A judge who refused to perform same sex marriages was indicted in Oregon - because he committed a crime or because his indictment is a come-uppance for refusing to perform same sex marriages?

I wrote on this blog about judges targeted for refusing to obey some, but not all, of the U.S. Supreme Court precedents.

For example, the precedents of the U.S. Supreme Court about due process and free speech can be violated with impunity, with nobody bothering - as evidenced by the statistics of persecutions against attorney whistleblowers of judicial misconduct.

Yet, judges in Alabama, Wyoming and Oregon were sought out for discipline for disregarding the particular U.S. Supreme Court precedent about legalizing same sex marriage (while the State Bar of the State of Texas refused to discipline the Attorney General for the State of Texas on the same grounds).

I wrote specifically about the fate of the Oregon Judge Vance Day who was targeted for discipline because he refused to perform same sex marriages.

Now, one of the judges targeted for refusal to obey the same-sex marriage precedent of the U.S. Supreme Court has been reportedly indicted for allegedly providing a gun to a felon, and for using his position to obtain a benefit in 2013 or 2014.

Now, judges use their positions to obtain benefits all the time, and I've been writing about it on this blog since 2014.  I wrote about conflicts of interests of U.S. Supreme Court justices just yesterday - none of those justices were ever indicted for "obtaining benefits" for themselves using their judicial positions, such as book deals, speaking engagements, teaching engagements overseas, trips paid by associations, attorneys and law firms appearing in front of the court etc.

And, state judges are usually - if indicted at all, which happens in extremely rare cases - are indicted only in federal court, because, first, state prosecutors are afraid to touch them, and, second, State Attorneys General are actually the judge's own attorneys advising them and representing them if judges are sued.  Judge Day is the fist sitting judge in the State of Oregon who was indicted, according, reportedly, to the official statement of representative of Oregon Judicial Department.

So, when the Oregon Attorney General presented the case to the grand jury, he was certainly disqualified from doing it by an irreconcilable conflict of interest.

And, since a decision was made that a state judge would be turned into a state criminal grand jury, the judge was really marked for destruction.

Interestingly enough, after indictment and arraignment, Judge Vance Day was reportedly ordered to "work from home" - whatever that means for a judge.

The whole point of "benefit" and "giving a gun to a felon" was because Judge Day took a litigant, a former Navy Seal, appearing in his "Veteran's Treatment Court", to Judge Day's son-in-law's home to do some work there, and allowed the former Navy Seal, a convicted felon, to remove a clip on the gun in order to make sure the gun is loaded.

This country has just witnessed on live TV crowds of people crying in the streets because a criminal  who exposed the national security was not elected president.

We have judges, like Judge Sotomayor, accepting "books and pieces of art not exceeding $350.00 in value".

We have other judges accepting all-expenses-paid trips from attorneys, bar associations and parties appearing in front of the court.

Those are huge "benefits".

Nobody gets indicted.  Instead, these judges are celebrated as "outstanding jurists".

What Judge Day allegedly did - if he did it - is undoubtedly improper.

It is unquestioningly improper for a judge to hire a litigant appearing in front of him to do work in the judge's son-in-law's house.

Yet, it is no less improper for a judge to accept wining-and-dining from attorneys sponsoring the American Inns of Court on a monthly basis, behind closed doors and without the litigants even knowing that judges are accepting benefits from attorneys, likely, attorneys appearing in front of them.

And, it is clear that judges would not have been wined and dined but for their position and judges.

For example, here is an interesting article about the "challenges" that the Clinton Foundation may face now that the "goodwill" of Hillary Clinton as a future president of the United States disappeared - and big donors, like the governments of Norway, Australia or Kuwait being disappointed.

"Goodwill" is a code word nowadays for the ability of a public servant to use his or her official position to enhance business opportunities for himself/herself and their families.

Half the country said it is good for Hillary Clinton, with such shady money received by her Foundation, to become president and continue to trade her influence for money for her family that is running and using the Foundation's money.

If it is good for Senators, if it is good for Hillary Clinton, if it is good for the U.S. Supreme Court justices to receive "benefits" in exchange for their influence as public servants - why Judge Day was targeted, as the very first and only judge so far in the State of Oregon who was ever indicted.

We are talking selective enforcement of laws here.

The judge himself did not receive a benefit from the former Navy Seal's work - his son-in-law did.  And, there is no indication that the judge traded the former Navy Seal's work for the judge's son for a beneficial treatment in court.

Moreover, there is a real question that allowing a trained former Navy Seal to DISABLE a gun qualifies as allowing possession of a gun by a felon.  Such an indictment puts the law prohibiting possession of guns to felons on its head, because the reason why the former Navy Seal was allegedly allowed to disable the gun was to enhance safety, not threaten it.

Judge Day is not a very likeable person.

He reportedly included the portrait of Adolf Hitler in the "Hall of Heroes" artwork display at the courthouse, and refused to take it down, reportedly stating that "some influential people in town" want that portrait there.

But, Judge Day was not indicted for that.

Judge Day was indicted for conduct that, likely, every other judge in the country can be accused of, but no judges are indicted for.

The only other things that judges in Oregon were ever charged for criminally was driving while intoxicated and bigamy/forgery of documents to commit bigamy.

With the general permissive attitude with judges committing crimes in office under protection of absolute judicial immunity for malicious and corrupt acts, I believe that, had Judge Vance Day not been targeted as a judge who refused to perform same sex marriages, defying ONE U.S. Supreme Court precedent (while every other judge continues to defy any other U.S. Supreme Court precedents with impunity and immunity), he would never have been indicted.

And that is a big problem with the "rule of law" and "equal protection of law" in this country.

Loyalty over the law and reason: Magistrate John Primomo, of the U.S. District Court for the Western District of Texas, teaches new citizens that love of the government is the pre-requisite for staying in the country

A Texas federal magistrate judge, Judge John Primomo, of the U.S. District Court for the Western District of Texas, a licensed attorney and sworn officer of the court since 1977 (for 39 years)

a public official sworn to protect the U.S. Constitution, including its 1st Amendment, reportedly told the new citizens - at a citizenship ceremony that if they don't like Trump, they should just leave the country, because "Trump is [their] President".

The statement was improper and misleading on many levels.

First, Trump is not YET their president, President Obama is their president now.

Second, a pledge of citizenship is not a pledge of loyalty to the government.

Last time I checked, We the People is the collective popular sovereign of this country, and the president of the United States is an elected public servant, subject to removal from office for unfitness or misconduct.

So, whoever is the president of the United States, nobody has an obligation to like him in order to remain a citizen of the United States or to live in the United States.

For a federal judge who deals, on a daily basis with civil rights lawsuits directly related with interpretation of the U.S. Constitution, such a public statement of a federal magistrate is downright scary - and, in my opinion, constitutes evidence of unfitness of Magistrate John Primomo to be a judge, or a licensed attorney, because he does not understand the oath of office he has made

• 39 years ago, when he was licensed to practice law in Texas;
• 38 years ago, when he was licensed to practice in the U.S. District Court for the Western District of Texas;
• and 28 years ago, when he became a magistrate judge.

I understand what Judge Primomo was doing - he was publicly announcing his loyalty to the new president.  Yet, the pledge of allegiance is a little bit premature - since President Trump is not in office yet - and does not involve misleading other people into believing that their citizenship depends upon liking the current president-elect.

If for a judge who decides civil rights cases against the government, loyalty to the government is a pre-requisite of citizenship and even being within the United States, such a judge should be immediately disqualified from all civil rights lawsuits.

Which, of course, will never happen.

Jesse Jackson joined Chris Cuomo as Hillary Clinton's friend who is worse than an enemy

In October of 2016, CNN journalist Christ Cuomo, brother of New York State Governor Andrew Cuomo, during the presidential elections of 2016, drew attention to Hillary Clinton's e-mails that helped Donald Trump's election campaign, and claimed that anybody who reads the alleged e-mails of Hillary Clinton published by WikiLeaks, may be in possession of stolen property

and should instead listen to interpretations of those e-mails by CNN and Chris Cuomo, supporters of Hillary Clinton.

Of course, asserting that e-mails are stolen property of Hillary Clinton or the government is asserting that the e-mails in question are authentic emails of Hillary Clinton - and an admission that Hillary Clinton exposed national security and is unfit as a presidential candidate or president.

Hillary Clinton lost the election, but now that Donald Trump is going to take the White House in January, speculation is abound whether Donald Trump's U.S. Attorney General will investigate and/or prosecute Hillary Clinton in connection with the e-mail scandal.

And, a new friend of Hillary Clinton, who is no better than Chris Cuomo, emerged - the Rev. Jesse Jackson.

Speaking to Michigan University students and administration, Rev. Jesse Jackson claimed that President Obama should issue a blanket pardon for Hillary Clinton before he leaves office, as President Ford did for former President Nixon.

There are several problems with such a statement of the Reverend, though.

First, there is the little problem of a Reverend making political speeches and engaging in political activities and the IRS tax-free status of his organizations, if he has any.  If the Reverend presides over any church or non-profit organization - I am not sure whether he is - his church or non-profit may lose its IRS tax-free status because of the Reverend's political speeches.

Second, President Nixon's pardon was given illegally - and so asking President Obama to follow example of President Ford in relation to pardon unconstitutionally given to President Nixon does not portray the Reverend, a civil rights activist, in a good light.

Article II Section 2 of the U.S. Constitution says that the President of the United States "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

"Offenses" of President Nixon for which President Ford pardoned him were impeachable offenses, and, in fact, the House voted in July of 1974 to open impeachment proceedings against President Nixon, so President Ford lacked constitutional power to pardon President Nixon - which, obviously, did not stop him from doing that.

Of course, the pardon was given by President Ford in September of 1974, after President Nixon resigned in August of 1974, and, thus, was arguably outside of the reach of impeachment proceedings.

The next thing is the term "offenses".  The U.S. Constitution does not explicitly give the U.S. President the power to pardon people who have never been charged with a criminal offense against the United States, and the text of the U.S. Constitution cannot be interpreted to give the President the powers that are not explicitly given in the text.

That President Ford did for President Nixon exactly what Reverent Jesse Jackson asks President Obama to do for Hillary Clinton - pardon her where criminal charges were never filed - does not confirm, by an illegal precedent, that such powers actually exist under the U.S. Constitution.

President Nixon dodged impeachment by his resignation and was never formally criminally charged.

Hillary Clinton dodged criminal charges by apparently being cozy with Loretta Lynch and James Comey, and escaped impeachment by not being elected president, but is still not out of the hot water as to future criminal charges - with Donald Trump coming to office and a hard-core U.S. Attorney General likely to be appointed.

Now, the Reverend Jesse Jackson publicly appeals to President Obama to do "the same" for Hillary Clinton as President Ford did for the then-former President Nixon.

Yet, the very text of the presidential pardon power implies that the pardon is for an offense committed against the United States.

And, asking to pardon Hillary Clinton will taint her even more as a pardoned criminal.

As I said, with friends like Chris Cuomo and Jesse Jackson, Hillary Clinton does not really need enemies.

On the necessity of blind trusts for assets of elected and appointed public officials - and their family members

There are a lot of discussions in the media that the current president elect Donald J Trump should put his assets in a blind trust for the duration of his presidency, to be overseen by an independent overseer, such as this one.

First of all, a question, if this is all about government transparency and honesty and nothing about politics of the source arguing that government transparency and honesty - had Hillary Clinton been elected, would she be as vigorously required, by the press and non-profits seeking government transparency, to sever all ties with her Foundation and transfer management of the Foundation to an independent overseer, out of the hands of her family members?

This blog is dedicated to ensure government transparency and honesty, and exposure and, possibly, eradication of conflicts of interest in the government, and for me, the idea of blind trust for this particular president elect - and for all other public officials - is an excellent idea in terms of eliminating even a potential for the conflict of interest.

And, I am glad that somebody finally came up with that idea and is vigorously promoting it - albeit in application to just one public official, the current president elect.

Of course, putting the assets of a public official in a "blind trust" raises some legal issues, one of which is, for example, the issue of potential co-ownership by family members.

Should family members of a public official be required to put their assets into blind trusts with independent overseers over those blind trusts, to eliminate potential for conflicts of interest?

As much as I tried to get even financial reports, for example, of New York State judges - who are required by law to file such reports every half a year - I was not only consistently stonewalled, but my FOIL requests were reported to the particular judges who were the subjects of the FOIL requests, and one of them felt so irate about my "nosing" FOIL requests that he sanctioned me for them, and my law license and livelihood was pulled because of those sanctions - without a hearing, because it was too risky for New York State government to allow such a hearing.

Talking about blind trusts - in New York, instead, the public is required to blindly trust that judges have integrity, without seeing even their filed and supposedly open-to-the-public financial reports.

And, in New York, and in other states of the United States, and in the United States House and Senate, and in federal courts, up to the U.S. Supreme Court, there are no requirements, as far as I know, for public officials or their relatives to put their assets into any "blind trusts" - although it would have been a superb idea.


And I do not see the media in a frenzy to impose those "blind trusts" upon all public officials.

It is a good idea to ask the president elect - and his relatives - to do such a thing voluntarily, although, I am sure, the president elect will refuse to do that because no other public official is required to do that, and there is no reason to discriminate against the president elect.

But it is a good idea to at least voice such a concern in public.

And then to push for a federal legislature requiring "blind trusts" of ALL elected or appointed public officials, state or federal, and prohibiting family members of all public officials to work as lobbyists for the legislatures that can bring benefits to those same public officials.

For example, in New York, there is no prohibition for members of New York Legislature who are licensed attorneys to (1) sponsor and votes for legislation pertaining to court practice or practice of law; or (2) privately practice law in addition to their job as a Senator or House Representative.

Imagine if Donald Trump continued to run his businesses themselves while being a president.

Well, if his children are running his businesses, but communicating with their father, there is no way of ascertaining that it is not, in fact, Mr. President who would be running the Trump empire after the inauguration, and that is a big concern.

But, those same concerns have been present for decades for state Governors, Senators, Representatives, prosecutors and judges - with, once again, no media frenzy over it whatsoever.

I do not see any bills for "blind trusts" being even offered by the federal or state legislatures - for the obvious reasons that they will hurt the income of too many families of high-standing public officials with connections.

There are many scandals pertaining to such conflicts of interest reported in the press, but no general conclusions are drawn, and no push is made for general "blind trusts" on assets of public officials or their family members or ban on lobbying by family members in legislatures that can provide benefits to certain public officials.

Here are at least some of those reported scandals.

Missouri Senator Roy Blunt, who was recently chosen for a "leadership role" of the Republican party in the U.S. Senate, has, reportedly, his spouse and adult children lobbying for the U.S. Congress where Senator Blunt is legislating.

So, will the "family business" be eliminated any time soon for Senator Blunt? Not really - he was re-elected, and the candidate who exposed the "family business", was not elected, possibly, not enough money for the campaign to get out the message.

A blind trust for Senator Blunt and his children and a prohibition on lobbying for his family?

California Democratic Senator Dianne Feinstein "for at least 15 years, ... has appeared to support government contracts that push federal funds toward companies co-owned or governed by her powerful, billionaire husband, Richard C. Blum."   Of course, Richard C. Blum and Dianne Feinstein denied any wrongdoing claiming that the Senator's husband uses his connections only for the good of his beloved California university.

But, Trump and his children can claim the same, can't they?

A "blind trust" for Senator Feinstein and her husband Richard C. Blum?  Does anyone really believes this is going to happen?

How about family interests of the current Secretary of State John Kerry whose multi-millionaire wife owns the Heintz conglomerate of corporations? The conflict of interest has been reported since at least 2007, but John Kerry or his wife were never required to put their assets into a "blind trust".

In fact, reportedly, it is "legal" for congressmen and women to sponsor bills benefiting them and their families financially, and 73 federal legislators has used that loophole so far - according to a press report of 4 years ago!

Blind trusts for all of the Kerry family?  Does anyone believe that is going to happen?

Imagine the probability of introduction of a bill for such a "blind trust" for all public officials, appointed or elected, local, state or federal - the federal legislators who run for election specifically to enrich themselves and their families through connections, lobbying and sponsoring "the right bills" will not shoot themselves in the foot, will they?

Conflicts of interest of U.S. Supreme Court justices were also widely reported - disqualifying and irreconcilable conflicts of interest.

Reportedly, sons of U.S. Supreme Court justices Scalia (now deceased) and Alito (still in office) work or worked at the time of the report in 2014, at a law firm that bragged that the law firm has 30% of appeals to the U.S. Supreme Court heard (as opposed to 0.1% on the average - 70 cases out of 8000 petitions).

Should employers of relatives of U.S. Supreme Court justices put their assets and operations under the scrutiny of "independent overseers"?

Looks like a good idea - considering how much business is derived from employing a relative of a U.S. Supreme Court justice.

Actually, the U.S. Supreme Court set a "recusal policy" reportedly back in 1992 by which no recusal is required if a relative of a U.S. Supreme Court justice "simply works" for a law firm appearing before the court in a case (there are 9, now 8 of justices, remember, so the consider the probability of that "working for a law firm" for a relative in a country with 240 million people and hundreds of thousands of lawyers and law firms).

Conflicts of interest regarding Judge Alito's brother, Judge Kagan's brother and Judge Breyer's son were also reported, as well as conflicts of interest with Scalia's wife, Thomas's wife and Ginsburg herself.

Yet, we see no legislative bills attempting to police conflicts of interest in federal courts and in the U.S. Supreme Court - on the opposite, the bill that the U.S. Congress did introduce, blocks complaints against judges for any misconduct in office, leaving only one avenue for victims of judicial misconduct - appeal, while the majority of civil rights appeals in federal courts in the United States are rubber-stamped "affirmed" by non-precedential summary orders without proper review of the issues.

So, no bills to control rampant conflicts of interest in federal and state legislatures and judiciary.

And, had such bills been introduced, even for show, they would have died very quickly.

So, the "blind trust" idea (with an "independent overseer") is a very, very good idea, is long overdue, and it is great that the media has vigorously put this idea on the public agenda - even if only in application to one public official.

But, it should be equally applied to all elected and appointed public officials.

That will be great, right and fair.

Should public employees, and especially former judges, be allowed to use their public office as a sales pitch for after-retirement businesses? The case of the un-retireable U.S. Magistrate Frank Maas

I have been repeatedly receiving an e-mail advertisements of services of the allegedly retired U.S. magistrate judge Frank Maas:

I consider it completely inappropriate that, upon retirement, the judge, or an organization that "welcomes" a judge, aggressively advertises the former judgeship as a selling point.

President-elect Donald J. Trump just announced that he is going to ban lobbying by public officials for 5 years after they left their public jobs.  My opinion, as a citizen and taxpayer, is that the ban should be permanent, and should also relate to using the former public position in advertising - like "retired" Judge Maas is doing.

And, an official website announced that Judge Maas has retired as of September 29, 2016.

But, that official website is not the court where Judge Maas worked, and not the site where people researching Judge Maas' background will first go.

They will first visit the site of the court where Judge Maas allegedly retired from.

And, on that website, Judge Maas is listed as a presently acting judge, as of today, here and here.

As a visitor of the court's website, I am entitled to believe what it says.

It says that Judge Frank Maas is the CURRENT - not retired - magistrate of the U.S. District Court for the Southern District of New York.

And that is a big problem - because a judge may not have a side job, like JAMS is advertising for Judge Frank Maas now, aggressively offering his services to me personally, in an e-mail, as

• mediator,
• arbitrator,
• special master,
• discovery referee in
• business/commercial construction,
• employment,
• insurance,
• personal injury/mass torts,
• real property, and
• securities "matters"

Moreover, Judge Maas states on his attorney registration website, as of today, that he is still employed in the U.S. District Court for the Southern District of New York:

And that is,

• while Judge Maas allegedly retired since September 29, 2016,
• while New York attorney disciplinary rules require attorneys to reflect their new employment within 30 days of any changes - and it has been more than 30 days by now, and since
• Judge Maas announces on his LinkedIn website that he works as a mediator with JAMS since October of 2016.

So, the court system (but not the SDNY court) claims that Judge Maas retired on September 29, 2016:





Once again, Judge Maas at the very same time claims that he started to work as an arbitrator in October of 2016 - for purposes of income and profit from business.

And, Judge Maas apparently cannot care less about attorney disciplinary rules - being a former judge who is untouchable by such rules - and continues to announce on his attorney registration site, as of today, that he is still a judge at SDNY court.



In New York, attorneys are allowed to update their registration information instantly, online.  Apparently, Judge Maas has no time to comply with attorney disciplinary rules, being, as a former judge, above the law and feeling that compliance with such rules is unnecessary.

That is not the only problem that I have, as a taxpayer, with Judge Maas's contradictory employment and business information.

The problems that I have, as a taxpayer and citizen, with Judge Maas' advertisement is:

1. that he is still listed on SDNY website as an acting magistrate judge;
2. that he considers it more important to himself to instantly list himself as a mediator, for business purposes, online on his LinkedIn account, but is too lazy to comply with attorney registration rules, also online, which constitutes, taken together, false advertisement and advertisement of himself as a mediator and at the same time as a judge whose services can be bought; disdain to the law concerning himself is alarming for a former prosecutor, a former magistrate judge and the current mediator, arbitrator and "special master";
3. that Judge Maas who, over 40 years of his career as a lawyer, worked only 8 years in private practice, and was employed, according to his own statements on his LinkedIn account:
1. for 5.5 years by New York City; and
2. for 24 years for the federal government, as an Assistant U.S. Attorney and a federal magistrate judge - is drawing a large retirement, while at the same time working as an arbitrator.

I believe that public officials should not be paid retirement while they are gainfully employed after official retirement from a public job.

If they retire - they must retire completely.

Moreover, public employees absolutely should not be allowed to use their prior public jobs as a sales pitch - as Judge Maas is doing on his LinkedIn account and as his employer or contracting source the JAMS does in unsolicited advertisements.

A revolutionary federal decision regarding the roots of judicial bias - the aftermath of Pennsylvania's Porngate continues - and further exposes the need to deregulation of the legal profession seized by fear

Pennsylvania now former Attorney General Kathleen Kane was recently stripped of her law license, convicted and sentenced by the very system whose misconduct she exposed - on testimony of people she investigated and who wanted her job, and while the politically appointed judge blocked her from the very basic right of a criminal defendant, to present to the jury all relevant facts.  Kathleen Kane was blocked by the judge from presenting to the jury the very reason why she was on trial - the Porngate scandal.

Yet, that Porngate scandal is not dying, and continues to rage.

Right now there is reportedly pressure on Kathleen Kane's successor, Pennsylvania new Attorney General Bruce Beemer, to not release identities of people named in the e-mails (those which were not released yet).

Some media sources are now bothered by the price tag of Kathleen Kane's e-mail investigation, so far reportedly $385,000.

Yet, somehow, the same media sources do not seem to be concerned about hundreds of thousands of dollars spent upon investigations, prosecutions and then keeping in prison individuals who were convicted by racist and sexist investigators, prosecutors and judges.

Kathleen Kane, Pennsylvania's former Attorney General who paid with

• her law license,
• her career,
• breakup of her family,
• years of enduring harassment and abuse in the press, and a
•  criminal felony sentence

for doing her job and exposing misconduct of high-standing public officials in Pennsylvania, deserves respect on par or more than whistleblowers such as Edward Snowden or Julian Assange because, unlike Edward Snowden (who disappeared into Russia fearing for his life) and Julian Assange (who took refuge in an Ecuador Embassy in London also fearing for his life), Kathleen Kane was exposing governmental misconduct while staying within the country and standing her grounds, until she was convicted by the very same crooked court system, and on the testimony of the very same crooked individuals whom she exposed.

Now, there is reportedly pressure on the new Pennsylvania Attorney General to not release names of people involved in the e-mail exchange (those whose names were not released previously, I understand), federal judge Gerald A McHugh specifically, and sua sponte, cited the racist and sexist e-mails exchanged by investigators, prosecutors and even Pennsylvania Supreme Court judges to give an admitted thief and prostitute a chance to overturn her murder conviction - based on confession coerced out of her after hours of interrogation during which a now-exposed rogue investigator reportedly subjected her to racist and sexist invectives.

Judge Gerald A McHugh's decision and footnote about Pennsylvania Supreme Court judges and their misconduct and biases,


 put front and center the question that attorneys, judges and the media have been either ducking or suppressing through sanctions - is judicial behavior outside of the particular court proceeding (in or out of court) relevant to judicial bias?

Judge McHugh ruled - reasonably, in my opinion - that judges personal views and personal conduct is relevant to their judicial decisions.

Note that the legal profession is seized with fear - with the federal judge having to raise the question of relevancy of Porngate sexist and racist e-mails that investigators, prosecutors and judges who handle a particular case were handling.

Reportedly,

• with the Porngate scandal raging for several years now,
• several public officials, including to Supreme Court justices, Michael Eakin and Seamus McCafery, resigning (Michael Eakin - after participating in stripping Kathleen Kane of her law license),
• the media being all over Kathleen Kane, and
• Kathleen Kane stripped of her license and convicted, without being given a chance to present to the jury the evidence that the entire criminal case against her was the result of her exposure of the racist and sexist "good ol' boy's club" -

imagine, that the mentioning of Porngate e-mails as the basis of judicial bias appeared FOR THE FIRST TIME only now - and only mentioned sua sponte decision by a federal judge, not in any pleadings of attorneys, who are deathly afraid to touch the subject with a 10-foot pole, even to benefit their clients.

I keep pointing out on this blog that regulation of the legal profession in general, and, specifically, by the judiciary, is declared to be done in the interests and for the protection of consumers of legal services.

Yet, as the Porngate scandal clearly showed, such regulation by the judiciary (consider the former Judge Michael Eakin who, without any qualms or scruples, stripped investigator of his own misconduct Kathleen Kane of her law license in order to force her out of office at the beginning of the Porngate scandal) results only in the judiciary putting itself above the law and making attorney regulation a tool of political oppression and even of removal of honest and courageous elected public officials, like Kathleen Kane, from office, BECAUSE of the investigations such public officials are conducting AGAINST the judiciary.

Attorneys in Pennsylvania knew for years - and were silent - about Kids for Cash scandal, fearing repercussions from the judiciary.

Now attorneys in Pennsylvania knew for years - and were silent - about the Porngate scandal, so that when a federal judge mentioned the obvious in his decision, for the first time in a court case unrelated to Kathleen Kane in all the years that Porngate was a known to the public and the legal community, it was perceived  by the legal community and the press as some kind of a revolutionary move that nobody before Judge McHugh dared to make.

Here is the decision of Judge McHall in Hill v Wetzel and here is
the famous Footnote 6 (a sua sponte statement by the judge) that has the media and the legal community all so stirred up:

Hill v Wetzel is a very interesting decision that deserves an in-depth separate analysis, which I, hopefully, will be able to publish, time permitting, within the next week. 

But, as to the result of the decision - an evidentiary hearing allowed and a certificate of appealability given by a federal judge based on misbehavior of Pennsylvania Supreme Court judges and investigators - and the fact that the attorneys did not mention the Porngate scandal in the pleadings as a basis for the decision, but the judge himself did it, these facts raise questions related to all of us and our constitutional right to true and effective access to court and for impartial judicial review.

Do we, the legal consumers, need regulation of the legal profession which results in legal profession gripped by fear to an extent that the court representatives having a monopoly for such court representation, are afraid to do their jobs properly?

A country where court representatives are seized by fear of losing their right to earn a living - for a lifetime - can it be called a democracy?  Seriously?

(Tele-prompted) testimony through Skype is now ok'ed by a New York appellate court in criminal cases

I recently watched a 2008 Russian movie called "Setj" ("The Network").  It is about computer geeks who were raised and educated by the government according to a secret program locating young geniuses and raising them as super-computer hackers.

There is an episode in the movie where two such super-hackers oppose one another, one working for a "bad guy", one working for the law enforcement.

The "bad guy" was suspected to have dealings with a terrorist who was recently killed - according to some news reports.

The "good geek" is trying to persuade the "bad geek" that the terrorist is not actually dead, in order to solicit a new communication with the "bad geek's" boss and thus obtain evidence against him about dealing with terrorists.

Once again, that is a 2008 movie.  Maybe, it is science fiction.  Maybe, it is not.

What was shown was how the "good geek" places multiple electrodes all over his body and his face, and a special software then translates his bodily and facial movements into the bodily and facial movements of the already-dead terrorist (the law enforcement had a video of that terrorist on file, and was using it).

In the movie, the, let's say, puppeteering of the dead terrorist's image through software was so real that the "bad guy" and the "bad geek" bought into it.

It is a movie, yes.  But, with the current video editing technology and hacking technology, even video evidence is becomes highly questionable.

And, video testimony should be unacceptable in the courtroom, especially in criminal trials where the defendant has a constitutional right to confront his accuser - and for that, the accuser must be present in the courtroom and his identity confirmed.

Moreover, when a witness testifies in a trial, the witness may not receive help from anybody in giving the testimony - by reading from prepared answers to questions, or by reading from a prompter providing answers on a computer screen placed before the witness.

Of course, all those protections go out the door when a video testimony is involved.  A person testifying by video can have a prompter put in front of him or her and can read testimony off that prompter, making such a testimony inadmissible, and a conviction based on that testimony unconstitutional, being in violation of the Confrontation Clause.

Yet, 2 days ago, a New York State Appellate Court affirmed a conviction of a person made upon testimony by Skype, and from another country (Egypt), where there was no opportunity to verify authenticity of testifying witness, or whether the testifying witness testified without "help" from a prompter.

The court concentrated in its reasoning only on whether the prosecution was at fault in not being able to produce the complaining witness in the courtroom.

The court paid no attention to whether the testimony of such a witness through a video, and from another country, is properly authenticated as to the identity of the witness (whether it was that witness, or a "Network"-like software imposition), and whether the testimony is proper as to verification that the prosecution did not establish an Internet connection with the witness, teleprompting the witness as to the "necessary" testimony and the necessary answers on cross-examination, or can even be considered a testimony in a New York court.

We are in 2016.  Computer and video technology advances at a lightning rate.

Yet, the court relied upon the New York State Court of Appeals case from 2008 that said that video testimony may be allowed, and claimed that "[d]efendant concedes that the two-way video testimony at issue "preserve[d] the essential safeguards of testimonial reliability".

At least, the case gives hope to other defendants who would not concede - as this defendant's counsel stupidly did - that "the two-way video testimony" "preserved the essential safeguards of testimonial reliability".

Because it does not.

And, the case upon which the 1st Department relied, had factual differences that prevented that case from being used as a precedent in the case with an out of the country witness.

First, People v Wrotten, a 2009 New York State Court of Appeals case, incorrectly quoted as a 2008 case in People v Giurdanella, was about an elderly disabled witness for the prosecution who allegedly could not travel from California to New York to attend the trial because of his age and disability.  The witness appeared IN COURT, in California, and testified FROM A COURTROOM, so there were ways to verify the witness's identity, even if the representative of the defendant was to travel to California to do that - or to rely upon authentication by California court officials.

That situation was starkly different from the situation in People v Giurdanella where the witness was located in another country, and the testimony by Skype was given from an unknown location.  Even though communications with a U.S. attache in Egypt were involved to discuss whether the witness did or did not board the plane to New York, there is no indication in the court's decision whether the attache was present during the Skype testimony of the witness from Egypt and authenticated the identity of the witness, or that the witness was not tele-prompted by the prosecution in his testimony on direct and cross-examination.

I would note TWO gross mistakes of the defense counsel - at trial and on appeal.

At trial, the defense counsel stated (and the appellate court used in affirming the conviction): "I have the highest respect for [the prosecutor], I am sure he has made good faith efforts here".  The expression of defense counsel's "respect" for the prosecutor, which worked only not to alienate the prosecutor in other cases that the defense counsel may have handled with that prosecutor, was completely inappropriate - because the defense counsel actually CONCEDED what he had no way of knowing, whether the prosecution was lying to the court or not as to their "good faith efforts" to present the witness at trial.

Once the defense counsel claimed he believes that the prosecution was acting in good faith, the defense counsel blocked himself from expressing any suspicions as to possible foul play of the prosecution with video testimony and possible use of tele-prompters.

The second mistake, as I stated above, was by the appellate defense counsel who, not being an expert in computer technology, nevertheless conceded that the two-way video on Skype from another country allegedly "preserved the essential safeguards of testimonial reliability".

In 2009, the New York State Court of Appeals, in People v Wrotten, relied upon a statute in allowing the court to introduce "innovative technology" such as two-way video testimony, Judiciary Law 2-b(3), stating:

"by enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts' use of innovative procedures where "necessary to carry into effect the powers and jurisdiction possessed by [the court]."

Yet, New York State Court of Appeals did bow to the U.S. Constitution by stating, in the next phrase in People v Wrotten, that:

"Thus, as we have acknowledged, courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law".

In People v Wrotten the New York State Court of Appeals also relied on a U.S. Supreme Court decision, Maryland v Craig, 497 U.S. 836, 850 (1990), that stated that live testimony via one-way closed-circuit television is permissible under the Federal Constitution, provided that there is:

• an individualized determination that denial of "physical, face-to-face confrontation is necessary to further an important public policy"; and that
• the reliability of the testimony is otherwise assured.

Yet, in People v Giurdanella there was no closed-circuit television, but a Skype Internet connection, open to hackers and to teleprompting by the prosecution, nor did the court in People v Giurdanella make a determination that "denial of physical, face-to-face confrontation is necessary to further an important public policy".

By the way, in Maryland v Craig the U.S. Supreme Court amendment the Confrontation Clause by putting into it this "public policy" exception that was (1) not contained in the text of that Amendment, and while (2) the U.S. Supreme Court cannot make public policy determinations - that is the exclusive prerogative of the U.S. Congress under Article I of the U.S. Constitution.

Yet, People v Giurdanella did not comply with either progns of Maryland v Craig test, and the circumstances of People v Giurdanella did not assure authentication of the witness, as it happened in People v Wrotten, and thus, the 1st Department had to reverse the conviction as being in violation of Confrontation Clause.

Let's also not forget that Maryland v Craig, talking about reliability of video testimony, was decided 26 years ago, which is the same as 26 light years in terms of development of Internet technology.

Social media and Skype were unheard of in 1990, and the possibilities of tele-prompting through text messages during Skype testimony were also unheard of.

But, in 2016, the 1st Department judges could not feign lack of knowledge of such tele-prompting possibilities for Skype testimony, or for testimony through Internet - because the witness could simultaneously receive tele-prompting messages from prosecution not necessarily on Skype, but on a number private chatting devices, where chatrooms are created for just one session and instantly disappear when the session ends, making it practically impossible to catch the prosecution in such tele-prompting.

This conviction should have and would have been overturned.

But for.

But for the concessions of the defense counsel -

• at trial, about "good faith" of the prosecution, and
• on appeal, about the two-way video through Skype, from another country, preserving "the essential safeguards of testimonial reliability".

I do not know the name of the "hero" criminal defense attorney at trial.

The "hero" defense attorney on appeal was, according to the court decision, Ernest H. Hammer, an attorney who was already disciplined for neglect of clients.

Attorney Ernest H. Hammer was admitted to practice law in 1959.

Assuming he was admitted at the age of 25-26, as attorneys usually are, his date of birth is 1933-1934, making Attorney Hammer 82 or 83 years old.

Hammer was admitted before the CPLR and many of Penal Law and Criminal Procedure Law statutes were enacted.  Based on his discipline for client neglect, there is a question, whether he took his time to learn the new law, and whether he conceded his clients' issues as a matter of neglect - because he just did not take the time to put the necessary effort into the appeal.

I do not know whether attorney Hammer was a retained counsel (a bad mistake), or an assigned counsel (possibly, an act of bad faith on behalf of the 1st Department), but an 82-83-year-old attorney who was already disciplined for neglecting his clients, was a bad choice in a case dealing with "innovative technologies" in the courtroom.

It is possible that attorney Hammer conceded reliability of a two-way video by Skype from another country because of his age, awe, fear of enthrallment of the present computer technology.

Possibly, attorney Hammer, due to his age, has no clue what Skype is and what possibilities of tele-prompting it offers, or that a video interview, at least theoretically, can be puppeteer from one person to the image of another through software.

Anyway, the problem with "precedents" is that prosecution will now start aggressively using Skype testimony - possibly, with tele-prompting - from far and wide, from other states and other countries, relying on this "precedent", and completely forgetting the concessions made in this case and the failure to comply with the prior precedents the court relied upon in that same "precedents".

Here is also the panel of judges that made the decision in People v Giurdanella:  Acosta, J.P., Renwick, Saxe, Feinman, Kahn, JJ.

Presiding judge: Rolando T. Acosta

According to his official biography, Judge Acosta was appointed to the Appellate Division 1st Department in 2008.  As a lawyer, he had to re-register showing his new place of employment, within 30 days of appointment.  Yet, 8 years was not enough for Judge Acosta to comply with attorney disciplinary rules.  By the way, this is the judge who presides over attorney disciplinary cases.

Such an "inattention to detail" - or, rather, disdain to the rule of law pertaining to himself - is an obvious disqualification for a judge presiding over attorney disciplinary cases, and presiding over appeals.

Judge Acosta is, also according to his official biography, a former legal aid society attorney - but also is a former prosecutor.  Given in how many time-consuming capacities Judge Acosta "serves" outside of the courtroom:

1. a Trustee of Columbia University;
2. a member of The Dean's Council of Columbia Law School;
3. a member of the New York State Commission on Judicial Conduct;
4. a member of the Chief Judge's Task Force to Expand Access to Civil Legal Services in New york,
5. a member of the New york City Bar's Council on the Profession, and
6. a Fellow of the New York Bar Foundation

it is unlikely Judge Acosta paid any attention to this case or authored the decision, and it is likely that the decision was instead written by a student intern or a law clerk.

Judge Acosta is, counting on the date of his admission, 1983, at least 58 years of age and may have no clue about possibilities of Skype and Internet instant messaging and private chatrooms for tele-prompting a witness, as well as about the possibilities of puppeteering software, super-imposing movements, including facial movements of one person upon the picture of the other.

Panel judge: Dianne T. Renwick

Dianne Renwick is at least 54 years of age, according to her attorney registration.

Dianne Renwick was also likely disqualified from presiding over this particular case, but obviously did not recuse herself. 

According to her official biography, "[s]he has appeared as a guest commentator on the Courtroom Television Network (Court TV)", where CTV is a private company promoting televised testimony of experts.  Thus, Judge Renwick may have a financial interest in approving courtroom testimony by Skype, because such testimony significantly reduces costs of either producing the witness in the courtroom, or assuring reliability of video testimony.

Judge Renwick also "serves" in multiple capacities outside of the courtroom (I wonder if Judge Renwick did that on her taxpayer-paid time as a judge):

1. Member of the Board of Benjamin N. Cardozo School of Law;
2. Member of the Board of the New York Botanical Garden;
3. Member of the Advisory Board of the President's Council of Cornell Women;
4. Member of The Picture House Regional Film Center, and
5. Member of the New York American Inn of Court - while the American Inns of Court is a non-profit corporation and a secret-membership attorney-sponsored organization that regularly wines and dines judges and takes judges on national and international trips, for free.  As to "secret" membership, click on "members" or "meetings" on the site of that organization, and you will see that you will not be allowed to see who is the member of the organization, or when such members meet, or what is the agenda.

As with every judge-member of American Inns of Court, a litigant may not be assured that the judge was not wined and dined or taken on travels by his opponent in litigation, and that the judge's decisions are not tainted.

That's what Judge Renwick does at present, in addition to being a supposedly overwhelmed and overloaded state appellate court judge (that's why she received a salary raise recently - because she was overwhelmed).

A person overwhelmed by her caseload will not be able to "serve" on so many "boards" outside of her job, will she?

In addition to the present additional "jobs" where Judge Renwick "serves", in the past, she "served" also in these capacities:

1. as a guest commentator (very likely, paid), on Courtroom Television Network;
2. as a teacher of advocacy programs sponsored by law schools and bar associations, including at:
1. Harvard Law School;
2. Cardozo Law School;
3. Hofstra Law School, and
4. The New York County Lawyers Association;
3. Chair of City Marshal's Committee;
4. Chair of New York State Continuing Legal Education Board;
5. Committee/board member, Governor's Task Force on Judicial Diversity;
6. Committee/board member, Chess in the Schools;
7. Committee/board member, Board of Directors of Academy of Mt. St. Ursula;
8. Committee/board member, the Black Bar Association of Bronx County;
9. Committee/board member, the Lehman College Art Gallery;
10. Committee/board member, the Pelham Art Center.

Tell me, where will this busy judge get the time to review and decide her "overwhelming" case load?  Looks like it is interns and law clerks who are making decisions for this judge, too - it is impossible to handle such a number of "services" outside the courtroom and still do the job of an appellate judge properly.

Panel Judge: David B. Saxe, age 74 (mandatory retirement age for judges in New York is 70, appellate judges are allowed 3 2-year extensions if they certify their health is good and they can handle the caseload).

At this time, Judge Saxe self-reports "serving" out of court as:

1) a member of the New York Regional Board of Directors of the Anti-Defamation League, and
2) being a member of New York State Bar Association,

less out of court "jobs" than for the previous two judges, but still, serving on any Board of Directors may take a judge from discharging his duties as a judge, especially in appellate courts claiming to be overwhelmed by cases.

I also highly doubt that a 74-old judge knows a lot about social media, Internet or Skype.  I doubt that this judge knows about reliability of Skype technologies for purposes of courtroom testimony in a criminal case, through Internet, from another country.

And, there is no indication that prosecution provided to the judge expert testimony or expert evidence confirming such reliability - so the case was supposed to be a slam-dunk of a reversal, but for, of course, the stupid, neglectful or corrupt concession by the defense counsel that two-way testimony over the Internet from another country had "safeguards" for testimonial reliability.

Panel Judge: Paul G. Feinman

According to his attorney registration, Judge Feinman is at least 56 years of age.

Judge Feinman was appointed as the first gay man to serve on New York appellate court - and, being gay or straight, man or woman, black, white, Asian or Native American should not serve as ANY qualification for ANY public office.  Apparently, Judge Feinman is a political appointment and his competency, thus, is questionable.

Judge Feinman reports participating in the following out of court associations:

JUDICIAL ASSOCIATIONS
American Judges Association
• Formerly New York representative to Board of Governors
Association of Justices of the Supreme Court of the State of New York
• President, 2015
Board of Justices, First Judicial District
• Treasurer, 2010-13
Citywide Association of Supreme Court Justices
• 2nd Vice President, 2015-2016
International Association of Lesbian and Gay Judges
• Past President, 2008-11
New York State and City Association of Lesbian and Gay Judges

BAR ASSOCIATIONS

American Bar Association
American Constitution Society
Jewish Lawyers’ Guild
Lesbian, Gay, Bisexual and Transgender Bar Association of Greater New York ["LeGaL"]
• Past President, 1996
National LGBT Bar Association
New York City Bar Association
New York County Lawyers’ Association
New York State Bar Association
• Judicial Section, Presiding Member, 2012-13
Women’s Bar Association of the State of New York, New York County Chapter

With such a great array of out-of-court "services", there is not much doubt that Judge Feinman hardly reviews any cases, and that, instead, his student interns and law clerks do that for him - especially that in New York, appellate judges do not even sign their decisions, the court clerks instead rubber-stamp their facsimile signatures instead.

Panel Judge: Marcy L. Kahn

Judge Marcy Kahn is at least 66 years of age, according to her attorney registration (attorneys are admitted in New York after a high school, a 4-year college and a 3-year law school, at the age of 25-26 at least).

Judge Marcy Kahn is currently the Chair of New York Tribal Courts Committee in the New York State Unified Court System, a "service" which necessarily must take a lot of Judge Kahn's time, time away from her duties as a judge that taxpayers pay her to do.

* * *

The case involved a 30-day jail sentence.

Not a lot, some would say.  Of course, unless that would concern the individual directly, 30 days do not seem like a lot of time.

Yet, this case may become a nightmare for criminal defense attorneys.

In Maryland v Craig in 1990 the U.S. Supreme Court mentioned only "closed circuit television" where the witness was a 6-year-old child.  By the way, in Maryland v Craig, there was a vigorous dissent by 4 judges: Scalia, Brennan, Marshall and Stevens.

I will put the dissent here in full:

QUOTE

======

Justice SCALIA, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.

The Sixth Amendment provides, with unmistakable clarity, that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court.

The Court, however, says: "We . . . conclude today that a State's interest in the physical and psychological wellbeing of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.

That a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the wide-spread belief in the importance of such a public policy."
Ante at 497 U. S. 853.

Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries:

A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months, and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, "it is really not true, is it, that I -- your father (or mother) whom you see before you -- did these terrible things?"

Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.

Because the text of the Sixth Amendment is clear, and because the Constitution is meant to protect against, rather than conform to, current "widespread belief," I respectfully dissent.
Page 497 U. S. 862

I

According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers."
Ante at 497 U. S. 849-850.

That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial."

The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." Ante at 497 U. S. 846.

The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for --

"face-to-face" confrontation -- but also implied and collateral rights such as

cross-examination, oath, and observation of demeanor (TRUE);

the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE);

the Maryland procedure preserves the implied and collateral rights (TRUE),

which adequately ensure the reliability of evidence (perhaps TRUE);

therefore the Confrontation Clause is not violated by denying what it explicitly provides for -- "face-to-face" confrontation (unquestionably FALSE).

This reasoning abstracts from the right to its purposes, and then eliminates the right.

It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation.

Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U. S. 1012, 487 U. S. 1016 (1988), quoting California v. Green, 399 U. S. 149, 399 U. S. 175 (1970) (Harlan, J. concurring).
Page 497 U. S. 863


The Court supports its antitextual conclusion by cobbling together scraps of dicta from various cases that have no bearing here. It will suffice to discuss one of them, since they are all of a kind: Quoting Ohio v. Roberts, 448 U. S. 56, 448 U. S. 63 (1980), the Court says that "[i]n sum, our precedents establish that 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial,'"
ante at 497 U. S. 853. (emphasis added by the Court).

But Roberts, and all the other "precedents" the Court enlists to prove the implausible, dealt with the implications of the Confrontation Clause, and not its literal, unavoidable text.

When Roberts said that the Clause merely "reflects a preference for face-to-face confrontation at trial," what it had in mind as the nonpreferred alternative was not (as the Court implies) the appearance of a witness at trial without confronting the defendant. That has been, until today, not merely "nonpreferred" but utterly unheard-of. What Roberts had in mind was the receipt of other-than-first-hand testimony from witnesses at trial -- that is, witnesses' recounting of hearsay statements by absent parties who, since they did not appear at trial, did not have to endure face-to-face confrontation.

Rejecting that, I agree, was merely giving effect to an evident constitutional preference; there are, after all, many exceptions to the Confrontation Clause's hearsay rule.

But that the defendant should be confronted by the witnesses who appear at trial is not a preference "reflected" by the Confrontation Clause; it is a constitutional right unqualifiedly guaranteed.

The Court claims that its interpretation of the Confrontation Clause
"is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process."

Ante at 497 U. S. 850. I disagree. It is true enough that the "necessities of trial and the adversary process" limit the manner in which Sixth Amendment rights may be exercised, and limit the scope of Sixth Amendment guarantees to the extent that scope is textually indeterminate. Thus (to describe the cases the Court cites):

The right to confront is not the right to confront in a manner that disrupts the trial. Illinois v. Allen, 397 U. S. 337 (1970).

The right "to have compulsory process for obtaining witnesses" is not the right to call witnesses in a manner that violates fair and orderly procedures. Taylor v. Illinois, 484 U. S. 400 (1988).

The scope of the right "to have the assistance of counsel" does not include consultation with counsel at all times during the trial. Perry v. Leeke, 488 U. S. 272 (1989).

The scope of the right to cross-examine does not include access to the State's investigative files. Pennsylvania v. Ritchie, 480 U. S. 39 (1987).

But we are not talking here about denying expansive scope to a Sixth Amendment provision whose scope for the purpose at issue is textually unclear; "to confront" plainly means to encounter face-to-face, whatever else it may mean in addition. And we are not talking about the manner of arranging that face-to-face encounter, but about whether it shall occur at all. The "necessities of trial and the adversary process" are irrelevant here, since they cannot alter the constitutional text.

II

Much of the Court's opinion consists of applying to this case the mode of analysis we have used in the admission of hearsay evidence. The Sixth Amendment does not literally contain a prohibition upon such evidence, since it guarantees the defendant only the right to confront "the witnesses against him."

As applied in the Sixth Amendment's context of a prosecution, the noun "witness" -- in 1791 as today -- could mean either (a) one "who knows or sees any thing; one personally present" or (b) "one who gives testimony" or who "testifies," i.e.,
"[i]n judicial proceedings, [one who] make[s] a solemn declaration under oath, for the purpose of establishing or making proof of some fact to a court."
2 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). See also J. Buchanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one "who knows or sees") would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: "witnesses against him."

The phrase obviously refers to those who give testimony against the defendant at trial. We have nonetheless found implicit in the Confrontation Clause some limitation upon hearsay evidence, since otherwise the Government could subvert the confrontation right by putting on witnesses who know nothing except what an absent declarant said.

And in determining the scope of that implicit limitation, we have focused upon whether the reliability of the hearsay statements (which are not expressly excluded by the Confrontation Clause) "is otherwise assured." Ante at 497 U. S. 850. The same test cannot be applied, however, to permit what is explicitly forbidden by the constitutional text; there is simply no room for interpretation with regard to "the irreducible literal meaning of the Clause." Coy, supra, 487 U.S. at 487 U. S. 1020-1021.

Some of the Court's analysis seems to suggest that the children's testimony here was itself hearsay of the sort permissible under our Confrontation Clause cases. See ante at 497 U. S. 851. That cannot be. Our Confrontation Clause conditions for the admission of hearsay have long included a "general requirement of unavailability" of the declarant. Idaho v. Wright, ante, at 497 U. S. 815.

"In the usual case . . . , the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Ohio v. Roberts, 448 U.S. at 448 U. S. 65.

We have permitted a few exceptions to this general rule -- e.g., for co-conspirators' statements, whose effect cannot be replicated by live testimony because they "derive [their] significance from the circumstances in which [they were] made," United States v. Inadi, 475 U. S. 387, 475 U. S. 395 (1986). "Live" closed-circuit television testimony, however -- if it can be called hearsay at all -- is surely an example of hearsay as "a weaker substitute for live testimony," id. at 394, which can be employed only when the genuine article is unavailable.
"When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence."
Ibid. See also Roberts, supra, (requiring unavailability as precondition for admission of prior testimony); Barber v. Page, 390 U. S. 719 (1968) (same).

The Court's test today requires unavailability only in the sense that the child is unable to testify in the presence of the defendant. [Footnote 2/1] That cannot possibly be the relevant sense.

If unconfronted testimony is admissible hearsay when the witness is unable to confront the defendant, then presumably there are other categories of admissible hearsay consisting of unsworn testimony when the witness is unable to risk perjury, uncross-examined testimony when the witness is unable to undergo hostile questioning, etc. California v. Green, 399 U. S. 149 (1970), is not precedent for such a silly system.

That case held that the Confrontation Clause does not bar admission of prior testimony when the declarant is sworn as a witness but refuses to answer. But in Green, as in most cases of refusal, we could not know why the declarant refused to testify. Here, by contrast, we know that it is precisely because the child is unwilling to testify in the presence of the defendant. That unwillingness cannot be a valid excuse under the Confrontation Clause, whose very object is to place the witness under the sometimes hostile glare of the defendant.

"That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult."
Coy, 487

U.S. at 487 U. S. 1020. To say that a defendant loses his right to confront a witness when that would cause the witness not to testify is rather like saying that the defendant loses his right to counsel when counsel would save him, or his right to subpoena witnesses when they would exculpate him, or his right not to give testimony against himself when that would prove him guilty.

III

The Court characterizes the State's interest which "outweigh[s]" the explicit text of the Constitution as an "interest in the physical and psychological wellbeing of child abuse victims," ante at 497 U. S. 853, an "interest in protecting" such victims "from the emotional trauma of testifying," ante at 497 U. S. 855. That is not so.

A child who meets the Maryland statute's requirement of suffering such "serious emotional distress" from confrontation that he "cannot reasonably communicate" would seem entirely safe.

Why would a prosecutor want to call a witness who cannot reasonably communicate? And if he did, it would be the State's own fault. Protection of the child's interest -- as far as the Confrontation Clause is concerned [Footnote 2/2] -- is entirely within Maryland's control. The State's interest here is in fact no more and no less than what the State's interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.
And the interest on the other side is also what it usually is when the State seeks to get a new class of evidence admitted: fewer convictions of innocent defendants -- specifically, in the
present context, innocent defendants accused of particularly heinous crimes. The "special" reasons that exist for suspending one of the usual guarantees of reliability in the case of children's testimony are perhaps matched by "special" reasons for being particularly insistent upon it in the case of children's testimony.

Some studies show that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected fantasy (or suggestion) from reality. See Lindsay & Johnson, Reality Monitoring and Suggestibility: Children's Ability to Discriminate Among Memories From Different Sources, in Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross eds. 1987); Feher, The Alleged Molestation Victim, The Rules of Evidence, and the Constitution: Should Children Really Be Seen and Not Heard?, 14 Am.J.Crim.L. 227, 230-233 (1987); Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705, 708-711 (1987).

The injustice their erroneous testimony can produce is evidenced by the tragic Scott County investigations of 1983-1984, which disrupted the lives of many (as far as we know) innocent people in the small town of Jordan, Minnesota. At one stage, those investigations were pursuing allegations by at least eight children of multiple murders, but the prosecutions actually initiated charged only sexual abuse. Specifically, 24 adults were charged with molesting 37 children. In the course of the investigations, 25 children were placed in foster homes. Of the 24 indicted defendants, one pleaded guilty, two were acquitted at trial, and the charges against the remaining 21 were voluntarily dismissed. See Feher, supra, at 239-240. There is no doubt that some sexual abuse took place in Jordan; but there is no reason to believe it was as widespread as charged. A report by the Minnesota Attorney General's office, based on inquiries conducted by the Minnesota Bureau of Criminal Apprehension and the Federal Bureau of Investigation, concluded that there was an "absence of credible testimony and [a] lack of significant corroboration" to support reinstitution of sex-abuse charges, and "no credible evidence of murders." H. Humphrey, report on Scott County Investigation 8, 7 (1985).

The report describes an investigation full of well-intentioned techniques employed by the prosecution team, police, child protection workers, and foster parents, that distorted and in some cases even coerced the children's recollection. Children were interrogated repeatedly, in some cases as many as 50 times, id. at 9; answers were suggested by telling the children what other witnesses had said, id. at 11; and children (even some who did not at first complain of abuse) were separated from their parents for months, id. at 9. The report describes the consequences as follows:
"As children continued to be interviewed, the list of accused citizens grew. In a number of cases, it was only after weeks or months of questioning that children would 'admit' their parents abused them."
"* * * *"
.~ In some instances, over a period of time, the allegations of sexual abuse turned to stories of mutilations, and eventually homicide.
Id. at 10-11. The value of the confrontation right in guarding against a child's distorted or coerced recollections is dramatically evident with respect to one of the misguided investigative techniques the report cited: some children were told by their foster parents that reunion with their real parents would be hastened by "admission" of their parents' abuse. Id. at 9.

Is it difficult to imagine how unconvincing such a testimonial admission might be to a jury that witnessed the child's delight at seeing his parents in the courtroom?

Or how devastating it might be if, pursuant to a psychiatric evaluation that "trauma would impair, the child's ability to communicate" in front of his parents, the child were permitted to tell his story to the jury on closed-circuit television?
In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation,
because the Court has no authority to question it.

It is not within our charge to speculate that, "where face-to-face confrontation causes significant emotional distress in a child witness," confrontation might "in fact disserve the Confrontation Clause's truth-seeking goal."

Ante at 497 U. S. 857.

If so, that is a defect in the Constitution -- which should be amended by the procedures provided for such an eventuality, but cannot be corrected by judicial pronouncement that it is archaic, contrary to "widespread belief" and thus null and void.

For good or bad, the Sixth Amendment requires confrontation, and we are not at liberty to ignore it. To quote the document one last time (for it plainly says all that need be said): "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (emphasis added).
"* * * *"

The Court today has applied "interest-balancing" analysis where the text of the Constitution simply does not permit it.

We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings.

The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.

[Footnote 2/1]
I presume that, when the Court says "trauma would impair the child's ability to communicate," ante at 18, it means that trauma would make it impossible for the child to communicate. That is the requirement of the Maryland law at issue here: "serious emotional distress such that the child cannot reasonably communicate." Md.Cts. & Jud.Proc.Code Ann. § 9-102(a)(1)(ii) (1989). Any implication beyond that would, in any event, be dictum.
[Footnote 2/2]
A different situation would be presented if the defendant sought to call the child. In that event, the State's refusal to compel the child to appear, or its insistence upon a procedure such as that set forth in the Maryland statute as a condition of its compelling him to do so, would call into question -- initially, at least, and perhaps exclusively -- the scope of the defendant's Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor."

UNQUOTE
==========

Yes, this is "just" a 30-day sentence case.

But, through precedential law, it will be now applied to all cases in New York, and that's what makes it an unconstitutional nightmare for criminal defendants and their counsel.

Let's see the erosion of the Confrontation Clause:

1) Maryland v Craig - as the dissent pointed out, the court restricted, and thus amended, the Confrontation Clause in the name of public policy (which the court was not authorized to do), and in cases specifically related to children - alleged victims of sexual abuse.

The added problem, which the court did not consider, was presuming a child witness of the prosecution as a victim before the conviction - which is a pre-judgment of a criminal case and a violation of due process of law of the criminal defendant - see, for example, a motion in limine in a criminal case asking the court to prohibit the prosecution to refer to the ALLEGED victim as a "victim" (actual victim) in a criminal case.

Yet, Maryland v Craig referred

• only to testimony through closed-circuit court television (where the witness is located in another court, and the witness's identity is ascertained); and
• only in cases of sexual child abuse.

2) In New York, through People v Wrotten, one of the "Craig" justifications is dropped: the "state interests to protect child victims of sexual abuse".

The testimony of an adult - who was allegedly disabled and unable to travel to court in New York - was allowed, but still through a closed-circuit television, so the second "Craig" prong - testimony through a court closed-circuit television, remained.

3) In People v Giurdanella, both "Craig" justifications are now dropped:

• the witness was not a child who was an alleged victim of sexual abuse; and
• the testimony was not through a closed-circuit court television, but through an Internet application, where:
• there was no assurance of the witness's identity; and
• the witness could use that particular Internet application (Skype), and any number of other additional Internet applications (instant messaging, chatrooms) with the prosecution as tele-prompting the witness's testimony.

The witness was not allowed to board the plane from Egypt to New York - allegedly - because Egypt was at that point in the state of political upheaval, and the witness was supposed to be drafted into the Army.  Yet, the defense counsel provided an Internet printout to the court that dual citizens are not subject to conscription/draft in Egypt, which the court admitted into record, and then disregarded.

I must also point out that in People v Giurdanella the prosecution provided:

• no proof of "public policy" as in Maryland v Craig to allow testimony by Skype from another country;
• no expert testimony that testimony by Skype from another country is reliable (such a testimony is impossible, because Skype can easily be used for identity-substituting and tele-prompted video transmissions); and
• while the witness did not appear in the middle of the trial because Egyptian authorities allegedly did not allow the witness to fly in, if there was no foul play by the prosecution, there was no testimony that the witness was PERMANENTLY blocked in Egypt and prevented from coming to trial, and that it was impossible to simply adjourn the trial for a reasonable time until the victim appears.

At the same time, what the trial and appellate court did not consider - and I am not sure whether such a motion was made - is a Criminal Procedure Law (CPL) 30.30 motion, the New York State statutory speedy trial motion.

The People must announce readiness for trial for a 2nd degree assault (a misdemeanor) when the accusatory instrument is filed, and has 90 days to bring the case to trial, if the charge is a misdemeanor, CPL 30.30(1)(b).

There is no indication in the decision whether there was trial practice and when the charges were brought, as compared to when the crime was allegedly committed, but, when a prosecution says it is "ready for trial", the prosecution must actually be ready for trial, and proceed to trial - with live-witness testimony.

The appellate court noted that the whole problem was that the prosecution - allegedly - learnt of the unavailability of the witness other than through a Skype testimony, after the jury was picked, the trial started, and after the double jeopardy attached, so People v Giurdanella is simply a judicial help to the prosecution in a difficult case - and a case of judicial bias, of course.

Had it been a defense witness who could not be produced under identical circumstances, no Skype testimony would have been allowed.

The problem with this case, as I said above, is that it created a bad precedent.

It is the proverbial end of the slippery slope from Maryland v Craig where all of the "prongs" of the Maryland v Craig test was dropped, and now the court will allow:

• any prosecution witness
• under any circumstances to testify
• out of any location
• using any Internet application, so possibilities for teleprompting for prosecution now abound.

Of course, if the court allows video-testimony by prosecution witnesses, it must now allow video-testimony by defense witnesses, and since video-testimony is allowed in criminal cases, it will be allowed in all cases, so now all attorneys and parties in New York court proceedings will get an opportunity to tele-prompt their witnesses testifying through Skype.

So, not only the Confrontation Clause, with People v Giurdanella, is gone, buried and spat upon its grave, but, in all court cases where video-testimony is allowed, verdicts may be based on tele-prompted testimony.

Apparently, judges in the Appellate Division 1st Department went out to lunch, or to serve on one of their numerous "Boards" or "Committees" while their student interns or law clerks scraped together this decision.

As far as I see, the decision does not have much hope on appeal because of defense counsel's concessions.

Yet, what can be done is a civil rights lawsuit to question constitutionality of Judiciary Law 2-b(3) (the underlying statutory grounds in People v Wrotten, the basis of People v Giurdanella), on grounds of vagueness, overbreadth and arbitrary enforcement.

By the way, under Judiciary Law 2-b(1) (subpoena power of the court), the prosecution should have lost People v Giurdanella anyway, since the witness in Egypt was outside the court's subpoena power.

Judiciary Law 2-b provides:

2-b. General powers of courts of record. A court of record has power

1. to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court, subject, however, to the limitations prescribed by law with respect to the portion of the state in which the process of the local court of record may be served;

2. to administer an oath to a witness in the exercise of the powers and duties of the court and;

3. to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.

The New York State Legislature allowed New York State courts to "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it".

Yet, New York State Legislature could not allow New York State courts to institute "new process and forms of proceedings" in violation of the U.S. Constitution, and that is especially true that in the case of a witness located in Egypt, when the court did not have  subpoena power over that witness, the court could not justify its "new process and forms of proceedings", the out-of-country Skype testimony.

As far as I know, federal courts prohibit Skype participation in court proceedings, even in court-ordered mediation.  A reader of this blog reported to me recently that he had to fly in from another country where he resides to participate in a federal court-ordered mediation.  Skype participation would be a convenient alternative, but was not allowed.  And that was a civil case.

Yet, in New York, in a criminal case, out-of-the-country testimony by Internet is now ok, according to the Appellate Division 1st Department.

Interesting world we are living in...