A lot of people, prospective and current clients, complained to me about the quality of assigned representation in court.
The complaints are usually that the assigned attorneys do the following:
1) Do not talk to their clients, do not explain the essence of proceedings, the clients' rights;
2) Steer people into unfair settlements in civil cases (child neglect, child custody) or into plea bargains in criminal cases where the case could be won with proper discovery and motion practice;
3) Waive important rights on behalf of criminal defendants without advising them of those rights or asking whether they want to waive those rights. Usually this is the right to a speedy trial, in one court I saw counsel routinely waive criminal defendants' right to remain silent;
4) in felony cases, assigned counsel routinely waive their clients' time limitation for a felony hearing (144 hours since the arrest and detention), and keep their clients unnecessarily in jail while they can be released for failure to give a felony hearing, and while such a waiver gives the prosecution more time to coach its witnesses; waiver of a felony hearing, which is what assigned counsel regularly do, deprives the defendant of the most significant opportunity before trial to collect statements from the accusers at the time prosecution did not yet have time to coach their witnesses, for impeachment purposes at trial;
5) assigned counsel routinely have their indigent clients waive their right to be indicted by the grand jury (in writing, without explaining what exactly is being waived, or what is the importance of the grand jury proceeding);
even though, sadly, there is a saying that grand juries can indict a ham sandwich, it is not always true.
Grand juries do refuse to indict occasionally, do indict at a lower level than what is requested by the prosecution, and forfeiting the right to be indicted without receiving anything in return, as it often happens in assigned cases, is a gross disservice to the client. Grand jury testimony of the accusers must also be provided to the defense counsel at trial and can be used for impeachment purposes.
6) I have yet to see assigned counsel who would do motions for his/her client, and even doing routine discovery is very rare for assigned counsel in criminal cases; I never saw any discovery from assigned counsel in Family court cases;
Motions in a criminal case may lead to obtaining pretrial hearings, which may serve to (a) suppress physical evidence, identifications or statements; (b) provide one more source of pre-trial statements from the accusers for impeachment purposes.
7) Assigned counsel practically never engage experts and investigators at county expense, to which their clients are entitled.
Thus, by waiving felony hearings, waiving grand jury indictments, waiving pretrial discovery and motions, waiving their clients' rights to experts and investigators, assigned counsel deprive their clients of any meaningful way to impeach their accusers at trial, and this way it is easier to steer defendants into plea bargains on terms that could have been a lot better had the assigned counsel did their job properly;
8) clients often complain that it is impossible to have their assigned counsel raise sensitive subjects on motions, such as police, prosecutorial and judicial misconduct.
9) in both civil and criminal cases, people complain that their assigned counsel do not prepare fir trial even if the clients want a trial, with predictable results.
Why all of that is happening?
I see two main reasons, and neither one has anything to do with interests of the clients.
First, economy is bad now, and the market of legal services is shrinking. Assigned cases provide a source of income to attorneys ($60.00 per hour for.misdemeanor criminal cases, $75.00 per hour for felony criminal cases and for Family court cases). Attorneys who do too much work for their clients, resulting in higher bills to the county per client, do not get assigned again. Assignments are in the hands of presiding judges. If the assigned counsel challenges a particular judge for bias, he or she can say good bye to assigned cases from that judge. For many attorneys, assigned cases constitute a substantial portion of their incomes, and they will not risk their opportunities fir future assigned cases to help one client, no matter what the attorney's oath of office or rules if professional conduct say.
I have yet to see an attorney to be publicly disciplined for neglecting his or her client in any of the above described ways.
Rules of malpractice in New York for criminal cases are such that a criminal defendant may not sue his or her attorney for legal malpractice, unless the criminal defendant first overturns the criminal conviction caused by such attorney malpractice.
It is notoriously hard to overturn a criminal conviction on appeal, and it is practically impossible to overturn a conviction on a plea bargain, especially where part of the plea is a written waiver of the right to appeal.
Therefore, an assigned counsel who did a sloppy job, waived important rights of his or her client for the counsel's benefit and not the client's benefit, and steered the client into a non-beneficial plea bargain, does not have anything to fear, but has the good graces of the judge to gain in.order to secure future financial stability through more assigned cases.
The second reason for sloppy work of assigned counsel is even easier, it is cash flow.
Unlike the private counsel who gets a retainer down at the beginning of the case to cover substantial amount of his/her work, and who is paid by private counsel further, during the case, when the retainer is depleted and who is usually paid a separate retainer if the case goes to trial, before trial, the assigned counsel is only paid at the conclusion of the case.
In other words, the State of New York makes assigned counsel finance litigation in assigned cases, including attorney's services and out of pocket costs such as paper, copying, postage, gas for driving to and from the court, legal research, and that attorney financing of cases is interest-free, no matter how long it takes to bring the case to conclusion - and even then it takes time for attorney vouchers to be approved and paid.
It is then not surprising that assigned counsel's financial strategy is to keep in good graces of judges by not raising sensitive issues and thus keeping assignments coming in, take on many assigned cases at the same time, do the least amount of work requiring out of pocket expenses and bring cases to conclusion as quickly as possible to get paid sooner and keep the cash coming in steadily. Apparently, if the clients' rights need to be waived to achieve that cash flow goal, the clients are sacrificed, with impunity.
These are purely economic incentives for assigned counsel to do sloppy work fast, and as long as assignments are in the hands of presiding judges and assigned counsel are not paid nor reimbursed for out of pocket expenses or given money for such estimated expenses, same as private counsel are, up front and during the pendency of the case, effective and independent representation of the indigent will remain a myth and a farce which is what it is now in New York.
Wednesday, October 15, 2014
Tuesday, October 14, 2014
Is practice of law legitimized slavery in violation of the 13th Amendment? In New York, courts often make it so
Under the common law, legal representation is provision of services.
Provision of services can be done under an oral contract, and performance of the attorney in reliance on a promise to pay constitutes a binding contract supported by consideration. That is a hypothetical for a 1st year law student.
And, when the promise to pay is broken, and the client refuses to pay, for the past or future services, the contractual relationship is broken, too, and the service provider does not have to provide the service any more.
Yet, in New York at least, it is not that easy.
In New York, the attorney is deemed a "fiduciary" (trusted person), and, if the attorney is not paid, he becomes a highly educated and qualified slave (in court proceedings), even though slavery in this country has been abolished over a century ago.
Courts in New York repeatedly held that failure to pay an attorney is not a good reason for the attorney to be able to discontinue representation and be allowed to withdraw from a pending court case.
An attorney may be ordered by the court to conduct an entire trial for free, in full knowledge that the client will never pay. It happened to me, and not once.
Are such court orders a violation of the 13th Amendment? Of course, they are.
Is there a legal remedy to correct the problem? No, there isn't, because judges are covered by absolute judicial immunity and the U.S. Constitution (which every judge is sworn to uphold as a pre-requisite of holding the judicial office), and 13th Amendment is unenforceable against the judiciary. Good luck raising this issue on appeal.
Until this system is changed, it is unreasonable for the public to expect that prices of legal services and initial retainers will go down and that affordable payment plans for provision of legal services will become popular any time soon.
Provision of services can be done under an oral contract, and performance of the attorney in reliance on a promise to pay constitutes a binding contract supported by consideration. That is a hypothetical for a 1st year law student.
And, when the promise to pay is broken, and the client refuses to pay, for the past or future services, the contractual relationship is broken, too, and the service provider does not have to provide the service any more.
Yet, in New York at least, it is not that easy.
In New York, the attorney is deemed a "fiduciary" (trusted person), and, if the attorney is not paid, he becomes a highly educated and qualified slave (in court proceedings), even though slavery in this country has been abolished over a century ago.
Courts in New York repeatedly held that failure to pay an attorney is not a good reason for the attorney to be able to discontinue representation and be allowed to withdraw from a pending court case.
An attorney may be ordered by the court to conduct an entire trial for free, in full knowledge that the client will never pay. It happened to me, and not once.
Are such court orders a violation of the 13th Amendment? Of course, they are.
Is there a legal remedy to correct the problem? No, there isn't, because judges are covered by absolute judicial immunity and the U.S. Constitution (which every judge is sworn to uphold as a pre-requisite of holding the judicial office), and 13th Amendment is unenforceable against the judiciary. Good luck raising this issue on appeal.
Until this system is changed, it is unreasonable for the public to expect that prices of legal services and initial retainers will go down and that affordable payment plans for provision of legal services will become popular any time soon.
What are my chances in court? Depends if the judge chooses to apply the law or run with his "whims" or "quirks", and whether your attorney brown-nosed the judge or pissed him off with criticism
Every litigation attorney faces this question on a daily basis: what are the client's chances in court?
Of course, by ethical rules, the lawyer is prohibited to give the client any guarantees by success, a rule that many lawyers breach, as far as I can judge by what my clients who come from other lawyers, tell me.
My clients often are put off (at first) by my statement that I cannot guarantee the outcome of representation.
I have to explain to them that this is the ethical rule, binding upon all lawyers, not to give any guarantees of outcome.
That the only thing the lawyer can promise is to work diligently and to the best of his/her ability.
I usually put a lot more hours into my work than I can ever bill my clients for. My clients know that I am, if anything, a compulsive researcher and that I will not leave any stones unturned, so to say, to look under them for evidence or arguments in favor of my clients. My clients also know that I always absorb research costs and never bill them for costs of research that I incur, and they were, over the years, considerable.
Yet, all rules observed, a lawyer can still weigh the chances of his or her client and say at least whether it is likely or unlikely that the client, given his facts and the state of applicable law, will succeed in court with his or her case.
One thing I cannot predict though is the "rule of whim", and I see on a daily basis that the rule of whim has swallowed the rule of law in New York state and federal courts.
Female law students are advised to participate in "fashion shows" where they are showed how to dress and how not to dress for a particular judge, whether a judge likes female attorneys in skirt-suits or in pant-suits.
Is is sexist? Of course, it is. Is it the reality of the courtroom that seasoned attorneys teach law students to consider? Yes, it is, too.
Very seasoned attorneys in the area told me tales about a certain judge (since retired and now deceased) who was very much into feminine charms, so to say, of young female attorneys, and that was at times when female lawyers were still a rarity.
What male partners in law firms did then, was to hire a young female associate, instruct her to dress up in court in a way to show her "feminine assets" to the greatest advantage for the judge looking down from the bench (including low-cut blouses showing off the female attorney's cleavage), and put her in front of the judge. As I was told, success was guaranteed.
Naturally, when a judge is giving advantage in litigation to a female attorney (and her client) because she is a young pretty girl and wears what the judge likes (a skirt-suit, not a pant-suit, for example), such a preference and advantage in litigation has nothing to do with the law.
Naturally, if a client asks an attorney about his or her chances in court, if an attorney tells him that such a sexist preference can happen, the attorney, most likely, will be disciplined for "impugning integrity" of a judge who will, of course, claim that he has no such preferences.
What happens when judges with such "preferences" are allowed on the bench, with impunity, for a long time, has been described in my blog here, here, here and here.
Yet, most of such "preferences" occur in the judge's head, are improvable and do not make headlines.
Judges might have other preferences, which are not necessarily related to the mode of dress of female attorneys. And the whole country of lawyers pay money to learn judges' whims and quirks in order to win cases, and that is considered "Continued Legal Education", with an ethical (!) component in it.
If that is continued "legal" education, then law schools should be closed because the only thing one should learn is courses in brown-nosing, and that is not taught in law schools.
When attorneys are admitted to practice law, they take an oath of office, even if they only intend to practice law as private attorneys.
They still take an oath of office as "officers of the court" to pledge loyalty to the Constitution of the United States, of the state where the attorney is licensed, and of the applicable laws.
Nobody asks an attorney to make a pledge of loyalty to the government, including its judicial branch.
And, the government, as public SERVANTS, are just that, SERVANTS of the people as a sovereign, and, as every SERVANT, the government can err, underperform, commit misconduct, do a sloppy job.
And, as can be foreseeable in the human nature, the less accountable a particular public servant or class of public servants are, the more misconduct can be expected from the and the more sloppy their performance becomes.
Any MBA student and any business owner in charge of any number of staff, as well as any parent will confirm that to you: the less accountability translates into the lower job performance.
Our judiciary has a virtual zero accountability. Moreover, judges, as public servants, are also given an uncontrollable right to strike against people who criticize them, to the point of taking away their livelihood if those people are attorneys.
For that reason, the practice of law has become a popularity contest and a contest of scraping and bowing.
Of course, there is an easier way to fix all problems, for yourself or your clients - just marry or befriend a judge, and, as my experience shows, the law will be bent your way and against your critics no matter what you do and no matter how right they are and how wrong you are.
For those attorneys who are not married or befriended to judges, the practice of law remains a popularity contest and a contest in scraping and bowing and catching the judge's attention with silly smiles, silly jokes, campaign contributions, wearing clothes that the judge might like and, of course, failing to criticize any mistakes the judge may be making.
And, under such circumstances, the main features distinguishing the rule of law from the rule of men (absolute arbitrary power of individuals) which was the reason why this country announced its independence from a monarchy to begin with - predictability - disappears and what remains is the rule of men, the rule of whim, the rule of "discretion" understood by judges as an absolute power to do whatever they want.
"It is MY courtroom," "I will not allow you to do that (usually, trying to make legal argument to preserve your client's rights for the record) in MY courtroom".
So - the honest answer that an attorney should give a client seeking advice as to his chances in litigation is "I don't know".
After all, how can the attorney know whether the opponent will or will not present a particularly attractive female (for a male judge) or male (for a female judge) to make their arguments, whether the particular judge has been wined and dined through some secret social networking organizations by your opponent, whether the judge, his relatives or friends have a grudge against the party, his relatives or friends, or his or her attorney.
Predictability of the law became the same kind of myth as the U.S. and state Constitutions which are used nowadays only as tokens to administer oaths of office and, thus, as tokens to grab the power and financial perks that come with that power - but not the responsibility that must accompany the office.
So, your chances in court are as good as the chances of your attorney to get on the good side of the judge. Is it the law? No. Is it the reality of court proceedings in the United States? Yes.
Of course, by ethical rules, the lawyer is prohibited to give the client any guarantees by success, a rule that many lawyers breach, as far as I can judge by what my clients who come from other lawyers, tell me.
My clients often are put off (at first) by my statement that I cannot guarantee the outcome of representation.
I have to explain to them that this is the ethical rule, binding upon all lawyers, not to give any guarantees of outcome.
That the only thing the lawyer can promise is to work diligently and to the best of his/her ability.
I usually put a lot more hours into my work than I can ever bill my clients for. My clients know that I am, if anything, a compulsive researcher and that I will not leave any stones unturned, so to say, to look under them for evidence or arguments in favor of my clients. My clients also know that I always absorb research costs and never bill them for costs of research that I incur, and they were, over the years, considerable.
Yet, all rules observed, a lawyer can still weigh the chances of his or her client and say at least whether it is likely or unlikely that the client, given his facts and the state of applicable law, will succeed in court with his or her case.
One thing I cannot predict though is the "rule of whim", and I see on a daily basis that the rule of whim has swallowed the rule of law in New York state and federal courts.
Female law students are advised to participate in "fashion shows" where they are showed how to dress and how not to dress for a particular judge, whether a judge likes female attorneys in skirt-suits or in pant-suits.
Is is sexist? Of course, it is. Is it the reality of the courtroom that seasoned attorneys teach law students to consider? Yes, it is, too.
Very seasoned attorneys in the area told me tales about a certain judge (since retired and now deceased) who was very much into feminine charms, so to say, of young female attorneys, and that was at times when female lawyers were still a rarity.
What male partners in law firms did then, was to hire a young female associate, instruct her to dress up in court in a way to show her "feminine assets" to the greatest advantage for the judge looking down from the bench (including low-cut blouses showing off the female attorney's cleavage), and put her in front of the judge. As I was told, success was guaranteed.
Naturally, when a judge is giving advantage in litigation to a female attorney (and her client) because she is a young pretty girl and wears what the judge likes (a skirt-suit, not a pant-suit, for example), such a preference and advantage in litigation has nothing to do with the law.
Naturally, if a client asks an attorney about his or her chances in court, if an attorney tells him that such a sexist preference can happen, the attorney, most likely, will be disciplined for "impugning integrity" of a judge who will, of course, claim that he has no such preferences.
What happens when judges with such "preferences" are allowed on the bench, with impunity, for a long time, has been described in my blog here, here, here and here.
Yet, most of such "preferences" occur in the judge's head, are improvable and do not make headlines.
Judges might have other preferences, which are not necessarily related to the mode of dress of female attorneys. And the whole country of lawyers pay money to learn judges' whims and quirks in order to win cases, and that is considered "Continued Legal Education", with an ethical (!) component in it.
If that is continued "legal" education, then law schools should be closed because the only thing one should learn is courses in brown-nosing, and that is not taught in law schools.
When attorneys are admitted to practice law, they take an oath of office, even if they only intend to practice law as private attorneys.
They still take an oath of office as "officers of the court" to pledge loyalty to the Constitution of the United States, of the state where the attorney is licensed, and of the applicable laws.
Nobody asks an attorney to make a pledge of loyalty to the government, including its judicial branch.
And, the government, as public SERVANTS, are just that, SERVANTS of the people as a sovereign, and, as every SERVANT, the government can err, underperform, commit misconduct, do a sloppy job.
And, as can be foreseeable in the human nature, the less accountable a particular public servant or class of public servants are, the more misconduct can be expected from the and the more sloppy their performance becomes.
Any MBA student and any business owner in charge of any number of staff, as well as any parent will confirm that to you: the less accountability translates into the lower job performance.
Our judiciary has a virtual zero accountability. Moreover, judges, as public servants, are also given an uncontrollable right to strike against people who criticize them, to the point of taking away their livelihood if those people are attorneys.
For that reason, the practice of law has become a popularity contest and a contest of scraping and bowing.
Of course, there is an easier way to fix all problems, for yourself or your clients - just marry or befriend a judge, and, as my experience shows, the law will be bent your way and against your critics no matter what you do and no matter how right they are and how wrong you are.
For those attorneys who are not married or befriended to judges, the practice of law remains a popularity contest and a contest in scraping and bowing and catching the judge's attention with silly smiles, silly jokes, campaign contributions, wearing clothes that the judge might like and, of course, failing to criticize any mistakes the judge may be making.
And, under such circumstances, the main features distinguishing the rule of law from the rule of men (absolute arbitrary power of individuals) which was the reason why this country announced its independence from a monarchy to begin with - predictability - disappears and what remains is the rule of men, the rule of whim, the rule of "discretion" understood by judges as an absolute power to do whatever they want.
"It is MY courtroom," "I will not allow you to do that (usually, trying to make legal argument to preserve your client's rights for the record) in MY courtroom".
So - the honest answer that an attorney should give a client seeking advice as to his chances in litigation is "I don't know".
After all, how can the attorney know whether the opponent will or will not present a particularly attractive female (for a male judge) or male (for a female judge) to make their arguments, whether the particular judge has been wined and dined through some secret social networking organizations by your opponent, whether the judge, his relatives or friends have a grudge against the party, his relatives or friends, or his or her attorney.
Predictability of the law became the same kind of myth as the U.S. and state Constitutions which are used nowadays only as tokens to administer oaths of office and, thus, as tokens to grab the power and financial perks that come with that power - but not the responsibility that must accompany the office.
So, your chances in court are as good as the chances of your attorney to get on the good side of the judge. Is it the law? No. Is it the reality of court proceedings in the United States? Yes.
Thursday, October 9, 2014
Should Delaware County Sheriff Thomas E. Mills and the Delaware County District Attorney Richard Northrup be impeached and removed from office for their office's role in Barbara O'Sullivan's case?
I have written on this blog about the lawsuit filed by Barbara O'Sullivan against Deputy Sheriff of Delaware County Derek Bowie for intentional assault and battery upon her with the use of a police vehicle that, according to the lawsuit, happened on September 5, 2014.
I also wrote about that incident right on that day, September 5, 2014, as accounted to me by the still shaken victim.
Since the day of the incident, September 5, 2014, Derek Bowie filed criminal charges against Barbara O'Sullivan, her daughter and even the dog that lived in the house, accusing the dog of biting Derek Bowie and inflicting upon him serious bodily injuries, specifically, numbing of his fingers, according to Derek Bowie's testimony that he delivered while being in uniform, and in possession of a Taser gun and a pistol. Obviously, the alleged numb fingers did not prevent Officer Bowie from having access to deadly weapons.
Yesterday, an interesting public document came into my possession.
It is a statement of Derek Bowie dated September 6, 2014, one day after the incident, where Derek Bowie acknowledges that an incident occurred and that he may have struck Barbara O'Sullivan with his vehicle, but, of course, he blames the victim.
Nevertheless, as of September 6, 2014, in an official statement of which Delaware County Sheriff's Department must be aware, a police officer of the Delaware County Sheriff's Department made a statement that he was involved in a motor vehicle accident, let's say, that resulted in an injury to a woman.
Yet, the Delaware County Sheriff made no efforts whatsoever to take Derek Bowie off the case investigating and prosecuting the victim and her daughter.
Instead, the Sheriff's Department allowed Derek Bowie not only to press charges against the victim and her daughter, but to obtain arrest warrants against them and execute them under the circumstances that may suggest that he sought to get both women and their dog out of the house to search the house for the tablet as evidence of his wrongdoing. In his statement of September 6, 2014 Derek Bowie actually acknowledges that Barbara O'Sullivan was videotaping him from the time she opened the door to him that day.
Even though the Sheriff's Department's cars are or are supposed to be equipped with videotaping equipment, and despite the fact that Derek Bowie stated to Barbara O'Sullivan that he was in fact videotaping her, no such videotapes were submitted by the prosecution in the felony hearing of Barbara O'Sullivan brought against her on charges pressed against by Derek Bowie.
I understand that Derek Bowie used his position of power to race to the court ahead of his victim to press criminal charges against before she sues him, and the Delaware County Sheriff's Department, fully aware of what happened, allowed this abomination of justice to proceed.
Moreover, the Delaware County Sheriff's Department engaged in harassment and bullying against me as Barbara O'Sullivan's counsel, invented on the spot a "policy" of searching attorney files in order for me to visit Barbara O'Sullivan in jail, something that no other attorney in this county has experienced, and some sources out of the Delaware County Sheriff's Department leaked unofficial information to the press and television bad-mouthing Barbara O'Sullivan, her daughter, providing mug-shots and causing a wave of hatred on Facebook against both women, because people assumed that these two women were responsible for the officer being hurt and for the dog being hurt.
Officer Bowie then dared to file a complaint even against the dog, which could result in a forced euthanasia. Luckily, the complaint was dismissed, but without prejudice, which means it can be brought back.
It is apparent that the Delaware County Sheriff's Department has a policy allowing their officers to handle cases where they are involved as witnesses and, possibly, defendants.
Derek Bowie admitted to backing in a car into a human being on September 6, 2014, and then tried to discredit his victim and was allowed to do so, by the Delaware County Sheriff's Department and the Delaware County District Attorney's office, through criminal prosecution against the victim, arrest of the victim and her daughter that Derek Bowie himself carried out, detention of both Barbara O'Sullivan and her daughter in jail of the victim, and by grievous abuse of a dog taken from the victim's house.
It is also apparent that the Sheriff's Department might not have any control over his officers since not one, but two unofficial press-releases were made in Barbara O'Sullivan's case, while the Delaware County Sheriff's Department did not make any official press releases on that case.
It is apparent that Derek Bowie was building his own media campaign to discredit his victim, and the Delaware County Sheriff's Department, as well as the Delaware County District Attorney, instead of investigating and prosecuting Derek Bowie, turned the power of the state against Derek Bowie's victim, obviously protecting their own.
The Sheriff and the District Attorney are both elected positions. Both the Sheriff and the District Attorney ran for office assuring the public that they will make it safe.
Instead, they are allowing an officer who was involved in striking a woman with a police vehicle while she was videotaping the officer, to investigate and criminally prosecute his victim and her immediate family member, cause the victim to be arrested and detained, cause her financial losses, leak information to the press to discredit his victim and deprive her of a fair trial.
It has gotten to the point that the officer nearly succeeded in having the dog taken out of the victim's household, the dog that may be the witness to his misconduct, adjudicated a dangerous dog and forcibly euthanized.
Can the Delaware County Sheriff and the Delaware County District Attorney be trusted with protection of the people from criminals or should they immediately be impeached for attempting to help suspects in uniforms use the power of the state to intimidate and prosecute their victims?
I also wrote about that incident right on that day, September 5, 2014, as accounted to me by the still shaken victim.
Since the day of the incident, September 5, 2014, Derek Bowie filed criminal charges against Barbara O'Sullivan, her daughter and even the dog that lived in the house, accusing the dog of biting Derek Bowie and inflicting upon him serious bodily injuries, specifically, numbing of his fingers, according to Derek Bowie's testimony that he delivered while being in uniform, and in possession of a Taser gun and a pistol. Obviously, the alleged numb fingers did not prevent Officer Bowie from having access to deadly weapons.
Yesterday, an interesting public document came into my possession.
It is a statement of Derek Bowie dated September 6, 2014, one day after the incident, where Derek Bowie acknowledges that an incident occurred and that he may have struck Barbara O'Sullivan with his vehicle, but, of course, he blames the victim.
Nevertheless, as of September 6, 2014, in an official statement of which Delaware County Sheriff's Department must be aware, a police officer of the Delaware County Sheriff's Department made a statement that he was involved in a motor vehicle accident, let's say, that resulted in an injury to a woman.
Yet, the Delaware County Sheriff made no efforts whatsoever to take Derek Bowie off the case investigating and prosecuting the victim and her daughter.
Instead, the Sheriff's Department allowed Derek Bowie not only to press charges against the victim and her daughter, but to obtain arrest warrants against them and execute them under the circumstances that may suggest that he sought to get both women and their dog out of the house to search the house for the tablet as evidence of his wrongdoing. In his statement of September 6, 2014 Derek Bowie actually acknowledges that Barbara O'Sullivan was videotaping him from the time she opened the door to him that day.
Even though the Sheriff's Department's cars are or are supposed to be equipped with videotaping equipment, and despite the fact that Derek Bowie stated to Barbara O'Sullivan that he was in fact videotaping her, no such videotapes were submitted by the prosecution in the felony hearing of Barbara O'Sullivan brought against her on charges pressed against by Derek Bowie.
I understand that Derek Bowie used his position of power to race to the court ahead of his victim to press criminal charges against before she sues him, and the Delaware County Sheriff's Department, fully aware of what happened, allowed this abomination of justice to proceed.
Moreover, the Delaware County Sheriff's Department engaged in harassment and bullying against me as Barbara O'Sullivan's counsel, invented on the spot a "policy" of searching attorney files in order for me to visit Barbara O'Sullivan in jail, something that no other attorney in this county has experienced, and some sources out of the Delaware County Sheriff's Department leaked unofficial information to the press and television bad-mouthing Barbara O'Sullivan, her daughter, providing mug-shots and causing a wave of hatred on Facebook against both women, because people assumed that these two women were responsible for the officer being hurt and for the dog being hurt.
Officer Bowie then dared to file a complaint even against the dog, which could result in a forced euthanasia. Luckily, the complaint was dismissed, but without prejudice, which means it can be brought back.
It is apparent that the Delaware County Sheriff's Department has a policy allowing their officers to handle cases where they are involved as witnesses and, possibly, defendants.
Derek Bowie admitted to backing in a car into a human being on September 6, 2014, and then tried to discredit his victim and was allowed to do so, by the Delaware County Sheriff's Department and the Delaware County District Attorney's office, through criminal prosecution against the victim, arrest of the victim and her daughter that Derek Bowie himself carried out, detention of both Barbara O'Sullivan and her daughter in jail of the victim, and by grievous abuse of a dog taken from the victim's house.
It is also apparent that the Sheriff's Department might not have any control over his officers since not one, but two unofficial press-releases were made in Barbara O'Sullivan's case, while the Delaware County Sheriff's Department did not make any official press releases on that case.
It is apparent that Derek Bowie was building his own media campaign to discredit his victim, and the Delaware County Sheriff's Department, as well as the Delaware County District Attorney, instead of investigating and prosecuting Derek Bowie, turned the power of the state against Derek Bowie's victim, obviously protecting their own.
The Sheriff and the District Attorney are both elected positions. Both the Sheriff and the District Attorney ran for office assuring the public that they will make it safe.
Instead, they are allowing an officer who was involved in striking a woman with a police vehicle while she was videotaping the officer, to investigate and criminally prosecute his victim and her immediate family member, cause the victim to be arrested and detained, cause her financial losses, leak information to the press to discredit his victim and deprive her of a fair trial.
It has gotten to the point that the officer nearly succeeded in having the dog taken out of the victim's household, the dog that may be the witness to his misconduct, adjudicated a dangerous dog and forcibly euthanized.
Can the Delaware County Sheriff and the Delaware County District Attorney be trusted with protection of the people from criminals or should they immediately be impeached for attempting to help suspects in uniforms use the power of the state to intimidate and prosecute their victims?
Wednesday, October 8, 2014
Is licensing an executive or a judicial function? It is like a chameleon, it changes colors to match whoever performs it.
Licensing is normally an executive function.
Yet, it is claimed to be judicial function in attorney licensing because the Legislature delegated this executive power to courts.
I claimed that the Legislature did not have the power to delegate what it did not have (the executive power) to courts - but the claim was rejected by federal court under the Younger abstention, thus dumping it to state court, and the state court rejected the same claim without any explanation.
Recently, a federal district court applied absolute judicial immunity to a pistol licensing officer because he is a judge in the particular county in the State of New York out of which the case originated, even though in other counties of the State of New York the very same pistol licensing is handled by police officers who are not judges and are not attorneys.
The judiciary covered itself by the absolute judicial immunity, even for malicious and corrupt acts, without regard that such an immunity from constitutional violations (violations of oath of office) is not and may not be authorized by the U.S. Constitution.
Yet, the judiciary pretended that the rule of absolute judicial immunity is not absolutely arbitrary and has its limitations, that it applies only to "judicial acts" of a judge acting within jurisdiction of the court.
At the same time, courts routinely continuing to expand judicial immunity long beyond its breaking point.
As an example, judges disqualified by conflicts of interest, bias and financial interests are still immune (in federal courts' eyes).
And, as the Judiciary Law 90 and the recent decision by the Northern District of New York on the 2nd Amendment shows, when a certain administrative function is performed by a judge, it is assumed that the function has changed its nature from executive to judicial, and all of that to keep judges absolutely immune from liability, no matter what they do, to preserve absolute power in the judiciary and to preserve judiciary's ability to wreak absolute fear in such power.
Whatever you call such a government, it may not be called a democracy.
Yet, it is claimed to be judicial function in attorney licensing because the Legislature delegated this executive power to courts.
I claimed that the Legislature did not have the power to delegate what it did not have (the executive power) to courts - but the claim was rejected by federal court under the Younger abstention, thus dumping it to state court, and the state court rejected the same claim without any explanation.
Recently, a federal district court applied absolute judicial immunity to a pistol licensing officer because he is a judge in the particular county in the State of New York out of which the case originated, even though in other counties of the State of New York the very same pistol licensing is handled by police officers who are not judges and are not attorneys.
The judiciary covered itself by the absolute judicial immunity, even for malicious and corrupt acts, without regard that such an immunity from constitutional violations (violations of oath of office) is not and may not be authorized by the U.S. Constitution.
Yet, the judiciary pretended that the rule of absolute judicial immunity is not absolutely arbitrary and has its limitations, that it applies only to "judicial acts" of a judge acting within jurisdiction of the court.
At the same time, courts routinely continuing to expand judicial immunity long beyond its breaking point.
As an example, judges disqualified by conflicts of interest, bias and financial interests are still immune (in federal courts' eyes).
And, as the Judiciary Law 90 and the recent decision by the Northern District of New York on the 2nd Amendment shows, when a certain administrative function is performed by a judge, it is assumed that the function has changed its nature from executive to judicial, and all of that to keep judges absolutely immune from liability, no matter what they do, to preserve absolute power in the judiciary and to preserve judiciary's ability to wreak absolute fear in such power.
Whatever you call such a government, it may not be called a democracy.
The illusion that the U.S. Constitution is alive and working
"Do you think you would like living in a country where the ruler or his minions could declare what the law was, change it at will, and decide whether someone was guilty of a violation?
Certainly not. People risk their lives to escape from such places, North Korea and Cuba, for instance."
This is how George Leef, a J.D.-holding contributor of Forbes.com started his new blog post about delegation of powers pertaining to the U.S. Constitution.
My experience as an attorney shows though that courts in the United States, both on state and federal levels, have become the powers that do exactly what people are running from:
(1) declare what the law is;
(2) change it at will; and
(3) decide that you are guilty of the violation - all in one shot, without any notice or opportunity to be heard, without any jury trial
The way courts manipulate the so-called rules of frivolous conduct against attorneys who criticize the judiciary in order to eliminate livelihood of such attorneys is one example as to how that occurs:
(1) the court sets a rule which is grossly vague and overbroad;
(2) the court then applies it in a grossly arbitrary and capricious manner, failing to apply it where clear fraud is committed by attorneys who are connected to the government by blood or marriage, work or friendship/association and instead applying it to lawful actions of attorneys who criticize judicial and other official misconduct;
(3) sanctions for frivolous conduct are considered "just financial sanctions" and often an attorney or party is not even given a hearing before sanctions are imposed;
(4) yet, sanctions can then be the only basis of the disciplinary proceedings (as it happened in my case) in order to try to deprive an attorney-critic of her reputation and livelihood, while attorneys associated with the government can go on committing open fraud and nobody will touch them.
If the public thinks that it is "only" about attorneys, and, since practicing attorneys are not respected by the public and are the constant subject of "lawyer jokes", the plight of even honest attorneys who try to zealously represent their clients and correct the system does not seem to interest the public.
Yet, when attorney independence, independence of a knowledgeable, eloquent and fearless advocate for the public, is removed, public access to court and the right to fair trial is essentially removed.
And that puts us on the same board as tyrannies which we claim we are not.
Moreover, attorney disciplinary cases are only an example.
The courts have long usurped executive (licensing) power as pertain to licensing attorneys, the court's most knowledgeable, eloquent, powerful and persuasive critics.
Yet, increasingly, the courts continue to usurp legislative power that is, in all states and on the federal level, belongs only to elected legislative representatives, not judicial representatives.
The legislatures fail to address this separation of power problem for a very simple reason - state and federal Legislatures are full of lawyers whose reputation and livelihood, when their legislative terms in office ends, is in the hands of the judiciary.
A lot of high-ranking executive officers are also lawyers, whose reputation and livelihood at the end of their appointment to executive offices, is also in the hands of the judiciary.
There goes independence of both the legislative and executive powers, on state and federal levels.
There go the famous "checks and balances" between branches of the government.
There goes the rule of law, and there goes the United States Constitution which every single public official in the United States and at the state level are sworn to uphold (often knowing that he or she will start break that oath, with impunity, the moment he or she pronounces it).
It is for the reason that regulation of attorneys by the judiciary is ruining the American democracy that I strongly advocate to take attorney regulation out of the hands of the judiciary.
Certainly not. People risk their lives to escape from such places, North Korea and Cuba, for instance."
This is how George Leef, a J.D.-holding contributor of Forbes.com started his new blog post about delegation of powers pertaining to the U.S. Constitution.
My experience as an attorney shows though that courts in the United States, both on state and federal levels, have become the powers that do exactly what people are running from:
(1) declare what the law is;
(2) change it at will; and
(3) decide that you are guilty of the violation - all in one shot, without any notice or opportunity to be heard, without any jury trial
The way courts manipulate the so-called rules of frivolous conduct against attorneys who criticize the judiciary in order to eliminate livelihood of such attorneys is one example as to how that occurs:
(1) the court sets a rule which is grossly vague and overbroad;
(2) the court then applies it in a grossly arbitrary and capricious manner, failing to apply it where clear fraud is committed by attorneys who are connected to the government by blood or marriage, work or friendship/association and instead applying it to lawful actions of attorneys who criticize judicial and other official misconduct;
(3) sanctions for frivolous conduct are considered "just financial sanctions" and often an attorney or party is not even given a hearing before sanctions are imposed;
(4) yet, sanctions can then be the only basis of the disciplinary proceedings (as it happened in my case) in order to try to deprive an attorney-critic of her reputation and livelihood, while attorneys associated with the government can go on committing open fraud and nobody will touch them.
If the public thinks that it is "only" about attorneys, and, since practicing attorneys are not respected by the public and are the constant subject of "lawyer jokes", the plight of even honest attorneys who try to zealously represent their clients and correct the system does not seem to interest the public.
Yet, when attorney independence, independence of a knowledgeable, eloquent and fearless advocate for the public, is removed, public access to court and the right to fair trial is essentially removed.
And that puts us on the same board as tyrannies which we claim we are not.
Moreover, attorney disciplinary cases are only an example.
The courts have long usurped executive (licensing) power as pertain to licensing attorneys, the court's most knowledgeable, eloquent, powerful and persuasive critics.
Yet, increasingly, the courts continue to usurp legislative power that is, in all states and on the federal level, belongs only to elected legislative representatives, not judicial representatives.
The legislatures fail to address this separation of power problem for a very simple reason - state and federal Legislatures are full of lawyers whose reputation and livelihood, when their legislative terms in office ends, is in the hands of the judiciary.
A lot of high-ranking executive officers are also lawyers, whose reputation and livelihood at the end of their appointment to executive offices, is also in the hands of the judiciary.
There goes independence of both the legislative and executive powers, on state and federal levels.
There go the famous "checks and balances" between branches of the government.
There goes the rule of law, and there goes the United States Constitution which every single public official in the United States and at the state level are sworn to uphold (often knowing that he or she will start break that oath, with impunity, the moment he or she pronounces it).
It is for the reason that regulation of attorneys by the judiciary is ruining the American democracy that I strongly advocate to take attorney regulation out of the hands of the judiciary.
The judiciary protects itself vigorously by attempting to force a New York attorney, not a member of the federal appellate bar, to get admitted to an appellate bar in order to be allowed to prosecute her PRO SE appeal
The bar is supposed to be a voluntary association.
Yet, in New York, one cannot leave the allegedly voluntary association, if disciplinary charges are brought against the attorney, no matter how fraudulent or unconstitutional are the charges, unless one acknowledges that the charges are true and agrees to a disbarment.
The 2nd Circuit Court of Appeals invented an even better way to harass attorneys who are NOT admitted to the 2nd Circuit bar - forced admission to the bar.
I am NOT a member of the 2nd Circuit bar.
I have NO INTENTION of becoming a member of the 2nd Circuit bar.
Each time I file a federal appeal PRO SE in a 2nd Circuit bar, I get a call from the 2nd Circuit clerk's office trying to persuade me that I must apply for admission to the 2nd Circuit bar because "those are the rules of the 2nd Circuit".
A pro se party is just that - a pro se party. Representation of YOURSELF is not practicing law.
Yet, in the 2nd Circuit, if you are an attorney in state court or in the lower district court, you apparently must get admitted to PRACTICE LAW in the appellate court in order to REPRESENT YOURSELF in that court.
Does it make sense?
No, it does not?
Does it violate the 1st Amendment, access to courts?
Most definitely.
Does the rule requiring pro se parties who are attorneys IN OTHER COURTS to get admitted into the 2nd Circuit bar IN ORDER TO BE ABLE TO REPRESENT THEMSELVES ON AN "AS OF RIGHT" PRO SE APPEAL remain on the books?
Yes, it does.
How come that in the 2nd Circuit pro se representation became practice of law? Does anybody in the 2nd Circuit read the U.S. Constitution that every single judge of this court is sworn to protect?
And, coincidentally, the lawsuit that the 2nd Circuit is trying to dismiss because I, a pro se appellant, did not get admitted to the bar in order to practice law, has wide implications for the work of the judiciary system OF THIS ENTIRE COUNTRY.
It seeks information of judge's back-room associations in secret-membership organizations, and information as to judges obtaining financial perks from influential attorneys and engaging, potentially, in ex parte communications with influential attorneys through organizations of the type of the American Inns of Court - asserting that NO COURT DECISION made in the United States since the American Inns of Court came into existence can presumed to be valid because of the relationships between judges and attorneys in these organizations.
Isn't it too much of a coincidence that (1) the defendant district court dismissed the case before it was served; and now (2) the appellate court (where each of its judges will be affected by their own decision) is trying to harass me into getting admitted to the bar in order to represent myself on this appeal?
By the way, there is no such thing as an automatic admission to the 2nd Circuit bar, one needs a recommendation from members of the bar, disclosure of personal information, paying additional money - doing all of the things that other pro se appellants are not required to do.
Why? Because the appellate court feels threatened that it will actually have to decide the appeal that can undo the way the judiciary receives its back-door financial perks?
Yet, in New York, one cannot leave the allegedly voluntary association, if disciplinary charges are brought against the attorney, no matter how fraudulent or unconstitutional are the charges, unless one acknowledges that the charges are true and agrees to a disbarment.
The 2nd Circuit Court of Appeals invented an even better way to harass attorneys who are NOT admitted to the 2nd Circuit bar - forced admission to the bar.
I am NOT a member of the 2nd Circuit bar.
I have NO INTENTION of becoming a member of the 2nd Circuit bar.
Each time I file a federal appeal PRO SE in a 2nd Circuit bar, I get a call from the 2nd Circuit clerk's office trying to persuade me that I must apply for admission to the 2nd Circuit bar because "those are the rules of the 2nd Circuit".
A pro se party is just that - a pro se party. Representation of YOURSELF is not practicing law.
Yet, in the 2nd Circuit, if you are an attorney in state court or in the lower district court, you apparently must get admitted to PRACTICE LAW in the appellate court in order to REPRESENT YOURSELF in that court.
Does it make sense?
No, it does not?
Does it violate the 1st Amendment, access to courts?
Most definitely.
Does the rule requiring pro se parties who are attorneys IN OTHER COURTS to get admitted into the 2nd Circuit bar IN ORDER TO BE ABLE TO REPRESENT THEMSELVES ON AN "AS OF RIGHT" PRO SE APPEAL remain on the books?
Yes, it does.
How come that in the 2nd Circuit pro se representation became practice of law? Does anybody in the 2nd Circuit read the U.S. Constitution that every single judge of this court is sworn to protect?
And, coincidentally, the lawsuit that the 2nd Circuit is trying to dismiss because I, a pro se appellant, did not get admitted to the bar in order to practice law, has wide implications for the work of the judiciary system OF THIS ENTIRE COUNTRY.
It seeks information of judge's back-room associations in secret-membership organizations, and information as to judges obtaining financial perks from influential attorneys and engaging, potentially, in ex parte communications with influential attorneys through organizations of the type of the American Inns of Court - asserting that NO COURT DECISION made in the United States since the American Inns of Court came into existence can presumed to be valid because of the relationships between judges and attorneys in these organizations.
Isn't it too much of a coincidence that (1) the defendant district court dismissed the case before it was served; and now (2) the appellate court (where each of its judges will be affected by their own decision) is trying to harass me into getting admitted to the bar in order to represent myself on this appeal?
By the way, there is no such thing as an automatic admission to the 2nd Circuit bar, one needs a recommendation from members of the bar, disclosure of personal information, paying additional money - doing all of the things that other pro se appellants are not required to do.
Why? Because the appellate court feels threatened that it will actually have to decide the appeal that can undo the way the judiciary receives its back-door financial perks?
Subscribe to:
Posts (Atom)