. Congress's exclusive authority under Article I to legislate and modify its legislative acts.
Obviously, Mae D'Agostino, the Chairwoman of the New York State-Federal Judicial Council, is seeking to "slightly modify the law" by judicial decisions to help out her Council friends, representatives of state judiciary - judges-defendants sued in Bracci v Becker.
And that, ladies and gentlemen, is called case-fixing, a criminal offense under the federal law and an impeachable offense.
The Commission claimed that:
The public all across the U.S., and in California, claimed, through petitions to remove #JudgeAaronPersky, that Judge Persky made a super-light sentence of the rapist of an unconscious woman Brock Turner because Judge Persky identified with Brock Turner as a young white athlete of Judge Persky's own alma mater.
What constitutes bias (lack of impartiality) is an objective standard judged by the perception of a "reasonable observer".
Hundreds of thousands of reasonable observers, members of the public told California Judicial Qualifications Commission what their reasonable perception is - that Judge Persky was, in fact biased in Brock Turner's sentencing.
Of course, in a similar case in New York, when improper refusal of New York Commission for Judicial Conduct was raised in federal court, federal judge Mae D'Agostino, without disclosure that she was the Chairwoman of the New York State-Federal Judicial Council (NYSFJC), ruled that members of the public who have filed complaints about judicial misconduct, do not have a right to claim impropriety of non-prosecution on their meritorious complaints.
While a victim of judicial misconduct can be said not to be neutral and impartial as a "reasonable observer" assessing judicial bias, petitioners, members of the public, were not victims, they were the reasonable observers who were assessing Judge Persky's behavior - and found it biased.
Moreover, Judge D'Agostino's and the 2nd Circuit's rulings referenced in Judge D'Agostino's decisions on the issue of judicial bias or non-prosecution of complaints against state judges cannot be deemed unbiased in themselves, because both the Chief Judge of the 2nd Circuit appoints judges to the New York State-Federal Judicial Council, and Mae D'Agostino presided over that Council, without disclosure of their participation in that organization.
Only anecdotal evidence is available about NYSFJC (and other "chapters" of State-Federal Judicial Council, including California SFJC).
Nominations are "being solicited", attorneys self-report "serving" upon "advisory committees" of the SFJC and advising judges, members of SFJC, while appearing in front of them in cases, some mysterious "matters of mutual interest and concern" between state judges who appear as defendants in civil rights actions in front of federal judges are reported.
The State of New York Office of Court Administration, in response to my Freedom of Information Request, only coughed up one (ONE) document of NYSFJC (despite 46 years of existence of state federal judicial councils at the very least)
- and that document indicated that New York Chief Judge and the Chief Judge of the 2nd Circuit appoint judges to the Council, and that Judge D'Agostino - obviously appointed by the 2nd Circuit Chief Judge - "served" as a Chairwoman of this shadow organization, existence of which is not supported by any laws, and purpose of which is clearly to fix court cases.
So, since
- membership in SFJC is secret - and
- the 2nd Circuit is stalling my FOIA request until this day as to membership in that Council (claiming I am not authorized BY LAW to get information about list of members of an ILLEGAL formation between state and federal judges, because I am seeking information about "federal judiciary" - state judges and attorneys serving that Council are certainly not members of federal judiciary, but that does not seem to bother the 2nd Circuit) -
Judge D'Agostino's decision in Bracci v Becker and its subsequent affirmation - through a non-precedential summary order - by the 2nd Circuit, both participants in the behind-the-scenes case fixing for judges sued in civil rights actions in federal court - cannot be seriously construed as legal decisions of courts, instead of case-fixed, and thus void, decisions of interested parties.
That is especially true that the only comprehensive overview of the State-Federal Judicial Councils, by its participant, federal judge Jack Weinstein, indicates that SFJC are created to "relieve tension" between state judges (defendants in civil rights actions) and federal judges (presiding judges in such cases), which smacks clearly of corruption and case-fixing.
Apparently, the existing structure of state courts, and checks and balances of constitutionality of what the state government is doing through the Civil Rights Act, was not enough - or satisfactory - for the U.S. Supreme Court Justice Burther, and he decided to tweak the system behind the scenes, with ALL state and federal courts following the "suggestion".
Here's what State Federal Judicial Councils are created to do:
So, when state and federal judges communicate behind the scenes - like in Bracci v Becker, for example, where federal judges, member and Chairperson of the Council, presided over the case, while state judges (likely members of the council - membership has not been disclosed to me by either the state court system on a FOIL request, or the federal court system, on a FOIA request), defendants in the case, received a favorable decision from the Chairperson of the Council - and while the appointing court for the Council, the 2nd Circuit, created decisions that "slightly modify the law" in order to help fix those cases,
as well as presided and actually helped "eliminate sources of friction between state and federal law officers" - in other words, blocked civil rights lawsuits against state judges.
Of course, judges, under the doctrine of separation of power, pursuant to state Constitutions (for state judges) and under Articles I and III of the federal Constitution (for federal judges), do not have the right to modify the law - "slightly" or at all, for that matter, since that would be treason, violation of judges' constitutional oath of office given when taking the judicial office.
And, 1970, when the Councils were thought-up by the judiciary and started to mushroom, without any legal basis or authority, is, coincidentally, the time of increasing civil rights movement and increasing civil rights lawsuits.
In his article, Judge Jack Weinstein, of course, under the guise of trying to "meet the needs of the American people", points out at the "overwhelming bulk of cases" that "states must, and should, continue to handle".
But, Jack Weinstein, again, under the guise of better use of "joint resources" of state and federal judicial system, suggests to use "various methods for effectively utilizing joint resources" - but admits that such "methods" "may raise constitutional ... difficulties".
"Constitutional difficulties" is just another way of saying that such methods of "utilizing joint resources" by state and federal systems may be unconstitutional.
And, judging that the judicial decisions "slightly modifying the law" emerged starting with 1970:
- the Younger abstention decided in 1971 (a year after Judge Burher's suggestion to create state-federal judicial councils in order to illegally "slightly modify the law", see how Chairwoman of the New York State-Federal Judicial Council Judge Mae D'Agostino rebuffs my claim of unconstitutionality of the Younger abstention in Bracci v Becker, without disclosure of her role as the Chairwoman, or her purpose to "slightly modify the law" to help her Council co-members, state judges, defendants in the case);
- the absolute judicial immunity - decided in 1978;
- absolute prosecutorial immunity - decided in 1976;
- judicial "reading" of the 11th Amendment contrary to its text - that it now allegedly blocks lawsuits of citizens against their own state governments;
- other types of governmental immunities that block most of civil rights actions;
- the heightened pleading standard which contradicted Federal Rules of Civil Procedure 8 and 9, and the Civil Rights Act;
- the Rooker-Feldman doctrine - formed in 1983 and, together with the Younger abstention, and judicial, quasi-judicial, prosecutorial, and other governmental immunities, broadly construed, blocks nearly all civil rights cases from being reviewed in federal court on the merits, and forcing civil rights litigants into a no-win vicious circle -
- you need to first raise your federal constitutional claims in state court (which will dismiss it without review, or with sanctions, on the doctrine of "constitutional avoidance"), even though the Civil Rights Act does not have a requirement of exhaustion of state remedies before suing in federal court, but
- whether you did or did not raise your federal constitutional claims in state court, your federal constitutional claims will still be blocked in federal court because, allegedly, since you COULD raise federal constitutional issues in state court - whether you did or did not do that - you CANNOT raise federal constitutional issues in federal court after state court ruled on the subject matter of your complaints.
The doctrine of Rooker-Feldman is a statutory appellate doctrine based on the idea that only the U.S. Supreme Court, as a direct appellate court, may review claims from the highest state court.
Yet, if federal constitutional issues were not raised in state court, but are regarding violations of fundamental constitutional rights, under Marbury v Madison, state court decisions are void (as in being "null", never made), and the Civil Rights Act does not require anybody to raise federal constitutional issues only in federal courts.
Look how the Chairwoman of the New York State Federal Judicial Council ducks the issue of unconstitutionality of the Younger abstention - where federal courts refuse, despite their clear jurisdiction under the Civil Rights Act, to exercise it, waiting until state courts (judges being defendants in federal court) decide federal constitutional issue, thus forcing civil rights plaintiffs in federal court to first raise their federal constitutional issues in state courts, the courts that are already violating their constitutional rights - and then, the federal court will block the same civil rights plaintiffs, on Rooker-Feldman grounds, after the state court rebuffs their federal constitutional challenges referred to them on Younger abstention grounds.
Then, Judge D'Agostino claims that Younger, a plurality, not a majority opinion, with a very strong dissent, is a "binding Supreme Court precedent that [her court] is required to follow" - even though Younger modifies the Civil Rights Act by forcing civil rights plaintiffs into exhaustion of state court remedies, a condition that is not contained in the Civil Rights Act, and the U.S. Supreme Court certainly did not, under Article III, have the power to usurp the U.S. Congress's exclusive authority under Article I to legislate and modify its legislative acts.
Obviously, Mae D'Agostino, the Chairwoman of the New York State-Federal Judicial Council, is seeking to "slightly modify the law" by judicial decisions to help out her Council friends, representatives of state judiciary - judges-defendants sued in Bracci v Becker.
And that, ladies and gentlemen, is called case-fixing, a criminal offense under the federal law and an impeachable offense.
* * *
What does all of that has to do with Judge Aaron Persky's case?
The "slight modification of the law" that State-Federal Judicial Council (existing in California) require of its members through judicial decisions, in other words, through case-fixing, may include an agreement behind the scenes that state and federal judiciaries, in concert, seek to prevent issues of judicial bias from ever be won or even raised in court.
Try raising issues of judicial bias - in state or federal court.
No matter what court rules or the federal statute on judicial disqualification say, challenges to judicial bias always come in front of the same judge whose bias is challenged, and the judge often imposes sanctions upon the attorney and the party, often with orders of paying legal fees of the opponent.
Many attorneys have been disciplined, and lost their licenses by trying to raise judicial bias, and for criticism of the judiciary, and I continue to compile the list of such attorneys, victims of political persecution in this country - since official sources and the "mainstream media" is not interested in such a subject.
It the sentencing of Brock Turner's case, despite all public petitions, prosecution was afraid to raise the issue of judicial bias - and did not actually raise it in a motion to recuse, nor did the prosecution appeal the obviously biased sentence.
Since, as Judge D'Agostino said in Bracci v Becker, members of the public do not have "standing" to challenge non-prosecution of offenses, even by public officials, and the prosecution was silent as to the issue of bias, the Commission for Judicial Conduct could claim that the issue of bias was WAIVED by the prosecution ON BEHALF of the People of the State of California.
But, the Commission for Judicial Conduct did not say even that - that the prosecution WAIVED the issue of bias, which would be true as a matter of law.
The California Commission for Judicial Conduct, instead, produced a lengthy "opinion" on the merits of the case - rejecting multiple public complaints of Judge Persky's bias
confirming that it is within the authority of California Commission for Judicial Conduct to discipline judges for bias
but claiming that there is no evidence of bias on Judge Persky's behalf:
- Judge Persky's "contacts with Stanford University are insufficient to require disclosure or disqualification"; that
- the sentence was within Judge Persky's "discretion" - even though, when the judge is biased, it is clearly a problem to allow him to exercise the "discretion", and thus the issue whether the decision was within Judge Persky's "discretion" is irrelevant for determination of whether he was biased; and
- the Commission DID NOT use the only test that it was supposed to for determination of bias - whether Judge Persky's actions, reviewed from the position of a reasonable objective observer, appeared to be biased.
Now, some legal industry commentators claim that Judge Persky was "cleared", and it is time to "close the book" upon his behavior because his behavior, even though it was "alarmingly lenient", was not biased.
But, actually the "book" on Judge Persky's, and other judge's biased judicial decisions should be OPENED, not CLOSED - with in-depth analysis by the public, and by the legislatures, what changes need to be made to:
- require better disclosure of conflicts of interest and preferences by judges;
- ensure better, safer ways for the attorneys, to move to vacate, or appeal judicial decisions based on bias - so that attorneys would not be afraid, like the prosecution obviously was in Brock Turner's case, to claim judicial bias in front of Judge Persky, or on appeal;
- reduce "discretion" at sentencing for violent crimes; and
- improve judicial accountability by having judicial conduct commission populated by members of the public without any ties to the judiciary or to the legal profession.
And, the decision on bias regarding discipline or non-discipline of Judge Persky is biased itself.
First, because there was no disclosure whether any members of the California Commission on Judicial Performance were also members or advisors to California State-Federal Judicial Council that may have directed its members to eliminate the issue of judicial bias from courts and public domain.
Second, because, by the California State Constitution, 5 out of 11 members of the Commission, are either judges or attorneys whose livelihoods are regulated by judges.
Third, because there are no restrictions as to ties of the 6 "lay" members of the Commission to the judiciary.
And fourth, because the alleged supermajority of "lay public members" as supposedly impartial and disinterested as to judiciary, was tipped over in the case of Judge Persky by participation of a lay member who was a court interpreter,
and whose livelihood is severely affected by the good graces of the judiciary - see, for example, what was done in New York by a disgruntled judge to a court interpreter who the judge disliked, and the interpreter's lawsuit against the judge was tossed on judicial immunity grounds leaving the interpreter without a legal remedy, and without an income.
The public member of the Commission Mary Lou Aranguren is a certified Spanish-English court interpreter, and, the bulk of Spanish-English court interpreters' income come - as the civil rights lawsuits from New York demonstrates - from criminal courts.
Thus, had Mary Lou Aranguren ruled in favor of discipline against a criminal court judge, she could have kissed her income good bye.
The California Commission on Judicial Performance, staffed by a supermajority of individuals with their livelihood derived from court proceedings and judges, cannot produce unbiased decisions - at all, or in Judge Persky's case.
And, the Commission's decision on Judge Persky's alleged "lack of bias" does not "close the book" - it keeps Judge Persky's "book" open, and opens a second "book" - on the biased composition and biased ruling of the Commission itself, due to its members backgrounds and personal interests.
The public discussion of Judge Persky's bias and misconduct - and the government's efforts to sweep it under the rug - must continue.
Sunday, December 18, 2016
Kentucky and Oregon defy the U.S. Supreme Court on ... Batson v Kentucky - a precedent prohibiting racial discrimination in jury selection in criminal proceedings
I wrote several blogs about the fate of Kentucky African American Judge Olu Stevens who was disciplined for following the U.S. Supreme Court' 30-year-old precedent in Batson v Kentucky - and who criticized racist attitude to jury picking by the local white criminal prosecutor, see my blogs here, here, here and here.
It is apparent that #JudgeOluStevens had a right, applying the U.S. Supreme Court precedent not only on point, but even directed against the State of Kentucky - prohibiting peremptory challenges that pick the jury not reflecting the racial cross-section of the population.
After all, a criminal defendant has a right to a trial by jury of his "peers", by a representative composition of those "peers", including the racial composition.
In August of this year, the Judicial Conduct Commission of the State of Kentucky defied the U.S. Supreme Court precedent by forcing Judge Olu Stevens to accept disciple for doing his job and for following the U.S. Supreme Court precedent on point and for trying to eradicate racial discrimination in criminal proceedings - that is already sending a disproportionate number of African Americans to prison.
I am sure Judge Stevens accepted the discipline of a 90-day suspension in order to keep his position, salary and, possibly law license - because otherwise he was absolutely correct in what he is doing, and did not violate any laws. On the opposite, he followed a U.S. Supreme Court precedent, as he was supposed to.
Now, the Kentucky judiciary has aggravated its position as a racist system of "justice" even more - by ruling, through its highest court, that despite the U.S. Supreme Court precedent pronouncing, 30 years ago, that it is a violation of criminal defendant's 6th and 14th Amendment when the prosecution is allowed to strike all black jurors on the venire in a trial of a black defendant, judges in Kentucky do not have a right to strike "randomly selected" jury panels lacking racial diversity, because, according to Kentucky highest court, giving a judge such advantages is "short-sighted" and advantages of such power will be "short-lived".
Here is a portion of the majority opinion of the U.S. Supreme Court's 30-year-old precedent on point against the State of Kentucky doing the exact same thing that it is arrogantly doing all over again, 30 years down the road, and punishing a black judge for asserting the U.S. Supreme Court precedent in his courtroom:
I wrote recently how a New York judge, Judge Gary Rosa was trying to defy (based on his and his law clerk's personal grudges that I am going to address with the New York State Commission for Judicial Conduct) two U.S. Supreme Court precedents on point by claiming that applicability of the U.S. Supreme Court precedent is based non on unifying legal issues, but on "matters" and "fact patterns" - which prompted me to write an article that absolute judicial immunity, then, if Judge Gary Rosa, or any other judge, is sued, should be given, under the same principles, only in cases with the same "matter" and "fact pattern" as in Stump v Sparkman, the precedent relied upon to give judges absolute judicial immunity for malicious and corrupt acts.
In other words, that judicial immunity should not be given unless the case involved unlawful sterilization of a minor without notice, appointment of counsel or opportunity to be heard, under false pretenses that the surgery to be done is of appendicitis - which the teen did not medically need.
I provided an example pertaining to applicability of 1st Amendment U.S. Supreme Court precedents -
1) Flag burning, Texas v. Johnson, 491 U.S. 397 (1989);
2) Cross burning, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Virginia v. Black, 538 U.S. 343 (2003),
3) a Nazi march through a city of Holocaust survivors, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977);
4) a protest with nasty slogans in front of a fallen soldier’s funeral, Snyder v. Phelps, 562 U.S. 443 (2011);
5) false claims of valor in battle, United States v. Alvarez, 567 U.S. ___ (2012);
6) regulation of content of commercial signs – Reed v Town of Gilbert, 576 U.S. ___ (2015).
It is apparent that #JudgeOluStevens had a right, applying the U.S. Supreme Court precedent not only on point, but even directed against the State of Kentucky - prohibiting peremptory challenges that pick the jury not reflecting the racial cross-section of the population.
After all, a criminal defendant has a right to a trial by jury of his "peers", by a representative composition of those "peers", including the racial composition.
In August of this year, the Judicial Conduct Commission of the State of Kentucky defied the U.S. Supreme Court precedent by forcing Judge Olu Stevens to accept disciple for doing his job and for following the U.S. Supreme Court precedent on point and for trying to eradicate racial discrimination in criminal proceedings - that is already sending a disproportionate number of African Americans to prison.
I am sure Judge Stevens accepted the discipline of a 90-day suspension in order to keep his position, salary and, possibly law license - because otherwise he was absolutely correct in what he is doing, and did not violate any laws. On the opposite, he followed a U.S. Supreme Court precedent, as he was supposed to.
Now, the Kentucky judiciary has aggravated its position as a racist system of "justice" even more - by ruling, through its highest court, that despite the U.S. Supreme Court precedent pronouncing, 30 years ago, that it is a violation of criminal defendant's 6th and 14th Amendment when the prosecution is allowed to strike all black jurors on the venire in a trial of a black defendant, judges in Kentucky do not have a right to strike "randomly selected" jury panels lacking racial diversity, because, according to Kentucky highest court, giving a judge such advantages is "short-sighted" and advantages of such power will be "short-lived".
Here is a portion of the majority opinion of the U.S. Supreme Court's 30-year-old precedent on point against the State of Kentucky doing the exact same thing that it is arrogantly doing all over again, 30 years down the road, and punishing a black judge for asserting the U.S. Supreme Court precedent in his courtroom:
I wrote recently how a New York judge, Judge Gary Rosa was trying to defy (based on his and his law clerk's personal grudges that I am going to address with the New York State Commission for Judicial Conduct) two U.S. Supreme Court precedents on point by claiming that applicability of the U.S. Supreme Court precedent is based non on unifying legal issues, but on "matters" and "fact patterns" - which prompted me to write an article that absolute judicial immunity, then, if Judge Gary Rosa, or any other judge, is sued, should be given, under the same principles, only in cases with the same "matter" and "fact pattern" as in Stump v Sparkman, the precedent relied upon to give judges absolute judicial immunity for malicious and corrupt acts.
In other words, that judicial immunity should not be given unless the case involved unlawful sterilization of a minor without notice, appointment of counsel or opportunity to be heard, under false pretenses that the surgery to be done is of appendicitis - which the teen did not medically need.
I provided an example pertaining to applicability of 1st Amendment U.S. Supreme Court precedents -
1) Flag burning, Texas v. Johnson, 491 U.S. 397 (1989);
2) Cross burning, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Virginia v. Black, 538 U.S. 343 (2003),
3) a Nazi march through a city of Holocaust survivors, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977);
4) a protest with nasty slogans in front of a fallen soldier’s funeral, Snyder v. Phelps, 562 U.S. 443 (2011);
5) false claims of valor in battle, United States v. Alvarez, 567 U.S. ___ (2012);
6) regulation of content of commercial signs – Reed v Town of Gilbert, 576 U.S. ___ (2015).
In this particular case, no comparison of issues in cases with different matters is even required - because, in Kentucky, everything is identical with the U.S. Supreme Court precedent, Batson v Kentucky - the "matter" (as per Judge Rosa), the "fact pattern", the unifying legal issue, and even the State against which the decision was made.
At nearly the same time as the Kentucky decision defying Batson v Kentucky, the highest court in Oregon did the same - refusing to overturn criminal conviction of a black man where out of 12 jurors only 1 was black.
I wonder if Oregon Supreme Court coordinated its decision with Kentucky Supreme Court in insisting on legitimacy of racial discrimination in criminal proceedings - but the criminal defendants certainly can coordinate arguments on their appeals for certiorari by the U.S. Supreme Court, where a lengthy opinion from SCOTUS is not even required - cases can be overturned simply because of defiance of the U.S. Supreme Court precedent on point.
I also wonder how the U.S. Supreme Court will react to the growing defiance by highest state courts of the U.S. Supreme Court precedent:
- from 1st Amendment for regulation of conduct (as in attorney discipline throughout the state - one more interesting case was reported in Wyoming where attorney #Richard Szekely inadvertently turned in a draft saying, under the signature line designating the judge - "Honorable Jane Eakin Circuit Court Witch" - and was reprimanded and charged with contempt of court for that, in violation of 1st Amendment prohibition on content-based regulation of speech without strict scrutiny - for comparison, New York did not consider an ethical violation warranting discipline when an attorney called judges "whores who want to become madams", but regularly disciplines attorneys criticizing judges for misconduct and corruption in motions to recuse) to
- same sex marriage - the same Kentucky, Alabama, and Oregon, made headlines for their defiance of Obergefell v Hodges, a 2015 U.S. Supreme Court precedent - by the way, 8 judges joined Alabama Chief Judge Roy Moore suspended for defiance of Obergefell in his appeal of the suspension;
- and now, racial discrimination in criminal proceedings - where Kentucky joined Oregon in nearly simultaneous decisions defying Batson v Kentucky.
It is interesting whether the U.S. Supreme Court will clamp down on defiance of its precedents by the states or will let them continue undermining its authority and power.
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