EVOLUTION OF JUDICIAL TYRANNY:

"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).


“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.


"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.


This case illustrates to me the serious consequences to the Bar itself of
not affording the full protections of the First Amendment to its applicants for
admission. For this record shows that [the rejected attorney candidate] has
many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney
candidate] has followed a high moral, ethical and patriotic course in all of
the activities of his life, but also that he combines these more common virtues with
the uncommon virtue of courage to stand by his principles at any cos
t.
It is such men as these who have most greatly honored the profession of the law.
… The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become
a group of thoroughly orthodox, time-serving, government-fearing individuals is
to humiliate and degrade it.”


In Re Anastaplo,

18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366
U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.







Monday, March 30, 2015

The case against the Chenango County CPS proceeds to trial in federal court


The U.S. District Court for the Northern District of New York partially denied today a motion for a summary judgment that the government was asking for in the case Argro v. Osborne, Case No. 3:12-cv-910 (NAM/DEP), against the Chenango County CPS and some of its workers in their individual capacities.

The court also partially granted my clients' cross-motion regarding discovery.

The civil rights lawsuit by three plaintiffs alleges violations of their due process and 4th Amendment rights pertaining to incidents of searches of plaintiff's residences and personal property by the Chenango County workers.

The case is ordered trial-ready.

The trial date is not set yet.

Sunday, March 29, 2015

You sued a judge - the judiciary will get even with you! Right, Judge Lambert?



Judge John F. Lambert of Otsego County Court, assigned to made two cases in Delaware County, one a civil case in the Delaware County Supreme court, O'Sullivan v Bowie, and another a criminal case in Delaware County Court, People v. O'Sullivan, made two blunders in those cases practically at the same time.

BLUNDER NO. 1

In the case of O'Sullivan v. Bowie the judge allowed to reopen the default of police officer Bowie sued in his individual capacity by Barbara O'Sullivan for assault on her with the use of a police vehicle.

That same judge ordered previously to the police officer, on an Order to Show Cause, to serve Barbara O'Sullivan with the motion to reopen his default by personal service.

No affidavit of personal service was filed with the court.

So how could Judge Lambert even hear that case then, if service, as ordered by the judge, was not done?

Well, the judge not only heard the case, but found that Ms. O'Sullivan was properly served and granted the motion.   

Yet, all he had to do to deny the motion is simply read his own Order to Show Cause and compare it with what kind of affidavit of service was filed, especially that Barbara O'Sullivan is a pro se litigant and the judge should have been more careful in observing her rights.

What is also quite amazing to me is that police officer sued for misconduct is represented by counsel at taxpayers' expense and the Supreme Court waives his filing fees for the motion, as if he is a representative of the government, even though he is sued, once again, in his individual capacity only.  Not too many breaks for a person who should be charged for assault and attempted murder of a woman?

BLUNDER NO. 2

Judge Lambert is presiding over the parallel criminal case of People v. Barbara O'Sullivan where the officer who made an assault on Barbara O'Sullivan is allowed to file charges against her, but the Delaware County District Attorney filed no charges against Derek Bowie for assault upon Barbara O'Sullivan (sending the message to the community that her life is expendable - because she sued Delaware County judge Carl F. Becker, the patron of the local government of Delaware County?).

Barbara O'Sullivan has made a pro se motion there asking to dismiss the indictment against her because she was not notified of the scheduled grand jury proceeding.

A New York statute required such a notification.

Judge Lambert ruled that because the felony complaint was "disposed of" at the end of the felony hearing in the lower court, the prosecution did not have to notify Barbara O'Sullivan of the pending grand jury proceedings.

I wonder how a case may be "disposed of" when a person is "held over" for the action of the grand jury at the end of the felony hearing in the lower court.

Being "disposed of" is being dismissed.

I wonder why Judge Lambert suddenly forgot that.

Two major mistakes in two parallel proceedings, civil and criminal, against the same person?

A coincidence? 

In my opinion, there are just too many coincidences.

When all of those "errors" are on issues that would require to rule in favor of a woman who had the courage to sue a judge,  and when Judge Lambert keeps coming up with reasons (contrary to applicable law) as to why such relief should not be granted - the only reasonable explanation that a reasonable observer can come up with for such behavior of Judge Lambert is - the judge is trying to help out the police officer and to bury a woman who sued a judge.

And it appears that Judge Lambert should have had the decency of recusing from both cases long time ago.






Are Jewish litigants safe in courts of upstate New York?


Are immigrant litigants in general and Jewish litigants in particular safe in the courts of upstate New York?

I don't think so.

Why? 

A report was made to Judge Mulvey, the Chief Administrative Judge of the 6th Judicial District, that a certain court attendant, at a community event dedicated to safety of children, while registering a Jewish child, asked his parent whether the parent knew it was Hitler's birthday that day.

It happened in June, so it could not be Hitler's birthday, Hitler's birthday is April 20th (according to the parent's and my own search on the Internet).

So why did the court attendant ask that question?

To hurt a Jewish person?

To make him feel vulnerable?

Probably, both.  There is no other rational explanation as to what brought the court attendant to ask that question.

So what did Judge Robert Mulvey do when he was notified about the actions of the court attendant.

Did he remove that court attendant at least from the court proceedings of that Jewish litigant?

Not at all.

Two months after the complaint, that same court attendant was used by another judge, Judge Kevin M. Dowd, to intimidate the litigant for daring to make a motion to recuse against Judge Dowd.

Judge Dowd, according to the victim, put the court attendant in question, armed, behind the litigant's back and, after harassing the litigant enough, and after having the court attendant search the litigant's bag right in the judge's chambers, the judge recused and then ordered the armed Hitler-loving court attendant to get the Jewish litigant out of Judge Dowd's courthouse - he said "get him out of MY courthouse". 

The only "guilt" of the litigant was that he dared to make a motion to recuse Judge Dowd.

Judge Dowd does not own the courthouse.

The litigant had a right of access to that public building at any time during its business hours.

Yet, the same officer who was asking him about Hitler's birthday after registering his child's Jewish name, was ordered by Judge Dowd to remove him from the public building.

So, the question is - if Judge Mulvey did nothing to control behavior of the court attendant and to remove him from proceedings of a Jewish litigant whom the court attendant already attempted to intimidate, was it intentional?  Is Judge Mulvey anti-Semitic?

Is Judge Dowd anti-Semitic?

And, returning back to the initial question, are immigrant litigants in general and Jewish litigants in particular safe from harassment and intimidation based on their national and ethnic origins in our upstate courtrooms?

Judging by the behavior of Judges Mulvey and Dowd, and based on my own experience as an immigrant attorney and litigant, in front of these two judges and other upstate judges - I do not think so.

Saturday, March 28, 2015

Labor market regulation and the rate of arrests, criminal charges and incarcerations raising interesting questions


According to a study I recently read, 30% of jobs in the U.S. are certified or licensed.

Another 33% of Americans, or 1 in 3, have criminal records that often, if not always, preclude them from getting a decent job.

Licensing and certification process practically excludes those who have a criminal record, so we can assume that the 33% of Americans with criminal record cannot apply for the 30% of the U.S. jobs, the ones that require licensing or certification.

That leaves 27% of Americans who neither have a criminal record nor are licensed or certified, to be employed in "regular" jobs not requiring a license or certification.

Out of those 27% an undisclosed amount may have arrest records that did not result in a conviction, but may still prevent gainful employment.

So, at the rate America, on the one hand, increasingly regulates the labor market and closes entry into increasing number of professions, and, on the other hand, at the rate the U.S. increasingly charges and incarcerates its citizens (while failing to charge and incarcerate its politicians known for having committed crimes, such as, for example, those responsible for the torture program), the country may be killing its own labor markets and efficiency of its economy.

Something the candidates for presidential elections should think about and answer to the voters as to how they are going to fix this problem.

Or, is the problem of increased incarceration artificially created, to create felony convictions in minority population and to thus block the minority votes?

And there is also this interesting issue - do courts ever think about problems with the American labor market when they "impute" income charging parents, often with a criminal record, with the obligation to get jobs which they cannot possibly get?  To keep the debtor's prisons filled?


Those busy and cranky judges and those pesky litigants


I hear often that judges are "busy", they are "frustrated", and, therefore, we the litigants (and their attorneys) should not take the judge's valuable time with lengthy pleadings.

In one of the CLE courses I recently had, the presenter of the course expressly called presenting to the court of all of the issues that an attorney can possibly raise on an appeal as a weakness and a receipt for failure, because the court will be discouraged to "read that all".

I refer you to my blog TL-DR ("too long, did not read"), where I touched on that issue before.

But, there is also these aspects to the problem of "busy and frustrated judges".

1/ who is whose servant - aren't judges public servants that serve the sovereign (the public) at the sovereign's pleasure during good behavior only, and isn't frustration at a litigant for raising all issues that present themselves in the record, the litigant's due process right and the judge's duty to review?

2/ a judge is not dragged into the judicial office by his hair or other bodily parts.  A judge comes there voluntarily, moreover, in New York a judge has to "win" a rigorous election campaign - and get funding for that campaign.  In New York, most judges must be lawyers with at least 10 years of experience.  10 years is more than enough to learn that court dockets are overcrowded and courts are understaffed.

If, knowing all that, an attorney runs for a judge, shouldn't he then deal with the inevitable time-constraints, overcrowded dockets, understaffed courts and associated stress levels without taking it out on litigants and their attorneys who have constitutional rights to due process, access to courts and impartial judicial review - and not by cranky judges who are "too busy" to provide a detailed review of all issues that the litigant wants to present to the court.

Otherwise, judicial review may not legitimately be called "an opportunity to be heard", right?

Once again on the oath of office of taxi drivers


Occupational licensing is rampant in this country.

According to one study, 30% of U.S. workforce is licensed or certified.

The study was recently referenced in a law review that was, in turn, relied upon by the U.S. Supreme Court in the case North Carolina State Board of Dental Examiners v. Federal Trade Commission, decided on February 25, 2015 and declining to give immunity to the State Board of Dental Examiners controlled by market participants, I wrote about that case earlier here.

The concept of occupational licensing is simple.

It is permission by the state to an individual to privately practice a certain profession, based on meeting certain requirements.

Once again, it is a permission for private practice.

It is not an application for appointment or election for a public office.

When occupational licenses are given to doctors, engineers, taxi drivers, they are not pronounced "officers" of a certain branch of the government.

Not so with attorneys.

When a private individual receives a license to practice law, he or she is also "sworn in" as an "officer of the court".

What does this oath of office mean?

Does it provide to the attorney absolute judicial immunity, as court personnel has?

Only to some of attorneys, such as prosecutors, whether civil or criminal, but not to private attorneys.

Actually, the embattled Judge Tormey (see here and here) has granted absolute judicial immunity for fraudulent acts during litigation to a private attorney, the same Jonathan S. Follender (who, in addition to his practice, is a justice in the Denning Town Court in Ulster County, New York) who was favored by Judges Eugene Peckam and Carl Becker, see my previous blog.

Yet, Judge Dowd quickly refused to recognize Judge Tormey's gift to his brother-in-arms Jonathan Follender as a binding precedent of the court, because recognizing it as a precedent would have invalidated the whole proceedings against my husband Mr. Neroni who Judge Dowd hates with a passion.

Judge Dowd actually reproached me for trying to present "dicta" as precedent.

Judge Dowd's refusal to apply Judge Tormey's gift to a private attorney-judge to all private attorneys is that Judge Tormey could choose, based on whatever powers he does not have, to give a one-time gift like that to his brother-in-arms, but that gift of new law cannot be equally applied to the rest of private attorneys, the mere mortals.

So, when private attorneys are sworn in as "officers of the court", does it mean the person actually holds a public office, or is it yet another pretense of the court system to use this pronouncement to require more from independent private attorneys?

The only time when the court recalls that a private attorney is "an officer of the court" is when the court wants to point out that the private attorney is "out of line" - for example, when you are criticizing a judge for misconduct.

An independent private attorney, especially the one who is not politically connected, must maintain in himself and in the public religious blind faith in the integrity of the courts while the courts, including judges and court personnel "enjoy" gave themselves absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS no matter what they do and are naturally not entitled to any trust at all because of that.

But a big question arises - Constitutions of most states prohibit individuals from holding more than one public office.

Yet, we know that lawyers, while all being officially designated as "officer of the court", are overpowering both the executive and the legislative branches of the state governments.

Is it a conflict of interest, should lawyers be cast out of executive and legislative branches of the government because all lawyers are "officers of the court" and cannot be trusted to control and impose "checks and balances" upon the branch of the government that they are (1) officers of, and (2) which controls their livelihood through licensing?

And the ultimate question - how can an attorney be appearing as an advocate in the same court that he or she is an officer of?

See once again my blog about the Appellate Division 4th Department's clerk of the court who stated in her recent letter to me that disciplinary prosecutors are actually employees of the court system, confirming to me what I asserted time and again, that attorney disciplinary proceeding is a mess of conflicts of interests where the three branches of the government have merged in a happy incest? 

What does appearing of "officers of the court" in courts they are officers of do to the court neutrality?

What does it do to independent advocacy?

Isn't it true that a court may not be an advocate?

Doesn't advocacy by court officers invalidates the very existence of advocacy and courts as they exist now in the U.S.?

And, if private individuals who simply want to practice their profession as lawyers and earn a living, must take an "oath of office" as "officers of the court" (without being paid as such), should we then push for oaths of office of all individuals who apply for occupational licenses?

An oath of office for taxi drivers, anyone?

The idea that officers of the court should not be members of the legislatures, that I developed in this blog, belongs to my friend Diane Gochin, of Pennsylvania, to whom I extend my appreciation.

The wonderful world of defaults through the eyes of the sighted Lady Justice


If you visit the courthouse of the Supreme Court of Chenango County, you will see a wonderful and poetically true image of Lady Justice in front of the chambers of Judge Kevin Dowd.

What is so interesting about the large wooden statue of the Lady Justice that is positioned under a glass cover in front of Judge Dowd's chambers in Norwich, NY?

It is sighted.  It has no traditional cover on her eyes.

And that is exactly the kind of justice meted out by Judge Dowd - he always takes into account the political status of the party and the party's attorney when rendering his decisions.  Without fail.

What does the Commission of Judicial Conduct does about it? What it does usually - which is nothing.

The interesting part though is that Judge Dowd is not alone in the "sighted" approach to justice.

I have reviewed court orders of the following judges pertaining to defaults:

Judge Carl F. Becker - O'Sullivan v. Hallock, Delaware County Supreme Court
Judge Molly R. Fitzgerald - Mokay v. Mokay, Delaware County Supreme Court
Judge John F. Lambert (transcript of a motion to reopen the default which was not properly served upon the opponent as ordered in the Order to Show Cause) - O'Sullivan v. Bowie, Delaware County Supreme Court
Judge Kevin M. Dowd - Mokay v. Mokay, Delaware County Supreme Court
Judge (retired) Eugene Peckham - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2007-280
Judge Carl F. Becker - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2011-884

What can I say?

When a party that the court likes defaults, and that is:

(1) parties in O'Sullivan v. Hallock who voted for Judge Becker and were represented by his buddy, now County Attorney and then Assistant County Attorney Porter Kirkwood, were forgiven a default in failure to raise affirmative defenses in standing;

(2) the police officer in O'Sullivan v. Bowie was forgiven his failure to serve Mrs. O'Sullivan with the motion papers in the way required by the Order to Show Cause signed by judge John F. Lambert of Otsego County;

(3) Judge Dowd has forgiven the default of the New York State Attorney General to oppose the Order to Show Cause for a subpoena duces tecum of their records, where no opposition and proof of service of the same was filed before the date and time of review of that motion;  Judge Dowd disregarded the default, accepted the "opposition in a letter" that was sent directly to his Chambers in Norwich instead of being filed in Delaware County Clerk's office, as required by law, with proof of service, and relied upon the "letter opposition" in denying relief to Defendant in Mokay v. Mokay.

(4) Judge Peckham (M & C Brothers, Inc. v. Torum, Index No. 2007-280) has forgiven to an attorney Jonathan S. Follender who was and is a judge of a local justice court, failure to file with the court proof of service of his own Order to Show Cause - and ruled against the attorney's opponents as if they were in default;

(5) Judge Carl F. Becker (M & C Brothers, Inc. v. Torum, Index No. 2011-884) has ruled that parties were in default, in favor of the same attorney Jonathan S. Follender who failed to serve the parties in accordance with the Order to Show Cause and failed to file proof of service before the returnable date of the Order to Show Cause.

In sharp contrast, Frederick J. Neroni who opposed the retired judge and son of a judge Robert Harlem (now late) and Richard Harlem,  was not forgiven failure to oppose legally insufficient arguments of the Plaintiffs in the Mokay v. Mokay matter.   Frederick J. Neroni's arguments at the motion hearing in opposition to the motion for a summary judgment were disregarded and a summary judgment against him was made because of his alleged default.   

That was the decision of Judge Molly Fitzgerald, a Supreme Court justice out of Binghamton, NY, since then supported by judges Carl Becker, Kevin Dowd and multiple judges in the Appellate Division, Third Judicial Department, U.S. District Court for the Northern District of New York and the U.S. Court of Appeals for the 2nd Circuit.

So, if you think that the Lady Justice in the Catskill mountains has a blindfold on her eyes preventing her from seeing the status of the party in order to equally apply the rule of law to everybody, think again, and come and look at the Lady Justice in front of Judge Dowd's Supreme Court chambers in Norwich.

The sighted Lady Justice is actually the true symbol of "justice" meted out in our neck of woods.

If you are not a governmental official, and if you are not represented by a politically connected attorney, your have a reason to be concerned about your chances in the local courts, no matter how right you may be and no matter how much the law may be in your favor.

Friday, March 27, 2015

Another bad dream - Michael Danaher a longtime "public integrity officer"?


I've written here about Assistant Attorney General Michael Danaher who was clueless as to why he was brought into the action (actually, on a challenge of constitutionality of a court rule) and claimed he came to the court to "maintain integrity of judicial orders" and while "representing New York State court administration", see my blog here.

The curious part was that Michael Danaher was supporting sanctions imposed upon me for quoting pleadings of Michael Danaher's colleague, Assistant Attorney General Mary Walsh, see the Blanding saga.

On March 25, 2015, Michael Danaher filed a letter with the court claiming that Mary Walsh does not know anything relevant to the upcoming trial while she was subpoenaed specifically because of the contents of her own sworn pleadings to the court indicating her knowledge that was relevant to the trial.

Mary Walsh does not know the background of her own investigation that she was pleading under oath to the court?

Nice.

And - THIS particular attorney has been a "public integrity officer" for 4 years, appointed by Eric T. Schneiderman?

Double-speak gains momentum where "public integrity" and "honor" apparently are reduced only to names of jobs and titles.

NYS Appellate Division 4th Department: we are not in compliance with the law and due process as to who is permitted to investigate and prosecute attorney disciplinary proceedings, but we do not care


Admission and removal from practice of attorneys is governed by Judiciary Law Section 90.

Nowhere in Judiciary Law Section 90 will you find authorization for existence of committees within appellate divisions handling investigation, prosecution and suspension or removal of attorneys from practice.

Yet, Judiciary Law 90(7) does prescribe who and how should be given authority to investigate and prosecute attorney disciplinary proceedings in New York.

Judiciary Law 90(7) specifically provides:


    7. In addition to the duties prescribed by section  seven  hundred  of
  the  county  law, it shall be the duty of any district attorney within a
  department, when so designated by the justices of the appellate division
  of the supreme court in such department,  or  a  majority  of  them,  to
  prosecute all proceedings for the removal or suspension of attorneys and
  counsellors-at-law  or  the  said  justices,  or  a majority of them may
  appoint any attorney and  counsellor-at-law  to  conduct  a  preliminary
  investigation  and to prosecute any disciplinary proceedings and, during
  or upon the termination of the investigation or proceedings, may fix the
  compensation to be paid to such attorney and counsellor-at-law  for  the
  services  rendered,  which  compensation  shall  be a charge against the
  county specified in his certificate and shall be paid thereon.


So, Judiciary Law 90(7) enumerates only two ways as to how the court may appoint atattorneys to handle disciplinary proceedings against attorneys:

Option 1:  to designate a district attorney within the department;
Option 2:  to appoint "any" attorney and then fix his or her compensation, to be chargeable against the county.

There is no third choice designated in Judiciary Law 90(7).

Since ways as to who can prosecute in disciplinary proceedings and how can such a prosecutor be appointed, are strictly enumerated by statute, and since the so-called "Attorney Grievance Committees", or "Professional Conduct Committees" are not authorized by Judiciary Law 90, it is clear that attorneys for "Attorney Grievance" or "Professional Conduct" committees may not investigate or prosecute attorney disciplinary violations.

They are simply not authorized to do that by statute.

Yet, look what kind of letter I received from the New York State Appellate Division 4th Department when I was trying to verify compliance of the department with Judiciary Law 90(7) as to appointment of Mary Gasparini and Gregory Huether, my two disciplinary prosecutors.



The clerk of the 4th Department expresses to me her opinion as follows:

(1) that both of these attorneys, Mary Gasparini and Gregory Heuther, are "employees of the Unified Court system" (which absolutely disqualifies them to appear in the court they are part of as prosecutors), and, by the way, prosecutors are part of the Executive branch of the government, not of the Judicial branch;

(2) that district attorneys are not designated by the 4th Department for the purposes indicated in Judiciary Law 90(7);

(3) that appointment of Mary Gasparini and Gregory Huether is not in compliance with Judiciary Law 90(7).

In other words, the clerk of the court acknowledged that Mary Gasparini and Gregory Heuther are employees of the court, thus acknowledged that the court is acting as a prosecutor and an adjudicator in the same proceedings (not to mention that the court is also a legislator in the same proceedings, because it enforces procedural and substantive rules of its own creation), and that they were not appointed in compliance with Judiciary Law 90(7).

Moreover, the claims that disciplinary prosecutors are permanent state workers entitled to "sovereign immunity" go out the door when you simply read Judiciary Law 90(7) that clearly allows only those attorneys whose fee is chargeable to the counties to prosecute disciplinary violations.

So, the Legislature allowed only attorneys paid by counties, not by the State of New York, to prosecute disciplinary violations.

Courts disregard that requirement and make their own rules, contrary to the enabling statute, which make such rules invalid.

Will anybody anywhere, out there, finally see that disciplinary proceedings in New York, the way they are done now, are blatantly unlawful and unconstitutional?

Monday, March 23, 2015

Wrongul convictions: What is a reversible error and prosecutorial misconduct in Arizona, is business as usual in New York


Chief Judge Jonathan Lippman has been declaring far and wide, left and right, that he is fighting for "access to justice", and is investigating and fighting the causes of wrongful convictions.

Yet, a major cause of wrongful convictions is right in front of Judge Lippman's nose, and the court system that he heads actively contributes to multiplying those convictions by failing to properly review and resolve challenges to constitutionality of statutes that help create such wrongful convictions.

One of such statute is the infamous New York Civil Rights Law 50-a that states:


§  50-a.  Personnel  records  of  police  officers,  firefighters  and
  correction  officers.  1.  All  personnel  records  used   to   evaluate
  performance  toward continued employment or promotion, under the control
  of any police agency  or  department  of  the  state  or  any  political
  subdivision thereof including authorities or agencies maintaining police
  forces  of individuals defined as police officers in section 1.20 of the
  criminal procedure law and such personnel records under the control of a
  sheriff's department  or  a  department  of  correction  of  individuals
  employed  as  correction  officers  and such personnel records under the
  control of a paid fire department or force of  individuals  employed  as
  firefighters  or firefighter/paramedics and such personnel records under
  the control of the department of corrections and  community  supervision
  for  individuals  defined  as  peace  officers  pursuant to subdivisions
  twenty-three  and  twenty-three-a  of  section  2.10  of  the   criminal
  procedure  law  shall  be  considered  confidential  and  not subject to
  inspection or review without the express written consent of such  police
  officer, firefighter, firefighter/paramedic, correction officer or peace
  officer  within  the department of corrections and community supervision
  except as may be mandated by lawful court order.
    2. Prior to issuing such court order the judge must  review  all  such
  requests  and  give  interested  parties the opportunity to be heard. No
  such order shall issue without a clear showing of  facts  sufficient  to
  warrant the judge to request records for review.
    3.  If,  after such hearing, the judge concludes there is a sufficient
  basis he shall sign an order requiring that  the  personnel  records  in
  question  be  sealed  and sent directly to him. He shall then review the
  file and make a determination as to whether the records are relevant and
  material in the action before him. Upon such a finding the  court  shall
  make  those  parts  of  the  record  found  to  be relevant and material
  available to the persons so requesting.
    4. The provisions of this section shall  not  apply  to  any  district
  attorney  or  his  assistants,  the  attorney general or his deputies or
  assistants,  a  county  attorney  or  his  deputies  or  assistants,   a
  corporation  counsel  or  his deputies or assistants, a town attorney or
  his deputies or assistants,  a  village  attorney  or  his  deputies  or
  assistants, a grand jury, or any agency of government which requires the
  records  described  in  subdivision  one,  in  the  furtherance of their
  official functions.

Please, note that the law does not apply to district attorneys, so theoretically DAs have access to such records and must disclose history of misconduct of police investigators of a certain criminal case as Brady material.

Yet, an opinion poll of several attorneys with years of practice, including my own experience, tells a different story.

DAs never disclose such information and, if pressured, use Civil Rights Law 50-a as a shield, telling the defense counsel to go ask the judge for a court order.

It is interesting to mention how unequal the rights of the district attorney and of the criminal defense counsel under Civil Rights Law 50-a are.

The DA has a right of access to misconduct information of police officers while a criminal defense attorney must beg a judge for a court order - and my experience and experience of attorneys who I polled is that motions like that always fail.

Yet,  the statute was specifically enacted to prevent impeachment of police officers on the stand during criminal trial.

When a statute is designed or is used to impair or prevent enforcement of a fundamental constitutional right, such as a right secured by the Confrontation Clause of the 6th Amendment of the U.S. Constitution, the statute must be immediately declared unconstitutional.

Yet, Civil Rights Law 50-a exists for a long time, and trial and appellate courts invariably either reject or outright ignore challenges to constitutionality of this statute.

I filed my share of motions to challenge constitutionality of Civil Rights Law 50-a and raised such challenges on appeal, with the same results, always - failure.

Challenges like this in New York are procedurally difficult, if at all possible also because of jurisdictional limitations of state courts where criminal proceedings are usually tried, and because of habitual refusal of federal courts to exercise their jurisdiction and to review challenges to constitutionality either during the criminal proceedings or after the criminal proceedings are over.

In New York, most if not all crimes are NOT brought in the Supreme Court,  the lower court of general jurisdiction.

Yet, challenges to cosntitutionality of statutes can ONLY be brought in the Supreme Court.

Thus, bringing a motion to challenge constitutionality of Civil Rights Law 50-a in a local justice court (where judges are not attorneys and may have no education at all) or at the County Court level must result in failure because these courts have no jurisdiction to review such proceedings.

Alternatives are to request to transfer criminal proceedings to the Supreme Court, or to bring a separate civil action for a declaratory judgment in the Supreme Court during the pendency of the criminal proceedings.

To try to bring such an action in federal court during the pendency of a criminal proceeding or after the criminal proceeding concluded in a wrongful conviction is an exercise in futility.

During the pendency of the criminal proceeding the federal civil rights case will be dismissed because of the so-called "Younger abstention".

If the federal civil rights lawsuit is filed after the wrongful conviction, it will be dismissed under the so-called "Rooker-Feldman doctrine".

On direct appeal from the criminal court, challenges to constitutionality of statutes, including Civil Rights Law 50-a, are simply ignored.

New York State Court of Appeals further ignores constitutional appeals as of right, arrogantly claiming, usually without any explanation that no "substantial" constitutional rights are violated, in the court's learned opinion - meaning that the court takes upon itself to pick and choose which constitutional rights are substantial and may not be violated and which are insubstantial and may be violated.

In fact, no one in the United States is allowed to either violate the U.S. Constitution or to allow themselves to decide which of its provisions may or may not be considered "insubstantial" and insignificant enough, so that they may be violated. 

Yet, judges who receive their authority through their oath of loyalty to the U.S. Constitution, undertake to decide whether, how and which provisions of that same Constitution they may violate or allow other branches of the government to violate.

How many wrongful convictions are out there because of existence of Civil Rights Law 50-a?

How many families were split?

How many lives and reputations were ruined?

How many children are growing up without the nurture and care of their parents?

How much taxpayers have paid and continue to pay or investigation, prosecution, incarceration and treatment during incarceration of innocent people whose conviction resulted from non-disclosure of history of misconduct of their investigators?

In Arizona recently a judge tossed a conviction of a woman who spent 22 years on death row, because prosecution did not disclose to the defense that the investigator on that criminal case had a history of misconduct.

So - what is a reversible error in Arisona, is, unfortunately, business as usual in New York.

And this is an open question to Judge Lippman:  will you in your last year of service on the court do something real about your own courts contributing to this problem by blatantly ignoring constitutional challenges to this statute and to other unconstitutional statutes that help multiply wrongful convictions?

At least, you will then be remembered not only by your association to your buddy Sheldon Silver and your ascention to power on his shoulders.


Saturday, March 21, 2015

Live shields of large law firms


Recently, federal prosecutors arrested and criminally charged New York State Assembly Speaker Sheldon Silver on racketeering charges.

When that happened, the press, for a short time, focused on the law firm that hired Sheldon Silver and used him as a promotion tool and a live shield from any claims of impropriety.

Shortly after criminal charges were brought, the law firm took all associations with Sheldon Silver off its website.

Yet, hiring such "live promotion tools", as well as "live shields" from potential prosecution is a longtime policy of many large law firms in this country.

Every law student aspiring for a career in politics knows the steps.

He or she must first go work for either the Legislature, or a District Attorney, or, even better, clerk for a judge, as higher as possible - the best are federal Circuit Judges and Justices of the U.S. Supreme Court, but clerking for a state court judge or a federal district court judge is also not bad.

After that, you will have a "green light" to be hired by a large law firm.

Why?

Did clerking for a judge for a year or two enhanced your professional abilities so much?

Of course, not.

You did not try cases while being a clerk.

You did research, you drafted decisions (not necessarily correct decisions), and you definitely did not participate, nor could you, in the actual adversarial litigation.

But - what you acquired is even more priceless for future employment purposes.  Connections with a judge, a badge of approval by the judiciary (you were once a confidential, trusted person for a judge).

And those connections are what is sought when law firms are hiring, no matter that, of course, what is declared is that hiring is on the merits only and not to seek political connections.  Right.

I already wrote on this blog about hiring practices of several law firms - in particular, about Hiscock & Barclays, LLP, a receptacle of law clerks from judges of the U.S. District Court of the Northern District of New York, while the firm continues to practice in that court, make local rules for that court, pick magistrates for that court and wine and dine members of that court through the American Inns of Court monthly receptions.

Here is another law firm BOIES, SCHILLER & FLEXNER LLP, the law firm which, according to registration of Stephen D. Zayas, former (and disgraced) disciplinary prosecutor from New York State Appellate Division 3rd Judicial Department, embraced Mr. Zayas as one of their attorneys.

The "live shield" of this law firm is impressive.

There are close to 300 attorneys in several offices of this firm, across the country.

Nearly every third, if not second, attorney in this firm, worked in prominent positions in public employment at one time or another.

Nearly every third attorney in this firm clerked for a judge at one time or another, and thus it may appear that such attorneys still have certain courts' ears.

The firm counts among its 291 attorneys 7 attorneys, two associates and five partners, who worked as law clerks for eight justices of the U.S. Supreme Court, specifically, of the following justices:


  1. Justice Lewis F. Powell (in office 1972-87, deceased 1998) - partner David R. Boyd (1973-74);
  2. Justice Anthony Kennedy (currently in office, since 1988) - associate Greg Dubinsky (2013-2014);
  3. Justice Byron R. White (in office 1962-1993, deceased 2002) - partner Stuart H. Singer (1981-83), partner William T. Dzurilla (1982-83),
  4. Justice Paul Stevens (in office 1975 - retired in 2010) - partner Michael J. Gottleib (2004-2005)
  5. Justice David H. Souter (in office 1990 - retired in 2009) - Associate Ryan Y. Park (2013-2014)
  6. Justice Ruth Bader Ginsburg (currently in office since 1993) - Associate Ryan Y. Park (2013-2014)
  7. Justice William H. Rehnquist (in office 1986 - deceased 2005) - partner Alan B. Vickery (1984-85)
  8. Justice Sonya Sotomayor (now in office since 2009 - clerkship was when Justice Sotomayor was a judge for the U.S. District Court for the Southern District of New York) - partner Lee S. Wolosky (law school summer clerk, undisclosed year)
 
The law firm also employs or has as partners former (often recent) law clerks of judges of ALL federal appellate courts, multiple district courts where the firm appears, multiple state appellate courts.

The law firm employs former federal and state prosecutors, former judges, hearing officers on the New York State Commission of Judicial Conduct, former advisors to administrations of presidents, to state and federal senators, former high-ranking members of state and federal agencies.

I will publish a detailed analysis, and full two-dimensional tables, in an upcoming book.  

Here is just the list of courts and judges of those courts where this law firm's partners or associates clerked:


United State Court of International Trade Edward D. Re, Chief Judge
U.S. Supreme Court Lewis F. Powell
U.S. Supreme Court Anthony Kennedy
U.S. Supreme Court Byran R. White
U.S. Supreme Court Paul Stevens
U.S. Supreme Court David H. Souter
U.S. Supreme Court Ruth Bader Ginsburg
U.S. Supreme Court Byron R. White
U.S. Supreme Court William H. Rehnquist
U.S. District Court, Western District of Washington John C. Coughenour
U.S. District Court, Western District of Missouri Scott O. Wright, Chief Judge
U.S. District Court, Southern District of New York Morris E. Lasker
U.S. District Court, Southern District of New York Lewis A. Kaplan
U.S. District Court, Southern District of New York Charles S. Haight Jr.
U.S. District Court, Southern District of New York Milton Pollack
U.S. District Court, Southern District of New York Kenneth M. Karas
U.S. District Court, Southern District of New York Milton Pollack
U.S. District Court, Southern District of New York Jed S. Rakoff
U.S. District Court, Southern District of New York William C.Cooner
U.S. District Court, Southern District of New York Shira A. Scheindlin
U.S. District Court, Southern District of New York Jed S. Rakoff
U.S. District Court, Southern District of New York Barbara S. Jones
U.S. District Court, Southern District of New York Harold Baer, Jr.
U.S. District Court, Southern District of New York Sonia Sotomayor
U.S. District Court, Southern District of New York Albin K. Hellersten
U.S. District Court, Southern District of Florida Kathleen M. Williams
U.S. District Court, Southern District of Florida K. Michael Moore
U.S. District Court, Southern District of Florida James I. Cohn
U.S. District Court, Southern District of Florida Lawrence King
U.S. District Court, Southern District of Florida Federico A. Moreno
U.S. District Court, Southern District of Florida Ursula Ungaro
U.S. District Court, Southern District of Florida James I. Cohn
U.S. District Court, Southern District of Florida Donald M. Middlebrooks
U.S. District Court, Southern District of Florida Jose A. Gonzalez, Jr.
U.S. District Court, Southern District of Florida Alan S. Gold
U.S. District Court, Southern District of Florida Donald M. Middlebrooks
U.S. District Court, Southern District of Florida Federico A. Moreno
U.S. District Court, Southern District of Florida Jose A. Gonzalez
U.S. District Court, Southern District of Florida Norman C. Roettger, Chief Judge
U.S. District Court, Southern Disrict of Mississippi Carlton W. Reeves
U.S. District Court, Northern District of New York Nichals G.Garaufis
U.S. District Court, Northern District of New York Lawrence E. Kahn
U.S. District Court, Northern District of New York Frederick J. Scullin, Jr.
U.S. District Court, Northern District of New York Con G.Cholakis
U.S. District Court, Northern District of New York Kimba W. Wood
U.S. District Court, Northern District of New Jersey Anne E. Thompson
U.S. District Court, Northern District of Illinois Gary Feinerman
U.S. District Court, Northern District of Illinois Gary S. Feinderman
U.S. District Court, Northern District of Illinois Joan H. Lefkow
U.S. District Court, Northern District of Georgia Newell Edenfield
U.S. District Court, Northern District of California Claudia Wilken
U.S. District Court, Northern District of California Lucy H. Koh
U.S. District Court, Middle District of Louisiana James Brady
U.S. District Court, Middle District of Florida G. Kendall Sharp
U.S. District Court, Eastern District of Virginia T.S. Ellis, III
U.S. District Court, Eastern District of Pennsylvania Norma L. Shapiro
U.S. District Court, Eastern District of Pennsylvania Marjorie O. Rendell
U.S. District Court, Eastern District of Pennsylvania Juan R. Sanchez
U.S. District Court, Eastern District of Pennsylvania Louis Pollack
U.S. District Court, Eastern District of New York Roslynn R. Muskopf
U.S. District Court, Eastern District of New York I. Leo Glasser
U.S. District Court, Eastern District of New York Steven M. Gold, magistrate
U.S. District Court, Eastern District of New York David G. Trager
U.S. District Court, Eastern District of Louisiana Sarah S. Vance
U.S. District Court, District of the Virgin Islands Curtis V. Gomez
U.S. District Court, District of New Jersey Jose L. Linares
U.S. District Court, District of Nevada Lloyd D. George
U.S. District Court, District of Nevada Philip M. Pro
U.S. District Court, District of Maryland Frank A. Kaufman
U.S. District Court, District of Hawaii Alan C. Kay
U.S. District Court, District of Columbia Gladys Kessler
U.S. District Court, District of Columbia Charles R. Richey
U.S. District Court, District of Columbia Charles R. Richey
U.S. District Court, District of Columbia Henry H. Kennedy, Jr.
U.S. District Court, District of Arizona Mary H. Murguia
U.S. District Court, Central District of California Mariana R. Pfaelzer
U.S. District Court, Central District of California Philip S. Gutierrez
U.S. Court of Appeals, District of Columbia Brett Kavanaugh
U.S. Court of Appeals, District of Columbia Ruth Bader Ginsburg
U.S. Court of Appeals, 9th Circuit Barry G. Silverman
U.S. Court of Appeals, 9th Circuit John T. Noonan
U.S. Court of Appeals, 9th Circuit Pamela Ann Rymer
U.S. Court of Appeals, 9th Circuit Robert R. Breezer
U.S. Court of Appeals, 9th Circuit A. Wallace Tashima
U.S. Court of Appeals, 9th Circuit Marsha S. Brezon
U.S. Court of Appeals, 9th Circuit Kim McLane Wardlaw
U.S. Court of Appeals, 9th Circuit Adalberto Jordan
U.S. Court of Appeals, 9th Circuit Michael Day Hawkins
U.S. Court of Appeals, 9th Circuit Stephen Reinhardt
U.S. Court of Appeals, 8th Circuit Donald R. Ross
U.S. Court of Appeals, 8th Circuit Frank Magill
U.S. Court of Appeals, 8th Circuit Richard S. Arnold
U.S. Court of Appeals, 8th Circuit Steven M. Colloton
U.S. Court of Appeals, 8th Circuit Pasco M. Bowman
U.S. Court of Appeals, 7th Circuit Kenneth F. Ripple
U.S. Court of Appeals, 7th Circuit Frank H. Easterbrook
U.S. Court of Appeals, 7th Circuit Diane S. Sykes
U.S. Court of Appeals, 7th Circuit David F. Hamilton
U.S. Court of Appeals, 6th Circuit Karen Nelson Moore
U.S. Court of Appeals, 6th Circuit Danny J. Boggs
U.S. Court of Appeals, 6th Circuit Gilbert S. Merritt
U.S. Court of Appeals, 5th Circuit Albert Tate
U.S. Court of Appeals, 5th Circuit John Minor Wisdom
U.S. Court of Appeals, 5th Circuit Edith Brown Clement
U.S. Court of Appeals, 5th Circuit E. Grady Jolly
U.S. Court of Appeals, 4th Circuit J. Dickson Phillips, Jr.
U.S. Court of Appeals, 4th Circuit Paul V. Niemeyer
U.S. Court of Appeals, 4th Circuit Harrison L. Winter
U.S. Court of Appeals, 4th Circuit Andre M. Davis
U.S. Court of Appeals, 3rd Circuit Michael E. Chagares
U.S. Court of Appeals, 3rd Circuit Anthony J. Scirica
U.S. Court of Appeals, 3rd Circuit Marjorie O. Rendell
U.S. Court of Appeals, 3rd Circuit D. Brooks Smith
U.S. Court of Appeals, 3rd Circuit Joseph A. Greenaway
U.S. Court of Appeals, 3rd Circuit Joseph A. Greenway, Jr.
U.S. Court of Appeals, 3rd Circuit Joseph A. Greenway, Jr.
U.S. Court of Appeals, 3rd Circuit Marjorie O. Rendell
U.S. Court of Appeals, 2nd Circuit Chester J. Straub
U.S. Court of Appeals, 2nd Circuit Joseph M. McLaughlin
U.S. Court of Appeals, 2nd Circuit Robert Katzman
U.S. Court of Appeals, 2nd Circuit Joseph M. McLaughlin
U.S. Court of Appeals, 2nd Circuit Thomas J. Meskill
U.S. Court of Appeals, 2nd Circuit Robert A. Katzman
U.S. Court of Appeals, 2nd Circuit Jon O. Newman
U.S. Court of Appeals, 2nd Circuit Chester J. Straub
U.S. Court of Appeals, 2nd Circuit Wilfred Feinberg, Chief Judge
U.S. Court of Appeals, 2nd Circuit Peter W. Hall
U.S. Court of Appeals, 1st Circuit Frank Coffin
U.S. Court of Appeals, 1st Circuit Jeffrey R. Howard
U.S. Court of Appeals, 11th Circuit Rosemary Barkett
U.S. Court of Appeals, 11th Circuit Peter T. Fay
U.S. Court of Appeals, 11th Circuit Rosemary Barkett
U.S. Court of Appeals, 11th Circuit Susan H. Black
U.S. Court of Appeals, 11th Circuit Thomas A. Clark
U.S. Court of Appeals, 11th Circuit Rosemary Barkett
U.S. Court of Appeals, 11th Circuit Charles Wilson
U.S. Court of Appeals, 10th Circuit Timothy M. Tymkovich
U.S. Court of Appeals, 10th Circuit William J. Holloway, Jr.
U.S. Court of Appeals, 10th Circuit Mary Beck Briscoe
U.S. Court of Appeals, 10th Circuit William J. Holloway
U.S. Court of Appeals for the District of Columbia Carl McGowan
Supreme Court NY County, Criminal Term Nardelli, Eugene L.
Supreme Court NY County, Civil Term Nardelli, Eugene L.
NYS Court of Appeals Robert S. Smith
NYS Appellate Division 3rd Department Edward O. Spain
Florida Supreme Court Raoul G. Cantero, III
Florida 1st District Court of Appeal Robert T. Benton
federal court New Orleans ?
federal court Miami ?
Court of Appeal, 2nd District of Florida Robert T. Mann
City of New York, Civil Court Nardelli, Eugene L.
Circuit Court of Florida, 17th Judicial Circuit Lester Langer
California Supreme Court Malcolm M. Lucas
NYS Appellate Division 1st Department Nardelli, Eugene L.
Alaska Supreme Court Craig F. Stowers
333rd District Court of Harris County, Texas James Halbach, Jr.


I would like to remind you the statistics.  80% of litigants in this country cannot afford an attorney.

Many states punish pro se litigants, who are often lack basic literacy skills, with "anti-filing injunctions" when they fail to perfect their pleadings in accordance to the arcane rules required by courts.

Many state and federal courts punish pro se litigants and represented litigants and their attorneys for raising sensitive issues of public concern, such as judicial misconduct and potential conflicts of interest with politically connected attorneys.

It is a well known fact that attorneys who are suspended or disbarred are predominantly solo and independent criminal defense attorneys and civil rights attorneys.

Once again, theoretically, the laws must apply equally to a Joe from the street and his solo private attorney, and to the big firm employing law clerks from all leading courts in the country.

Yet, do you have any doubt as to how courts would resolve claims of potential frivolous conduct against a law firm with such a "live shield", as opposed to a claim made by such a law firm against a solo attorney?

The mere hiring practices of large law firms, the hiring of high-ranking public officials from all branches of the government, and especially former clerks of courts where law firms continue to appear, raises clear issues of potential of influence and ex parte communications between such law firms and the courts, which undermines the trust in the rule of law.

I encourage you, ladies and gentlemen of the public, to go to websites of large law firms and to analyze publicly available information on backgrounds of attorneys in these law firms to verify conflicts of interest in pending cases.

Often, after such a review you may become unpleasantly surprised as to connections of your opponent's law firm with the court where you have a case pending.

And this is just the top of the iceberg, because nobody knows the familial connections between large law firms and the government, as names may be common or last names may differ between members of the same family.

I firmly belief that, where hiring practices of law firms, and engagement of attorneys in "judge screening", judicial discipline, judicial merit selection, judicial "advisory" committees, as well as in sponsorship of judicial education and "mentoring" activities that are accompanied with wining, dining, national and international travel (see, for example, my blog posts about the American Inns of Court), it is imperative to require judges to disclose to every litigant in every case the same information as a juror would have to be disclosing for purposes of background check for conflicts of interest.

Judges who consider that as too much of an invasion of privacy should not come to the bench.

Otherwise, "privacy" of judges cover backroom connections that do not come to light at all, or until after it is too late to undo irreversible harm done to litigants because of conflicts of interests.

Everybody is entitled to his or her own opinion.

To me, the hiring practices of law firms practicing in certain court, when the law firms hire law clerks of judges in that same court, is unsettling to say the least.