Tuesday, December 18, 2007

kanBARoo Court. 18th Installment. The prosecutrix creates an opportunity.

To understand the opportunity the prosecutrix's crimes create, you need to understand something of how the Office of the Chief Trial Counsel is related to the courts, starting with how the courts are related to each other. In adjudicating disciplinary cases, the Hearing Department of the California State Bar Court sits as a trial court, finder of law and fact. The Hearing Department is subject to review by the Review Department, another component of the State Bar. The Review Department, in turn, plays the role of the Court of Appeal, affording final-judgment appeal and interlocutory review. Finally, the California Supreme Court stands in the same relation to the Review Department as it does to the Court of Appeal, and provides selective appeal and review by writ of certiorari.

Each court is deferential to the one below. In weighing the evidence, there is no recourse against the Hearing Department, just as there is no recourse against a civil judge and jury in matters of pure fact. This is nothing exceptional. If the limitations of review jar, they should no more than civil review limitations, which often surprise clients and students of the legal system, but the jury's role in determining most of the facts in most of the cases offsets civil review's protective limitations.

While the relations among the layers of judicial hierarchy are unexceptional, the relationship between the Hearing Department and the Office of the Chief Trial Counsel is shocking in practice and undefined in law. In practice, the Hearing Department is just as deferential to the Office of the Chief Trial Counsel as any appellate court is required to be toward the court below. On any question of fact, the Hearing Department will believe the evidence presented by the deputy trial counsel, provided the Bar has any substantial evidence at all. The Hearing Department, itself part of the State Bar, decides any issue requiring weighing the evidence in favor of the State Bar. In law, the U.S. Supreme Court has long held that the right to practice law can only be taken away by due process, and California accepts attorney discipline as subject to due process. But as to the requirements for neutrality of the State Bar Court from the Office of the Chief Trial Counsel, the law contains no specifics. The State Bar, with its absence of rules dictating court neutrality, contrasts with California's administrative courts, where the judge and the prosecutor must satisfy minimum requirements of arms-length distance, construed to exclude ex parte communication between them.

Thus, it is not clear that the good cop bad cop relationship between the California State Bar prosecutorial and judicial subagencies is unlawful, and the Hearing Department finds it perfectly clear that this collusive relationship is entirely proper. It does not even try to hide the collusion, and the system is, in fact, structured so many key decisions are made entirely by the prosecutorial branch. Does an investigation occur—where you must participate; are charges brought—where you must answer, submit to discovery and be tried—all of these decisions are made in the Office of the Chief Trial Counsel. There is no arraignment; there is no summary procedure. There is no barrier whatsoever standing between a respondent's answer to the notice of disciplinary charges and going to trial. Until then, the charges are tested against nothing beyond themselves, the law, and logic.

The Office of the Chief Trial Counsel has power to decide the cases it prosecutes, a power unequaled by any criminal prosecutor, by virtue of that office's judicial decision-making. All the court knows of my case, all that justifies its jurisdiction over me, is what is contained in the notice of disciplinary charges, the pleading the Office of the Chief Trial Counsel prepared. The court has seen none of the evidence; it makes no evidentiary ruling until the trial itself. On the say-so of the Office of the Chief Trial Counsel, it unrebuttably presumes probable cause for the charges. The court believes this because it must take the word of that office, both to tell the truth about the facts it recites and also to correctly weigh their import. At trial, the court would continue to accept the prosecutrix's weighing of these facts, even when finally requiring some justification for their assertion.

The Office of the Chief Trial Counsel at once comprises the State Bar's police, prosecutor, and lowest court because the Hearing Department actually functions as a court of first appeal, showing deference to the Office of the Chief Trial Counsel, as the rules require, while carrying its deference beyond the point the rules strictly dictate but do not prohibit. With such judicial power, the character and honesty of the deputy trial counsel or of the entire Office of the Chief Trial Counsel is just as relevant to the propriety of the proceedings as the honesty of a judge. Just as finding that a judge had been bribed would create a mistrial, so the discovery that the prosecutrix is ready to commit a felony ungrounds her preparatory work, challenging the bona fides of the charges themselves. Apparently recognizing the possibility of some such outcome, the rules contemplate a motion to dismiss in “the interest of justice.”

Even before this misconduct surfaced, the court began to turn against the prosecutrix. Her motion to enter default lost with prejudice. The court vacated the trial date and ordered the next hearing in more than two weeks, clearing the way to my filing a petition for review. At the hearing, he asked for extensive briefing, keeping the prosecutrix at great disadvantage. All cops hate "paperwork." Of course, the court continued to disguise these concessions with moralizing as to how denying the motion to enter default "did not condone respondent's conduct." This was before the court had notice of the prosecutrix's most recent conduct.

The case has gotten to this point, I claim, because of the strength of my legal theory. The causes may seem otherwise. What does a pleading theory have to do with the prosecutrix's criminal acts? The legal theory, in the first place, was a pre-condition for eliciting them. Had my theory been frivolous, the Hearing Department would have so pronounced it when it ruled on my motions, weakening my position. Had it been frivolous, no one would have feared my bringing it to the Review Department. The prosecutrix's excesses would have been unnecessary.

By 'legal theory' I mean more than the pleading theory. Legal theory includes an analysis of the legal strategy pursued by the Bar and developing a viable counter-strategy. The strategic consideration was recognizing that the way the Bar Court dealt with legal arguments is to support the Office of the Chief Trial Counsel in forcing the case forward and then using these events to moot the legal objections. This was evident to me at the first hearing I attended on September 4, 2007, when the court suggested that the prosecutrix and I might agree to decide my motion to dismiss at the same time as the case went forward. The Bar Court would delay ruling on some motions despite the prosecutrix's sense of urgency, obviously wanting to sink my objections under a wave of ongoing discovery. Thus, the Hearing Department waited 11 days to rule on my motion for reconsideration, during which time my deposition supposedly proceeded. The Bar tries to compel respondents to submit to deposition, as objecting can justify the clerk entering respondents' default and the court deeming the dilatory conduct an adverse sentence-affecting factor.

To the Bar Court's own delaying tactics, I responded in the only logical way possible. I refused to proceed further, except to the next pleading, basing that refusal legally on mooting colorable objections. I gave the State Bar what it was begging for with its hypocritical delays: I froze the proceedings at the pleading stage.

To best understand this blog,

  • Read Installments 1-3, 5, 7, and 14 first, in that order; then
  • Follow your interests; or
  • Read the current installment.

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