J.A.I.L. News
Journal
______________________________________________________
Los Angeles,
California
April 1, 2005
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Attorney Zerman
Replies to ABA President
Inasmuch as the President of the American Bar Association
has thought to defend judges by saying, "...they
deserve our respect, not our scorn," Attorney Gary Zerman, the
National J.A.I.L. Lt. Commander-In-Chief, has respond to him
using actual court decisions and cases to show by evidence that the
courts have not earned the respect of the People of this
country.
By way of warning, Zerman's response is neither short,
nor milk for beginners, but rather very strong meat that is the
subject for those desirous of deep study into the subject of
judicial immunity. If such study is not your "cup of
tea," then I recommend you simply delete this email, or save it to a
folder, and go on doing what you have been doing. Remember, this
is a conversation from one attorney to
another.
-Ron Branson
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Statement of
Robert J. Grey Jr., President,
American Bar Association
Re: Attacks on the Judiciary in the
Terri Schiavo Case
WASHINGTON, D.C., March 25, 2023 -- The
tragic circumstances of the Terri Schiavo case
have elicited strong feelings from all quarters.
While this is completely understandable, many
commentators and observers have crossed the line
in using this tragedy to needlessly, gratuitously
and viciously attack the dedicated men and women
who serve as America's judges. This needs to
stop.
Regardless of how one feels about the
specific circumstances of this situation, the
role of the judiciary in it is clear and
straightforward. The federal and state judges who
have been assigned this case have been charged
with weighing the facts of the case and the
remedies set forth in the law, responsibilities
they have carried out valiantly and with great
dignity and sensitivity to the anguish that all
of the participants in this case have
endured.
While it is appropriate for
commentators, policymakers and the broader public
to debate the societal challenges and dilemmas
brought to light by Terri Schiavo's case, there
is no need for personal attacks on the judges in
this case. They are not killers as some have
called them, nor are they activists bent on
pushing an ideological agenda. They are simply
dedicated public servants called on to serve as
impartial arbiters in a very difficult case.
Instead of maligning them for applying existing
law to the case at hand, even though it may not
reflect the current will of Congress, we should
praise them for dispensing even-handed justice
and upholding the independence of the judiciary
even under the most difficult circumstances.
These judges deserve our respect, not our
scorn.
For further
information:
Contact: Damien LaVera
Phone: 202/662-1094
E-mail: [email protected]
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March 31, 2022
Reply to ABA President, Mr. Robert J. Grey, Jr.'s Statement re
Attacks on the Judiciary.
March 31, 2022
Mr. Grey claims - in rather blanket fashion - that "judges deserve
our respect, not our scorn." A basic rule of life, is that
respect is earned, it is not just given, or presumed as Mr. Grey
claims. As Supreme Court Justice Louis Brandeis stated:
"If we desire respect for the law, we must first make the law
respectful."
Below are a few examples, why some may not think that some judges
warrant our respect, or trust, well deserve our scorn and even that
we should fear them..
First, is the case of Bradley v. Fisher, 80 U.S. (13 Wall) 335, 20 L.
Ed 646 (1872), authored by Justice Stephen Field, that grabbed
absolute judicial immunity for judges - including corrupt and
malicious judicial acts committed by judges, without any reference to
a purported Constitutional basis for doing such. (Article III
provides no immunity to the judiciary.) There Justice Fields claimed
that absolute immunity was taken from long-established English common-law and that this was being done for the "benefit"
of the people - not the judges. Well, the People were
never asked, and the smart money says that if they
were asked, they would have said, "NO!"
Further, we fought a revolution to get out from under the yoke of the
English King's tyrannical absolute power and the mantra "The king can
do no wrong," not to have it now replaced by the yoke and tyranny of
judges. Cleary, under our Constitution the absolute immunity
power- grab - placing the judges above the People, turns the
principle that the People are sovereign - the masters, and that the
government (all branches) are under, and the servants of, the People
- on its head. Further, that power-grab violates the doctrine
of separation of powers - the so-called
checks and balances.
Under our Constitution, the only way judges should get any immunity
(and that would be a limited and qualified) must come from the
legislative branch, and arguably through a Constitutional
Amendment. Article I though, provides no express basis for
placing the judges over the People's sovereignty and rights either,
and in fact the Article has some prohibitions in Sections 9 &
10: "No Title of Nobility shall be granted by the United
States: �" and "No State shall �-or
grant any Title of Nobility." The sovereign immunity - "the
King can do no wrong" - came from the nobility of his birthright and
title.
One should take a moment here to ponder the profound quote by Lord
Acton: "Power tends to corrupt and absolute power corrupts
absolutely." Substitute "immunity" in place
of "power." Now repeat Lord Acton's quote. Judges
sit at the pinnacle of power; federal judges are appointed (not
elected by the People) for life, and they grabbed absolute
immunity for themselves. Power + immunity = abuse by judges and
danger for the People.
Is that the type of judge Mr. Grey wants us to respect?
The facts in Bradley v. Fisher: Joseph Bradley was an
attorney, who successfully defended and obtained a hung jury for his
client, John Suratt, one of the alleged assassins of President
Lincoln. George Fisher was the judge who presided over the trial,
which started on June 10, 2022 and concluded on August 10,
1867. After the trial, Fisher unilaterally issued an order on
November 9, 2022 striking Bradley's name from the rolls of attorneys
that could practice in the court, claiming that on July 2, 2022
Bradley "threatened" Fisher "with personal chastisement for alleged
conduct of the judge during the progress of a criminal trial then
pending." (at 356.) Bradley was shortly returned to the
"rolls." Ex Parte Bradley, 74 U.S. (7 Wallace) 364
(1868). He then sued Judge Fisher for monetary damages in
Bradley v. Fisher.
Judicial retribution by Judge Fisher? Beyond the issue of
whether it is constitutional, is the question: Is this the
foundation, the basis, on which to plant
the questionable doctrine of absolute judicial immunity?
To his credit, Justice David Davis (joined by Justice Nathan
Clifford) dissented in Bradley and wrote at 357:
"� I dissent from the rule laid down by the majority of the
court, that a judge is exempt from liability in a case like the
present, where it is alleged not only that his proceeding was in
excess of jurisdiction, but that he acted maliciously and
corruptly. If he did so, he is, in my opinion, subject to suit
the same as a private person would be under like
circumstances."
Note: Just four years before his 1872 Bradley v. Fisher
decision, Justice Field authored Randall v. Brigham, 74 (7 Wallace)
523 (1868). There Justice Field wrote that there was an
exception to judicial immunity when acts are done maliciously or
corruptly. Ironically, Randall, like Bradley, also involved a
trial judge disbarring an attorney from a case before him. Randall
likewise is absent consitutional authority for judicial
immunity.
Second, is the case of Buck v. Bell, 274 U.S. 200 (1927), a decision
written by Justice Holmes. There Holmes stated at 205:
"Carrie Buck is a feeble minded white woman who was committed to the
State Colony above mentioned in due form. She is the daughter
of a feeble minded mother in the same institution, and the mother of
an illegitimate feeble minded child." In affirming the forced
sterilization of Carrie Buck, Justice Holmes stated: "Three
generations of imbeciles are enough." (at 207.)
Peter Irons, in "A People's History of the SUPREME COURT" (1999)
Penguin Books, discussed the Buck v. Bell case at 252
stating:
"� His [Holmes] opinion reeked of the arrogance of aristocracy,
and could easily have been written by Herbert Spencer. �It is
better for all the world,' Holmes pontificated, �if instead of
waiting to execute degenerate offspring for crime, or to let them
starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind.' [P] Five
decades later, a journalist who tracked down Carrie Buck and dug into
old records discovered that she had been committed to Virginia's
�State Colony for Epileptics and Feeble Minded' only because she had
been raped by the eminent doctor who
employed her as a housekeeper. Her daughter, Emma, was a
perfectly normal child, and the �eugenic expert' who recommended her
sterilization was later honored by the German Nazi regime for helping
draft its �Race Hygiene' law, which laid the tracks that ended in the
gas chambers of Auschwitz and other death camps. Holmes knew
nothing about the scientific fallacies of the �eugenic' movement;
more important, he did not feel any duty to look behind the
fabricated record in the Buck case."
Immunity allowed Justice Holmes to act with impunity while he
disregarded basic rights due Carrie Buck. Clearly, judicial
power must be curbed and held accountable.
Third, is the case of Stump v. Sparkman, 435 U.S. 349 (1978).
There, Judge Harold Stump was sued by fifteen-year-old Linda Kay
(Spitler) Sparkman, because without her knowledge or consent she was
sterilized, after Judge Stump granted a "PETITION TO HAVE TUBAL
LIGATION PERFORMED ON MINOR AND INDEMNITY AGREEMENT" brought by the
mother-Ora Spitler McFarlin's attorney and signed an order for the
sterilization. The "petition" claimed she Linda was "somewhat
retarded." Linda Spitler never appeared in court, never had
counsel, never had a chance to appeal, and never even knew what
happened - as she was falsely told she was going to the
hospital to have her appendix removed.
Justice Byron White (joined by Chief Justice Burger and Associate
Justices Blackmun, Renquist and Stevens) wrote Stump v. Sparkman,
which reversed the appellate court's denial, and upheld the federal
trial court's grant of absolute judicial immunity for Judge
Stump. Justice White's decision is absent of any Constitutional
authority for the immunity. Mr. Grey, is Justice White the type
of judge you are referring to, who deserves our respect? and
those justices who joined him? How about Judge Stump?
How can one have respect for any "judge" who could support and write
such an obscene decision, upholding such perverse imperial judicial
power, while sanctioning the desecration of the fundamental
Constitutional rights of citizens. These judges did not protect
the Constitution - they trashed it. These judges did not
protect Linda (Spitler) Sparkman's rights - they trashed them.
This is the dark legacy of Bradley v. Fisher.
To their credit, Justice Stewart (joined by Justices Marshall and
Powell) dissented. At p.365 Justice Stewart wrote:
"� and I think that what Judge Stump did on July 9, 1971, was
beyond the pale of anything that could sensibly be called a judicial
act." [continued at 369:] "The petitioners' brief speaks
of �an aura of deism which surrounds the bench �' Though the
rhetoric may be overblown, I do not quarrel with it. But if
aura there be, it is hardly protected by exonerating from liability
such lawless conduct as took place here. And if intimidation
would serve to deter its recurrence, that would surely be in the
public interest. (ftnt. 9 omitted.)"
Aura of deism? Such lawless conduct? Mr. Grey, is this
the type of judging we are to respect?
The underlying appellate decision Sparkman v. McFarlin, 552 F.2d 172
(7th Cir. 1977), a 3/0 opinion by Judges Swygert (joined by
Judges Wood and East), held Judge Stump did not have immunity
and did not have jurisdiction to sterilize young Linda
Spitler. At p.174 Judge Swygert wrote:
"�Although this grant of judicial power is broad, we cannot
accept the
assertion that it cloaks an Indiana Circuit Court judge with
blanket
immunity. He may not arbitrarily order or approve anything
presented to him in the form of an affidavit or petition."
At p.176 Judge Swygert held that to order sterilization under the
circumstances here:
"...we would be sanctioning tyranny from the bench. There
are actions of purported judicial character that a judge, even when
exercising general jurisdiction, is not empowered to take. (ftnt, 7 -
omitted). � [P] Finally, the petition and order were never
filed in court. This kind of purported justice does not fall
within the categories of cases at law or in equity."
Never filed in court? We would be
sanctioning tyranny from the bench? Tyranny - that is
exactly what the Supreme Court justices committed in Stump
v. Sparkman when they reversed Judges Swygert, Wood and East giving
immunity to Judge Stump..
Fourth, is the case of Pierson v. Ray, 386 U.S. 547 (1967), an 8/1
decision written by Chief Justice Warren, that affirmed immunity for
judges under section 1983 civil rights statute that imposed liability
on "Every person who, under color of [law] � subjects or causes � any
citizen of the United States � to the deprivation of any rights �
secured by the constitution and laws �". The decision is
absent of any Constitutional basis/authority for absolute judicial
immunity.
To his credit, Justice Douglas wrote in his lone dissent at 559:
"� The court's ruling is not justified by the admitted need for
a vigorous and independent judiciary, is not commanded by the
common-law doctrine of judicial immunity, and does not follow from
inexorably from our prior decisions. � [P] To most, �every person'
would mean every person, not every person except judges."
[Continuing at 562:] The position that Congress did not intend
to change the common-law rule of judicial immunity ignores the fact
that every member of Congress who spoke on the issue assumed that the
words of the statute meant what they said and judges would be liable.
� [P] The section's purpose was to provide redress for the
deprivation of civil rights. It was recognized that certain
members of the judiciary were instruments of oppression and were
partially responsible for the wrongs to be remedied. The parade
of cases coming to this Court shows that a similar condition now
obtains in some of the States. Some states courts have been
instruments of suppression of civil rights."
[Continuing at 565:] "The argument that the actions of
officials must not be subjected to judicial scrutiny because to do so
would have an inhibiting effect on their work, is but a more
sophisticated manner of saying �The King can do no wrong.' (ftnt. 5
omitted.) Chief Justice Cockburn long ago disposed of the
argument that liability would deter judges: �I can not believe
that judges � would fail to discharge their duty faithfully and
fearlessly according to their oaths and consciences � from any fear
of exposing themselves to actions at law. I am persuaded that
the number of such actions would be infinitely small and would be
easily disposed of. While, on the other hand, I can easily
conceive cases in which judicial opportunity might be so perverted
and abused for the purpose of injustice as that, on sound principles,
the authors of such wrong ought to be responsible to the parties
wronged.' Dawkins v Lord Paulet, LR 5 QB 94, 110 (C.J.
Cockburn, dissenting)."
[Concluding at 566 Douglas wrote:] "� What about the
judge who conspires with local law enforcement officers to �railroad'
a dissenter? What about the judge who knowingly turns a trial
into a �kangaroo' court? Or one who knowingly flouts the
Constitution in order to obtain a conviction? �"
What about judges like that Mr. Grey? Should we give them
absolute judicial immunity? Should we respect them? More
important Mr. Grey, what about the citizens who's rights those judges
trampled?
A look at what some legal commentaries have said on the issue is
helpful here. In "Liability of Judicial Officers Under Section
1983" 79 Yale L.J. 322 (1969), it is written at p.322:
"� This Note contends that the congressional intent of Section
1983 and the policies underlying this exemption do not support a
grant of judicial immunity, but rather argue for judicial liability
under an actual malice standard. (ftnt. 3 omitted.) [Continuing
at 337:] [P] But whatever the long term results of
imposing liability, there is no adequate rationale�in history or
policy�for altogether exempting judicial officers from liability
under section 1983. �"
Note, absent from "Liability of Judicial Officers Under Section 1983"
are the questions of whether the Court ever had the constitutional
authority/power to give itself immunity and whether that would
violate the doctrine of separation of powers.
In "Immunity of Federal and State Judges from Civil Suit�Time for
Qualified Immunity?" 27 Case Western L. Rev. 727 (1977), Douglas K.
Barth wrote at p.741:
"The Court's decision in Bradley and Pierson firmly entrench
the judiciary's immunity from either tort or section 1983
suits. Even so, the four policy reasons typically recited to
support judicial immunity demonstrate the doctrine's inherent
fallacies. (ftnt. 82 omitted.)"
Note: Mr. Barth's article was written just prior to the Supreme
Court's Stump v. Sparkman decision, thus the Court clearly ignored
his criticism of the doctrine's inherent fallacies.
Absent from Mr. Barth's paper are the questions of whether the
Court ever had the constitutional authority/power to give itself
immunity and whether that would violate the doctrine of separation of
powers.
In "Stump v. Sparkman: The Doctrine of Judicial Immunity," 64
Virginia L.Rev. 833 (1978), Irene Merker Rosenberg wrote at 833:
"Ever since the Supreme Court's ruling in 1967 that state
judges acting within their jurisdiction are absolutely immune from
suit for damages under section 1983, (ftnt.1 omitted) legal
commentators have persistently condemned this unqualified
exemption. (ftnt.2 omitted.) In Stump v. Sparkman, (ftnt.3
omitted) the Court gave its response to these critiques by not only
reaffirming but also apparently expanding the immunity doctrine, thus
facilitating the use of still another mechanism for federal courts to
avoid the merits of constitutional claims. (ftnt.4 omitted.)
[Continuing at 856:] "That these judges will be deterred by
proceedings against them in criminal courts or before judicial
disciplinary committees is no answer. (ftnt.93 omitted.) The
possibility that a district attorney will prosecute a judge for
misconduct other than crass, monetary schemes is remote, (ftnt.94
omitted) and judicial qualifications commissions are less than
renowned for their prosecutorial zeal. (ftnt.95 omitted.)
Finally, the electorate cannot always be depended upon to oust judges
who have trampled individual rights. (fntn.96 omitted.)
[Concluding at 858:] "� It is understandable that the Justices
would wish to construct a protective umbrella considerably broader
that strict necessity would mandate to assure coverage of all the
deserving. It is quite another matter, however, to stretch that
umbrella so that it also
covers Daumier caricatures in judicial robes on their way to a
masquerade ball."
Note: Absent from Ms. Rosenberg's paper are the questions of
whether the Court ever had the constitutional authority/power to give
itself immunity and whether that would violate the doctrine of
separation of powers.
In "Stump v. Sparkman and the History of Judicial Immunity," (1980)
Duke L.J. 879, No.5, J. Randolph Block wrote at p.924:
"� The availability of appellate correction of error is,
therefore, absolutely central to the logic of judicial
immunity. For this reason, judicial immunity should not be
available when, as in Sparkman, the actions complained of prevented
the complainant from seeking normal correction of
error."
Mr. Block misses the point here, immunity in fact was
available/granted to Judge Stump - not by the 7th Circuit, Sparkman
v. McFarlin, 552 F.2d 172, who correctly denied him such - but it was
given to him by the U.S. Supreme Court - which reversed! This
clearly demonstrates that the Courts, the judges, the judiciary -
look out for themselves - instead of fiercely protecting and
upholding the Constitution and the sovereignty and rights of the
People. The government (here the judges) win, the People lose,
our sovereignty is inverted. Clearly the courts cannot be
trusted and their powers must be curbed.
In "Suing Judges: History and Theory" 31 South Carolina L.Rev.
201 (1980) Jay M. Feinman and Roy S. Cohen wrote at p.203:
"We conclude that statements such as that in Bradley are
inadequate history at two levels, reflecting judicial
misunderstanding of both what the law was and how and why it
developed. Actually, English law began with a position of
general judicial liability and developed only limited exceptions on
ground irrelevant to a discussion of judicial liability today.
When the English law was received in the United States, this limited
immunity was expanded significantly, notably by James Kent, to limit
liability, and throughout the nineteenth century a mixed pattern of
judicial liability and immunity existed in America. In Bradley,
Justice Field provided a confused reformation of the law, which led
to a further limitation of liability. At no point, however,
were the advantages and disadvantages of judicial immunity fairly
examined. Because the case for immunity is inconclusive and
unpersuasive on historical grounds, we also examine the issue on
policy grounds; our analysis proceeds from a thorough review of the
case law and literature. We conclude that immunity is
indefensible on policy grounds as well �"
[Continuing at 205:] "Most of the major judicial liability
cases use the common-law origins of judicial immunity as a
justification for the doctrine. For example, as noted
above, Bradley v. Fisher, the case principally relied on by the
Court in Stump, used extensive discussion of English case law to show
the authority of the rule and to support its continued
application. [P] In this section, we demonstrate that
these conclusions about English law simply are incorrect. A
careful analysis of English law shows that the basic rule was one of
liability, that no simple rule of immunity ever existed, and that
applications to American law of those instances in which immunity was
granted have been inappropriate. In sum, the English law
provides little support for a rule of absolute judicial
immunity."
[Continuing at 279:] "� It is our belief that the decision in
Stump should be rejected as too protective of judicial prerogative
because it violates a basic tenet of the legal process - the right of
review - when there would be little cost to the legal system from
imposing liability.
[P] Thus, Justice Powell's
emphasis on the importance is persuasive to us. The majority's
conclusion, whatever the strengths and weaknesses of the process that
produced it, is simply undesirable. ..."
Note: Absent from Mr. Feinman's and Mr. Cohen's paper, are the
questions of whether the Court ever had the constitutional
authority/power to give itself immunity and whether that would
violate the doctrine of separation of powers.
In "FEDERAL JURISDICTION" (3rd Ed) Aspen Law & Business, Aspen
Publishers, Professor Erwin Chemerinsky wrote at p.495:
"In numerous specific cases - ranging from the scope of
judicial immunity (ftnt.6 omitted) to the availability of punitive
damages (ftnt.7 omitted) - the Court has focused extensively on the
common law of immunities as it existed when section 1983 was
adopted. This historical approach is subject to substantial
criticism. First, it assumes that the common law was clear
about the nature of the immunity to be accorded to particular
government officers. Yet usually there was great divergence
among the states and there was no firmly established rules. For
instance, the Court has emphasized the common law immunity to suits
for damages under section 1983. (ftnt.8 omitted.) However, in
1871 only thirteen of thirty-seven states accorded judges such
immunities for suits. (ftnt.9 omitted.) In fact, in adopting
section 1983, many members of Congress were particularly concerned
about unconstitutional conduct by judges. (ftnt.10 omitted.)
[Continuing at 496:] "Additionally, even if common law
principle were clear and discoverable, their relevance to modern
doctrines is questionable. The fundamental premises of tort law
have changed dramatically over the past 130 years, as have views
about the Constitution and individual rights. Undoubtedly many
officers occupy far different positions that they did in 1871.
Furthermore, there is strong argument that common law tort immunities
have little relevance in determining the scope of responsibility for
constitutional violations. Some suggest that the Court should
abandon the immunity inquiry and leave the entire matter of
immunities to the legislature. (ftnt.14 omitted.) Others would
prefer a more functional approach to determining the nature of
immunities. (ftnt.15 omitted.) Nonetheless, for now, the
starting point in the Court's analysis of immunity remains the common
law of 1871."
Wrong! The starting point then, now, and always - is
the Constitution! Article III does not grant the
judiciary immunity. Maybe that is why Justice Field did not mention
the Constitution in Bradley. The Supreme Court has thereafter
ignored that there is no Constitutional authority/basis for
absolute judicial immunity. Judges giving judges absolute
immunity - over and above the rights of the People - violates the
sovereignty of the People, the Constitution and separation of
powers. Absolute immunity sets a dangerous precedent, laying
the ground-work for further trampling of the rights of
citizens, and further acts elevating government over the
People.
Beyond the protection judges gave themselves with immunity, is the
problem that judges protect themselves further regarding complaints
to judicial agencies/commissions about judicial misconduct. For
example, an August 7, 2022 Associated Press article by Anne Gearan
"Self-policing Federal Judges Rarely Impose Penalties," reports in
pertinent part:
"Federal judges usually police one another's behavior, but they
rarely meet out punishment. Of 766 ethical complaints lodged
last year, [2001] only 1 resulted in a penalty. � In the single case
last year in which the judge was punished, the penalty was a private
censure and no details, not even the judge's name were
released. The system encourages lenient treatment, American
University law professor Paul Rice said Tuesday. �They have an
obligation to police themselves, and of course that is the problem,'
he said. Judges sit on the boards that review allegations of
ethical misconduct and are loath to punish a colleague, Rice
said."
More recent, a January 18, 2023 pg.B1 LA Times article "Judge May
Face Sanctions - Federal Jurist Improperly took over case, Judicial
Panel says"
reported:
"A veteran federal judge faces disciplinary
proceedings after he improperly seized control of a bankruptcy case
in an effort to protect a woman whose probation he had decided to
oversee personally. � Penalties for district Judge Manuel L. Real, 79
who has been a controversial member of the federal judiciary in Los
Angeles since 1966, could range from a private reprimand to loss of
the authority to hear cases. � The proceeding in the case have
largely taken place out of the public eye. The judicial council
of the 9th Circuit � handed down its ruling on Real in mid-December,
but the decision has never been formally published and has not been
placed on the court website. � Legal experts say the council's ruling
means that some sort of penalty against Real is highly
likely. That alone would make his case rare. More
than 99% of the complaints filed against federal judges around the
county are dismissed out of hand. The 9th Circuit council has
reprimanded only two jurists in the last decade, while rejecting
hundreds of complaints, according to official records. Beyond
that, Real's opponents say, the case provides a textbook example of
the way a federal judge - holder of a lifetime appointment - can
abuse his power on behalf of an individual he favors. � In 1984, Real
fined [attorney Stephen] Yagman $250,000, a penalty that was later
dismissed on appeal. The judge said the lawyer had filed a
libel suit in bad faith. Yagman retorted by saying Real
suffered from �mental disorders' and compared him to Tomas de
Torquemada, leader of the Spanish Inquisition. � �Taking a case for
the purpose of affecting the result is the antithesis of impartial
judging,' said Stephen Gillers, vice dean of the New York University
Law School and author of a legal ethics textbook. �These
alleged transgressions deserved serious attention,' he said.
USC law professor Erwin Chemerinsky agreed, �I think it is important
for the 9th Circuit to say a judge should not behave this
way.'"
More that 99% dismissed out of hand? Textbook example of the
way a federal judge can abuse his power? A judge should not
behave this way? Why does the judiciary allow this to happen,
Mr. Grey? How can anyone have respect for this, Mr. Grey?
Finally, and even worse, is the failure of both the House and the
Senate to see that bad federal judges are removed impeached and
convicted. As pointed out in U.S. v. Hastings,, 881 F.2d 706,
709 (11th Cir. 1982) there had only been 9 impeachments of federal
judges up to that time, with only 3 convictions. That is only 9
judges over 191 years. Post Hastings, federal District Court
judge (Nevada) Harry Claiborne was impeached and removed by the
Senate in 1986 (while in prison, on his 1984 conviction for tax
evasion). Claiborne claimed he was the victim of a federal
vendetta.
The failure to impeach has not been because
federal judges have been angels. A clear example, is the case of
Judge Andrew Hauk, Central District California. He "retired"
(went on Senior Status) in 1982, due to numerous reversals "in
scolding language" of his trial decisions because of bias and
"intemperate and unpredictable behavior." Rather than impeach
or force Hauk to resign, areas of law were taken away from him.
How does that protect the people and create respect for the
judiciary? See "Circuit Slams Hauk, Takes Him Off Case," August
31, 1993 p.1 LA Daily Journal, "Panel to Probe Actions of Federal
Judge," August 16, 2022 p.A4 LA Times, "'Penitent' Hauk Will Not Hear
Certain Cases", September 22, 2022 p.1 LA Daily Journal, and
"Questions About a Judge," March 28, 1995, p.B12 LA Times editorial.
The people will no longer have to fear Congress not doing its duty,
or fear Judge Hauk. He died on November 9, 2022 at the age of
91.
Another example is Judge James Ware, Northern District
California. He was a shoe-in for elevation to the 9th Circuit
Court of Appeal, having already been confirmed by the Senate
Judiciary Committee, when a tragic story - as to why he became an
attorney, then a judge, that he had been telling in speeches and
interviews for several years, beginning in 1973, was discovered to be
a lie. Although Ware withdrew his own nomination to the
appellate bench, he was not impeached, nor forced to
resign and remains a district court judge, and at times has
even had special assignments sitting as a justice on the federal
appellate court.
The story was about 13-year-old Virgil Ware being shot and killed
while riding on the handlebars of his brother James Ware's
bike in Birmingham, Alabama in 1963 by white racists. The
story was true - Virgil was in fact shot and killed. The "lie"
was that the Judge was not the brother, not that James
Ware. In telling the tragic tale, Ware would tell crowds the
murder of his teen-age bother "made him hungry for justice."
See "Judge Lied About Civil Rights Death," November 7, 1997, pg.
News-18 Daily News, "Embattled Judge Ware Cancels Calendar After
Media Maelstrom," November 10, 1997, pg.4 LA Daily Journal, "A Judge
Compromised," November 11, 1997, pg.6 LA Daily Journal editorial, "IF
THE TRUTH BE TOLD - Judge James Ware's �Lack Of Honesty' Should cost
Him the Bench," November 25, 1997, pg.6 LA Daily Journal commentary
piece and "Judge Censured For Lying About Childhood Event - Ware
Receives First Such Reprimand From 9th Circuit Council," August 19,
1998, pg.1 LA Daily Journal. See also Kimes v. Stone, 84 F.3d
1121 (9th Cir. 1996) where Ware was the presiding USDC trial judge,
reversed for dismissing a civil rights case against a judge (Stone)
and attorneys accused of conspiring to steal an estate by
manipulating court proceedings. Ware determined Judge Stone had
"absolute immunity" and that the attorneys conduct was
"privileged". The appellate court affirmed on judicial
immunity, but reversed on "privilege." Not mentioned was
that before Ware became a federal judge, he was a colleague of
Judge Stone on the Santa Clara
County Superior Court. Conflict?
Another example is the case of San Jose federal Judge Robert P.
Aguilar, Northern District. As reported in "U.S. Drops Case
Against Judge Who Resigns - Tried Twice on Charges of Disclosing a
Wiretap and Trying to Sway Fellow Jurists," June 25, 2022 pg.A3, LA
Times, the federal government dropped its 7-year prosecution of
Aguilar - the first federal judge ever indicted in California
- in exchange for his immediate resignation. A January federal
appeals court decision "overturn[ed] Aguilar's sole remaining
conviction, for disclosing wiretap information," In the
agreement, Aguilar "...acknowledged disclosing wiretap information,
but did not admit criminal wrongdoing."
One Court attempted to deal honestly with the problem. In Lo v.
Los Angeles County Superior Court, (1998) 67 Cal.App.4th 1045, a
former criminal party sued the trial judge (George W. Trammell, III,
who presided over her case, then later allegedly coerced sex from
her) and the County and State on employer liability. Reversing
the trial court ruling that sustained a County/State demurrer, the
Court stated:
"We decline to burden this opinion with the myriad other cases,
in California and other jurisdictions, in the intervening 25 years
chronicling sexual abuse by judges. We decline to find an abuse
of judicial power for personal gratification so unusual and startling
to shield defendants from respondeat superior liability."
" The cases are rife with judicial abuses of power motivated by
arrogance as well as sexual abuse. (See Cannon v. Commission on
Judicial Qualifications (1975) 14 Cal.3d 678.) Abuse of power
can be motivated by greed, arrogance, sexuality, or any other
improper motive. Our Constitutional system of checks and
balances was designed to protect us against the Founder's
expectations that unchecked power would lead to rampant abuse.
They considered abuse of power so common as to design an entire
system of government to expressly check it."
On February 19, 1999, the California Supreme Court issued an order
decertifying the above appellate opinion, directing it not be
published in the Official Appellate Reports. The LA County
DA refused to bring criminal charges against Trammell.
(See "L.A. County's Dual Standard of Justice Marches On," by Charles
L. Lindner, January 11, 1998, p.M6, LA Times.) The California
Attorney General, in like fashion refused. Eventually the U.S.
Attorney's Office brought charges against Trammell; he pled guilty to
two counts of mail fraud on October 1, 2000. (See "Judge
Trammell Gets 27-Month Prison Sentence - Trading Leniency for Sexual
Favors Was Abuse of Position," February 1, 2001, pg.1, LA Daily
Journal.)
But the sad truth is that the "checks and balances" - "separation of
power," despite the grand efforts of our Founding Fathers, simply
have not worked well in holding the judiciary
accountable. The case of Bracey v. Gramley, 420 U.S. 899 (1997)
is a blatant testament to that. In Bracey, Chief Justice Rehnquist
wrote:
"Petitioner William Bracey was tried, convicted and sentenced
to death before then-judge Thomas J. Maloney for his role in an
execution-style triple murder (ftnt. omitted.) Maloney was
later convicted of taking bribes from defendants in criminal
cases. Although he was not bribed in this case, he �fixed'
other murder cases during and around the time of petitioner's
trial. Petitioner contends that Maloney therefore had an
interest in a conviction here, to deflect suspicion that he was
taking bribes in other cases, and that this interest violated the
fair-trial guarantee of the Fourteenth Amendment's due Process
Clause. We hold that petitioner has made a sufficient factual
showing to establish �good cause' � for discovery �"
"Maloney was one of many dishonest judges exposed and convicted
through �Operation Greylord,' a labyrinthine federal investigation of
judicial corruption in Chicago. See United States v. Maloney,
71 F.3d 645 (CA7 1995), cert. Denied, 519 U.S. ___ (1996); see
generally J. Tuohy & R. Warden, "Greylord - Justice, Chicago
Style (1989). Maloney served as a judge from 1977 until he
retired in 1990, and it appears he has the dubious distinction of
being the only Illinois judge ever convicted of fixing a murder case.
(ftnt. omitted.) Before he was appointed to the bench, Maloney
was a criminal defense attorney with close ties to organized crime,
who often paid off judges in criminal cases. App.54-66; 81F.3d
684 (CA7 1996) (Rovner J., dissenting) (�[B]y the time Maloney
ascended to the bench in 1997, he was well groomed in the art of
judicial corruption'). Once a judge, Maloney exploited many of
the relationships and connections he had developed while bribing
judges to solicit bribes for himself. For example, Lucius
Robinson, a bailiff through whom Maloney had bribed judges while in
practice, and Robert McGee, one of Maloney's former associates, both
served as �bag men,' or intermediaries, between Maloney and lawyers
looking for a fix. Two such lawyers, Robert J. Cooley and
William A. Swano, were key witnesses against Maloney at this
trial. Maloney, supra, at 650-652."
I rest my case Mr. Grey. There is good reason not to respect
our Courts - the works of the judiciary itself. The judiciary
has placed themselves above the People, above the Constitution,
and above the law, instead of being the guardians of the Constitution
and the guardians of our liberty. That is its fundamental
duty! The purpose of the law is to be the vehicle to deliver
justice. The first purpose listed in the Preamble to our
Constitution is to "Establish Justice." The judicially created
and judicially upheld doctrine of absolute judicial immunity - has
been the vehicle of - injustice.
There is equally good reason not to respect the Congress and
the Executive branches, as they have also not defended the
Constitution and our liberty from the attacks by the judiciary.
Why have they sat idly by, or done worse, when the judiciary made its
power-grab for absolute immunity in violation of separation of
powers. See "WITHOUT MERIT: The Empty Promise of Judicial
Discipline," (1997) Vol.4, No.1, Massachusetts School of Law, The
Long Term View, p.90, at http://www.judgewatch.org/.
Mr. Grey, you and the ABA can continue to defend the
indefensible. The People will not, as recent books show:
"Men in Black: How the Supreme Court is Destroying America," by
Mark Levin, "The SUPREMACISTS: The Tyranny of Judges and How to
Stop It," by Phyllis Schlafly, "Constitutional Chaos: What
Happens When the Government Breaks Its Own Laws," by Judge (retired)
Andrew Napolitano, "Coercing Virtue: The Worldwide Rule
of Judges," by
Robert H. Bork, "Go Directly to Jail: The Criminalization of
Just About Everything," by Gene Healy, and "Against Leviathan:
Government Power and A Free Society," by Robert Higgs.
Mr. Grey, instead, one would wish that you and the ABA, would join
in
combating the "Rule of Judges," and join in defending the
Constitution. But frankly, like the disrespect and distrust of
the judiciary, that situation largely equally (and probably to a
greater extent) afflicts the ABA and the attorney population in
general. To be a judge, one must almost always be an attorney,
(thus the judiciary is exclusively lawyers); and the legislature
and executive branches are inordinately held/staffed by
lawyers. Judges and lawyers are an oligarchy, and we now
have a government - of the judges/lawyers, for the judges/lawyers and
by the judges/lawyers.
There is a constant clamor about "threats" to
the independence of the judiciary, from the judiciary, and the
cheerleading ABA and state Bar Associations. Fact is, the threats are
grossly exaggerated. Fact is, the judiciary is all powerful and
plenty able to defend itself - against any threat. Fact is, the
judiciary has never been that independent and has
always been quite political - because being the third branch
of government, by definition, is political by nature. We have been
fooled long enough. More important, is that the judiciary has become
too independent - independent from the dictates of the
Constitution, and independent from, above, and beyond - the
People, who duty it is to serve. Judicial independent is
not the problem - judicial accountability is!
To conclude Mr. Grey, the abuse continues - it is manifest. See
the
following four (4) current/pending cases that clearly demonstrate
blatant judicial/government corruption.
1. Robert
Schultz, et.al. v. IRS, et. al., Case No. 04CV01211,
D.C.
Federal Distict Court - asking the
question: Is the right to petition dead? The lawsuit to
restore Constitutional order. See http://www.givemeliberty.org/.
2. U.S. v. Sassower, DC Superior Court, Case No. M-411303
(appeal
pending), involving
the wrongful arrest, prosecution, conviction
and
incarceration of Ms. Sassower on a bogus
charge of "Disruption of Congress." She simply, politely and
respectfully, attempted to testify in a public Senate Judiciary
Committee Confirmation Hearing. See http://www.whiteplainscnr.com/,
article "Day 151 of the Elena Sassower Incarceration in Washington,
D.C.," by reporter John F. Bailey, November 25, 2004, and, The
Village Voice, February 1, 2005, article "The Scourge of Her
Conviction - Activist Elena Sassower Annoyed Congress, Her Trial
Judge, and Defenders of Free Speech - All the Way to Jail,"
at www.villagevoice.com/news/0505,lombardi,60660,6.html.
3. Huminski v.Corsones, et. al., Docket Nos. 02-6201 (L),
02-6150 (XAP), 02-6199 (XAP), 03-6059 (CON), decided 10-7-04, (2nd
Cir. 2004) and 386 F3d, 116, (2nd Cir 205), involving judicial
retribution against Scott Huminski for protesting about improper
treatment from Judge Corsones and other officials. Corsones and
others, without any basis, issued a bogus order that
barred Huminski from every courthouse and their grounds
in Vermont. After the fact, Corsones fabricated
that the basis for the order was that she "...thought Humiski may
have had a bomb in his
van." See www.firstamendmentcenter.org/news, "2nd
Circuit: Vermont Gadfly Wrongly Barred From Courthouse,"
October 8, 2004, A.P. article.
4. Forte v. Albov, et. al., Case No. M 54914, Superior Court of
California, County of Monterey - a legal malpractice case.
Below is a court reporter's transcript of a Motion to Quash the
deposition subpoena Forte served on Ms. Stephanie Crabb (a realtor,
involved in a prior case with Forte). Forte desired to take Ms.
Crabb's deposition, after a document previously requested, but not
provided, or listed on privilege logs, was later inadvertently
provided/discovered. Forte believed the document was
intentionally withheld, and during earlier testimony, Ms. Crabb
perjured herself, at the direction of her attorney.
The attorney bringing the Motion, Dennis McCarthy, represented Ms.
Crabb in the prior litigation and the Motion asked the court to
sanction Forte. Forte opposed the Motion, per California law
giving him a clear right to take the depositon, and sought sanctions
against Crabb/McCarthy. Originally, the Motion was assigned to
be heard by Judge Fields; just prior to the hearing Forte called
Field's clerk and is advised the Motion is now assigned to Judge
O'Farrell - Forte's nemesis, who had just been reversed by the
appellate court for wrongly dismissing a prior case of Forte's.
DECEMBER 19, 2022 - TRANSCRIPT
* * *
THE COURT: THE NEXT MATTER IS FORTE VERSUS ALBOV.
MR. MCCARTHY: GOOD MORNING, DENNIS MCCARTHY
APPEARING FOR STEPHANIE CRABB.
MR. FORTE: GOOD MORNING, YOUR HONOR.
THE COURT: GOOD MORNING.
MR. FORTE: GENE FORTE, PROPRIA PERSONA. YOUR
HONOR, PRIOR TO THIS - COMMENCEMENT OF THIS HEARING, I WOULD LIKE TO
ASK A COUPLE OF QUESTIONS. HOW WAS THIS CASE ASSIGNED TO YOUR
HONOR?
THE COURT: WE'RE NOT GOING TO GET INTO
THAT. IT'S MY CASE. I'M TAKING IT. JUDGE FIELDS HAD
THIS MATTER. HE DISQUALIFIED HIMSELF. I HAVE GOT THE
CASE. THAT IS THE END OF IT.
MR. FORTE: EXCUSE ME.
THE COURT: NO, THAT'S IT.
MR. FORTE: EXCUSE - -
THE COURT: NO, EXCUSE ME. WE'RE GOING IN THE ORDER THAT
THIS MOTION WAS SET.
MR. FORTE: NO, PARDON ME, YOUR HONOR.
THE COURT: NO, IF - -
MR. FORTE: EXCUSE ME, YOUR HONOR. YOU'RE
INTERRUPTING ME.
THE COURT: IF YOU KEEP INTERRUPTING ME, SIR,
I'M GOING TO HAVE TO CITE YOU FOR CONTEMPT. AND I'M TELLING YOU
THAT NOW, WARNING YOU. YOU SIT DOWN.
YOU SIT DOWN. WE'LL HEAR FROM THE MOVING PARTY FIRST,
AND THEN WE'LL HEAR FROM YOU.
MR. FORTE: YOU'RE ALLOWING ME - - YOU'RE NOT ALLOWING DUE
PROCESS YOUR HONOR.
THE COURT: TAKE A SEAT.
MR. FORTE: HERE'S A PEREMPTORY CHALLENGE. YOU'RE
OUT OF HERE. TAKE IT, IT'S FILED. PEREMPTORY
CHALLENGE. PEREMPTORY CHALLENGE, YOUR HONOR.
THE COURT: TAKE
HIM INTO CUSODY, PLEASE
* *
*
The transcript continues, see http://www.attorneybusters.com/. Forte was
grabbed by the bailiff, handcuffed, taken from court and put in a
holding cell. He was later brought back into court for a direct
contempt hearing (which are required to take place immediately - to
restore the integrity of the court and its business). However,
Forte was left to sit handcuffed in the jury box, while Judge
O'Farrell heard other matters. The judge then took a break and
left the bench, before taking up Forte's purported direct
contempt.
Clearly any justification for "direct" contempt had long passed
and
California law and due process now required Forte's
purported contempt be assigned to another judge for hearing, as
clearly Judge O'Farrell was "personally embroiled" -
conflicted. See Little v. Kern County Superior Court, 294 F.3d
1075 (9th Cir. 2002). Further, California law
mandates that a peremptory challenge (CCP section 170.6) must be
filed before the hearing begins, and once filed, the judge
immediately loses jurisdiction. Nonetheless, the judge
proceeded, found Forte in direct contempt, and sentenced him to the
remainder of the day in jail (transferred from court to Salinas
jail).
Forte later checked the court file; it
was absent any documentation showing transfer of the case
from Judge Fields, or that he had in fact had disqualified
himself. In initial litigation, Forte was represented by
counsel, who told him the Monterey judges were a "Good Ole Boy's
Club," that routinely "manipulated hearing and trial dates and fixed
cases" for well connected law firms. For further information,
see http://www.attorneybusters.com/.
For Common Sense, Liberty, and Justice,
Gary L. Zerman,
Atorney