Remember my video with Kentucky Lawyer Chris Wiest about his excessive force lawsuit involving the Kentucky State Police back in March? One of the police officers involved was fired and charged with perjury after he was caught lying in the deposition in Chris’ civil lawsuit.
A former Kentucky State trooper has been criminally charged with perjury after denying under oath that he beat a man with a flashlight in April 2020.
Thomas Czartorski was named in a lawsuit alleging troopers used excessive force against Alex Hornback of Shepherdsville while executing a bench warrant. The lawsuit also alleged that Hornback’s parents recorded the officers beating him, and that a trooper deleted the footage. But a home security video captured the incident. A lieutenant with the Kentucky State Police accused Czartorski in a complaint filed Thursday of lying during a January deposition when he said he didn’t use any force during the arrest. Czartorski turned himself in Friday afternoon at the courthouse on a felony charge of first-degree perjury, according to his attorney, Josh Schneider. The charge carries a penalty of one to five years in prison.
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling:
The saga of the Family Court Judges attempting to sway justice in the case of the Family Court Judge Search Case continues. As I already posted about, I sent a FOIA request to the Family Court Judicial Association to ascertain, among other things, who actually voted to engage in this conduct. Their lawyer responded, as I expected, denying that they are accountable to the public via FOIA:
So this is like saying that any group of government officials can just form their own “voluntary association” and then conduct business pertaining to their official jobs, and even use their government employees, emails, and so on, and yet avoid FOIA accountability. We’ll have to see about that.
Here are some of the recent filings flying back and forth in their efforts at intervening in the pending disciplinary matter involving Judge Goldston:
This past Thursday, on June 24, the Fourth Circuit quietly issued an en banc opinion in “Leaders of a Beautiful Struggle v. Baltimore Police Department, which challenged the Baltimore Police Department’s Aerial Investigation Research (AIR) pilot program on Fourth Amendment grounds. In an opinion written by Chief Judge Roger Gregory, the Court held that the AIR mass aerial surveillance program was an unconstitutional search and seizure (at least at the point the data was accessed).
The AIR program “tracks every movement” of every person outside of a structure in the City of Baltimore, retaining 45 days worth of data which is a “detailed, encyclopedic” record of where everyone came and went within the city during daylight hours. Law enforcement can “travel back in time” to observe a target’s movements, forwards and backwards. The Court likened the data to “attaching an ankle monitor to every person in the city,” and noted that, “whoever the suspect turns out to be, they have effectively been tailed for the prior six weeks.”
The Court held that “because the AIR program opens “an intimate window” into a person’s associations and activities, it violates the reasonable expectation of privacy individuals have in the whole of their movements.” Whereas traditional aerial or static camera surveillance have been upheld as reasonable by the courts, those cases “all involve some discrete operation surveilling individual targets.”
The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment.
Opinion at p. 28
The AIR program is like a 21st century general search, enabling the police to collect all movements, both innocent and suspected, without any burden to “articulate an adequate reason to search for specific items related to specific crimes.
Opinion at p. 32
Since this holding came from the Fourth Circuit sitting en banc, the only where to go from here is to the U.S. Supreme Court.
Should someone talk to the police without a lawyer present?
The criminal justice system overwhelmingly depends on people to unwittingly incriminate themselves for convictions, which they do.
If a criminal suspect invokes the right to counsel, or the right to remain silent, they generally don’t incriminate themselves.
A criminal suspect need only request a lawyer for all interrogation to stop. They DO NOT need to already have a lawyer – just to ask for one. Just a lawyer in general. These are magic words which stops an interrogation.
Custodial interrogation cannot take place with Miranda warnings and a waiver of the rights to remain silent and the right to have a lawyer present before and during questioning.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
5th Amendment to the U.S. Constitution
When are Miranda Warnings required to be read? Miranda warnings are required to be given when a suspect is in custody and being interrogated OR when a suspect believes that he is in custody and being interrogated. “Interrogation” includes not only express questioning but also its “functional equivalent,” namely, any conduct “that the police should know [is] reasonably likely to elicit an incriminating response.” When is someone in custody? That depends. Were they asked to exit a vehicle during a stop? Were guns drawn? Was force used? Were they placed in handcuffs? Were they told they weren’t free to leave?
A suspect can waive Miranda rights, but cannot waive the reading of Miranda warnings by law enforcement. Miranda warnings may need to be read again by police if too much time has elapsed in between the reading of the warnings and the subsequent interrogation.
When are Miranda WarningsNOT required to be given?
Officers can conduct general on-scene questioning as to facts surrounding a crime or other general fact finding without Miranda warnings. Officers can ask about the guilt of others/third parties without giving Miranda warnings. Miranda warnings don’t apply to voluntary statements made prior to interrogation. Miranda warnings don’t apply to statements of guilt made to persons other than law enforcement. Miranda warnings don’t apply if the person interrogated is not in custody.
Miranda warnings are generally not required at traffic stops. SeePennsylvania v. Bruder , 488 U.S. 9, 109 S. Ct. 205 (1988). In this case, the Supreme Court re-emphasized that ordinary traffic stops do not involve custody for the purposes of Miranda, and therefore, police do not need to inform those stopped for traffic violations of their Miranda rights unless taken into custody. Officers can generally ask any questions they want to suspects who are not in custody. See Arizona v. Johnson, 555 U.S. 323, 333 (2009). “An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
What about silence? Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334–35 (8th Cir. 1977). A defendant’s pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).
When can an officer not interrogate a suspect at all?
An officer may not interrogate if the suspect has requested a lawyer.
An officer may not interrogate if the suspect has in any manner, at any time prior to or during questioning stated that he wishes to remain silent.
What sort of behavior by officers may render a confession invalid in court?
A confession MAY be invalid if obtained as the result of withholding food, drink or bathroom access. A confession may be invalid if obtained following threats, coercing or tricking a suspect into waiving Miranda Rights. A confession may be invalid if the interrogation is too long; or, If physical force is used; or, If promises to help a suspect if he or she confesses; or, If the officer misrepresents the body of evidence collected against the suspect
Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.
Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:
Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.
Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.
The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”
According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.
Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.
Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.
He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”
Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.”62 According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”
Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.
The judge summarizes the situation nicely:
It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.
At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.
What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.
Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.
Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.
We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:
Join me at 7pm Live – The SCOTUS issued an opinion today protecting the sanctity of the Fourth Amendment protections of the home, which also served as an anti-red-flag ruling, restricting the police from performing warrantless searches of homes to seize firearms.
This is just in time for recent updates on two of our search and seizure cases with the same or similar issues: the Putnam County drug task force search case and the WV Family Court Judge Search case.
Joe Biden won’t answer the question about whether he’ll attempt to pack the U.S. Supreme Court, until the day after the election – so he’s claimed. What is “packing the Court,” and why is it such a terrible idea that even Ruth Bader Ginsburg warned against it?
The Constitution did not specify the number of justices to sit on the Supreme Court. That’s up to Congress. For the past 150 years or so, Congress has maintained that number at 9. An odd number is required, so as to avoid the rather-anti-climactic tie vote. With a 9 member Court, a 5-4 decision, or better, wins the case. With the loss of RBG, the American left loses a crucial vote on the Court, which is why they are threatening to increase the number of justices on the Court, so as to counteract her replacement with Judge Amy Coney Barrett. Thus, if Biden wins, and if Congress is able to increase the number, they could create a left-wing majority on the Court by increasing the number of Democrat-nominated justices.
But the problem with any such plan is, that eventually the other side will return to power and retaliate accordingly. What we then end up with has now become a super-legislature, rather than a Supreme Court, as the Founders intended. Even RBG herself was against Democrats’ 2019 threats to pack the Court:
Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.
Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court.
“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
To pull it off, the Democrats would really need to add 4 new liberal members to the Court, which would create a 7-6 majority. Setting long-term retaliation and consequences to the Court aside, the results would be disastrous to the Second Amendment:
A 7-6 progressive majority on the court would very likely overturn decades of precedent that have protected gun owners from both state and federal attempts to deny them their Second Amendment rights. Millions of American gun owners would be subject to these changes and the laws, which Democrats, some of whom are committed to confiscating guns, would impose.
The most obvious change to free speech laws that would come with a progressive majority on the Supreme Court would be the overturning of the 2010 5-4 Citizens United decision….. More broadly, speech laws such as those that exist in New York City requiring people to use preferred pronouns even if they do not believe that gender is mutable, would find a much kinder hearing in the new court.
The progressive reading of Roe v. Wade is almost limitless in its scope and perhaps the only question mark would regard the ability to kill babies even after they are outside of the mother. Beyond that, it is very likely that almost any state restrictions would be shot down.
Several religious liberty cases such as Hobby Lobby and Little Sisters of the Poorhave been closely decided of late. It is safe to assume these decisions would be reversed. Practicing Christians and members of other faiths would face far greater restriction in living their faith in their public life. Our understanding of how we may practice our religions would undergo a major change, abandoning the American tradition of public faith, and limiting religious expression to the church and the home.
In all likelihood, a new progressive majority would be open to efforts to abolish the electoral college, to allow statehood for the District of Columbia and Puerto Rico, and to allow voting by people in the country illegally. All of these changes would skew towards the Democrats and could very well result in one-party federal rule of the United States.
So what stopped FDR from packing the Supreme Court back in the 1930s? It happened during the Great Depression, when FDR was pushing his socialist New Deal programs, only to have them struck down by the conservative-majority Supreme Court of the early 1930s. President Roosevelt sought to solve the problem sooner, rather than later, so he introduced the “Judicial Procedures Reform Bill of 1937,” commonly referred to as the “court packing plan.” This would have allowed him to appoint up to 6 additional justices to the Court for every justice older than 70.5 years, or who had already served 10 years or more. In reality, a conservative majority had developed on the Court, and like Biden, he was willing to add justices to create his own new majority, consequences be damned:
From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.
FDR indirectly attacked the Court, claiming publicly he was concerned about their age, rather than the ideological point of view of its majority:
FDR recognized, though, that a direct assault on the court must be avoided; he could not simply assert that he wanted judges who would do his bidding. The most promising approach, it seemed, would be to capitalize on the public’s concern about the ages of the justices. At the time of his reelection, it was the most elderly court in the nation’s history, averaging 71 years. Six of the justices were 70 or older; a scurrilous book on the court, The Nine Old Men, by Drew Pearson and Robert Allen, was rapidly moving up the bestseller lists.
FDR basically lied about his motivations. Rather than admit to the American people that he was playing politics, and attempting to enact his progressive legislation without interference by the conservative court, he feigned concern over the age of the justices:
“A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves,” the president observed. “This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.” He acknowledged that “in exceptional cases,” some judges “retain to an advanced age full mental and physical vigor,” but quickly added, “Those not so fortunate are often unable to perceive their own infirmities.” Life tenure, he asserted, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”
Similar to what would happen in 2020, the result was all-out war between the branches of government, and between the political parties:
While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.
“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”
“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”
The battle lasted 168 days. It’s difficult to imagine how it would play out in the era of social media and biased news. But even then, it was ugly:
Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the PacificCoast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond…..
At the time, the FDR liberals showed little concern for the Supreme Court as an independent and important branch of government. If other countries could enact these programs, then so should we be able to do so….
If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages……
The Bill was ultimately defeated, but FDR still got what he wanted in the end. The historians’ lesson of the affair, as relayed to us in 2005, is perhaps more credible than any we would receive today, in the era of over-politicization of all fields of academia. So pay attention to the parts in bold:
The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends. On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.
The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.
As RGB knew, even the mighty FDR was wrong to attempt to destroy the SCOTUS by increasing the number of justices as a means to an end for temporary political goals. However enticing it might appear, it’s going to hurt everyone in the end.
Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.
For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.
The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.
If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.
Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.
Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:
FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….
In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary,abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”
Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.
In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.
The JIC interviewed the judge and asked her what authority she had to engage in this practice:
On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.
Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.
When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.
I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.
I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:
This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..
BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally.
“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”
It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:
Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.
Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.
Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.
Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?
And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:
Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.
When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.
Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).
The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..