THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Wednesday, August 30, 2017
AVVO attorney referral programs and the ire of bar associations - choosing a lawyer based on actual client reviews and pro bono consultations vs presumption of fitness through licensing
After New York successfully dragged itself, and its consumers of legal services, back into the caves for some more time by prohibiting a virtual office to out-of-state attorneys while allowing the same to in-state attorneys, it continued its protectionist policies by issuing an "ethics" opinion "cautioning" New York-licensed attorneys from participation in the referral services of AVVO - an online marketing device where people exchange opinions about lawyers, seek free legal advice from attorney-volunteers, and are referred to attorneys who are willing to take their cases.
The reason why New York state considers a referral that it would be "unethical" for an attorney to use a referral by AVVO?
The rule against "profit-sharing" between attorneys and non-attorneys - which in itself makes no sense, but referral services are not legal services.
AVVO's representatives correctly pointed out that there are anti-trust and 1st Amendment implications that the New York State bar associations fails to consider, hiding behind its reluctance to make policies - which it is making anyway.
Of course, NYSBA is not a disciplinary authority in New York State, but I bet that this opinion would be considered in a disciplinary proceeding against an attorney.
I have just one question about all of these under-carpet noises: why wouldn't the government allow ITS OWN SOVEREIGN, consumers for whose benefits attorney licensing is established are not allowed to decide how to pick their own court representatives and which marketing source to use for that purpose?
After all, the U.S. Supreme Court has ruled more than 2 years ago already, in North Carolina Board of Dental Examiners v FTC, that regulation of any market by market participants without neutral state supervision may be a violation of antitrust provisions of federal law?
And, a federal court has ruled that regulation of a market by a competitor is a violation of due process as to other competitors?
Might there be a concern that then the big fat pie of occupational licensing, created under the guise of "helping" consumers, will fall apart?
Not to mention that there is a presumption of knowledge of the law in this country, so it is counterintuitive (stupid) to pretend that a person is presumed to know the law in order to be put in jail, but should be presumed to not know the law in order to be "protected" from having an opportunity to choose an independent court representative he trusts for the same criminal proceeding that presumes his knowledge of the law to be put in jail.
Attorney licensing, as any other occupational licensing, is revealed more and more as an outmoded and unlawful method of protecting a group of entrenched individuals from competition - to the detriment of consumers.
And, in treatment of AVVO as an "unethical" source of referrals, the otherwise supposedly progressive New York is, by the way, behind other states that allowed such referrals, allowing their consumers to use services of lawyers who are approved by online consumer ratings and participation in pro bono consultations online.
Wasn't licensing introduced, after all, to HELP consumers in their own marketing and choice of attorneys? Only through a PRESUMPTION of fitness through licensing - which is far from perfect.
Isn't it better to rely on statements of ACTUAL FITNESS from former clients, and upon actual performance of attorneys through their pro bono consultations online?
The ditched hopes on impartial AI judicial review
Lo and behold, the Artificial Intelligence thing-y has learnt to lie, too.
#ArpaioPardon and the rule of law - Part II. Charges of criminal contempt of court. Can a court constitutionally be the victim, accuser and adjudicator in the same proceeding?
I've seen the following interesting counter-arguments on social media in favor of legality of such proceedings and impropriety of the pardon.
The counter-argument refers to the 1994 decision of the then 83-year-old federal judge Cecil Poole, a career prosecutor before coming to the bench - NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994).
The case, the so-called "precedent" of the 9th Circuit that the 9th Circuit, probably, used in denying Arpaio's petition for a writ of mandamus ("probably" because the 9th Circuit did not provide any legal reasoning for the denial),
is astounding in its incompetence and egregious violations of the most basic concepts of criminal constitutional law - which can be attributed either to the authoring judge's advanced years, or to his background as a career prosecutor, or to his bias, or to all of the above.
At the same time, the case has striking similarities with Arpaio's proceedings - civil and criminal - and thus is worth reasoned review, especially at the background of lynching "public opinion" where commentators base their opinion on the identities, personalities and personal history of Arpaio and President Trump who pardoned him, and not on the legality of criminal proceedings against Arpaio.
So, same as in Arpaio's case, the NRLP case involved a civil proceeding and a criminal proceeding, and there was a civil contempt proceeding within the civil proceeding.
A civil contempt proceeding is civil in nature and - as the case demonstrates - the respondents were required to answer charges and provide affirmative defenses to the charge of civil contempt of court.
That is one of the major differences between a civil and a criminal contempt - in a criminal proceeding the defendant is presumed innocent and has a right to remain silent from the beginning to the end of the criminal proceeding.
But, look what happened next.
So, in a case where respondents already filed an answer, criminal charges were added.
That is why the so-called "civil contempt" proceedings should not even exist - first, because courts routinely fail to distinguish between civil and criminal contempt of court proceedings, mixing them up - see, for example, how #JudgeSusanBolton prosecuted Joe Arpaio on her own "order to show cause" in a criminal proceeding - and an "order to show cause" is an element of a CIVIL contempt of court proceedings requiring the defendant to actually waive his constitutional right to remain silent.
So, the situation in NRLB was that:
- a plaintiff in a civil case wanted to have criminal charges brought against the defendant in the same civil case, on top of civil contempt charges that were already brought;
- a private individual in the U.S. may not bring criminal charges against anybody;
- bringing criminal charges against anybody is the prerogative of the EXECUTIVE branch, the prosecution;
- since the alleged crime was committed against a federal court, federal prosecutors, the U.S. Attorney's office, was the correct authority to bring criminal charges.
- whose #ChiefAssistantDistrictAttorneyMichaelGetman (in the past, caught along with this judge-father in fraud against a non-profit, but never prosecuted or disciplined) was sued by my husband for fraud and fraud upon the court, and
- where the allegedly assigned "special prosecutor" John Muehl (allegedly assigned because the assignment did not list the correct address where the crime was committed) was the target of many of my blogs where I described his misconduct in other criminal cases, such as
- the Norman Michaels case - see here and here;
- the general case-fixing by John Muehl here; and
- the Anthony Pacherille case here (the blog had 5 parts, previous parts interlinked in Part V here).
Civil
contempt
|
Criminal
contempt
|
|
Who
brings the charges
|
A civil party
|
The government
|
What
is the purpose of proceeding?
|
To coerce compliance with a court order by a threat of fine or
incarceration
|
To punish incompliance with a court order
|
Can
the contemnor “purge” his contempt?
|
Yes, as soon as the contemnor complies, he must be
released from jail
|
No, no matter whether compliance comes after charges
are brought, if the contemnor is convicted and sentenced, there is no
automatic release from jail because of belated compliance with the court
order
|
Does
the right to remain silent apply?
|
No
|
Yes
|
What
is the burden of proof in the proceeding?
|
By preponderance of the evidence
|
Beyond the reasonable doubt
|
- a federal appellate court does not have original jurisdiction to hold criminal proceedings - if that is true, what court will be reviewing the appeal as of right from that criminal conviction? or, will the appellate court review the appeal from its own decision?
- a federal appellate court does not have authority to file accusatory instruments;
- a federal appellate court does not have authority to allow magistrates to act as trial judges in criminal proceedings without consent of a criminal defendant;
- a federal appellate court does not have a right to act as an accuser and adjudicator in a case where it also considers itself a victim of a crime;
- proceedings in civil and criminal contempt may not be consolidated;
- proceedings in criminal contempt may not be allowed to be prosecuted by anybody but the U.S. Attorney's Office;
- proceedings in criminal contempt may not be allowed to be prosecuted by an interested party;
- criminal proceedings must end with a VERDICT, not with a "report and recommendation" to the appellate court - the "report and recommendation" part indicates that the "special master" did not have the power to render the verdict. Nor did the appellate court, since it has no ORIGINAL jurisdiction to try criminal cases.
- giving to a federal magistrate jurisdiction he did not have by statute; and
- by referring a criminal case to be tried by a magistrate without consent of defendant
- The 9th Circuit still claimed the original jurisdiction to try criminal cases and sentence the defendant;
- there was still no criminal prosecutor (U.S. Attorney's office) in the picture, and
- still the court (federal appellate court) was the initiator of criminal charges, which is the exclusive prerogative of the executive branch of the government
- still the criminal case was referred to a "special master", not to a jury trial, with all the necessary preliminary criminal procedure.
Because until now - long after Judge Bolton's conviction on a bench trial on a pretext that somehow a penalty of "no greater than six months" in prison makes the charge a misdemeanor, it is listed in Arpaio's docket as a felony:
It is prosecutor-speak all right, but it is certainly not how criminal procedure works.
- first, by acknowledging that the 9th Circuit made a mistake by allowing a magistrate to try a criminal case without consent of the defendant and;
- second, completely bypassing the questions
- whether a federal appellate court has an original jurisdiction to try criminal cases, and
- whether it has a right to initiate criminal proceedings, especially those where the court is presented as the alleged victim
- the 9th Circuit claimed that BECAUSE it made a jurisdictional mistake by allowing a magistrate to conduct a nonconsensual trial in a criminal case, double jeopardy DOES NOT apply.
- federal appellate courts now have original criminal jurisdiction;
- constitutional procedure in a certain criminal proceedings is defined not by the status of the charge as a felony or a misdemeanor, but by the judge's consideration ahead of time as to what the penalty should be; and
- double jeopardy will not apply if the trial court makes jurisdictional mistakes.
Rule 42. Criminal Contempt
Here, the court allows itself
- to act as a victim, accuser and an adjudicator - which, as the same court said in 2015 in Williams v Pennsylvania, is a violation of due process rendering such proceedings VOID; and
- to appoint a prosecutor other than a government prosecutor ("The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.")
As to the NRLB case, the special master appointed on referral of the 9th Circuit appointed the private firm that represented the alleged victims to prosecute a criminal contempt case against the alleged perpetrator, ON CONSENT from the U.S. Attorney's Office.
And, as to the argument that Arpaio had to take his chances on appeal - with the 9th Circuit, the author of the wonderful NRLB opinion, which already rejected Arpaio's petition for a writ of mandamus without any legal reasoning, and by the U.S. Supreme Court that legislated the Rule 42 allowing itself and other courts to act as alleged victims, accusers and adjudicators in the same proceedings, and to appoint private prosecutors on their own behalf (whose livelihood they completely control through licensing).
Not to mention that both the 9th Circuit and SCOTUS are courts distinguished by their open and adamant lack of integrity.
Suggesting that these corrupt people somehow constitute the symbol of the "rule of law",
and that their corrupt decisions must be obeyed as Gospel requires a collective lobotomy to believe and follow.
So, contrary to claims of some prominent commentators, and uninformed, but emotionally charged comments on social media from people, who most likely never read the case and opposed the pardon simply because they think Arpaio is a racist, and that is a good enough reason why he should be held in criminal contempt of court, this particular pardon is a victory OF the rule of law, not AGAINST it.
Criminal contempt for criticism of a judge - the revival of seditious libel in the United States
Here is how its origins were described in a 1983 law review article:
It was supposedly replaced in the U.S. by the 1st Amendment, saying the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Then, the U.S. Congress delegated rule-making authority in criminal cases to the U.S. Supreme Court, and the U.S. Supreme Court produced a Rule 42, containing the following clause:
"If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."
Wait a minute - but, the U.S. Congress:
- had no authority to re-delegate to the U.S. Supreme Court its Article I legislative authority delegated to the U.S. Congress by the People of the United States;
- had no authority to make law to infringe freedom of speech, and thus could not re-delegate such a right to infringe.
- they gave themselves a gift of absolute immunity for malicious and corrupt acts;
- they gave themselves a gift allowing them, as alleged victims of a crime of "criminal contempt of court", to
- initiate criminal proceedings against their critics;
- appoint prosecutors, private or public, those whose livelihood they completely and totally regulate through licensing; and
- adjudicate such crimes?
Saturday, August 26, 2017
Reaction of the press and the public to the presidential pardon of Joe Apraio and the farce of the criminal case U.S.A. v Arpaio. Do we need the rule of law or do we only need it for people we like?
Judges refuse to follow their own precedents, statutory law, accepted rules of evidence and pleadings, as well as rules of standing and jurisdiction - only to find against Trump.
Public comments on social media brand "everything Trump" as bad, and anything "against Trump" as good.
Yesterday, President Trump pardoned Joe Arpaio who was convicted of a felony criminal contempt in a bench trial by U.S. District Judge Susan R. Bolton, a Bill Clinton appointee.
Because of this identity politics substituting the rule of law since Trump's election, across federal courts in the U.S., reaching up to the U.S. Supreme Court, and because of my own knowledge and experience as to how politicized (and corrupt) court proceedings operate in this country, I got interested as to, what exactly was the essence of criminal contempt proceedings against Joe Arpaio.
With that in mind, I purchased the docket report of the criminal contempt case against Joe Arpaio from Pacer.gov and reviewed relevant documents in it.
What struck me in these proceedings is the blatant bias and disregard of the applicable law, including jurisdictional and constitutional law, by the trial judge and her clear political bend and pre-judgment of the case.
For example, initially there were more defendants than just Joe Arpaio - which the docket I downloaded today did not reflect, but documents inside it did.
Somewhere during these proceedings, a motion was made to dismiss the whole case against all defendants because all events were barred by the 1-year statute of limitations.
Judge Bolton had NO CHOICE, but to apply the law and dismiss proceedings.
And, she did that - as to all defendants, but Joe Arpaio. Here is her order of dismissal.
Here is Judge Bolton's legal analysis of the claim that criminal charges against ALL defendants are precluded by the statute of limitations:
So, based on Judge Bolton's legal analysis, criminal charges against all defendants must be dismissed. Right?
Here is her conclusion.
Here is the "order to show cause" that Judge Bolton decided to prosecute - as a felony, as the docket states, while dismissing all charges on the same grounds against all other defendants, and let's compare that order to show cause (Doc. 36) with the initial accusatory instrument (Doc. 1).
The problem with substituting Judge Snow's order to commence criminal proceedings against Joe Arpaio (in addition that it is not an indictment of the grand jury, which was a jurisdictional defect and a violation of the 5th Amendment) by the order of Judge Bolton, the TRIAL judge in the case, is that by prosecuting Joe Arpaio on HER OWN order and by adjudicating that case in a bench trial (over the defendant's objection), Judge Bolton put herself into the role of accuser-adjudicator - which the U.S. Supreme Court specifically prohibited in June of 2015 in Williams v Pennsylvania.
By signing the accusatory instrument, Judge Bolton clearly put herself into the position of both accuser and adjudicator.
Did Joe Arpaio's attorneys raise that issue?
No.
Did Joe Arpaio's attorneys make a motion to recuse Judge Bolton?
No, one group of Joe Arpaio's attorneys bowed out of the case, and the group that came as a replacement lamely applied for a motion for a "change of venue" claiming that local press coverage will unduly inflame "the court" - while such arguments are usually made as to the jury pool and not a judge presiding over a bench trial. The motion, of course, was denied by Judge Bolton.
Yet, when a criminal defendant is facing a bench trial, and the judge is as obviously biased and is pre-judging the case the way Judge Bolton did, the only possible motion is a motion to recuse.
Which, apparently, was a problem for Joe Arpaio's attorneys (Batch # 1 to make, for obvious reasons - because to make a motion to recuse may result in loss of attorney license, as it happened to this criminal defense attorney, the 1st Amendment and due process and duty to the client to make such a motion be damned.
In other words, attorneys are simply afraid to make motions to recuse for fear of losing their livelihood when the judge, and the judicial system regulating attorneys retaliate, instead, they bowed out.
Can we blame them? I do not know. They did have an obligation to make that motion, and should not have undertaken representation of this defendant if they were afraid to provide that representation in full, all that was required by the circumstances. I do understand their fear, though - very much so, since I myself lost my law license for making motions to recuse a judge, and know how very real this possibility is.
So, Joe Arpaio was prosecuted for a felony without an indictment by the grand jury, as is required for felonies and "heinous crimes" by the 5th Amendment of the U.S. Constitution, but based on an order of the trial judge who conducted a bench trial over his objection, which is a DOUBLE jurisdictional violation.
- with a motion to dismiss - which Judge Bolton denied;
- with a petition for a writ of mandamus to the appellate court - that denied the petition without any legal analysis; and
- with a motion to vacate and reconsider the judgment of conviction - which Judge Bolton, again, denied.
These attorneys
deserve recognition for their courage.
Why wasn't Joe Arpaio given a jury trial when he was so obviously entitled to it, especially that the charge was a felony?
It is more difficult to convict with a jury - which has to be unanimous, and may very well result in a mistrial, given public support of a large portion of population of Joe Arpaio.
Was it a political decision for the judge, a Clinton appointee, to deny Joe Arpaio his lawful right to a jury trial?
I have no doubt about that.
What was going to happen to Joe Arpaio after the verdict - which the judge did not even care to pronounce in front of a defendant, but simply sent by an e-mail notification to his attorneys, in violation of existing law?
He had bleak chances on appeal, even though the law was on his side - because the 9th Circuit has already demonstrated that it does not want to interfere, when Arpaio filed a jurisdictional petition for a writ of mandamus, most likely on political grounds.
He had even bleaker chances with the U.S. Supreme Court since its review is discretionary, and it takes only 70 cases a year from over 8,000 petitions filed.
So, was President Trump justified in giving Joe Arpaio a pardon?
I do not know.
There are many enraged articles in the so-called "mainstream media" and enraged public comments on social media that President Trump defied the law in giving that pardon.
Yet,
1) he didn't, because he had authority to give the pardon; and
2) he didn't, because by giving that pardon he UNDID AN INJUSTICE, not created it - since criminal proceedings against Joe Arpaio were unlawful, unconstitutional and void on many grounds, as described above.
Was Joe Arpaio wrong in racial profiling of Latinos and holding them in inhumane conditions, which some victims called a "tent concentration camp"? If that is true, of course, he was.
But, the criminal charge was not about that, it was about contempt of court, of a certain court decision, which also had to be proven, beyond the reasonable doubt, to be lawful - while Judge Bolton, according to pleadings of Joe Arpaio's lawyers, PRESUMED that the decision of Judge Snow that was the basis of criminal contempt, was lawful,
instead of making the U.S. Attorney's office PROVE it beyond the reasonable doubt.
The question is - do we want the rule of law in this country.
And, if we do, what do we understand by the rule of law?
Does it mean politically correct judicial decisions that pander to the views of whoever shouts louder and has more "presence" in the press and social media?
Or does it mean meticulously following the U.S. Constitution, the federal law, the precedents not inconsistent with the U.S. Constitution and written federal laws, including the rules of evidence - irrespective of the identity of the defendant?
I saw on social media that any attempt to make a reasonable comment about Arpaio's criminal case which does not agree that President Trump is a vile "Agent Orange" and a racist who pardoned a racist - but that the president vacated by pardon an already void criminal proceeding, which was made void by the presiding judge who screwed the criminal justice process at every turn - meets with allegations of racism against the commentator.
Yet, if we want the true rule of law in this country, if we want people to respect the law because it is based on that rule of law, and not on the rule of men (and women), which is what decisions in Judge Bolton's courts appear to be, then we cannot do what Judge Bolton did in criminal proceedings - break the law at every turn in order to arrive at a decision which she most certainly politically coveted.
The rule of law is blind as to identity of the defendant.
It has to be followed no matter what.
It was not followed in Joe Arpaio's case.
Had it been followed - by the U.S. Attorney's office and by the judge - the President may not have felt so compelled to undo the injustice of a criminal conviction in a proceedings which were thoroughly fixed.
I know that both the names of President Trump and of Joe Arpaio are red rags for many people, and their blind rage blocks them from even considering that a criminal conviction is only lawful when criminal procedure was followed in full to obtain it.
But, the rule of the crowd never equaled the rule of law.