So far, I have published 7 parts of my public comment on this proposed rule:
Part I - lack of transparency in the composition or operation of the "Task Force";
- if the prosecutor and "counsel for defendant" are present at the arraignment - so, that excludes issuing such an order if a criminal defendant wants to represent himself; and
- that the defense attorney must provide to the prosecution a demand for discovery under CPL 240.10(1) and CPL 240.20 - even though certain materials, such as the so-called Brady and Rosario materials (withholding of which may lead to wrongful convictions, must be provided by the prosecution without any demands from the defense, automatically). I wonder whether this rule will be used by prosecutors by claiming that the defense never asked them for the Brady material, so they "thought" they do not need to give it.
- serve the prosecution with the demand for discovery (demand to produce);
- give the prosecution 20 days to respond (plus 5 days for mailing), and
- if the prosecution refused to provide certain materials, to make additional demands to produce, in order ensure compliance of the prosecution.
- an alibi defense; and
- whether the defendant is going to raise the affirmative defense of mental incapacity to form an intent -
And, with this, the due process right to a fair prosecutor (do we even remember such a right exists any more?) goes out the door, with the court system's blessing - because, from the point of view of the Task Force that presumes validity of any criminal conviction unless it is vacated or reversed by a court, no matter by what misconduct it is obtained, withholding information about innocence or mitigation while trying to put an innocent person behind bars is not at all a sanctionable conduct for the prosecution, prosecutors need to be protected from the public opinion calling a spade a spade and branding prosecutorial misconduct, and the public and the press should be told what to think prosecutorial misconduct is - by the courts.
- change the definition of what a wrongful conviction is, create some rules that will make a court finding of prosecutorial misconduct impossible,
- help prosecution obtain plea bargains by withholding evidence, all with waivers of the defendants right to appeal,
- keep information about failures to disclose under wraps, then
- claim the "dearth of information" that prosecutorial misconduct is responsible for wrongful conviction and
- chastise the public, the press and the defense counsel for using the words "prosecutorial misconduct" too much, and "incorrectly" - and voila, the "problem" of wrongful convictions is solved.