The Tom Brady case and the Lawyer disciplinary cases are amazingly similar.

The Tom Brady case and the Lawyer disciplinary cases are amazingly similar.

 

The Post article is critical of the lawyers for not laying emphasis to the fact that Brady is innocent.      Unfortunately,  such an analysis begs the question or fails to understand the question (and the problem).     We in America have several core and basic principles that the Brady and the Disciplinary cases not only ignore, but proactively abrogate.    The presumption of innocence is not only the watch word of American jurisprudence, but,  a lynch pin of our Democracy.    

 

What does the Presumption of Innocence mean?     It means that the plaintiff (or prosecution, or claimant) must prove his/her/its claim by the degree of evidence required by statute, convention, or tradition.      It means that when the NFL or its commissioner makes an allegation that Tom Brady had something to do with the deflation of footballs the NFL and its commissioner has to prove it.    It matters not whether the matter is tried in a Court, an Arbitration panel, a Disciplinary panel, or an Administrative Court.     It means that the trier of fact has to be proactive to make certain that the RULE OF LAW is followed and it also means that the litigants’ counsel (attorney) have a affirmative duty to make certain that the rules are followed.

 

Thus, in the Tim Larkin case the Judge is not a bystander.   The States Attorney is not an advocate – but a lawyer dedicated by his own to see that Tim obtains and obtained a fair and proper hearing and was in fact afforded due process and the presumption of innocence.    Whether Tim was notified of the hearing or not, when the judge and the attorneys read the crime laboratory report each should have demanded that the charges be dismissed and the ex=parte hearing should have ended with a NOT GUILTY.    

 

In the lawyer disciplinary cases, Larkin as a lawyer  had a duty to reject Cynthia Farenga’s claim that JoAnne and I were not telling the truth as to the Mary Sykes case 09 P 4585.     First, Farenga’s letter referred to the posting of a demand for an HONEST INVESTIGATION in the Probate Sharks blog.   Larkin was fully aware of 47 USCA 230, Article 1 of the Illinois Constitution, and the First Amendment.    Second, Larkin and the SCOI were all aware that the Mary Sykes file kept by the Probate Division of the Circuit Court of Cook County revealed that:

1.       The Sheriff of Cook County denied serving summons on Mary Sykes and the file confirmed that the summons required by 755 ILCS 5/11a – 10 was never attempted to be served on Mary and thus the Circuit Court could not obtain jurisdiction.

2.       That Circuit Court proceedings (and in particular an Petition for an order of protection) made it very clear that Mary was not incompetent.

3.       The prior notice to the family of Mary Sykes, which the SCOI ruled was jurisdictional had never been provided.   

4.       That no hearing had been held to determine if Mary was incompetent, and therefore appointment of a guardian was not only without jurisdiction but wrong.

5.       That the corrupt jurist at page 91 of her evidence deposition admitted that she was fixed and that she was predisposed to appoint a guardian for Mary.   Her words were to the effect that the same result would be reached.

The statute and tradition require that Larkin prove that the demand for an HONEST INVESTIGATION was untruthful by clear and convincing evidence.   This is statutory; however both Larkin and the SCOI ignored the requirement.

 

In the Brady case, the NFL had, no matter how you slice it,  to provide at the very least a scintilla of evidence that Brady had do something to cause the footballs to be under inflated.    As no evidence of Brady’s involvement was shown,  what the Court of Appeals did was to follow the unacceptable precedent that the RULE OF LAW and the presumption of innocence are vitiated when it is either expedient or a clout heavy individual with a pecuniary interest is not getting his/her way .     

 

What Brady highlights is the disrespect for not only the RULE OF LAW but the code of fair play that has been our tradition for centuries.       

 

NB.  Brady might have been totally guilty or totally innocent.    It does not matter – the NFL and the Federal Appeals court disgraced themselves by refusing to require the entity making the accusation to prove it.     The lynch pin of American society has been severely compromised.  

 

Ken Ditkowsky

www.ditkowskylawoffice.com