The defendant was convicted for murder entirely on circumstantial evidence of three witnesses.
One witness saw what he though was the murder, the act of shooting by two hooded individuals, who were hooded to such a degree that the witness was unable to positively establish even their race, but "thought" they were African American - which is not enough for conviction of the defendant for murder.
The other witness was a close friend of the murder victim, witnessed that the victim grabbed the defendant, and that a co-defendant has shot the victim - which is not enough for conviction of the defendant for murder.
There was testimony from the third witness that, instead, the defendant grabbed the victim, the co-defendant fired, and there were some other shots - which the witness did not see because at that point she ran away. That testimony was also not enough for conviction of the defendant.
So, the evidence against the defendant in the entirety was circumstantial and did not establish, beyond the reasonable doubt as is required in criminal proceedings, that the defendant - and not the co-defendant - committed the crime of murder, because only the co-defendant was seen as shooting at the victim, and the testimony of two witnesses who saw a scuffle between the co-defendant and the victim before the shooting, contradict one another, one witness said that the victim grabbed the defendant, and the other witness said that the defendant grabbed the victim. That is not enough for a "beyond the reasonable doubt" conviction for murder.
In her decision denying the new trial to the criminal defendant, Judge Jill Konviser(-Levine) tried to hint at ineffective representation of counsel by claiming that the People have actually turned to the defense documents mentioning the black T-shirt (without disclosure that third-party DNA was found on that T-shirt) "in advance of trial" as part of "Rosario" material.
Pointing at "Rosario" material as timely disclosure of a link to undisclosed Brady material blocking a criminal defendant from claiming prejudice in a criminal trial resulting in a murder conviction entirely upon circumstantial evidence was not an honest reasoning by judge Konviser.
Rosario material is disclosure about prior testimony of a witness testifying at trial that is given after the witness is already sworn in.
Judge Konviser's claim that the Rosario material was turned in by the People to the defense "in advance of trial" did not mention the length of that "advance". It could be - which is what usually happens at criminal trials - that the People turned over the Rosario material on the day of, or shortly before the day of trial, which, in a murder trial case, is a completely inadequate time to diligently read all the Rosario evidence and request an adjournment of trial to submit the T-shirt to defense experts.
Moreover, the defendant was most likely represented by an assigned counsel, and, though indigent defendants theoretically have a right to funds for experts and investigators, obtaining such funds is an impossible dream, see, for example, a fairly recent case decided by the Appellate Division 3rd Department describing the hoops that the defendant must jump through to get funds - and inadequate funds, not matching the current market prices for experts investigators - to get those funds.
The court in the case of People v Clarke legislated from the bench in enhancing County Law 722-C under which the defendant applied for such expert funds:
The 3rd Department ruled added to County Law 722-C that:
- granting funds for experts and investigators is a matter of the court's "discretion" (whim);
- that the defendant must prove his "indigence" for purposes of the motion - in this particular case, which I know personally, the defendant first had an assigned counsel, and for that, he had to prove his indigence to the court prior to that motion, so the 3rd Department is dishonest in implying, without directly claiming, that the defendant did not prove his indigence;
- that granting funds for experts and investigators to an indigent criminal defendant accused of a heinous crime - which crime is being proven against him by the People's use of investigators and experts funded by taxpayers without any restrictions and without any court permission whatsoever - can be allowed only in "extraordinary circumstances", and only when the defendant proves not just "necessity" (as the statute, County Law 722-C, says), but a "distinct necessity" for such funds, an illegal heightened standard imposed upon indigent criminal defendants by the appellate court.
- court's discretion and permission;
- proof of indigence;
- proof of necessity;
- extraordinary circumstances dictating excess of funds for experts and investigators over $1,000 -
Moreover, County Law 722-C clearly indicates that funds for experts and investigators for indigent criminal defendants can be provided irrespective of whether the criminal defendant is represented by a court-assigned counsel.
Nevertheless, courts regularly deny County Law 722-C applications for funds for experts and investigators (if they are even filed, which happens very rarely) because the application is not made by an assigned counsel.
For example, when I represented indigent defendants (not as an assigned counsel, my fee was paid by the defendant's relatives or friends, which does not revoke the indigent status of such a defendant), a particular judge in Delaware County gave such defendants a "choice" -
- either he or she chooses a counsel assigned by the judge (and that would not be me), and then the counsel will be able to apply for money for experts and investigators (even though such motions are allowed to be made ex parte, without notification of the People, the judge, the now retired Delaware County Judge Carl F. Becker, held such discussions in the presence of the People in open court), or
- the defendant proceeds with me as his private counsel - and will lose his right to experts and investigators - even though such a ruling was contrary to the law, criminal convictions are rarely overturned on denial of funds for experts and investigators, so Judge Becker, and other judges who are denying such funds feel pretty cozy.
- circumstantial evidence from three witnesses - based on which the defendant could not be convicted;
- evidence of defendant himself upon which the defendant could not be convicted;
- evidence from TWO out of THREE People's experts:
- the autopsy expert testified - even though that expert could not establish that the defendant shot the victim;
- the gun expert testified - even though that expert also could not establish that the defendant shot the victim; but
- People did not call the DNA expert to testify - because then the reasonable doubt would have been screaming into the juror's faces.
Moreover, according to her biography on the website of the New York State Court Administration, her authority as a judge expired in 2015 - and thus she could not be appointed an Acting Supreme Court justice in 2016, and her decision may be void.
A judge may only be appointed as an "Acting Supreme Court Justice" if the judge is elected or appointed to another judicial position, and the underlying authority is still valid.
We are now in 2016. Acting Supreme Court Justices may be appointed for a year, with further renewals.
The last time Judge Jill Konviser was appointed as an Acting Supreme Court justice, according to her official court biography, is in 2009, by Chief Administrative Judge Ann Pfau.
Judge Pfau resigned in 2011.
The next Chief Administrative Judge Gail Prudenti - who, in her own turn, resigned in the summer of 2015, did not reappoint Judge Konviser to be the Acting Supreme Court judge.
Judge Konviser tenure, by appointment, as New York Court of Claims judge, expired in 2015 - and there is no indication that she was reappointed.
Thus, she appears to have had no authority to author the decision in People v Evans as a Supreme Court Justice for Kings County, New York, on November 1, 2016.
Judge Jill Konviser-Levine is a political appointee to the bench. She was reportedly the senior assistant counsel for Governor Pataki before being appointed to the bench of Manhattan criminal court. Before Governor Pataki, Jill Konviser worked as an "Inspector General" for Attorney General Eliott Spitzer.
And, in order to advance a judicial career in New York, being friends with prosecutors is a more important than to be fair to criminal defendants, especially with the recently appointed new Chief Judge Janet DiFiore being a prosecutor herself.
In People v Evans, Judge Konviser ruled for the prosecution, for the government, obviously because she is part of the government and a career prosecutor herself. Otherwise, no reasonable jurist would conclude that there was no reason for a jury to have ruled otherwise had they been presented the evidence that the police found some clothing with somebody's DNA on it in a building near the murder scene, had it tested for DNA and concealed the DNA report from the defense. The concealment alone could have swayed the jury towards giving the defendant the reasonable doubt.
So, People v Evans is a clear case of prosecutorial misconduct - and of judicial misconduct in endorsing, and thus encouraging, a Brady violation.
This is not the first time when issues with appearance of impropriety were raised regarding Judge Konviser.
In 2007 she presided, without recusal, over a hate crime murder trial, while, reportedly, she has had a hand in drafting the then-recently introduced hate crime legislation under which the defendants were charged and prosecuted, an irreconcilable conflict of interest.
In 2014, she was accused by a defense attorney of failing to disclose ties to the Bronx Bombers, while presiding over the prosecution of the alleged stalkers of New York Yankees.
The judge's husband, William Levine, is reportedly New York City's top orthopedic physician, and the Yankees, consequently, were, at the time of the criminal prosecution, the Konviser-Levine family's likely present or potential source of income.
Dr. Levine publicly reveals in his official biography that he does supervise provision of surgical care to New York Yankees:
When Judge Konviser was challenged by defense attorney Lawrence LaBrew as to the appearance of impropriety of such an undisclosed tie of the judge's family with the alleged victims in a criminal prosecution, the judge reportedly snapped at the defense attorney and claimed that his conduct (in questioning her impartiality) is "bordering on contemptuous".
The State of New York did suspend a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding in 2008, and did suspend an attorney in 2015 for making a motion to recuse a judge in a case related to the criminal proceeding where the judge committed misconduct and engaged in a documented ex parte communication (an attorney who participated in that communication admitted to that on record), so Judge Konviser's "snap" at attorney LaBrew claiming his conduct in questioning her impartiality is "bordering on contemptuous" was a threat of suspension of his law license and livelihood - and a clear violation of his due process and 1st Amendment rights to say what needs to be said in order to secure his client's constitutional right to impartial judicial review.
Judge Konviser's "snap" and her open threat to go against the law license of an attorney who questioned her impartiality in a situation which involved a direct and irreconcilable financial conflict of interest for the judge, spells out the judge's readiness to abuse her power to protect her personal interests.
But, Judge Jill Konviser had all her bases covered where she could not be investigated or prosecuted for judicial misconduct because she was a member of the New York Commission for Judicial Conduct and herself meted out (or blocked) discipline to other judges, including herself.
Judge Konviser can rule - at times - in favor of the defense. When it involves accusations against a police officer lying to the grand jury, then Judge Konviser can claim that the prosecution did not provide "enough guidance" to the grand jury and dismiss the indictment.
Otherwise - she is apparently a "hanging judge" for the prosecution, who lacks integrity to disclose her own and her families conflicts of interest in relation to cases, and who refuses to hold prosecutors accountable for Brady violations, in order to prevent vacatur of a conviction obtained by fraud.
This woman will go far in her career. Are we looking at our next Chief Judge of New York Court of Appeals?
Or, maybe, the State's new Governor? Or Attorney General?
She qualifies 100%.