"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Showing posts sorted by relevance for query obama criminal defense judge. Sort by date Show all posts
Showing posts sorted by relevance for query obama criminal defense judge. Sort by date Show all posts

Monday, March 14, 2016

No, we cannot have a U.S. Supreme Court judge with a background of a courageous federal public defender. It will break with tradition.

I've frequently pointed out on my blog that judges in the U.S., in both state and federal courts, predominantly come from prosecutorial background.

I also wrote on this blog that, with the rising issue of wrongful convictions caused by prosecutorial misconduct, most likely many such convictions will not be overturned because too many of prosecutors responsible for those wrongful convictions have since made it to the bench, and it will be too embarrassing to reveal such a dirty page or chapter of judges' careers.

Prosecutors like to talk about themselves as being "on the right side", the side of justice, while pointing a finger at criminal defense attorneys as "sleazy", "scum", ready to do "anything" for money etc.

First of all, such claims are done with a wink and a nod - "yeah, we know about presumption of innocence, don't tell us, we know that a criminal defense attorney is representing a person ACCUSED of a crime, and presumed innocence - but STILL".

Still - what?

A person ensuring constitutional right to counsel to a criminal defendant, and doing it properly is somehow bad?

Consider also the cost of prosecutorial mistakes, not to mention misconduct, as opposed to "wrongful acquittals", if there are such, as a result of a criminal defense attorney's work.

If a person who committed a crime was acquitted, or charges against him or her got dismissed, that means that the prosecution did not obtain enough admissible evidence and did not work hard enough to do their job.  In a criminal proceeding, the role of the defense is just that - the defense.  The burden of proof (burden of production of evidence and the burden of persuasion of the fact-finder) is entirely upon the prosecution.  If the prosecution has failed their job, don't blame the defense attorney for doing his.

Once again, if a person who committed a crime is acquitted or the charges have to be dismissed, that is the prosecutorial mistake and not to be blamed on the defense attorney.

If, on the other hand, the prosecution convicted an innocent, especially in a case where there is an ascertainable victim of a heinous crime (a murder, a rape), conviction of an innocent, a grave error and injustice in and of itself, is aggravated by two more grave problems:  the true perpetrator of the crime remains at large, and the surviving victims of the crime, as well as the public, are falsely assured of their safety and put their guard down.

That's what happened in a heinous crime of child rape in Arizona where a wrongfully convicted person spent time in prison, while the true perpetrator remained at large and committed more crimes. 

Such mistakes can be the result of sloppy work of the police and the prosecution, or such mistakes can be the results of deliberate misconduct of police and/or prosecution to drum up their conviction rate and get elected to the judicial office on the claims of "fighting crime".

So, when prosecutors claim they are "on the right side", I beg to differ.  When 95% of criminal cases are resolved through guilty pleas, most of them forced by threats of maximum punishment against the overcharged, mostly poor, criminal defendant, there is no assurance whatsoever that what happened in Arizona is not repeated many times, and that the true perpetrators of crimes do not roam our streets in droves while the innocent scapegoats are doing their time in prisons while those who put them there ascend to the judicial office based on their statistics of convictions, wrongful or not.

You can call me partial to criminal defense attorneys, but, having been one, and knowing how prosecution of crimes work in American courts from the inside, I will be always suspicious of integrity of any prosecutor and of any judge who came to the bench from prosecutorial office.

Yet, the majority of suspended and disbarred attorneys are civil rights and criminal defense attorneys - suspended and disbarred by disciplinary committees and judges who predominantly do NOT have a criminal defense background and a lot of whom have, instead, a prosecutorial background.

In other words, it is very likely that attorney disciplinary process is used by the legal establishment (prosecutors aspiring to be judges, judges who were prosecutors) to disbar defense attorneys to eliminate opposition and to enhance their statistics of convictions as career builder.

My position is that when civil rights and criminal defense attorneys are targeted for suspension and disbarment of their law licenses, not only the attorneys, but the public loses out, especially at the time when there are less and less skillful and zealous civil rights and criminal defense attorneys prepared to work at reduced rates or pro bono.

But, when being a criminal defense attorney, and a good one, is considered somehow as a disqualification for a high public office, this is the outside of enough.

Yet, that is exactly what is happening in the U.S. now.

In 2014, the Republican Senate blocked a President Obama's nominee Debo P. Adegbile to be chief of the Justice Department’s Civil Rights Division.

Mr. Adegbile's point of disqualification?

Mr. Adegbile, when he worked for the Legal Aid division of NAACP, he "contributed to the filing of a 2009 court brief that argued that [a person convicted of killing a police officer] faced a discriminatory jury — an appeal found to have merit by a judge"

So, Mr. Adegbile's disqualification was not only that he a civil rights attorney and criminal defense attorney, but also that he was a good one - his post-conviction brief raising issues of racial discrimination on the jury was actually found to have merit, and that was the point of ire and filibustering Mr. Adegbile for nomination to a position to which he was apparently pre-eminently eligible.

A good civil rights attorney prevented from nomination to a civil rights attorney position because he is a good civil rights attorney?

That particular filibustering required a lot of logic, didn't it?

But portraying participation in criminal defense as a disqualification from public office continues now, and now against a U.S. Supreme Court nominee who is a federal appellate judge and who was confirmed for her current position as a federal appellate judge by the U.S. Senate, the same senators who are smearing her now, without any objections.

The name of the judge is Judge Jane Kelly.

Now, a conservative "Judicial Crisis Network" is trying to filibuster nomination to the U.S. Supreme Court of Jane Kelly, Judge of the U.S. Court of Appeals for the 8th Circuit.

Her point of disqualification?

Attorney Jane Kelly, as a criminal defense attorney, represented "a child molester".

The interesting part is that the same Judge Kelly was unanimously confirmed by the same Republicans for the seat of a federal appellate judge in 2013, bypassing the usual lower district court judicial position.

Judge Kelly's prior work FOR NINETEEN YEARS, from 1994 to 2013, as a federal public defender, which included the work as a defense attorney in the case now targeted by the "slugfest" ads, was not a problem.

Only now, as part of the deliberate "slugfest" campaign, Judge Kelly is being smears - simply because President Obama nominated her to the highest court in the country.

One can understand why there is such an opposition to nomination of Judge Kelly.  She is apparently a person of uncommon courage and principles.

While working in the federal public defender's office and being reportedly a supervising attorney in its Cedar Rapids, Iowa, office, in 2004, Judge Kelly was viciously attacked while jogging.  Her attacker was never found.

Judging by the fact that assistant public defender Jane Kelly was not killed, but was severely beaten and left "going in and out of consciousness and unable to call for help", the purpose of the attack was likely intimidation.   It is very likely, under the circumstances, that an attack on a federal public defender was caused by her work as a federal public defender.  And, the attacker, once again, was not found.

Violence upon criminal defense attorneys is a real thing.  

Just several days ago a criminal defense attorney who was successful in not only defeating the Orange County (California) District Attorney's office, but causing a major media scandal by exposing the improper use by the DA's office of jail snitches - suffered a vicious attack by one of District Attorney's investigators, of all people.

I remember a time when my husband, a trial criminal defense attorney at the time, was requested by the police to wait until the irate supporters of the alleged victims go away, after his successful presentation in a criminal defense preliminary hearing that caused a dismissal of the case.  I remember walking to the car in the parking lot that day, together with my husband, under the protection of the armed police. 

I remember threats mouthed at him in and around the courthouse, and on the phone.

Judge Kelly, after being viciously attacked in 2004 by an attacker who was not found, continued to work as a federal public defender for 9 years.  One thing you cannot deny this woman is her courage in doing her duty.

She is a judge with "unusual" background for a judge - a federal public defender.  She knows, from her NINETEEN years of experience, in detail, what problems an indigent criminal defendant faces in the American "criminal justice system".

Here is what Judge Kelly reportedly said in her confirmation hearing for the seat of a federal appellate judge:

"As a criminal defense attorney, I am often representing someone who, shall I say, is not the most popular person in the room. ... So I, as much as anyone, know how important it is to be fair and impartial and make decisions based on things other than bias, favor, or prejudice."

 Oh, no, we cannot have a U.S. Supreme Court justice like this, Judge Kelly could be fair and not prejudiced in taking and reviewing the cases of criminal defendants, and possibly, be a swing vote to end the disgraceful death penalty.  No, we cannot have that.

The director of the "Infinity Project", an organization that promotes women for positions as federal judges on the 8th Circuit, stated in an interview at the time of her appointment as a federal appellate judge, that it has been difficult to get in women with Jane Kelly's background.

The ad campaign smear, by the way, completely distorts what Jane Kelly did as an attorney in representing her client.

The ad said that Jane Kelly was arguing that her client was not a threat to society - and immediately paired that up with sexual molestation and murder of a 5-year-old child by the same client.

What the ad missed is that at the time Jane Kelly represented her client on charges of possession of child pornography, he was not convicted of molestation and murder yet, those were crimes for which he was charged and convicted in another court, state court, later on.

Moreover, Casey Frederiksen as convicted of sexual molestation and murder of a child in 2015, two years after Jane Kelly was no longer a federal public defender, but was already a federal appellate judge.

Therefore, it was physically impossible for federal public defender Jane Kelly to foresee the future conviction of her client when she may have claimed to the sentencing court, sentencing her client for possession of child pornography only (a heinous crime, but not a violent crime with an ascertainable victim).  

At the federal sentencing of Casey Frederiksen in 2006, attorney Jane Kelly was justified as a zealous advocate on behalf of her client in claiming at sentencing that her client, without knowing more, was not a threat to society just because he possessed child pornography.

It appears that the smear ads put upon public defender Jane Kelly a duty to be a clairvoyant, and to predict a 2015 conviction of her client in her 2006 sentencing arguments.

By the way, the lies in the smear campaign stretched as far as claiming that Jane Kelly, when trying to negotiate in 2006 a plea deal for possession of child pornography for her client Casey Frederiksen, knew that he was PREVIOUSLY convicted for sexual molestation of another girl

Yet, the link about Attorney Kelly's knowledge as of 2006 about the "other girl" conviction leads to a story not to a conviction, but of a disappearance of a girl, for which Frederiksen was convicted only in 2015.

The techniques of the smear campaign are obvious - toss in enough lies, so that people become easily inflamed and will not check out the dates, and equate a criminal defense attorney with her client.  If she is defending him and arguing for leniency for him, she is as bad as him.

And, of course, a criminal defense attorney should "know" what kind of other crimes her client may have committed, even if not charged.

How should she know about that, is anybody's guess.

What the smear campaign also does is, as legal commentators note, it shoos young attorneys away from criminal defense, portraying it as a career destroyer.  

Which, at a time when skilled criminal defense attorneys are very much needed, and especially in the field of indigent criminal defense, where Judge Kelly worked for 19 years, is a disservice to the public.

All to preclude a President Obama nominee?

Imagine the shock - a fair judge who knows from experience as a criminal defense attorney the problems of indigent criminal defense, to take the place of, quite likely, the most corrupt judge in the history of the U.S. #AntoninScalia, that's the judge with hundreds of hunting trips - and God only knows what other sweet deals - with litigants and interest groups who turned up dead during Valentine's Day weekend in a luxury suite of a hunting lodge some place in Texas where he came without his spouse and mother of his 9 children, in a suite paid for by a litigant who got benefits from Scalia's court.

No, we cannot have a fair, impartial and incorruptible judge on the highest court of this country.

We must tolerate intimidation of any candidate who would dare to be nominated by President Obama in his last year.

We must tolerate the "slugfest" campaign against this courageous woman, a white woman who, after being viciously beaten, continued for 9 years her service as a public defender in a system where minorities are predominantly targeted for criminal prosecution.  

We cannot have a judge on the bench who knows through her work for indigent, mostly minority, defendants, what racial discrimination in the American "justice" system is like.

A judge that cannot be bought?  Or even intimidated physically?

Can we withstand such a wonder in this country? 

Monday, April 4, 2016

Minnesota and Nevada federal judges are on the same bandwagon using occupational licensing of attorneys to deny counsel of choice to criminal defendants in high profile cases

I recently described on this blog how a federal judge in Minnesota did not allow representation of a criminal defendant by a criminal defense attorney of his choice because of the alleged disciplinary history the attorney had, even though the judge had no right to restrict right to counsel at all, or on such grounds.

In that particular case, occupational licensing (discipline from another state imposed upon the criminal defense attorney) was used by Minnesota federal district court judge Michael Davis to preclude criminal defense attorney Mitchell Robinson from representing criminal defendant Hamza Ahmed. 

Occupational licensing is used for the declaratory purpose of protecting consumers from bad service providers.

Attorney licensing is (supposedly) no different.

When an attorney is licensed - or his or her license is taken - that happens, supposedly because to allow the attorney to practice will hurt the consumers.

There are certain ways how an admitted attorney in one jurisdiction may be precluded from practicing in another jurisdiction - lack of automatic reciprocity of attorney licensing across jurisdictions.

If an attorney is licensed, for example, to practice law in the State of New York, his license may not permit him to practice law in a state which does not have mutual agreement with New York recognizing each other's state licenses without an additional bar examination and a separate licensing process.

Federal courts are usually less restrictive.

If an attorney is admitted in at least one federal court, they usually admit that attorney in their court, permanently or for a particular case (it is called a "pro hac vice" admission) without any problem.

Apparently, not so if the incoming attorney attempts to represent a criminal defendant in a high profile case.

In the case I described earlier on this blog, criminal defendant, Hamza Ahmed, who is charged with various counts related to ISIS, was denied representation by an attorney who is admitted in the State of Minnesota, so there was supposed to be no problem allowing him to step into a federal case in the same state of Minnesota.

In the Cliven Bundy case currently prosecuted in Nevada, after the famous ranchers' stand-off in Oregon where Cliven Bundy's son Ammon Bundy was involved, a criminal defense attorney who tried to enter the case and represent the defendant (and was denied that right by the judge on pretextual grounds) was not registered in that particular federal court, and filed a petition to the court for admission for that case only - a "pro hac vice" petition.

There is no question that Larry Klayman, the attorney who attempted to get into the criminal case on the criminal defense side, and was denied entry, is a seasoned, skilled and knowledgeable attorney.

Attorney Larry Klayman is skilled, seasoned, aggressive and courageous to get his point across, even if it does not coincide with the point of view of judges - and that may exactly be the reason why Larry Klayman was blocked from representing a criminal defendant charged with a list of serious felony counts.

Here is what Cliven Bundy was charged with:

 And, Cliven Bundy was represented by just one criminal defense attorney - who wanted Larry Klayman to join the team and be the SECOND criminal defense attorney on the team.

The Prosecution has FOUR prosecutors on their team across the defendant's current ONE.  

In Hamza Ahmed's case in Minnesota the prosecution had FIVE prosecutors against Hamza Ahmed's ONE public defender.
There was no question that Larry Klayman was the attorney of Cliven Bundy's choice.

As I indicated above, Larry Klayman was, undoubtedly (1) skilled and (2) wanted by his client.

And, these two conditions was undoubtedly enough to have representation by Larry Klayman mandated by the 6th Amendment of the U.S. Constitution that, under the Supremacy Clause, trumps any inconsistent state law.

Yet, Chief Judge Gloria Navarro, of the Nevada District Court, thought, as well as the U.S. Court of Appeals for the 9th Circuit, that there is a compelling interest that may allow her to preclude representation of a criminal defendant in an extremely high-profile case from being represented by a skilled criminal defense attorney of his choice helping the defense team.

The Nevada Chief federal judge Gloria Navarro would not allow representation of Cliven Bundy in his criminal proceedings by the well known conservative public interest lawyer Larry Klayman.

This is the decision:

The Sixth Amendment right to counsel in criminal cases does not have exceptions in its text.

So, any exceptions invented by courts - like the one Chief Judge Gloria Navarro cited - is amendment of the U.S. Constitution by the court, and is completely illegal, and unconstitutional, as is Chief Judge's Navarro's order denying an extra skillful counsel to a criminal defendant faced by steep charges and a prosecution team of 4 prosecutors against his one current criminal defense attorney.

 Of course, the particular attorney who is being blocked from entering the case, sued the federal government based on Edward Snowden's disclosure of NSA surveillance over American citizens through cell phone data.

Of course, Larry Klayman won a groundbreaking decision against the government on the basis of government surveillance.

Of course, discipline imposed upon him in Florida - that's why Judge Navarro blocked him from representing the criminal defendant who hired and chose him - had nothing to do with his ability to provide a quality criminal defense, and for Cliven Bundy, I am sure, that particular quality in a lawyer controls at this time.

Chief Judge Gloria Navarro, along with the U.S. Court of Appeals for the 9th Circuit, found an exception to the 6th Amendment right to counsel - which, in her view, trumps the U.S. Constitution that she is sworn to uphold.

The court-invented exception to 6th Amendment is like this:

 The 6th Amendment right to counsel in a criminal case is now, apparently, according to Chief Judge Gloria Navarro, a "qualified" (restricted) right.

And it is "qualified" (restricted) if satisfying that (constitutional) right will be too much of a burden for the court where counsel is "incompetent or unwilling to abide by court rules and ethical guidelines".

But - wait a second - if for any reason, Cliven Bundy chooses to represent himself, he cannot be blocked from doing so even:

  • if he is incompetent;
  • if he is completely unethical with the court; and
  • if he is completely unable or unwilling to follow court rules
 His right to self-representation cannot be denied then.

His right to representation by another cannot be denied either - there is NO such restrictions in the text of the 6th Amendment, and a federal court does not have an authority to amend the U.S. Constitution, the clear and unambiguous text of the 6th Amendment, through interpretation.

Chief Judge Navarro indicated that a criminal defendant's 6th Amendment right to counsel of his choice may be restricted only for "compelling reasons", meaning that the so-called "strict scrutiny" test is supposed to be applied.

But, first, the strict scrutiny test (invented by the U.S. Supreme Court to analyze whether the government STILL has authority to violate fundamental constitutional rights of individuals, even if the U.S. Constitution clearly says it doesn't give the government such an authority) requires also to go through an extra step - to verify whether the restrictions of the 6th Amendment right is "narrowly tailored" to that allegedly "compelling interests".

You saw in the order of Chief Judge Gloria Navarro (cited ) above the cited "compelling reason" to deny criminal defendant Cliven Bundy a counsel of his choice - "fair, efficient and orderly administration of justice".


To deny a federal constitutional right to counsel of his choice to a criminal defendant who, once again, has only one criminal defense attorney on his side, while the prosecution has 4 prosecutors on their team - satisfies the "compelling" interest of "fair, efficient and orderly administration of justice"?

And, what "orderly" and "efficient" has to do with "justice"?

There is no compelling interest by the government for "efficient" administration of justice, because the only "efficient" resolution for the government is a conviction.

There is no compelling interest of the government in "orderly" administration of justice either, because the only "orderly" way out is to kill all criminal defense and civil rights attorneys or permanently seal their lips (they are trying to do that through attorney discipline that disproportionately, if not solely, targets feisty criminal defense and civil rights attorneys).

There is no statutory or constitutional definition of "orderly" or "efficient" administration of justice, and what is a "fair" administration, is already set in the U.S. Constitution, its Amendments and federal penal and procedural statutes.

So, the strict scrutiny test, as illegal and unconstitutional as it is in itself, was not even followed by Chief Judge Gloria Navarro to the end, she did not prove:

(1) that "fair" administration of justice is a "compelling interest" OF THE PROSECUTION and the court that may be used to restrict a criminal defendant's 6th Amendment right to counsel;

(2) what "orderly" or "efficient" administration of justice is, why it is a "compelling interest" of the government, and what is the legal basis to allow that "compelling interest" to trump a fundamental constitutional right under the 6th Amendment (other than a decision by another court made without authority to make such a decision).

With such a drastic decision, made on such a contrived ground - a decision that very obviously stinks - I started to look what kind of background Chief Judge Gloria Navarro has to lead her to make such a decision.

Chief Judge Navarro, according to her official biography, worked previously both as a public defender, and as a prosecutor.

Apparently, becoming part of judicial establishment must go to people's heads.

Obviously, Judge Navarro's ruling may help her career should a Republican president be elected (even though she was appointed initially to the bench by President Obama).  And Chief Judge Navarro, who is just 48 at this time (very young for a federal judge) has some ways to go up the ladder - she can still become:

  • a federal appellate court judge;
  • a federal appellate court's Chief judge, and
  • a U.S. Supreme Court justice
And, these three extra steps to go may make the whole difference in whether Chief Judge Navarro wants to do "fair" administration of justice - or just "efficient and orderly" one.

One thing is also clear - that Chief Judge Navarro's order is unconstitutional, that it was a reversible error to deny counsel of his choice to a criminal defendant based on judge's contrived reasoning.

But, since Judge Navarro already relied on the 9th Circuit "precedent", it will be for the U.S. Supreme Court - if it would take the case for review should there be a conviction and appeal - to rule on this issue.

In this country the U.S. Constitution exists and becomes visible only if the Council of 9 (now 8) elders says so.

Tuesday, March 15, 2016

When a criminal defense attorney runs for public office, how do we assess the record of her success?

I posted a blog yesterday about a smear campaign against #JudgeJaneKelly, nominee to the U.S. Supreme Court, who was a federal public defender before she came to the bench of a federal appellate judge in the 8th Circuit.

I also covered in that blog the filibustering of President Obama's nomination in 2014 of a civil rights attorney who was blocked from taking a position of chief of Civil Rights Division in the U.S. Department of Justice because he was too good of a civil rights and criminal defense attorney.

One thing needs to be pointed out that is overlooked when a criminal defense attorney is running for or being nominated for a public office - an equally rare occasion.  Unlike a prosecutor who can boast convictions (even wrongful convictions, even convictions on coerced pleas and while using false and fabricated evidence) as the prosecutor's "record" of "fighting crime" when running for or being nominated for the bench.

As my professors and mentors always taught me, a criminal defense attorneys does not "win" the case - the prosecution loses, because the burden to put the case together, and the burden of proof are entirely upon the prosecution.

Criminal cases rarely come to trial.

Most of them are resolved through either plea bargains, dismissals, or resolutions reducing a crime to a non-crime.

I would like to talk about the latter.

When a criminal charge is dismissed before trial, that is a big win for the defense, but in that case, the criminal case disappears, the record is sealed, and the criminal defense attorney does not have a right to brag about the case.

I clearly remember how surprised (at first) I was when I saw that clients for whom my husband, a criminal defense attorney at the time, won dismissals of cases, sometimes would not recognize my husband in the street, walk right by him.

And then some of them called him, apologized and explained that they did not want other people to know that they know my husband, a leading criminal defense attorney in the area.

So, criminal defense attorneys have no bragging rights about dismissed cases, even though such dismissals before trial saved the client money and especially the stress and heartache of the trial, the stress of possible conviction at trial and the uncertainty and expense of the appeal.

When a criminal charge is reduced to a non-criminal charge, the case is similarly sealed, and thus, again, an attorney loses bragging rights for the attorney's "win", as opposed to a prosecutor.

In New York, such a situation will arise if, for example, a charge for a misdemeanor or a felony (a crime) is reduced to a violation (not a crime), or if an eligible young defendant is given a youthful offender (YO) status.

Often criminal defense attorneys also represent people in child abuse/neglect cases and in domestic violence/"family offense" cases in Family Court.

Wins in such cases are also sealed, as all Family Court records, and there are, similarly, no bragging rights when such an attorney would consider running or being nominated for a high public office.

I just want the public to be aware that when a criminal defense/family court defense attorney is running for office, most of his or her wins and accomplishments may not be revealed to the public simply because they are sealed.

Thus, the balance is between sealed accomplishments of criminal defense attorneys and known record of convictions of prosecutors, likely created by drumming up coerced pleas.

The public needs to be aware of this imbalance, especially where the majority of judges in this country came from prosecutors, and where judicial misconduct may be the natural continuation of a prosecutor's mentality - just charge and intimidate, and you will be immune for anything false and criminal you are doing during the trial.

Unlike a prosecutor, a criminal defense attorney is not given as many resources, must fight against tremendous odds for his or her client, including the unfair publicity that the police and prosecution often create before the case is heard by the court, and must be a quick and effective thinker.

For a prosecutor, given that most judges are former prosecutors, too, a victory is often presumed, and a loss is usually the result of either the prosecutor's or the police's extremely sloppy work, or the result of an outstanding work of the criminal defense attorneys where even a judge cannot help but rule against the prosecutor despite the judge's usual bias against the defense.

I think, we need more of criminal defense attorneys in public office, not less, and I think, we need to be extremely alert to smear campaigns against criminal defense attorneys who run for public office - like the one going on now against the U.S. Supreme Court nominee #JudgeJaneKelly.

Wednesday, April 6, 2016

Being "strongly deferential" to (biased in favor of) governmental litigants is a qualification for high office in the U.S., being an honest criminal defense or civil rights attorney is a disqualification for high office. It worked with #JudgeJaneKelly, will it work with #HillaryClinton?

I recently made a blog post about the disgusting tactic aimed to derail a high-office appointment of a candidate because of the candidate's history of being a criminal defense attorney and representing an "unpopular" client.

The tactic actually worked in derailing President Obama's choice to nominate a worthy candidate #JudgeJaneKelly and instead to nominate a white male with no history of criminal defense Judge Merrick Garland, against whom a disciplinary complaint/letter was recently filed, and the complainant seeks to testify at Judge Garland's confirmation hearing, if that hearing ever happens.  

The letter, addressed to Judge Garland, contains a phrase: "As chief judge, you have fostered a culture of corruption in the E. Barrett
Prettyman Courthouse".

We truly needed to reject nomination of an honest criminal defender to instead put on the U.S. Supreme Court another corrupt judge, who is "strongly deferential" to "big government" power.

Being "strongly deferential" (in other words, biased) in favor of the government, the government that appears in front of Judge Garland in civil rights cases in the federal D.C. Circuit of Columbia Court, as a defendant - is, obviously,  a good qualification for advancement to the top positions in the U.S. Government.

Being an honest criminal defense attorney opposing efforts of the government to accuse, often falsely, often on false evidence, individuals and put them through the hell of the American criminal "justice" system is, instead, a disqualification from a high governmental office in the U.S.

Since the tactic worked with #JudgeJaneKelly and, previously, against President Obama's nominee Debo P. Agebile who was not confirmed for the position of the Director of the Division of Civil Rights in the U.S. Justice Department because of his successful motions on behalf of an unpopular criminal defendant.  In other words, Mr. Agebile was, allegedly, a bad candidate for public office because he was a good criminal defense attorney and civil rights attorney who took his job seriously - the tactic is now used against presidential candidate Hillary Clinton.

While being no fan of Hillary Clinton for the position of President of the United States, as a dispassionate observer of the circus that the presidential campaign has become, I can state that the use against Mrs. Clinton of the fact that she represented - as an assigned counsel - in 1975, a person accused of child rape, indicates that her opponents are getting desperate.

The attack also shows that people have no understanding of the concept of presumption of innocence, claiming that she represented "a child rapist".

No, she represented a person who was presumed innocent, and was accused of child rape.

Even when attorneys represent people convicted of most heinous crimes, even conviction in this country - with rampant judicial and prosecutorial corrutpion and now-frequent exoneration, some of them from death row, many of them because of prosecutorial misconduct - even a conviction is not conclusive proof that that particular person committed a crime.

An innocent person facing death penalty will most likely falsely confess to save his/her life.  

95% or more of criminal cases are "resolved" in this country through plea bargains, where often innocent people accept the lesser of two evils.

To blame an attorney to try to defend people in such situations - especially when such an attorney, like in Mrs. Clinton's case in 1975 - was court-appointed, is to put constitutional law of this country on its head.

And - once again, before casting such allegations, opponent of Mrs. Clinton should think whether they look as they looked when they used this little smear tactic against her - desperate.

Wednesday, May 10, 2017

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.

Wednesday, December 19, 2018

No discipline for SCOTUS Justice Kavanaugh: good or bad? The Trump litmus test continues

I have written on this blog many times that the election of Donald Trump has so far worked, and continues to work, as a litmus test for many ways of how the American government works, on federal and state levels.

Certain things which the law permitted the previous administrations to do, somehow becomes not permissible under this administration.

Certain things that were wrong - but not noticed - under the previous administrations, became more visible just because Trump is doing it.

I am planning a detailed overview of this phenomenon, but in this particular article I wanted to point out one extraordinary feature of the "Trump litmus test":  it has shed a light on the U.S. Supreme Court and what is very wrong about its operation over the last 100 years.

First of all, with the death of Justice Scalia (and unlawful filibustering by the Republican Senate of a nomination to SCOTUS by President Obama) and retirement of Justice Kennedy, Trump has got to fill two seats so far on the U.S. Supreme Court.

Same as President Obama, same as all presidents before him, President Trump has avoided as a plague in fitting the vacancy on the U.S. Supreme Court, the last resort in death penalty cases - candidates with criminal defense background.

The only people who have criminal law experience on that court are former prosecutors.  

Of the 9 current justices of the U.S. Supreme Court, 

  1. Stephen Breyer;
  2. Clarence Thomas;
  3. John Roberts (The Chief Justice):
  4. Ruth Ginsburg;
  5. Samuel Alito;
  6. Neil Gorsuch;
  7. Sonia Sotomayor;
  8. Elena Kagan;
  9. Brett Kavanaugh,
the only U.S. Supreme Court justice who does not have prior experience as a prosecutor is Ruth Ginsburg, and yet, Ruth Ginsburg's experience as a law professor and general counsel for ACLU between 1973 and her nomination to the bench in 1980 is not the equivalent of a background in criminal defense, since the ACLU has never undertaken criminal defense, and Ruth Ginsburg in particular did not work as a criminal defense attorney.

I thoroughly dislike Hillary Clinton and did not vote in the previous presidential elections because I did not see good presidential candidates in either of the candidates running in 2016.

President Trump, so far, also disappointed, having nominated to the court 2 white males, both former prosecutors, having so far confirmed the trend portraying background in criminal defense or civil rights litigation as a disqualification for public office (only one justice on the U.S. Supreme Court has a qualification in civil rights litigation, and NONE - in criminal defense).  Once again, this court handles criminal cases, and, especially, death penalty cases.

With NO justices having prior experience in criminal defense, while 8 justices having experience (and indoctrination) in prosecution, and the mentality of people having "enjoyed" prosecutorial immunity - which corrupts prosecutors' minds and drives them to score convictions, without regard whether the law is followed, with an eyes on the prize, career advancement.

For 8 out of 9 U.S. Supreme Court justices, prosecutorial positions did bring a career advancement, to the top of the American government, a lifetime appointment to a position where there are no job requirements, no accountability and an unlimited power over life and death (literally), people's fates, property, and over setting the law in the entire country - without authority for doing that in the U.S. Constitution, but by "well-settled" custom.

Since 1925, SCOTUS has asked - and received - from the U.S. Congress the gift of not having to review all petitions filed with the court, on the merits.

A SCOTUS judge is the only position where the judge does not have to preside over court cases other than impeachment of the President (applicable only to the Chief Judge of SCOTUS) and does not have to discharge functions other than administrative (swearing in highest officers of the U.S. Government).

Otherwise, there is no minimum of cases to review per year for SCOTUS.

If SCOTUS chooses no cases for review in a given year, they have a right to do that, too.  Nobody can make them accountable for refusing to review the absolute majority of cases (7920 out of 8000 filed, and then, we do not have official statistics of how many cases are REALLY filed published by the U.S. Supreme Court, only approximate numbers).

Cases that SCOTUS does take for review "coincidentally" are filed predominantly by 70 attorneys, the so-called "Echo Chamber", most of them having some kind of connection to the court (former clerks etc.).

Nothing too crooked.

Judges accept gift from parties and attorneys - for themselves and for their law clerks.

Periodically scandals flare about particularly corrupt gift-taking, but no impeachment of a U.S. Supreme Court Justice occurred on that ground so far, and the U.S. Supreme Court does not have a code of judicial conduct, but does have a code of silence for its clerks and a code of PERSONAL loyalty of clerks to justices, which has nothing to do with the U.S. Constitution that gives to justices their power, within its strict boundaries.

Justice Scalia was "found dead" at a remote Texas ranch with personnel speaking only Spanish, the ranch belonging to an individual who has had prior litigation with the U.S. Supreme Court that ended up in his favor.

The duck-hunting trip of the same Scalia with a party in litigation also did not result in discipline for Scalia.

Scalia's friend on the court Justice Ginsburg, while spewing open hatred to the current President, and having done so since before his elections, continues to preside over cases where he is a party, without recusal.

While President Trump is being investigated for "Russian collusion" by a special counsel, nobody investigates SCOTUS justices when they travel or lecture while paid by foreign governments.

In 2015, foreign sponsors paid (bought) U.S. Supreme Court justices for the following:

Roberts - lectures in Japan;
Ginsburg - lectures in South Korea; Switzerland
Kennedy with spouse - Austria;
Kagan - Israel;
Breyer - Great Britain

Ginsburg and Alito were paid by lawyers' organizations to travel abroad in 2015,

Ginsburg - to the Great Britain (paid for by the American College of Trial Lawyers), 

Alito - to the Dominican Republic, paid for by the Federal Bar Council - 

by organizations of attorneys APPEARING in front of these judges.

SCOTUS judges who reject the majority of incoming petitions, have time for side jobs.

For example, in 2015, the following side jobs were reported by SCOTUS judges (I summarized this information from justices' releases obtained by a watch-group on a Freedom of Information Request),  I have printouts of  copies of justices' actual financial disclosures for 2015 are on file.

Anthony M. Kennedy McGeorge School of Law, University of the Pacific  $                   12,500.00
Anthony M. Kennedy Colonial Williamsburg Foundation
Clarence Thomas Horatio Alger Association
Clarence Thomas Creighton University School of Law  $                   15,000.00
Clarence Thomas George Washington University School of Law  $                   10,000.00
Clarence Thomas J. Reuben Clark Law School - Brigham Unviersity  $                      2,225.00
Clarence Thomas The Daily Caller  Salary 
Clarence Thomas Liberty Consulting, Inc.  Salary and benefits 
Ruth Ginsburg Trust Article Fourth U/W Martin D. Ginsburg, Trustee
Ruth Ginsburg University of Michingan - Tanner Lecturer  $                   10,000.00
Samuel Alito ABA Advisory Committee on the Law Library of Congress
Samuel Alito Member Honorary Board of the Franciscan Monastery of the Holy Land in the United States
Samuel Alito University of Kentucky  $                      6,000.00
Samuel Alito Duke University Law School  $                   15,000.00
Elena Kagan Harvard Law School
Elena Kagan President and Fellows of Harvard College  $                   15,000.00
Stephen Breyer Dana-Farber Cancer Institute
Stephen Breyer The Pritzker Architecture Prize
Stephen Breyer Penguin Random House LLC, Royalty Income  $                 116,774.61
Stephen Breyer The authors Registry, Inc; Royalty Income  $                         384.93
Stephen Breyer Penguin Random House LLC, Nonemployee compensation $5,000

Note that, when SCOTUS Justices are paid lecturers in colleges and universities, they were disqualified from hearing immigration cases where colleges and universities were claiming standing and injury from Trump administration's "travel ban".

None of them recused.

And none of that became a burning issue in the American media or for the American public.

No "emolument clause" was invoked, no demonstrations held in the streets, no lawsuits filed and no criminal or impeachment investigations commenced.

In fact, complaints against U.S. Supreme Court justices die on filing - because NOBODY "under the law" in the United States may discipline a SCOTUS justice.

One might say that complaints against Justice Kavanaugh were politically motivated - since he was on the federal bench for 12 years, from 2006 to 2018, with no complaints filed against him.

The trigger for the complaints was not the judge's behavior, but him having been nominated by President Trump who certain people want to filibuster no matter what he does.

From that point of view, complaints against Kavanaugh, likely, did not have merit and were unfair.

But, that is not the point I am making here.

The point I am making is that the complaints, fair or unfair, meritorious or not, were not even REVIEWED by federal judges - BECAUSE Judge Kavanaugh has become a U.S. Supreme Court Justice Kavanaugh, and as such, unreachable by judicial discipline.

He (and his 8 associates) have a job that has

  1. no requirements of a minimum caseload;
  2. a marble palace and a practically unlimited budget - for 9 people to review court cases, for which the same court had, initially, a single room in the Capitol building;
  3. plenty of time to go, during business hours, to 
    1. talk to law students;
    2. talk to bar associations (all expenses paid for travel and accommodations);
    3. write books, sell them and advertise them;
    4. lecture for money;
  4. an ability to allow themselves to accept gifts in money and in kind for themselves and for their personnel from parties and counsel in litigation, and from foreign governments and entities - 

with NO ACCOUNTABILITY whatsoever.

The "phenomenon" of no discipline for a U.S. Supreme Court Justice BECAUSE he is a U.S. Supreme Court Justice was caught by the media because the complaints were against a Trump-nominated Justice.

But, the same applies to all other judges of this court.

Isn't it time to demand from the newly-elected democratic House in the U.S. Congress to stir up this sinecure that has nothing to do with the authority given to this court (a limited authority, mind) by the U.S. Constituion, and to re-establish this court the way it was planned by the "Founding Fathers" in the first place - 

not as a lifetime graft-making sinecure without any accountability and unlimited power, 

but a court of law that must resolve ALL incoming petitions on the merits.

If they do not have enough justices to review all incoming cases - expand the court.

If we have 150 justices of the U.S. Supreme Court, and if they have a strictly enforceable code of conduct, limited terms and a prohibition on making laws, and on accepting gifts of ANY KIND from the public and especially from foreign governments, entities and individuals - maybe, then, we will look the way we declare ourselves to be, a democracy?

Because the way SCOTUS is set up now smacks of a monarchy.