The trailblaizing U.S. Court of Appeals for the 11th Circuit cancels the 6th Amendment's right to counsel

I have just posted a blog about the 5th Circuit's endorsement of a criminal defense attorney-bashing by a known bully of a judge, putting a chill on the 6th Amendment right to counsel in criminal proceedings.

Yet, nothing comes close to what the 11th Circuit did - it simply cancelled the 6th Amendment right to counsel altogether.

Much has changed in civil rights litigation since the election of President Trump.

Standards of pleadings disappeared - when Trump is the defendant (even though it is us the American taxpayers are defendants when President Trump is sued in his individual capacity), that happened in immigration cases, see also here, that happened in the "denial-of-federal-fund" cases, but, since both types are federal civil cases, such changes of pleadings standards affect all court proceedings in federal court.

Yet, the pro-Clintonite public is ecstatic when any decision is made by federal courts against Trump, including glaringly unlawful decisions, and such decisions are celebrated as protection by federal judges of civil rights.

Of course, violating every rule, statute, precedent and test in the book to make a decision for the person based on the judge's own political views has nothing to do with the law.

And, of course, federal courts continue to do their main job, to which the public does not pay much attention  - until those decisions come to bite members of the public into their own rear ends in their own individual cases, but then it will be too late.

For example, federal courts continue to erode the right to counsel guaranteed to criminal defendants by the 6th Amendment, not that the public cares much because it is about "rights of criminals", while the popular opinion misses the point that ANYBODY can be MADE into "a criminal" (and the percentage of Americans convicted of crimes is at all-times high now) simply by violating that person's constitutional rights and manufacturing convictions while defendants do not have meaningful legal representation.

The three most recent cases, by the U.S. Court of Appeals for the 5th, 8th and 11th Circuits, stand out in respect of the courts' hypocrisy, incompetence and violation of their own oath of office to maintain, not destroy, the U.S. Constitution.

By the way, courts have no authority to CHANGE the U.S. Constitution by interpretation, and the 6th Amendment's right to counsel in criminal proceedings is quite clear and, as courts say, "unambiguous".


The U.S. Supreme Court ruled in many precedents that it means - and this is a very reasonable interpretation - that what is guaranteed under the 6th Amendment right to counsel is effective representation by counsel.

To be effective, counsel should:

1. be present;
2. be competent;
3. be diligent; and
4. be properly informed about material issues about innocence or mitigation of his client's guilt and issues of bias or disqualification of judges and prosecutors, as well as impeachment issues of the government's witnesses.

The U.S. Supreme Court has also ruled, under the Brady rule, that information about innocence, mitigation and impeachment of witnesses, must be disclosed to the defense before trial.

Of course, this rule is violated by prosecutors left and right, with no discipline against prosecutors and with complete immunity of prosecutors from lawsuit by victims of their misconduct.  But, at least this rule exists.

And, of course, the practical implementation of the rule of effective assistance by courts is watered down to having an attorney with a pulse and a law license present at the criminal proceedings, and that is good for most courts as effective representation of counsel.

An assigned defense counsel did no discovery, made no motions and no objections at trial?  No matter.  It is the "trial strategy", and, since the counsel was presumed competent, that trial strategy represented a lawful "waiver" of defendant's right to object, to conduct discovery and make those motions. Etc., etc., etc., in the same way.

Moreover, courts especially tend to look the other way when it comes to judicial and prosecutorial misconduct during criminal trials.

As I wrote in today's other blog, the 5th Circuit has put a chill on criminal defense by allowing a judge to sanction criminal defense attorneys for making objections not in the way the judge wanted it to be, and for refusing to change their objections through answering a judge's entrapping "yes or no" questions to which there were no "yes or no" answers.

When a criminal defense attorney for the indigent (a public defender), or any other criminal defense attorney, is afraid for his license to make an objection in the wrong way, he won't be making any objections, be assured of that.

So, it is the public that is suffering, but I do not see demonstrations in the streets in defense of the 6th Amendment or attorney William Hermesmeyer.

Moreover, the 6th Amendment was further eroded when the U.S. Court of Appeals for the 8th Circuit and the U.S. Supreme Court, the newest addition, Judge Gorsuch, included, rejected pleas to stay execution of Lee Ledell in Arkansas despite the fact that the presiding judge at Lee Ledell's criminal trial #ChrisPiazza (who is still on the bench) slept with one of the prosecutors in the office prosecuting Lee Ledell, #MelodyLaRue, without disclosure to Lee Ledell's counsel.

There cannot be an effective representation of counsel when the counsel does not know about an unconstitutional disqualifying conflict of interest between the presiding judge and the prosecuting office.

Under such circumstances, counsel could not move for recusal and disqualification of both the judge and the prosecuting office that sought, and was granted the death penalty sentence. 

The prosecutor who slept with the judge was nearly immediately promoted, then married the judge, who divorced for her, and is now happily practicing law in private practice.  Nobody was disciplined.  Lee Ledell was executed.  Everybody is happy.  But for Lee Ledell, but he is conveniently killed off and is not there to complain.

But, nobody yet, to my knowledge, considered whether counsel can provide effective assistance at a criminal trial when ABSENT from that trial.

One would presume that providing any assistance when absent is impossible.

And, one would presume that the trial must STOP when the defense counsel is not present.

Not so - decided the majority of the "en banc" panel of the U.S. Court of Appeals for the 11th Circuit in U.S. v Roy, an appeal as of right from the conviction in the Southern District of Florida, a federal court.

In its 281-page (!) opinion, including concurrence and dissent (which contradicts all lamentations of federal courts that pleadings should be shorter - apparently, judges could not fit their legal arguments in the same number of pages, 50 max for appellate court and 25 max for trial court on motions, that they allot to litigants), 8 out of 11 judges of the blessed 11th Circuit decided that the error to proceed to trial in the absence of the lawyer who was 6 minutes late to return from lunch, while the judge decided to continue the trial 1 minute early (altogether, the defense counsel was absent from the testimony of the forensic expert for 7 minutes), the error was "harmless".

Come again?

Maybe, we don't need defense counsel at criminal trials at all?  If continuing the criminal trial during a 7 minutes' absence of the defense counsel during which a forensic expert for prosecution was subject to direct examination that the defense counsel missed, is "harmless error", will 8 minutes will not be harmless error?  15 minutes? Half an hour?  When do we draw the line?

The point is that the defense counsel was absent during ANY PART of the testimony of prosecution's witness and could not, thus, properly form questions for cross-examination of that witness, and thus, the client was denied effective representation of counsel, through no fault of the client.

Moreover, since the judge started the trial not only in the absence of the defense counsel, but ONE MINUTE EARLY, that means that he judge did not care whether the defense counsel will or will not be present, and was extremely biased in favor of the prosecution, and was, in fact, helping the prosecution, and such a judge should have been removed from the case, and the case should have been retried in front of another judge.

But, as we know from Lee Ledell's case, even when the judge slept with a prosecutor from the prosecuting office without disclosing the fact to the defense, that was not enough to overturn the conviction, death sentence and even stay the execution.

The 11th Circuit ruled that, since it was the defense counsel's fault that he was late, the defendant simply waived his right to impeach the prosecution's witness, that's all.  As simple as that.

After some verbal gymnastics, this is what the court "concluded",

rejecting this argument by the dissent:

Not to mention that the defense counsel cannot prepare for cross-examination properly, having missed a large portion of the testimony - a lot can be said in 7 minutes.

And, you know what is absolutely missing from the 281-page opinion, from the majority, concurrence AND dissenting opinions?

Any mentioning of JUDICIAL MISCONDUCT, and PROSECUTORIAL MISCONDUCT which is actually the big hairy and filthy mammoth in the room.

Why, please, tell me, did the trial judge consider it possible to continue with the trial and deposition of a prosecution's witness in the absence of the defense counsel?

And why did the prosecutor consider it possible to do that without objection to the judge that it is improper to continue in the absence of the defense counsel, because the case will be reversed for 6th Amendment violation?

What is also interesting is that in the ABA article, the name of the defense attorney who was late from lunch - Jay Kirschner - was revealed, but the names of the trial judge and the trial prosecutor who knowingly continued the trial in the defense counsel's absence, in violation of the 6th Amendment, were not revealed.

Here are the names of these "heroes".

According to the public document, a docket report of the case in the trial court, the Southern District of Florida, the U.S. District Judge assigned to the case was Judge K. Michael Moore, a former career federal prosecutor and one time chief of U.S. Marshall's service, who is currently the Chief Judge of the U.S. District Court for the Southern District of Florida (of course, an ABA Journal article cannot dare implicate the Chief judge of a federal district court in glaring misconduct, conducting a criminal trial in the absence of defense counsel).

The prosecutor who continued with the case in the absence of the defense counsel was a pretty female Assistant U.S. Attorney Carmen M. Lineberger, obviously, judge K. Michael Moore could not say "no" to such a pretty face.
  

                             

According to ratings of judge Kevin Michael Moore on "The Robing Room" website, the judge is:

1) a pro-prosecution judge and a "brutal sentence" for even first-time non-violent offenders;

who disregards criminal procedure, prohibits voir dire questions to jurors and admits any evidence - apparently, of the prosecution:

2) that his judicial temperament and intellect leave much to be desired:

2) an anti-criminal defense judge; 

3) a cranky judge who considers his personal comforts higher than the law; and

4) a judge who has come to the bench through personal connections of his father to one of the former presidents; and, most importantly,

5) that Judge Moore is a control freak who sticks to timelines even when adjournments are needed to ensure fairness of proceedings

Now, Judge Moore has proven that not only he is a control-freak who would rather start a trial one minute early, expect a defense counsel to be there one minute early, and punish the criminal defendant for his counsel's being late to trial for 6 minutes by missing a portion of prosecution's case and not being able to prepare the opposition.

Yet, that is, ladies and gentlemen, not just a control-freak-ism, but a constitutional violation, denial to the criminal defendant of his right to counsel.

Which is exactly what the dissent said.

But, let's remember, this is an "en banc" decision, and 8 (eight) judges of the 11th Circuit endorsed the decision of Judge Moore that a criminal defendant has "waived" his counsel's preparation for cross-examination of a prosecution's witness if that counsel was late for the trial.

Yet, I am sure that if a judge is late for the trial or if a prosecutor is late for the trial, or if any of the jurors was late for the trial, the trial would not have started.

It is just for the defense attorney that such an "exception" was made.

And, did I mention that Judge K. Michael Moore is now the Chief Judge of that same court, and that a couple of years ago he "declined to comment" upon the developing story that a judge of his court slept with a prosecution's witness?

So, in Lee Ledell's case the presiding judge slept with a prosecutor, and the defendant was still executed, and the 8th Circuit court did not see it as any problem, nor did the U.S. Supreme Court.

In Chief Judge Moore's court, a judge was sleeping with a prosecution's witness, and Chief Judge Moore "declined to comment".

And, Chief Judge Moore himself, a former career prosecutor, caters to the prosecution to the point of holding a trial in the absence of the criminal defense attorney. And the 11th Circuit endorses this behavior.

So, what do we have left of the so-called due process and the 6th Amendment right to counsel?

#IStandWithAttorneyWilliamHersmesmeyer. An 86-year-old federal judge John Henry McBryde, a confirmed multi-decade lawyer-bully, was endorsed and encouraged by the U.S. Court of Appeals for the 5th Circuit in putting a chill on the 6th Amendment right to counsel

In my previous blog today, here, I described how a federal judge in Oregon is illegally bullying an attorney for winning a case.

The same is happening in federal courts in the 5th Circuit, with the 5th Circuit's blessing, where a long-time-confirmed lawyer-bully Judge John H. McBryde sanctioned a lawyer for contempt of court, simply because he did not want to "narrow by clarification" his very clear objection which the judge wanted him to narrow by answering the judge's "yes or no" questions that did not have "yes or no" answers.

The 86-year-old Judge John H. McBryde (d.o.b. 1931) of the U.S. District Court of the Northern District of Texas has an extensive set of own rules pertaining to "his" court proceedings.

23 lawyers participated in disciplinary proceedings against him, and he was taken off their cases - for  a year.  I imagine what he did to them after he got back on their cases.

Judge McBryde has been well-known, since his appointment, to be an anti-lawyer bully:

Moreover, Judge McBride was subject of lawsuits filed against him and by him against the Judicial Council that was reportedly seeking his disciplinary prosecution.

The lawsuits were reportedly initially sealed - even though it is unconstitutional to do so, but in 1999, a decision in one of them was published.

As that decision reports,

"This case arises out of an investigation by a Special Committee ("Special Committee") of the Judicial Council of the Fifth Judicial Circuit ("Judicial Council") into the conduct of the Honorable John H. McBryde, United States District Judge for the Northern District of Texas, pursuant to the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 372(c). The Special Committee's investigation spanned two years, culminating in a 159-page Report containing findings of fact and recommendations to the Judicial Council. On December 31, 1997, upon consideration of the Special Committee's Report and various responses thereto, the Judicial Council publicly reprimanded Judge McBryde for "conduct prejudicial to the effective administration of the business of the courts." As a remedial measure, the Judicial Council ordered that no new cases be assigned to Judge McBryde for a period of one year, and disqualified Judge McBryde from participating in any cases involving certain attorneys for a period of three years."

So, Judge John Henry McBryde, at the age of 68, was known to be prejudiced against certain attorneys, was subject to a lengthy disciplinary proceedings, and a 159-page report was issued about his shenanigans.

Judge McBryde, reportedly, was the first of federal judges tried by his own peers for lack of judicial temperament.

And, 20 years ago, observers of the battle between Judge McBryde and the Judicial Council pointed out the obvious "remedy" for a then 65-year-old judge who obviously "lacked judicial temperament" - retirement.

Yet, Judge McBryde somehow escaped that forced retirement and continues to preside over cases at the lively age of 86, with the same devastating effect upon attorneys.

Joe Patrice, a contributor to the "legal" blog "Above The Law" coquettishly praised Judge McBryde for his latest bullying session against attorney William Hersmesmeyer for not caving in when Judge McBryde, under the guise of "clarifying" attorney Hersmesmeyer's objection wanted attorney Hersmesmeyer to narrow or change it, which the attorney refused to do.  Judge McBryde fined assistant Public Defender, attorney Hersmesmeyer $500, for contempt of court for sticking to the contents of his objection without agreeing to the judge's "clarification"/narrowing of the objection.

Unfortunately, the 5th Circuit, knowing Judge McBryde as a bully of attorneys since 20 years past, still sided on this with Judge McBryde.

Here is what Assistant Public Defender (criminal defense attorney for an indigent defendant) William Hersmesmeyer was sanctioned for:

Yet, while Assistant Public Defendner Hermesmeyer was objecting to legality of a sentence, the judge was asking him whether he is objecting to a "possibility" of a sentence above sentencing guidelines:

"Legality" and "possibility" are two different things, so Assistant Public Defender Hermesmeyer stuck to his guns and insisted on his wording of the objection - which was part of the record.

Yet, Judge McBryde insisted that Assistant Public Defender Hermesmeyer should answer his question:

That put the attorney before a dilemma:

1) saying to the judge: "No, Your Honor, you are not correct"; or
2) avoiding that situation by insisting on having his objection accepted as he initially worded it, which is what the attorney did.

Yet, there was no "civil contempt" involved, as there was no "lawful order of the court" that the attorney violated.

A judge's request to "clarify" what did not need clarification is not a lawful court order subject to contempt sanctions.

Moreover, based on the judge's obvious bias and picking on him, the public defender moved to withdraw - which the judge had to have granted under the circumstances, but instead denied and sanctioned him for asking to withdraw, too.

After sanctions were imposed, and the judge commenced a separate disciplinary proceedings starting with his 2-page order from a criminal case (sua sponte, for which he had no right, and which was in violation of Williams v Pennsylvania, same as in the case of attorney Marcus Mumford I blogged about today).

That "court proceedings" cannot be even called "court proceedings" because in the United States, "court proceedings" are adversarial, and in the disciplinary proceeding against attorney William Hermesmeyer the complaining party is absent:

So, the accuser (and adjudicator) was obviously Judge McBryde - which was unconstitutional under Williams v Pennsylvania making void any adjudications made by a judge who is also acting as an accuser in the same proceedings.

Not that it mattered to Judge McBryde.

Not that it mattered to the 3-judge panel of the 5th Circuit.

In the disciplinary "proceedings", the fined public defender filed with the court an explanation as to why he answered the way he did at the sentencing (sacrificing himself for his indigent client):

Not to be outdone, Judge McBryde filed a 32-page "supplemental order" with an explanation of why he bashed the public defender and described the history of his own bashing - presented as all public defender's fault.

Here is how the 5th Circuit describes the supplemental order of judge McBryde:

And here is what Judge McBryde said in that order.

First, Judge McBryde recognizes that he is issuing a longer order, with more explanations of his actions, after attorney Hermesmeyer already filed an appeal from the disciplinary sanctions, but Judge McBryde claims authority to be able to affect the appeal by supposedly "assisting" the appellate court with additional explanations of his actions.

Then, Judge McBryde sites objections that may or may not have been mistakes of attorney Hermesmeyer in a long string of criminal cases, but could not be considered as "contempt of court" subject to sanctions against a criminal defense attorney.

Since attorney Hermesmeyer's sanctions had nothing to do with his previous cases, it is apparent that the judge entrapped attorney Hermesmeyer, who the judge knew to be a stickler to particular wording of the objection, into not answering the judge's "yes or no" question because there was no "yes or no answer", but the real reason was for the judge to commence proceedings against the attorney and to air out the judge's complaints in a string of criminal proceedings.

It is apparent that Judge McBryde, in view of his fixated bias against attorney Hermesmeyer, should not have been on any cases of attorney Hermesmeyer.  After all, back in 1999 the judge was taken off the cases of 23 attorneys, and was publicly reprimanded for lack of judicial temperament, which did not get any better when the judge neared 90 and was still on the bench.

Both Judge McBryde, and the 5th Circuit that supported him, obviously, did not give a rat's ass about the 6th Amendment right to counsel which they were chilling by their sanctions against a public defender.

After all, prosecutors are given absolute immunity in what they are doing during the trial not to intimidate them from doing their job properly.

Yet, a criminal defense attorney is the only "counsel" mentioned in the U.S. Constitution, the 6th Amendment, and what the judge was doing set a chilling example on that right to counsel, by intimidating criminal defense attorneys that they may be disciplined for ANY objections that a judge, "in his discretion", subjectively, may consider improper or meant to delay proceedings.

Bashing lawyers for taking a stand for their clients is fashionable for some "legal commentators".

Just a year ago, another Above the Law contributor sided with the judge for handcuffing a female public defender for making a constitutional argument.   Above the law republished it with glee. Fortunately,  the order of contempt against attorney Zohra Bakhtary was vacated by another judge, and the judge who abused her, Conrad Hafen, was voted out of office - but not disciplined!

Also, a year ago, Law360, also with apparent glee, represented in a headline a lawyer making a motion to recuse a judge based on obvious judicial misconduct (forging a court transcript by "splicing" in an audio file of her own disclosure of her conflict of interest) as a physical assault on a judge.

In this case, an 86-year-old judge with a bad temper and a known history of lawyer abuse is allowed for decades to remain on the bench and continue with his lawyer abuse.

Moreover, the 5th Circuit now endorsed and encouraged that behavior, so it is prone to continue with a vengeance.

I applaud the courage of Assistant Public Defender William Hersmesmeyer for standing up for his right to make objections on behalf of his client the way he, and not the judge, deems necessary, despite knowing that he is standing up to a confirmed bully.

I am amazed that attorneys like Public Defender William Hermesmeyer, courageous, honest, willing to sacrifice themselves for their clients, still exist.

Yet, an attorney should not be put in front of a dilemma - to represent his client properly and sacrifice his law license and livelihood, or not.

Sanctions against criminal defense and civil rights attorneys for making constitutional objections in court (and sentencing objections refer to constitutional right to liberty protected by the 14th and 4th Amendment) should be abolished as unconstitutional, and as a chill on criminal defendants' 1st Amendment access to court, 5th and 14th Amendment Due Process and 6th Amendment right to counsel.

A 1st Amendment claim of a judge in 1999 echoes my own claim in 2015 - and I wonder, does the law apply differently to judges? Why is it then called the law?

In 1999, the 5th Circuit has published a decision about a disciplinary proceedings against a federal judge, John Henry McBryde.

It has found against the judge on all issues but one - his 1st Amendment claim of confidentiality of such proceedings, both on its face and "as applied" to him.

Here is what the court said - again, in 1999:

"A certain irony characterizes Judge McBryde's First Amendment claim before this Court. In every other case known to this Court involving judicial disciplinary proceedings, challenges to the confidentiality provision have issued from a complainant, witness, or third party. That person's right to speak about the proceedings had to be balanced against the state's legitimate interest in protecting the judge and the judiciary as an institution. Here, however, the subject judge himself maintains that to vindicate his reputation, he must be permitted to speak openly about the very proceedings that impugned him. Such a case would seem unusual, to say the least, possibly contemplated neither by individual courts nor by any legislature. Still, upon review of Judge McBryde's claim, this Court cannot disregard or diminish a judge's interest in vindicating his reputation, and in announcing his perspective on the proceedings to all who will listen. Indeed, this interest surely deserves the most heightened First Amendment protection."

That's for a federal judge, in 1999.

In 2015, a state court in New York, on the issue of an attorney's 1st Amendment right to open up her own disciplinary proceedings to the public as of right, without permission of any courts, something which was already reviewed and decided by the New York State Court of Appeals in a binding precedent more than 20 years prior - decided in a completely different way.

"As a matter of procedure, we reject respondent's contention that this Court has engaged in "gross continuing judicial misconduct" by, inter alia, refusing to enter an order unsealing all records relating to the charges herein and opening the disciplinary proceeding to the public based on her waiver of confidentiality submitted to the Clerk of this Court.

Judiciary Law § 90 (10) empowers only the Justices of this Court, by written order and "upon good cause being shown," to permit disclosure of all or any part of confidential disciplinary records.

In this case, the Clerk of the Court advised respondent that only the Court had authority to unseal the disciplinary proceeding and, therefore, a motion to the Court was required to unseal disciplinary records or open the proceedings to the public. Respondent, however, never made the necessary application to the Court to obtain that relief."

Judiciary Law 90(10) is protecting the attorney's privacy and nobody else's, as the New York State Court of Appeals recognized long time before 2015, in fact, in 1983, 32 years before 2015:

"With respect to appellant's claim that he was entitled to have the hearings in this instance opened to the public, we agree, but find it unnecessary to reach his constitutional contentions.

The statute on which the Appellate Division and respondent rely for closure of the hearings in the face of appellant's express waiver, subdivision 10 of section 90 of the Judiciary Law, literally read, does not address the question whether attorney disciplinary hearings shall be closed or open to the public.

It provides in pertinent part: "Any statute or rule to the contrary notwithstanding, all papers, records and documents * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential".

The Appellate Division, First Department, has concluded that this subdivision imposes no nonwaivable blanket bar to public hearings as is manifested by the promulgation of section 6.2 of the rules of its Departmental Disciplinary Committee which provides:

§ 6.2. Waiver.Upon the written waiver of confidentiality by any Respondent, all participants shall thereafter hold the matter confidential to the extent required by the terms of the waiver.1


The provisions for confidentiality set forth in subdivision 10 of section 90, even if in principle considered relevant to the public hearing question, were enacted primarily, if not only, for the benefit of the attorney under investigation.² Accordingly, on a duly executed waiver of confidentiality by that attorney and his demand therefor, the hearings in his disciplinary proceeding must be made open to the public in the absence of a determination by the Appellate Division that for due cause demonstrated the hearings should be closed in whole or in part.³ It may very well be that in some instances operative considerations will dictate that in the public interest the hearings or some portion of them should be closed (cf. Judiciary Law, § 4; other sufficient reasons can be conjectured). We have no occasion in this appeal to delineate the boundary between the attorney's right to waive confidentiality and the court's right to close the hearing; where that line is to be drawn will depend on the facts and circumstances in the particular case. It suffices for purposes of our disposition of the present appeal to observe that the denial of appellant's application in this case was in each instance summary and that no reason or explanation was stated by the Appellate Division or is now advanced by respondent in our court why the hearings in this case should be closed or appellant's waiver of confidentiality rejected.


Accordingly, the order of the Appellate Division should be reversed, without costs, all evidence before the referee

[59 N.Y.2d 555]

stricken, the referee's report vacated, and the matter remitted to that court for further proceedings.

Order reversed, without costs, all evidence before the referee stricken, the referee's report vacated and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein."

So, all the "Respondent" asked from the court is to follow the law and open her own disciplinary proceedings on her own waiver of confidentiality.

Judge McBryde was allowed to do that in 1999, on 1st Amendment grounds.

In New York, it was allowed to attorneys as of right in 1983.

Tatiana Neroni, an attorney-critic of judicial misconduct, was not allowed to do the same in 2015, because she did not apply for permission of the court when no such permission was required under the law.

New York State Court of Appeals refused to adhere to its 1983 precedent and refused to find any constitutional violations in that behavior.

Go figure.

2008 lawsuit against New York Chief Judge Janet DiFiore reporting how she got to her DA position through election fraud, corruption and intimidation in which her husband and senator D'Amato reportedly participated

As promised, I have started to publish lawsuits filed against New York's Chief Judge Janet DiFiore who claims "excellence initiatives" to improve the already-excellent (in her view) court system that she heads.

Of course, Janet DiFiore, as I have revealed in multiple blogs and written testimony to the New York Senate, is not even close to being excellent, honorable, fair - moreover, the only reason why she so far escaped criminal investigations and prosecutions is her high-ranking friends, one of them Andrew Cuomo who appointed her as a quid pro quo for her saving his ass from corruption investigation, see my blog here.

Here is a lawsuit filed against her in 2008 claiming voter fraud and corruption back in her election for her position of the District Attorney of Westchester County.

A specific person indicates that he was personally threatened by DiFiore's husband, attorney Dennis Glazer, that if he does not secure an endorsement for DiFiore from Independence Party in the elections, Dennis Glazer will use his political connections and wealth to destroy him.

Guilio Cavallo complied and secured such an endorsement.  That lawsuit was on file when DiFiore was considered for her position as a Chief Judge.

No investigations were handled by state or federal authorities, attorney disciplinary committee, or the New York Senate of these serious charges filed with federal court under oath.

When criticism of the corrupt endorsement appeared in the local press, Cavallo and DiFiore reportedly met in the local eatery where DiFiore claimed that the owner of the criticizing newspaper was allegedly a member of "Albanian organized crime" and that she will "fix him" when the time comes.

At the same time, according to the statement of the owner of that newspaper in his OWN lawsuit against DiFiore,

DiFiore called the owner of the newspaper Selim Zherka and threatened him with her own and her husband's influence, yelling that the newspaper cannot touch her family and that her husband knows all U.S. Supreme Court justices by their first names and has their direct numbers.  I will post a separate blog about that lawsuit.


Cavallo then describes that he was lured into a GOP meeting where D'Amato posed threats against him in order to have him "make peace with DiFiore", including by mentionin that D'Amato's wife worked for a "powerful federal judge".

D'Amato's wife at the time was Katuria Elizabeth Smith and she worked as a clerk for Loretta A. Preska.  Judge Loretta Preska is still on the bench in the "mother ship" court, the U.S. District Court for the Southern District of New York, and was the court's Chief Judge for several years from 2009.

Judge Preska reportedly had an "unusually warm relationship" with her "law clerk family" - including, obviously, D'Amato's wife, which D'Amato used to threaten Giulio Cavallo.

Guilio Cavallo who, by the time of the meeting, published one article against DiFiore and wanted to publish more, was, as he reports, intimidated and did not publish any further articles.

 Here is what Guilio Cavallo claimed against DiFiore in his lawsuit:

Of course, since the lawsuit was filed in the U.S. District Court for the Southern District of New York, where D'Amato's wife clerked for one of its judges, the lawsuit was doomed.

Yet, information from that lawsuit about Janet DiFiore, now Chief Judge of New York State is still on Pacer, and the public is entitled to see it.

Since Janet DiFiore is a licensed attorney, and there is no statute of limitations as to attorney discipline, she must be investigated, disbarred, taken off the bench and, likely, criminally prosecuted based on statements in these lawsuits. 

I will continue to publish lawsuits.

The judicial bullying of criminal defense attorney #MarcusMumford after acquittal of his client continues - Chief Judge Michael Mosman took request for supporting evidence of his own motion "under advisement" and continues with his illegal prosecution

I regularly write on this blog about tricks courts devise to go after solo independent criminal and civil rights attorneys (and public defenders) for their utmost "sin" - representing their clients properly when the judge already made up his or her mind and considers such representation inappropriate.

Such persecution is usually handled by judges who are former prosecutors themselves, and who are bent to help the prosecution in some media-worthy pending cases.

That's what happened with attorney Marcus Mumford, I wrote about his case here, here and here.

His "sin" was that he demanded the U.S. Marshalls to show him the order of detention of his client when they detained him in a federal courtroom after his acquittal by the jury.

Instead, the U.S. Marshalls manhandled the attorney and tasered him.

On top of that, the U.S. Attorney's office (under the civil rights-loving President Obama) charged Marcus Mumford with a crime, which they later dropped.

But, the "problem" with Marcus Mumford remained that he continued to represent his client in the new federal criminal case where he was initially illegally detained.

And the presiding judge couldn't have it.

So, the judge tried to eliminate attorney Mumford - and help the prosecution - by issuing an "order to show cause" asking attorney Mumford why he shouldn't be sanctioned by having his pro hac vice permission (license for one case in that federal court) revoked.

And, just "coincidentally", the order to show cause was issued while attorney Mumford was on a vacation, and "coincidentally", while the order to show cause cited to the trial transcripts in a criminal case, those transcripts were not provided to attorney Mumford in order to defend himself, while the judge limited his time to answer.

So, attorney Mumford filed - instead of response that he could not possibly filed without having the transcripts - a memorandum asking for extension of time.

The "failures to follow the court orders" that attorney Mumford is charged with in the show cause order from the federal court in the State of Oregon, "coincidentally", comes from a criminal case which attorney Mumford WON, "causing" by his work a jury acquittal for his client.

That is not so different from a disciplinary complaint recently filed - and accepted for investigation and prosecution by the Florida Bar - of attorney Jose Baez who had the "audacity" to "cause" the jury acquittal of Casey Anthony in a highly publicized murder trial of a child.

And, several "sticky" questions arise.

First, according to the case Williams v Pennsylvania decided by the U.S. Supreme Court in 2016, a judge may not be at the same time an accuser and an adjudicator, and court decisions made under such circumstances are VOID (as in "null and void", as in being a "nullity", a "zero", like it never existed).  By the way, Williams v Pennsylvania is a civil case (a habeas corpus petition), same as proceedings for sanctions.

An sua sponte "order to show cause" is a MOTION made by the court itself (sua sponte).  When such a sua sponte motion by the court seeks to punish an attorney, it:

1) puts the judge who has brought the order to show cause in the position of an accuser, thus disqualifying the judge from presiding not only over the motion, but over further proceedings, as the judge demonstrated a bias against one of the attorneys;

2) if the judge does not disqualify himself, his decisions will be void under Williams v Pennsylvania.

Not that the presiding judge cares.

Not that attorney Mumford dared to raise that argument in his memorandum. 

There are interesting details about Chief Judge Mosman's sua sponte order to show cause against attorney Mumford.

3) There is no indication that Chief Judge Mosman was ever assigned to this case, as the docket, from its first day to this date, showed Judge Anna Brown as the assigned judge, and Chief Judge Mosman does not have a liberty to butt into cases over the head of assigned judges without orders of re-assignment:

The order to show cause, Docket # 2069, was issued by judge Mosman on April 12, 2017, more than 6 months after his client's acquittal - while attorney Mumford was on a vacation with his family, and had an expectation that he will never be bothered with anything concerning this case because of the acquittal and consequent loss of jurisdiction by that court.

The order to show cause is contained in just three (3) pages, with a requirement for Attorney Mumford to answer by May 4, 2017 - so attorney Mumford was given by Chief Judge Mosman just 22 days to

• read 549 pages and answer those accusations - while full transcripts of what was happening in those court proceedings were not provided to him, and thus there existed a clear possibility that the charges were plucked out of context;

• Attorney Mumford was still an attorney of record in an ongoing criminal case in federal court in Nevada for the same client who was acquitted by the jury in front of Judge Anna Brown in the U.S. District Court for the District of Oregon where sentencing of his client was still pending - so judge Mosman's order to show cause interfered with Attorney Mumford's work for his client, as attorney Mumford would be subject to "reciprocal" discipline in federal court in Nevada if Judge Brown imposes sanctions upon him in federal court in Oregon;

• since attorney Mumford's client was acquitted and thus "terminated" from the criminal case on November 4, 2016, the Oregon federal court lost jurisdiction over both Mr. Bundy and his attorney Marcus Mumford after that date, and an order to show cause dated more than half a year after the acquittal, April 12, 2017, is abjectly illegal. 

4) Since attorney Mumford's client was acquitted, there was nothing to revoke - attorney Mumford's pro hac vice admission in that court was OVER as of the date of acquittal on November 4, 2016.

See attorney Mumford's order of admission pro hac vice for representation of his client only.  That representation was over on the date of acquittal, November 4, 2016, more than 6 months before the order to show cause was filed by Judge Mosman:

5) Since attorney Mumford's client was acquitted and Judge Brown's court in Oregon lost jurisdiction on acquittal, Judge Brown was without power to make any rulings in favor of his further detention, and judge Mosman, who was never assigned to the case in the first place, could not assign himself AFTER THE ACQUITTAL and make sua sponte motions based on events after the acquittal and loss of jurisdiction by the court.

6) After the acquittal of attorney Mumford's client and loss of jurisdiction by the court over attorney Mumford and his client, any "motions" regarding future preclusion of attorney Mumford from future cases has no authority, as such a case must be brought not by the court, but by its disciplinary committee.  In this case, the court equates itself with a prosecutor, disciplinary committee in seeking a future preclusion from future cases 6 months after attorney Mumford's pro hac vice admission expired with acquittal of his client.

Yet, here is the order, in its full "glory":

Here is the memorandum of law of attorney Mumford, once again, where attorney Mumford, unfortunately, does not raise the issue of the court's total lack of jurisdiction to issue its sua sponte order - maybe, he will raise it later on when he files his response.

The post-acquittal sua sponte motion by Judge Mosman against attorney Mumford after the court lost jurisdiction over him produced these peculiar filings:

Note that the filing by attorney Mumford personally in a motion for sanctions aimed at him personally, 7 months after his client's acquittal and thus 7 months after loss of jurisdiction by the court over Ammon Bundy, Ammon Bundy continues to be named as the "filer" and continues to be named as a criminal Defendant.

Note that there are TWO judges operating in this case, a complete violation of federal court procedures: 

• Judge Anna Brown who continues to handle sentencing of the remaining defendant, and
• Chief Judge Mosman who is not even on the docket and who is acting in lieu of a disciplinary committee in trying to revoke a pro hac vice admission that ended 7 months ago and to preclude future pro hac vice admissions, which is a completely speculative action for which Chief Judge Mosman has no jurisdiction or standing

On May 8, 2017, the self-assigned post-acquittal sua sponte movant judge Mosman granted attorney Mumford an extension of time, but took "under advisement" the necessity of giving him proof (full trial transcripts) that Judge Mosman used to accuse attorney Mumford of misconduct.

There are no appeals from acquittals, and normally, these transcripts will not have to be produced.

But, because Chief Judge Mosman simply could not put to rest the court's grudge against attorney Mumford for "causing" an acquittal for his client in that court, a completely illegal bullying of the attorney continues, at the expense of federal taxpayers. 

Think of the cost of full trial transcripts in a multi-defendant federal criminal case - that's what the court, as a matter of due process, will have to produce for Attorney Mumford so that he could prepare his defense in this completely illegal persecution against him.

And, of course, Judge Mosman, the lookalike of SCOTUS judge Gorsuch, is a former career prosecutor - now helping out the U.S. Attorney's office in eliminating a federal criminal defense attorney who showed he is capable to win a criminal trial despite huge negative publicity against his client.  That is obviously the main purpose of Judge Mosman's motion, to help his former "brothers", the prosecutors, in total violation of his oath of office.

While I totally sympathize with attorney Mumford's plight and understand what is at stake for him and why he may be overly cautious in not bringing up certain glaring issues of judicial misconduct in this case, I think it is a wrong strategy to address the merits of the case without addressing the "elephant in the room" - the total illegality of such proceedings on many levels.


Chief Judge Mosman should be impeached for his abuse of power and his illegal actions.

Stay tuned.