The insane decision, People v Smith, was authored by the new Chief Judge of the Court of Appeals, Janet DiFiore, a political appointee of Governor Andrew Cuomo and the former career prosecutor of a lifetime.
And, unfortunately it shows the mentality with which prosecutors in the State of New York and this country approach criminal cases - criminal proceedings, with all constitutional "protections" (invariably interpreted against the defendant) are so much slanted against the defendant, and judges are usually so biased towards prosecution that prosecution does not have to think, the only thing it needs to do is to fabricate charges, and judges will go along usually with any crap put in front of them.
But, that mentality, as People v Smith shows, produces truly insane decisions when a prosecutor with such a mentality starts authoring judicial decisions requiring real thought and real legal analysis.
I already did analyze People v Smith earlier, but, while preparing to reply to a comment on that blog, I picked up on some more issues that the decision raises, and would like to share those issues here.
Issues # 1, 2 and 3 - on reliability of court recording equipment, trustworthiness of judges handling court recording equipment and legitimacy and enforceability of the rules of New York State Court Administration
The New York State Court of Appeals acknowledged in the decision that transcripts produced from audio recordings
- made with the help of the court's own equipment,
- when such recording equipment is under the judge's control and
- in compliance with the rule of the New York State Office of Court Administration
That turns ANY rules of New York State Court Administration - including the rule of frivolous conduct, 22 NYCRR 130.1-1, the rule of judicial conduct, 22 NYCRR 100, and any other rules not mandatory to comply with.
If that is so, why have those rules? In other words, the New York State Court of Appeals, while aiming to do one particular thing - prejudge a case, kill a criminal appeal and make it so much more difficult to appeal from misdemeanor cases (handled by justice courts, "not of record" with presiding judges who do not have ANY required level of formal education, even Kindertarten) - in fact, invalidated ALL of its own court rules - as unreliable.
Also, the New York State Court of Appeals indicated that court audio recording equipment should not be trusted - and that judges who control such recording equipment in justice courts should not be trusted.
If judges should not be trusted, how can they be allowed to preside over cases?
That is one interesting consequence of the decision.
Issue # 4 - an equal protection problem: why the same transcripts, produced off court audio recordings, are unreliable for appeals in misdemeanor cases, but are reliable for appeals in felony cases?
Justice courts in New York state handle not only misdemeanors - to which People v Smith applied.
Justice courts also handle initial stages of felony proceedings, such as the initial arraignments in felony proceedings, setting bail and the so-called preliminary hearings, or, in the legal jargon, "felony hearings" that responsible defense counsel usually require of the prosecution, and especially if the defendant is held in jail.
And, when a criminal defendant appeals from a felony case, he produces all transcripts of all proceedings held "on record" - and that usually includes felony hearings (if they were held), arraignments and bail hearings in the lower, justice courts.
So, here is a series of million dollar questions in the aftermath of People v Smith:
1) Why any portion of felony proceedings in New York are handled by a court "not of record" where both the recording equipment for creating the record in the initial stages of such proceedings is unreliable and judges handling that recording equipment are not trustworthy - where an affidavit of the ENTIRE criminal proceedings (which could be months of conferences, motion hearings and trials) is officially deemed, by the highest court in the state MORE reliable than an audio recording produced on court equipment by the presiding judge handling that court equipment?
Didn't the handling of the initial proceedings by justice courts in New York become a constitutional problem as a result of People v Smith?
2) A jurisdictional/interpretational problem for the intermediate appellate court - intermediate appellate courts in New York always require that on appeal appellants provide transcripts of all proceedings "held on record".
I touched upon that issue in my previous blog - but only in regards to appeals from Family Courts.
I will repeat and expand the question here - how do appellants now appeal as of right to intermediate appellate courts in New York in the aftermath of People v Smith, claiming that any courts where stenographers do not take record of court proceedings are courts "not of record", even those where audio record is taken on court's own equipment?
- appeals from convictions on misdemeanors, DESPITE People v Smith,
- appeals from all Family Court proceedings, and
- appeals from convictions in felony cases where a portion of the felony case was handled by a justice court.
And, as a result:
What kind of mess DiFiore just created?
But wait - didn't DiFiore in People v Smith just scrap all court rules, including rules of frivolous conduct, as unnecessary for application and overridden by even insane statutory requirements, like the one putting the "Affidavit of Errors" in appeals from courts "not of record"?