Yah it's intellectual masturbation sort of:
What if the judge on the bench is in some fugue state, has a psychotic break, or is senile - whatever - and issues an order that one of the litigants before his bench should commit some obvious criminal act~?
The judge gets to say what the law is.
So you are commanded by order of the court to rob the bank take firearms with you and deal with lethal force any one who resists you. Or whatever.
So you obey the court. Shoot a couple people take the money and they arrest you.
To what standard are you held~? When you wave the Court's order at the prosecutor what will he do?
What about the judge~? Yah he gets disbarred and dethroned but what else~?
What if the judge on the bench is in some fugue state, has a psychotic break, or is senile - whatever - and issues an order that one of the litigants before his bench should commit some obvious criminal act~?
The judge gets to say what the law is.
So you are commanded by order of the court to rob the bank take firearms with you and deal with lethal force any one who resists you. Or whatever.
So you obey the court. Shoot a couple people take the money and they arrest you.
To what standard are you held~? When you wave the Court's order at the prosecutor what will he do?
What about the judge~? Yah he gets disbarred and dethroned but what else~?
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Re: What if:
Tue, February 5, 2008 - 3:24 PMI'm assuming that a judge did make an order that is perceived to be obviously illegal, just not bank robbery.
There are intervening methods to test the legality of the order. Maybe take a writ. Maybe refuse to follow the order, get cited for contempt, and challenge the order in the contempt proceedings.
I don't think "the judge made me do it" will fly as a duress or necessity defense in your criminal trial.
And I suppose the judge could be up for conspiracy; the judge would argue judicial immunity, tho. -
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Re: What if:
Wed, February 6, 2008 - 6:04 AM********************'m assuming that a judge did make an order that is perceived to be obviously illegal, just not bank robbery.**********
In my hypo it's a serious miscarriage the judge has committed. It could never stand scrutiny. But the order was given to a lay person.
**************There are intervening methods to test the legality of the order.*************
Yes but some one 's gotta do it.
Who has an obligation a non delegable duty? Maybe the attorneys - if any are present?
************Maybe refuse to follow the order, get cited for contempt, and challenge the order in the contempt proceedings.*******
Possibility. However what if the person who gets the order likes it~?
**************I don't think "the judge made me do it" will fly as a duress or necessity defense in your criminal trial.*********
Well remember the judge says what the law is. The lay person must obey the court.
I was thinking of this the other evening and realized how much discretion and power we vest in the judiciary.
The "entertain me" attitude of state and federal supreme courts is a thing that annoys me to death. It matters not that the litigant's rights were trammeled by the process, the state, and inferior judges. If the higher court doesn't see the prospect of entertainment and doesn't see a novel question of law (read: entertainment) you may find yourself locked out of the process having to resign yourself to a totally wrong and constitutionally violative result with absolutely no where to turn.
Yet that is how powerful our judges are.
*************And I suppose the judge could be up for conspiracy; the judge would argue judicial immunity, tho.*****************
HA HA HA HA HA HA HA HA yes indeed~!! -
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Re: What if:
Wed, February 6, 2008 - 1:42 PMFor the duress or necessity defense to work, doesn't there have to be an immediacy to the threat? "The judge made me do it" doesn't fly if the judge isn't at the hypothetical bank holding a proverbial gun.
Now if the client wants to comply with this order, I think the best as an attorney can do is advise not to, provide options (writ, contempt, etc.), and then write a CYA memo to the file if the client doesn't take the advice.
Oh: And the let the agency in charge of investigating judicial misconduct, as well as law enforcement, know. -
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Re: What if:
Wed, February 6, 2008 - 3:37 PM*************For the duress or necessity defense to work, doesn't there have to be an immediacy to the threat? "The judge made me do it" doesn't fly if the judge isn't at the hypothetical bank holding a proverbial gun.*************
Wait a minute: What threat ~? The Judge issues an Order and that order is law. Period.
**************Now if the client wants to comply with this order, I think the best as an attorney can do is advise not to, provide options (writ, contempt, etc.), and then write a CYA memo to the file if the client doesn't take the advice.**********
Yeah baby. Lawyer to client: "Oh sure you go rob the bank and take guns like his honor said. Have a nice day and don't call me any more."
*************Oh: And the let the agency in charge of investigating judicial misconduct, as well as law enforcement, know.****************
Well many of use are under an affirmative duty to do so.
Yah but, toss the legal scholars and lawyers out of the court room. Every one is a pro se lay litigant, they never had counsel.
What is the result if the defense sounds like: "Oh gee well here is the order from the court - - - see?"
That order would be law until a higher court acted against it. And the robbery is done with the bodies buried.
Is it a defense if the court ordered the person to do it~?
Is there anything in the law that you know of that would apply?
I'm stumped.
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Re: What if:
Thu, February 7, 2008 - 3:04 PMBy "threat" I meant threat of contempt citation.
You break the law, and are criminally prosecuted. As an affirmative defense to the prosecution, you say, "I did it 'cuz the judge ordered me to."
So you are dancing around justification/necessity/duress (perhaps, more distantly, duty). I would study up on your state's affrimative defenses, but I would guess none be exactly right.
So, sure, you may have an "entertaining" issue on appeal, but I think there would be better ways to challenge the order, either in the underlying proceedings (go interloc.) or a collateral proceeding (writ or contempt). Obeying the order and then rolling the dice on an affirmative criminal defense seems like worse alternative. -
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Re: What if:
Thu, February 7, 2008 - 4:25 PM**************So you are dancing around justification/necessity/duress (perhaps, more distantly, duty). I would study up on your state's affrimative defenses, but I would guess none be exactly right.**************
Well I suppose you could say that but - - what about the fact that the order is law and the defendant was complying with the law.
After all the stare made the guy judge not the defendant.
***********So, sure, you may have an "entertaining" issue on appeal, but I think there would be better ways to challenge the order, either in the underlying proceedings (go interloc.) or a collateral proceeding (writ or contempt).***************
It is very hard to take one's self as attorney out of the picture isn't it? My defendant / litigant wouldn't have a clue about what to do other than obey or disobey. For him the decision tree would end there.
************ Obeying the order and then rolling the dice on an affirmative criminal defense seems like worse alternative.**************
Yah I agree.
But I keep coming round to the problem of that judge being empowered by the state to say what the law is. -
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Re: What if:
Fri, February 8, 2008 - 3:28 PMI can't cite a case, but I would money that if one doubts the legality of an order, the proper proceedure is litigate it through contempt proceedings. I can't see any appeallate court ruling, "Even if the trial court's order clearly violated the law, a litigant must still carry out that order." (I would further bet the law is: "A litigant doubting the legality of a trial court's order may litigate the issue in contempt proceedings.")
Because the failure to obey the order due to a good-faith dispute over its legality will, after any litigation on the matter, likely result in an opportunity to purge the contempt by complying. -
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Re: What if:
Fri, February 8, 2008 - 5:20 PMOK all that sort of works.
Was the Order law? The Pro Se is not a legal scholar. What if he obeys the order.
Remember the deed is done. The bank is robbed. It's too late for collateral attack .
The pro se is waving the order and saying "But, but, but, the judge ordered me to do it."
What result~? It was after all valid law. -
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This is the maximum depth. Additional responses will not be threaded.
Re: What if:
Mon, February 11, 2008 - 3:21 PMIf the deed is done, I think they plan o' action for now is keep the head low, and hope there's no criminal prosecution. -
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Re: What if:
Tue, February 12, 2008 - 10:29 AMThe reason I made this post was because I have been thinking of late that we have vested substantially too much discretion in the judiciary.
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Re: What if:
Wed, February 13, 2008 - 9:09 PMyou want a separate judiciary to judge the [current] judiciary???! who gets to pick THEM???
THIS is the human condition, boys! -
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Re: What if:
Thu, February 14, 2008 - 5:33 AMWhat I'd really like is less immunity for judges.
Same as to police and prosecutors. I can't tell you how many mini Mike Nifongs I've encountered.
The immunity afforded these classes is on the one hand almost understandable and on the other ridiculous.
The power disparity between the accused and enforcement and the judiciary ( usually just another arm of enforcement) is unbelievable.
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Re: What if:
Thu, February 14, 2008 - 5:45 AMyup . . . and it's lawyers who are supposed to keep the system honest . . . under threat of contempt
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Re: What if:
Tue, February 19, 2008 - 12:31 PM -
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Re: What if:
Tue, February 19, 2008 - 3:36 PMReminds me of the protest cages at the conventions last time.
"OK you guys if you want to have your say we have these cages over there across the tracks on the other side of town where you won't disturb any one. You can go protest there."
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Re: What if:
Wed, February 20, 2008 - 3:50 PMtomorrow I attend a CLE seminar "Advanced Debt Collection"
as you know I don't ordinarily collect debts, except for the occasional "personal" debt between natural persons . . .
mostly I'm a consumer lawyer defending consumers against "the big boys" . . .
but I figured it would be good to know the "advanced techniques" I'm facing in my everyday efforts to blow the consumer's horn . . .
I'm also figuring on asking some pointed questions . . .
I'm really fed up with the violations of ethical rules, especially the rule against talking to my client behind my back . . .
I sent one an advance warning that if it doesn't stop after this, the third violation from a single attorney, it will result in bar complaints and appropriate motions in the underlying case, without a courtesy letter in advance. Here they dismissed, and sent a copy to my client instead of to me, costing me extra time, but that won't stop a bar complaint in the future; and my bar complaint will include all past violations. -
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Re: What if:
Wed, February 20, 2008 - 5:07 PMIf it's anything like the CLEs I've attended it'll teach you nothing at all.
But - - - what's that got to do with Excess judicial power and immunity? Not that OT is a crime or anything but I think there's a civil fine of $1500.00.
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