Public comment on New York's proposed standing order of discovery in criminal cases - Part II. The proposal is trying to usurp the functions of New York Legislature.

This is a continuation of public comment on the proposal of New York Task Force as to "standing orders of discovery" in criminal proceedings.

I already addressed the lack of transparency in appointment and work of the Task Force, here.

The next problem is that the "standing order" is trying to:

• usurp the powers of the State Legislature as to important policy issues in criminal proceedings; and
• forestall or prevent, by providing a surrogate of a "standing order of discovery", the necessary legislative reforms of the state criminal justice system.

The proposal for a "standing order" affecting discovery in criminal proceedings is affecting several important policy issues which are the authority and job of the State Legislature and elected people's representatives to address, and not secretly appointed people who are not accountable to voters.

Policy issues that the 20-page proposal is attempting to resolve that are for the Legislature only to resolve are, and the list is not exhaustive:

• FIRST - the need for reform of discovery in criminal proceedings and putting discovery in criminal proceedings at least on equal grounds with the already existing discovery rights in civil court proceedings, and providing funding for such discovery;
• SECOND - the need for equal funding for investigators and experts for the defense on par with prosecution;
• THIRD - the need to address  the role of prosecutorial misconduct in wrongful convictions as a STATE CONSTITUTIONAL ISSUE, as the U.S. Supreme Court expressly protected prosecutors from liability even for lack of training of their subordinates as to concealment violations, and thus not only refused to address the issue of wrongful convictions in the country as a federal constitutional issue, but also allowed wrongful convictions to continue to multiply;
• FOURTH - the lack of adequate funding for indigent criminal defense - the legislation that has gained bipartisan support and passed both the State House and Senate was recently vetoed by the "fighter of human rights" Governor Cuomo, but, since the issue was not resolved and the state continues to violate the 6th Amendment right to counsel for indigent criminal defendant, and thus the federal court order in a settlement of a recent class civil rights case, the issue is still to be resolved by the State Legislature; 
• FIFTH - the need to ensure competence and integrity of assigned defense counsel whose continuous assignment usually depends on pleasing a judge (who is usually a former prosecutor) in not "making waves", not making discovery requests, motions to compel discovery, or motions to disqualify prosecutors or the judge for bias, conflicts of interest or misconduct - three independent criminal defense attorneys, my husband Frederick J. Neroni, myself and David Roosa (all of these attorneys lost their licenses, all of them due to complaints of the same judge who was helping the prosecution),

were raising issues of assignment of criminal cases as a matter of judicial whim only to those who agree to please the judge and not "make waves" by providing effective assistance to indigent defendants ;

• SIXTH - the need to allow, as right to counsel, for the criminal defendants, including indigent criminal defendants, to have counsel of their choice, who they truly choose and trust, possibly through a system of:
• vouchers, and
• deregulation of the criminal bar, allowing criminal defendants to choose to represent them any person, not necessarily a person approved (through licensing) by the same government that is pursuing the defendant in criminal proceedings, which is an irreconcilable conflict of interest;
• SEVENTH - eliminate prosecutors from their positions of "advisors" of grand juries, undermining adversarial process of the criminal justice.
• EIGHTH- the need to eliminate the plea bargaining system which drums up convictions without regard to evidence, for purposes that have nothing to do with fighting crime:
• cutting "court congestion" in criminal cases and
• providing free labor to the for-profit prison industry, and
• providing work to unionized prison workers;
• NINTH - address the issue of non-discipline of criminal prosecutors for misconduct in criminal proceedings (which New York Legislature is attempting to address at this time, against vigorous opposition by the State District Attorneys' Association, through the legislative creation of the Commission on Prosecutorial misconduct);
• TENTH - eliminate prosecutorial immunity in lawsuits for misconduct to provide a meaningful remedy to the victims of wrongful convictions and to deter further wrongful convictions;
• ELEVENTH - to seriously address, with true participation of the public, true and effective accountability for prosecutorial misconduct as the cause of wrongful convictions.

These are all important policy decisions, and these decisions need to be addressed by People's representatives elected for that purpose - the Legislature, not by some clandestine "task force" appointed in a clandestine manner, meeting in a clandestine manner for clandestine purposes, not allowing public participation.

The notice for "public comment" right now is just a fake to solicit comments from the public, toss them and approve what they want to promote anyway - and what they want to promote is:

• further protection of the prosecution as the breeding pool of judges (just read official biographies of New York state or federal judges to see that the overwhelming majority of judges came from prosecutors);
• further intimidation of the defense bar, and
• making wrongful convictions irreversible -

as I will show in my further analysis of the proposal in separate articles.

The whole point for giving exclusive legislative power to People's elected representatives in the Legislature and not any other branches or bodies of the government, and to have those Legislative representatives elected for short terms is:

1. transparency;
2. availability for the public of a right to:
1. contact their legislative representative;
2. come and talk to that representative;
3. send legislative proposals to that representative;
4. testify in the Legislature as to those proposals
5. put those proposals out for public referendums.

Here, the public:

1. did not elect any of the members of the Task Force AS LEGISLATORS - they did not even run as legislators, they were appointed by New York Chief Judge Lippman in 2009;
2. these Task Force members have no accountability to the public, no duty to meet with them, and no incentive of being recalled from office, impeached or not elected for the next term to speak to members of the public;
3. there is no possibility of a LENGTHY legislative process discussing all possibilities, all public needs, all conflicting public interests and conflicts of interests and weighing all options before introducing a legislature on important policy considerations - here, the proposal was made, through an announcement on New York State Court system's website, on April 6, 2017, and public comment, through written e-mails only to some unelected lawyer in the New York State Court system, will be closed within 2 months of that time, on June 5, 2017, without any public hearings.

What was the composition and background of this clandestine group, and how the proposal tries to subvert the need for real reforms in the criminal justice system, read on in my next public comment articles.