The 4th Circuit further victimizes a homeless victim of a police dog mauling by denying him a constitutional remedy in an inhumane and openly fraudulent decision. The dissenting judge is a good candidate to be nominated to the U.S. Supreme Court though. Courageus and honest.

The U.S. Court of Appeals for the 4th Circuit, a federal appeallate court that covers several southern states:

made a decision in 1998 ruling in favor of a woman mauled by a police dog.

In its decision

the 4th Circuit has found that:

1) the Fourth Amendment governs cases of police dogs mauling civilians;
2) the police officer and other defendants are not entitled to the so-called "qualified immunity" for their actions because 4th Amendment rights of the victim in that case were clearly established.

The 4th Circuit has ruled that it was clearly established back in 1995 that a police officer releasing a dog upon a civilian must give the civilian a verbal warning indicating that the dog is being released, apparently giving the civilian an opportunity to surrender without such release of a dog.

The 4th Circuit ruled that a summary judgment could not be given to the police officer on the 4th Amendment claim regarding mauling of the victim by the police dog, and the case was reversed and remanded for trial.

So, in the 4th Circuit claims of victims mauled by police dogs under the 4th Amendment were clearly established and police officers were not entitled to qualified immunity since 1995.

Yet, 22 years after that precedent, the same 4th Circuit has ruled in an "unpublished" plurality opinion (where one judge out of three wrote the "majority" opinion, the other wrote a "concurring" opinion and the third wrote a dissenting opinion) in a diametrically opposite way, now giving a police officer who did not recall a dog from mauling an innocent homeless man and let him maul him some more, a qualified immunity, claiming that 4th Amendment rights of the victim were not "clearly established law" in the 4th Circuit.

The homeless victim of mauling by a police dog, where the officer intentionally delayed to recall the dog, allowing the dog to maul the victim some more, the court addressed its prior decision of 1998 - and refused to follow it:

The court reviewed its own refusal in 2010 to apply the 1995 and 1998 precedent on the subject when the 4th Circucit granted qualified immunity to a police officer after a police dog mauled a child:

The 4th Circuit recognized that that distinction was not good - giving the child victim in the 2010 case will now be able to vacate that decision:

Yet, after recognizing that its refusal in 2010 to follow its own 1995 and 1998 precedent as to police dogs mauling people was wrong, the court now refused to comply with that same 1995 and 1998 precedent on other grounds.

The court first described how the qualified immunity was denied - in a case dealing with suspects of an armed robbery:

The court then proceeded comparing the case where the same court gave suspects of an armed robbery their right to a remedy under the 4th Amendment against the police officer for mauling by the dog:

as a justification of not giving the same remedy to an innocent man mauled by a police dog:

Of course, the 4th Circuit engaged in what is called "intellectual dishonesty" in claiming that "there is no indication that Appellee gratuitously prolonged the biting after determining that Appellant was unarmed and surrendering" - because the victim was specifically asserting that in the lawsuit.

Moreover, in the very first paragraph of his "majority" opinion, judge Thacker did confirm that the police officer ordered the victim, who was protecting himself from being mauled to death with his hands, to show his hands as a condition to call the mauling off - even after the officer realized that the man before him did not match the description of the suspect he was seeking.

The dissent, in fact, pointed out that the mauling by the dog was a deliberate decision of the police officer - the mauling was meant as a tool to rule out that the victim did not pose a threat:

Judge Harris pointed out that the police officer had no basis even for a brief investigative stop under the circumstances of the case, and seizure of the victim, much less a seizure by a mauling dog, was not justified, and that it was the police officer who was supposed to give the "clearly established law"-warning of the dog attack, which he admittedly failed to do:

Judge Harris then points out the obvious:

Judge Harris pointed out that, since Terry in itself is a questionable application of the 4th Amendment, an EXCEPTION from the 4th Amendment requiring only "reasonable suspicion", instead of a "reasonable cause" for the stop, the stop should be minimally intrusive - being mauled by a dog so that the victim suffered serious injuries, was delivered to a hospital in critical condition and required large grafts of skins to be replaced on his skull - does not qualify as a "minimally intrusive investigative stop":

This case shocks with both the heartlessness of the court to the homeless victim of a crime committed against him by a government official and as to how shadowy our rights supposedly guaranteed to us by the U.S. Constitution really are.

We have the 4th Amendment, it prohibits unreasonable seizure by the government.

But, the U.S. Supreme Court and federal courts changed that, changed the text of the 4th Amendment - changed the U.S. Constitution without authority to do so - and now claim that there may be "qualified immunity" to violate the U.S. Constitution with impunity under certain circumstances.

Then, when those same circumstances, and those same rules set by the courts are satisfied, they refuse to apply them, and carve out new rules that deny the victim a remedy anyway - as it was done in the 2010 precedent cited by the court in the 2017 precedent.

Let's look at the timeline of these police dog-mauling cases in the same court, the 4th Circuit.

In 1995 - the law was "clearly established" that mauling by a police dog is a 4th Amendment violation, a seizure, and the police officer after that will not be entitled to qualified immunity if that happens.

In 1998, the same court adhered to its 1995 precedent, granting a remedy to a woman victim of police dog mauling.

In 2010, the same court refuses to follow its own 1995 and 1998 precedents and denied a remedy to a child victim of police dog mauling.

In 2017, the same court said that its refusal to apply its 1995 and 1998 precedent in 2010 was wrong, but refused to apply these same 1995 and 1998 precedents anyway, on new (and contrived) grounds.

The result is the same - an innocent victim of police misconduct, mauled nearly to death by a vicious animal, was denied a remedy.

That denial of remedy is aggravated by the fact that the man is homeless and his health was his only protection from the elements.  Now he was stripped of his only treasure, his own health, by the government, without any compensation, for no fault of his.

In addition to being a heartless decision, it is a clearly unlawful decision.

The 4th Amendment was clearly violated.

A remedy is clearly allowed for the victim under the circumstances, by the 4th Amendment and by the Civil Rights Act enforcing it.

Courts have no right to amend either the U.S. Constitution or the Civil Rights Act in order to take away the right to a remedy from those they do not like.

What a disgusting case!

Here is the initial report in the North Carolina press about the incident - the police department (1) denied that the officer did anything wrong (of course, who would acknowledge that he would let the dog maul an innocent homeless man some more before officer would call him off); and (2) even offered the victim to pay his medical bill - not that it would have restored his health that they robbed him of.

Then, lawyers stepped in, went all the way to the 4th Circuit Court of Appeals and had the court deny the homeless man any remedy whatsoever.   No more compassion, I guess.

And here are the "heroes".

The author of the majority opinion, the heartless bitch Judge Stephanie Dawn Thacker, a recent Obama nominee, who twisted facts and law in order to deny the remedy to a homeless person nearly mauled to death by an intentional order of a police officer:

The "concurring opinion" judge William Byrd Traxler, Jr, a Bill Clinton nominee.

And this is the only voice of reason in this whole mess, Judge Pamela Harris:

With her knowledge of the law, clear reasoning, courage and honesty, Pamela Harris would be a good nominee to SCOTUS instead of fishing-with-Scalia tail-wagging "originalist" Neil Gorsuch.

But I know, I know.  Who would nominate an honest person to SCOTUS.  Even the supposedly bold President Donald Trump wouldn't dare.

Harvard Law Library must return Scalia papers to the public

It has been recently announced that the family of the deceased U.S. Supreme Court Justice Antonin Scalia has magnanimously decided to give it to the Harvard Law Library, Scalia's alma mater, and to supervise public access to these papers:

Of course, no mention was made that "Nino" was caught practically with his pants down, at a rancho with personnel speaking only Spanish (not to understand anything that was said by important guests in English, presumably), and where he arrived, on Valentine's Day weekend, without his wife of 55 years, mother of his 9 children.

Nor was it mentioned that "Nino" arrived (or his body was brought after death) to that rancho right after his privately sponsored trip to Hong Kong and Singapore.

In other countries, public officials are not allowed to have gifts in kind in the form of privately sponsored international trips - but in the U.S., SCOTUS judges consider themselves Gods with no authority over them, and do whatever they want.

It was reported also that Scalia's family will be supervising public access to records generated by Scalia during his taxpayer-funded tenure on the U.S. Supreme Court and the D.C. Circuit Court of Appeals.

It is very apparent that Scalia's family has no authority to:

1. have access to the SCOTUS papers that the public is not allowed to see;
2. regulate public access to such papers.

Moreover, materials regarding Scalia's tenure on these two courts will reportedly not be available for access through Harvard Law School - and that is NOT the equivalent of public access - until 2020, and materials regarding specific cases will not be available until all participating judges die off. 

Right now we have 8 remaining judges, many of them quite young, and life expectancy of U.S. Supreme Court judges is towards the 90s.

That decision means that several private individuals, the so-called "Scalia family", without any authority, blocks access to public records created by a public servant as part of his taxpayer-backed job during not only the remaining lifetime of the currently sitting justices, but during the remaining lifetime of hundreds of thousands of U.S. citizens, voters and taxpayers, which is completely unacceptable.

The decision of the Scalia family (and some of Scalia's children are lawyers) to not embarrass the sitting judges of the U.S. Supreme Court by exposing the "kitchen" of how the SCOTUS decisions were cooked - as likely reflected in Scalia's papers, "notes" and "journals" about cases - "notes" and "journals" that the Scalia family, who are not employees of the court, already saw - has no basis in law.

Public servants have NO RIGHT TO AVOID EMBARASSMENT FOR EXPOSURE OF THEIR MISCONDUCT OR IMPROPRIETY.

Public servants, and their families, no matter how high their rank, have no right of ownership whatsoever as to documents created as part of or in connection with Scalia's employment as a judge, no right to place such records into the hands of private corporations, such as Harvard Law Schools, no right to place records outside of the reach of the public, into a private institution, no right to supervise or control who and how accesses the record, and no right to block access to those records to prevent potential embarrassment of the currently sitting judges.

Harvard Law School must put these public records into the Library of the U.S. Congress, as a public receptacle of public records, maintained with public funds and giving access to the public to review records created by public servants during their publicly funded jobs.

These records have ALREADY been made public, by Scalia showing them to its family who are not confidential employees of the U.S. Supreme Court, and by the Scalia family placing those records into the hands of Harvard Law School librarians, who are also not confidential employees of the U.S. Supreme Court.

Since such documents were already exposed to people who are not personnel of the U.S. Supreme Court, they were made public - and should be kept in a public library and free public access to them should be allowed.

Now.

Harvard Law School setting up a trend of putting more makeup on a decaying corpse

In January of 2016, a prominent legal blog "Above The Law" published an article about a "controversial" decision of the Arizona Law School to accept students not only based on their LSAT (Law School Aptitude Test), but also on their GRE test scores.

GREs are subject tests in specific subjects towards further acceptance into graduate schools, not necessarily law schools.

It is apparent that measuring an undergraduate's achievements in chemistry or physics may not be a good measuring stick to figure out whether he will be a good attorney.

Moreover, graduate degrees in biology, chemistry, literature and the English language, and physics do not require licensure, the only profession out of the GRE Subject Tests, psychology, and GRE in psychology is not the only test accepted when GREs are accepted by law schools.

Yet, the whole idea of attorney regulation and licensing is presented to the public as a vetting process by the government for the consumers of integrity and competence of attorneys as the only people in the United States allowed to represent people in and out of court and draft documents securing legal rights.

Part of that vetting is standardization of legal education and making sure that when a consumer finally hires a licensed attorney who was:

1. selected and accepted by a law school;
2. successfully completed the supposedly rigorous law school curriculum;
3. passed the bar examination

the consumer can be assured of at least a minimally acceptable level of competence of such a licensed attorney.

LSAT was used as a prediction tool of performance of law students in law school, testing specifically language and logical skills:

While testing college graduates on "reading comprehension" as a threshold for admission to law schools might look funny (that skill, after all, is taught in kindergarten), the level of that skill tested, and the way it is tested in LSAT can easily fail an English honors college major.

You are given approximately 1 minute 35 seconds per question, you are required, during that time, to read large spans of texts from various areas of human knowledge (as lawyers routinely have to do), and you have to "turn on a dime" in your thinking, instantly grasping what is the gist of the issues involved in order to be able to answer the "split-hairs" questions.

That is not how English majors are taught.  Once again, you cannot really prepare for an LSAT.  You either have in you that agility of intellectual reaction, or you don't.

The difference of LSAT from GRE is that you cannot predict the topics (as in biology you are tested in biology and in chemistry - in chemistry) of the texts you are required to instantly comprehend, see the logic and answer questions.

That's why accepting GRE tests instead of LSAT tests is a step down for law schools - which will necessarily tell upon a further raising numbers of graduates of law schools failing bar exams.  You cannot expect good quality at the exit of law school if you do not require good quality at the entrance, good quality for this particular profession.

Above The Law picked up the problem a year ago in criticizing Arizona Law School's decision to accept GREs in lieu of LSATs as "controversial".

Moreover, Above The Law clearly pinpointed two "not so altruistic" reasons as letting incoming students save time and money on having to undergo two exams (GRE and LSAT) instead of one-fits-all for all graduate schools (GRE):

1. the measure was meant to address declining enrollment in law schools, and was directed at the bottom-line of law schools as businesses (here goes good solid law school education as cornerstone of promises to the public that attorney regulation is necessary, and that law school education provides a presumption of competency to the consumer);
2. the measure was meant to keep law school rankings afloat since the ranking system, US News and World Report, ranks law schools, among other criteria, by incoming LSAT scores, but did not do that yet as to incoming GRE scores

When a school lures people into a gigantic lifetime investment by pretending to be what it is not, is a type of fraud.

Lawsuits against law schools for failure to notify students of the waning prospects for employment on graduation are on the rise, see, for example, here, here and here.

And, those lawsuits are fended by the regulator of the legal profession - the courts - by bluntly telling the students that, if they claim their are bright enough to be selected by law schools to be attorneys, and to have passed the bar, they cannot pretend to be so dumb as not to see the situation in the market on their own.

It is interesting that, like in other aspects of attorney rights, attorneys are not entitled, in the eyes of the courts and the public, to the same rights, even against education fraud, as other people.

This country was, at the very same time, vigorously criticizing Trump University for alleged fraud upon students, and no less vigorously criticizing a law student who dared to sue her law school for the same thing, education fraud.

So, a year ago, according to Above the Law, Arizona Law School engaged in "controversial" behavior in order to:

1. duck erosion in enrollment, and
2. duck erosion in rankings.

Since Arizona Law School is also an ABA-certified law school, and the ABA certification presupposes LSATs as entrance tests to law schools, the Arizona Law School also likely violated the conditions of its accreditation by starting to accept GREs in lieu of LSATs.

The ABA addressed the issue in July of 2016, describing in its article about Arizona Law School and its GRE decision that:

"”The law school has submitted a study, … which the law school believes meets this requirement of the standards,” says Currier. “A review of that study will be done and considered by the ABA Accreditation Committee, which works under the council. That review, as are most matters related to a law school’s compliance with accreditation standards, is a confidential matter under the rules of the law school accreditation process.”

So, a law school, seeking to lure more students who may fail in the future legal employment market, and to bamboozle the public that consumers can still rely on the product of that trick as "presumption of competence" of licensed attorneys, provided a study (which it obviously paid for) that pretended that the law school decision is supported by science.

And, the ABA is reviewing that study in secret, even though the study is on the most important topic of public concern

We do not see the outrage in the press, social media, ACLU is not up in arms, and law professors are not writing any complaints.  Well, they won't.  How can they?  If enrollment in law school goes south the way it is now, they may not be professors for long, so any measures to stop that tendency, even if by trick, would be good.  As a matter of legal ethics.

Fast forward to 2017.

Now, the Harvard Law School did the same, announcing that it will accept GREs in lieu of LSATs.

What was a "controversial" decision and a shady business meant to raise enrollment and hide poor rankings by bamboozling the incoming students to apply and pay tuition (by burdening themselves with giant student loans), and by bamboozling the public into believing that such education will serve as a presumption of competence of licensed attorneys - is suddenly starting to become mainstream, simply because Harvard Law School decided to do it, too.

After all, "when Harvard sneezes, everybody gets a cold" - which really says a lot about independent thinking of providers of legal education in the U.S.

Of course, Harvard does not have a problem with enrollment - or does it?

And, of course, Harvard does not have a problem with the ranking of its Law School - or does it?  After all, its law school team, armed with education, training and computer aided research, lost recently to a team of uneducated prisoners using obsolete paper-only prison library in a law competition.

Now that Harvard sneezed, ABA gets a cold, and

Now that Harvard said that it is ok for the honorable profession to bamboozle the incoming student body and the public in this particular way, the ABA jumped and will put a seal of approval on it.

Yet, putting cosmetics on a corpse does not usually revive it.

Nothing, not lowering the requirements at the bar exam, not lowering the requirements at the entrance to law school, is going to help when the legal profession has its collective head in the sand and refuses to see the writing on the wall - deregulation of the profession is coming.

Either the legal profession as it is today will be destroyed because of the onslaught of technology - which hit the legal profession from both sides (I wrote about it, coincidentally, in July of 2016, at the same time when ABA was secretly considering the "study" from Arizona Law School to drop admission requirements for law students):

1) the rich - with ROSS artificial intelligence legal research system:

2) and the poor - with the DoNotPay computer bot that is now successfully advising how to defend against traffic tickets AND file refugee applications;

and where it is predicted by artificial intelligence industry insiders that robots will replace the majority of lawyers within a short 10 years.

In Netherlands, England and Canada, people are already resolving their disputes, from custody of children to claims of nuisance, through computer bots.

Or, it will come because of the "justice gap" that the legal profession, by creating monopoly for court representation, created, where the majority of the legal profession gravitates towards serving the poor, and the majority of the public, financing the regulation of the legal profession, remains holding the empty bag of promises and unable to afford an attorney.

Or, it will come because, by the use of disciplinary proceedings against solo and small firm attorneys as a tool of eliminating competitors (and critics of systemic flaws in attorney regulation and the justice system as a whole, including judicial misconduct), the little guys and gals will be eliminated, and there will come a fight between the giants who will devour one another.

Or, it will come through the so-called "disbundling" of legal services, which is already happening through proliferation of companies offering information and "do it yourself" forms to consumers.

Or, it will come, as it is already happening now, with the further drying up of the young people willing to put on themselves a crushing debt of law school with very unsteady promise of employment, and a real risk of having investment of their lifetime be destroyed because an attorney does the right thing, raises a sensitive issue in court, like judicial bias and/or misconduct - and in the process pisses off a judge.

No matter what combination of factors will change the legal profession to the point of elimination of, possibly, the majority of attorney jobs as we see them now, within a very short time - it is coming.  Fast.

Having a giant like Harvard put a seal of approval on an otherwise fraudulent move to further conceal problems in the market of legal services, in order to trigger a responsive reaction in the "opinion leaders" and to set a new trend of putting makeup on a corpse won't change that trend.

The survival of the armadillo #MonicaDuffy

Recently I ran a blog about a case where the attorney disciplinary committee of the New York State Supreme Court, Appellate Division Third Judicial Department opposed, and the 3rd Department court denied, a motion by a suspended attorney Gaspar Castillo who asked the court, through a motion, whether 21 certain activities, most of them not appearing in the court decision, which were not unauthorized practice of law (UPL) to individuals who never had a law license, will be UPL to him, Gaspar Castillo, a suspended attorney.

I promised my readers to file a FOIL request to verify which activities were secretly recognized by the 3rd Department as UPL - for some people, but not for others.

Of course, the 3rd Department does not have the legislative power in regards to what constitutes a criminal offense in New York.

Of course, what constitute the practice of law in New York, is not defined by statute, which means, no notice is given to individuals as to a regulated activity, and, thus, such activity may not be regulated as a constitutional due process point - to prevent arbitrary enforcement on a case-by-case ad hoc, bill-of-attainder basis.

Of course, what constitutes UPL is also not defined by statute other than a prohibition to "practice" whatever it is the practice of law is in New York without a license to do that.

I did file that FOIL request.

First, I have read advisory opinions of the Committee on Open Government and found there an advisory opinion stating that:

• if there was a case prosecuted by a public prosecutor in a public court case - (and a motion by an already disciplined attorney is public record, Judiciary Law 90(10));
• court pleadings in such case that the prosecutor's office has in custody, are subject to Freedom of Information Law.

With that in mind I filed a FOIL request with the prosecuting office in Gaspar Castillo's case - the 3rd Department Grievance Committee.

My further interaction with various officials regarding the FOIL request reminded me of a fairy tale by Rudyard Kipling called "The Beginning of the Armadillos".

In that story, a Mother Jaguar teaches her son the Painted Jaguar how to hunt, specifically how to hunt tortoises and hedgehogs, and how to distinguish between the two.

"She said to him ever so many times, graciously waving her tail, 'My son, when you find a Hedgehog you must drop him into the water and then he will uncoil, and when you catch a Tortoise you must scoop him out of his shell with your paw.' And so that was all right, Best Beloved."

Of course, those to be hunted, overheard the teachings and decide to confuse the baby jaguar and escape with their lives.

And confuse they did.  After a thorough confusing session, like that:

"'Now attend to me,' said Painted Jaguar, 'because this is very important. My mother said that when I meet a Hedgehog I am to drop him into the water and then he will uncoil, and when I meet a Tortoise I am to scoop him out of his shell with my paw. Now which of you is Hedgehog and which is Tortoise? because, to save my spots, I can't tell.'

'Are you sure of what your Mummy told you?' said Stickly-Prickly Hedgehog. 'Are you quite sure? Perhaps she said that when you uncoil a Tortoise you must shell him out of the water with a scoop, and when you paw a Hedgehog you must drop him on the shell.'

'Are you sure of what your Mummy told you?' said Slow-and-Solid Tortoise. 'Are you quite sure? Perhaps she said that when you water a Hedgehog you must drop him into your paw, and when you meet a Tortoise you must shell him till he uncoils.'

'I don't think it was at all like that,' said Painted Jaguar, but he felt a little puzzled; 'but, please, say it again more distinctly.'

'When you scoop water with your paw you uncoil it with a Hedgehog,' said Stickly-Prickly. 'Remember that, because it's important.'

'But,' said the Tortoise, 'when you paw your meat you drop it into a Tortoise with a scoop. Why can't you understand?'"

the baby Painted Jaguar finally said:

'You are making my spots ache'.

That's exactly the state of confusion that a person gets in trying to figure out the mess attorney disciplinary authorities created in designation who is who in the disciplinary process.

Here is the response I've got from Monica Duffy, Chief Attorney of the Attorney Grievance Committee of the 3rd Department (in addition to being a prosecutor and, as she claimed, part of the judiciary, she was also part of a legislative committee on attorney discipline in 2015 - that would make anybody's spots ache), which was attached to her e-mail to me:

Imagine that you are FOILing a District Attorney's office, and the response the District Attorney gives you comes from the court on the District Attorney's behalf.

That's an immediate ground to move to disqualify BOTH the District Attorney AND the court - under the court-advocate rule.

Courts and prosecutors (advocates) MAY NOT, by the latest constitutional precedent, Williams v Pennsylvania, act as one.

Yet, in attorney disciplinary proceedings in New York that happens all the time.

The disciplinary prosecutors:

1) oppose motions to dismiss disciplinary proceedings as commenced and handled by prosecutors who are part of the court, but

2) prosecutors claim they are part of the court for purposes of access to records

I filed an administrative appeal where I said, specifically, this:

Duffy cannot deny she acted as a prosecutor in Gaspar Castillo's case - she is listed as "Petitioner" (party to the disciplinary proceeding) on the court's decision in that case.

I then pointed out that the records are not sealed, it is an open court case (since the clerk readily offered me the records under Judiciary Law 255 for the higher rates set under that statute, Judiciary Law 255, while I was asking for records under a different statute (FOIL), from a different agency (executive, prosecutorial branch), and was asking for scanned copies for free).

Three days ago, I received a letter from an attorney representing New York State Court Administration, while I specifically addressed my administrative appeal under FOIL to the Chairman of the 3rd Department Attorney Grievance Committee, as the law requires me to do, and only that individual was authorized to author decisions on that administrative appeal.

I have sent a reply to Shawn Kerby pointing out to her that she has no authority whatsoever to author decisions on administrative appeals of denials of FOIL requests, and that I consider the administrative appeal sent to the Chairman of AGC pending until I receive a decision from him.

Let's remember what the 9th Circuit recently said in its decision about Donald Trump's executive order when Donald Trump's attorneys argued that the matter is moot because Donald Trump's attorneys already announced that the order does not apply to lawful permanent residents - the 9th Circuit said that attorneys do not have authority to make such decisions and to change the President's executive order.

Same here, Shawn Kerby does not have authority to issue decisions on administrative appeals.

I will notify the Committee on Open Government about my standoff with the 3rd Department Attorney Grievance Committee, sought to be protected by the 3rd Department court and by the New York State Court Administration and claimed to be "part of the court".

Because, if the 3rd Department Committee is "part of the court", so that FOIL requests to the Committee as a prosecutor must be treated as Judiciary Law 255 requests to the court, all attorney disciplinary proceedings in New York are void under Williams v Pennsylvania, under the accuser-adjudicator rule.

It is also very interesting how the 4th Department contributed to the mess.

The 4th Department already tried to pull the same kind of trick back in 2014 when I filed a FOIL request for the time-sheets of disciplinary prosecutor Mary Gasparini when she asked for an adjournment of a certain date in a disciplinary case because she was "teaching a CLE course" - during taxpayer-paid work hours.

At that time, in a letter marked CONFIDENTIAL - in answer to my PUBLIC FOIL request - the 4th Department attorney disciplinary committee claimed that it is part of the judiciary, and thus not subject to FOIL requests.


Yet, at the very same time, the very same disciplinary committee was opposing my cross-motion to dismiss disciplinary proceedings on constitutional grounds because the court and the prosecutor was ONE.

Of course, after I was suspended in November of 2015, in June of 2016, the U.S. Supreme Court ruled that a court cannot act at the same time as an accuser and adjudicator, and that decisions produced by such courts are void - meaning, that ALL attorney disciplinary decisions by New York courts where disciplinary prosecutors are part of the court, were rendered void by that decision.

Of course, the U.S. Supreme Court would not apply its own just-created precedent, and several others - as a matter of "discretion" (see, enforcement of the U.S. Constitution that all judges in this country are sworn to uphold, is nowadays "discretionary").

The 4th Department, by the way, finally relented and DID give me the time-sheets of prosecutor Mary Gasparini.

The 3rd Department did not relent, and, after I have filed an administrative appeal for constructive denial of my FOIL request by:

1) transferring it from the executive branch (prosecutor's office) to
2) court (judiciary branch);
3) "deeming" that I have filed a Judiciary Law 255 to the court (judicial branch) instead of what I actually did, a FOIL request to the prosecutor's office, an executive branch; and
4) applying higher fees, meant for Judiciary Law 255 and not for FOIL - where records are supposed to be provided for free to my e-mail address since the Grievance Committee, I am sure, has or has access to high-speed scanners which would scan as fast as they would copy (the standard of providing copies of scanned records for free), and
5) by having an attorney representing the New York State Court Administration acting as counsel for the Chairman of the Attorney Disciplinary Committee who has the exclusive, non-delegable authority to decide administrative appeals for denial of FOIL requests.

What the "honorable" legal and judicial profession does not seem to get through their honorable heads though is that by pretending they have institutional split personality disorder and playing a game of "I am a prosecutor to prosecute, but I am a judge for FOIL and immunity purposes, if sued in federal court" (judicial immunity derived from being "an arm of the court" is consistently used by New York attorney disciplinary committees to have civil rights lawsuits dismissed without review) - playing such games with the public does not increase respect to the game-players.

The Tortoise and the Hedgehog further confused the baby Painted Jaguar by blending into the Armadillos - so that they cannot be scooped out of their shell and would not need to uncurl when thrown into the water.

I know one other substance that does not sink when thrown into the water - and that's what the "blended" regulation of the legal profession by prosecutors who are also judges has turned into.

The #MaleChauvinistJudgeConradHafen is banned from the bench and "agreed" to "public censure" - for handcuffing a public defender for making a constitutional argument, and for several other cases. But, unabated bashing of female litigants and attorneys in the courtroom continues

I've run a blog last year about a male chauvinist judge Conrad Hafen of Nevada who has handcuffed a female public defender for making a constitutional argument in court on behalf of her indigent client.

The judge was then voted out of office and is now, reportedly, banned from ever be a judge in the future.

But, other judges are taking up the torch from Conrad Hafen.

There is still North Carolina judge Peter Knight who publicly reprimanded a woman for breastfeeding in the courtroom.

There is still Judge G. Todd Baugh of Montana who reportedly blamed the child victim of rape for committing suicide, and who is only going to be "censured", but remains on the bench.

There is still the California judge Aaron Persky who was re-elected, running unopposed, even though, as a sexist pig that he is, he has given only a slap on the wrist to a "golden kid", a Stanford University "athlete" Brock Turner, after the latter had sex with an unconscious woman right in the street.

Judge Persky was not disciplined - because he "did nothing wrong", and, moreover, a bunch of more elite kids, Stanford Law graduates, raised their voices - no, not in support of the victim, but in support of Judge Persky, the protector of the criminal.

Yet, I oppose fighting just for "women's rights". 

What is needed is to eliminate the hurdles to resolve urgent human rights issues in this country - remove procedural barriers to civil rights actions in federal courts, remove the fear grip of the judiciary upon attorneys making them squawk in support of judges who feed them, instead of in support of victims of judicial misconduct.

Until that happens - "women's marches" won't help.