In view of New York's atrocious decision in the case People v Giuca - a proposal of discovery reform in criminal proceedings: why is it necessary to introduce attorney depositions, with witnesses subpoenaed by attorney subpoenas, in criminal proceedings

I have published a law review article today on Academia.edu, comparing criminal procedure in Russia and in the U.S., the state of New York, listing instances of legislative and judicial pro-prosecution bias in such proceedings.

The article also contains 

• a table comparing discovery rights in civil and criminal proceedings in the U.S. (State of New York),
• a description of how an attorney deposition works in quasi-criminal proceedings, 
• description of government policies backing up the widest possible discovery proceeding, and 
• a legislative initiative, a proposal to fairly apply that existing government policy in criminal cases and to transplant tools of discovery available to prosecution in criminal cases and to attorneys for both sides in civil cases, for defendants in criminal proceedings.

The article was inspired by the decision of the New York State Court of Appeals in People v Giuca, of June 11, 2019, where the NYS COA, its Chief Judge, former career prosecutor Janet DiFiore, stepped completely outside of her jurisdiction that does not allow her court to decide issues of fact - and reversed a reversal of a criminal conviction, reinstating it - while the reversal of the lower appellate court was based on atrocious misconduct of prosecution in the case.

A good description of what has happened in that case is contained here.

Not to mention that there are two "golden kids" involved (I will run, time permitting, a separate article on conflicts of interest in this case) as murder suspects, and not only they are not investigated or prosecuted by the Brooklyn DA's office, but 

1. one of them is employed by that same DA's office as an Assistant District Attorney (after her father paid a big chunk of money into the election campaign of the DA), 
2. the other got out scot-free after his mother, a vice-president of the local Republican Election Committee, provided a certain privilege to the DA in his election campaign, 
3. that same DA office hired as an Assistant District Attorney the son of the presiding trial judge who refused to vacate the conviction despite obvious evidence of prosecutorial and juror misconduct,
4. one of the judges involved in prosecutorial misconduct related to the case, but outside of the case, became an appellate judge who reviewed appeals from the case;
5. one of the prosecutors involved in prosecutorial misconduct herself became a judge; and
6. the main prosecutor who was involved in prosecutorial misconduct in the case is running a TV show now and made her TV career and ratings on her own misconduct in the case.

Were attorney depositions available from the very beginning of this criminal case (and of many others) to John Giuca's criminal defense attorney, they way such depositions work in quasi-criminal cases, as my law review article shows,  the prosecution would never have been able to dupe the defense and get a wrongful conviction of John Giuca.

There is no reason why such an instrument, already available in civil proceeding, should not be available to the criminal defense in criminal proceedings.

The Iron Man will not be jailed. On the desperate efforts of the attorney monopoly to claim it is still in control

On June 28, 2019 a remarkable thing happened in the God-blessed state of California.  Or, one more remarkable thing happens - California, especially of late, is home to a lot of "remarkable" things.

But, this one is truly unique.

The California State Bar, faced with the reality of existence and use of Artificial Intelligence (AI) in provision of legal services, and with the resulting reality that legal services may be provided by AI-based platforms through the Internet, from beyond the U.S. borders, and from beyond the reach of enforcement of the so-called "unauthorized practice of law", drummed up a "task force" on the use of AI.  

And, this task force fell flat on its face in making some interesting, and public admissions.

Here is the agenda and recommendations of the "AI Task Force" of the California State Bar:

Note the very first point that the AI Task Force is making:

"Recommendation: The Task Force does not recommend defining the practice of law."

Huh?

Unauthorized practice of law in California is a crime.  

All government regulations - as the U.S. Supreme Court has said LONG time ago, must be CLEARLY defined by STATUTE (not by court "rules").

You know why?  

The U.S. Supreme Court provided several reasons for it.

1.  If a law is not clear, it does not give clear notice, prior to conduct, to an average citizen how to lead a law-abiding life, what the citizen may or may not do.  Ex post facto laws are prohibited in this country by the federal Constitution.  A person may not be charged and punished if the government publishes an explanation, on a case by case basis, of why it was wrong to engage in a certain conduct, only after that conduct occurred.  

In this case, when "the practice of law", the CORE element of the crime of unauthorized practice of law, is not clearly defined, NOBODY can be charged with that crime, because nobody, including the regulators of the practice of law, know what the heck it is.

Thus, the California State Bar has acknowledged to the public that nearly for 100 years it engaged in an unconstitutional regulation of the practice of law, violating rights of the public to freely choose their consultants, document drafters and court representatives, and the rights of those providers to freely earn their living in their professions.

2. If a law is not clear, it does not give a clear directive to the executive and judicial branch as to how to enforce and apply it, allowing them to put into that law what they think it is - which is exactly what is happening with how the regulation of the "practice of law" is occurring - across the country.  

3.  And, third, since people normally prefer to stay out of prison, and when they know that the executive and judicial branch is applying a certain vague law in an ex post facto manner, on a case by case basis, so there is no way to predict whether doing a certain thing will or will not land you in prison, people try to censure themselves and restrict their lawful and even constitutionally protected activities, in order not to upset authorities and not to cross invisible lines drawn by authorities at a whim and backwards, in every case.

Acknowledging it is like shooting yourself in the foot - voila, dear public, we have been robbing you and putting you in jail for nothing for 100 years, rejoice.  

That this revelation is also made by a professional monopolistic organization that embedded itself into the government (California State Bar is a "branch" of the top state court) and blocks people's choice of any other court representative, or document drafter, or law consultant, than members of that organization - because they are the best, the most competent - is, in fact, proof that the claims of super-competence by this organization, as a basis of its monopoly, is false advertising.

Moreover, the idiots not only acknowledge that what they have been doing for 100 years is unconstitutional - but that they ARE prosecuting people criminally based on something they cannot define, and that they will now magnanimously give exception from prosecution - to an iron man, the AI, while it is not possible to jail software anyway.

Big of them, isn't it?

Also, consider that the idiots actually publicly acknowledged that they deem themselves LEGISLATORS as to what does or does not constitute a crime in the state of California.  All other crimes are defined by legislature, and only crimes against attorney monopoly are defined by the monopoly itself - constitutional rules of separation of powers and clarity of statutory laws be damned.

By the way, to institute a monopoly of any kind in the United States is also a crime - a federal crime.

But, attorney monopoly exists for 100 years, while its regulators are never prosecuted for this federal crime because - TADA! - FEDERAL prosecutors and judges, through their STATE law licenses, are all under control of that same monopoly.  Moreover, the majority of state and federal legislators are, too.  That is the "separation of powers" to you, the monopoly way.

But, but, but, but.

History is a sardonic bitch.  It allows travesties to continue, often for a long time, but then it nixes them - often in a very laughable way.

That laughable way history is nixing attorney monopoly is the whole reason why the AI Task Force was even created by the California State Bar.

Guess what - with the current level of technology the Iron Man does not need the magnanimous permission of the California State Bar to do what California State Bar cannot define, and to do it under the strict control of the California State Bar.  

The Iron Man can advise the California State Bar a variety of activities to entertain themselves with and do what the California State Bar fears it will do:

Putting such venture capital-funded AI startups outside of jurisdictions having attorney monopolies of their own, or agreeing with the U.S. to enforce or extradite those who are accused of violating the U.S. attorney monopoly - on a private island, for example - will topple attorney monopoly in the U.S. once and for always, without any need for legislative reform that is not possible, given that the majority of legislators are lawyers, and are thus, under control of that monopoly.

An island in the ocean and an AI startup fed by venture capital.

Very doable.

California State Bar standing in the way of a hurricane and pretending it allows the force of nature to hit just a little bit, here and there, but not everywhere - is a joke.

How Jeffrey Deskovic betrayed the dream he claims he is serving, fighting wrongful convictions - from seeking Justice to seeking Just-US. Part II.

Why did the famous New York exoneree Jeffrey Deskovic, as it was shown in Part I of this article series, betrayed his initial dream of holding prosecutors CRIMINALLY accountable for intentionally drumming up wrongful convictions - which is already both a host of federal and state crimes, for example, it is a crime punishable under 18 U.S.C. 242 and a crime addressed in the State of New York by a whole Article of the New York Penal Code, Article 195?

Because in order to fulfil that dream, the grand jury proceeding laws must be reformed, to 

• allow direct and unimpeded public access to the grand jury, 
• ability for any public citizen to file a complaint directly with a grand jury and ask to 
• start a grand jury investigation of the complaint, which will be able to 
• return criminal charges against subjects found by the grand jury to have more likely than not violated criminal law - including judges and prosecutors.
  

And, this particular idea WAS already offered to the public - by a certain movement in the United States, called "Jail 4 Judges", here is an interesting radio show with an interview from the leader of that movement, also showing interesting insights about what non-attorney Americans think about the American judicial system, the American legal profession, their interaction and wrongful convictions that they drum.

And, that certain movement already tried to advocate for change of state Constitutions to introduce changes of grand jury proceedings through public referendums.

Referendums - because Legislatures, overwhelmed by licensed attorneys who are controlled by one of the three groups of individuals who cause wrongful convictions, judges - are unable to produce any efficient legislation to make people who cause wrongful convictions accountable.

Changing grand jury law in a way affecting their own regulator would mean professional suicide for legislators who are also lawyers, deemed "officers of the court" (licensed attorneys) and controlled in their in-court and out-of-court life by the judicial branch of the government (the majority of which is former prosecutors.

Many of these judges, former prosecutors, controlling legislators-lawyers. are likely those who have caused wrongful convictions, but were protected from civil prosecution by judicially created judicial and prosecutorial immunity and from criminal prosecution - by laws regulating grand jury proceedings putting grand juries under control and legal advice of prosecutors.

Of course, this movement, to change state Constitutions, give people free access to grand juries and make grand juries independent from the legal profession protecting its own - was quashed by the legal profession and its richest clients, corporations:

That happened in the year of Deskovic's release from prison.

See, an association of insurers calls the ideas of, again,

• giving people direct access to grand juries;
• removing control of the legal profession over the grand juries, so that grand juries may investigate judges and prosecutors - 

"radical", and "upsetting their state's entire CIVIL justice system".

You know what happened to that movement?

It was very active in 1999 and for about 10 years afterwards, that's before Deskovic's "campaigning" began.

Its leader was charged (by a prosecutor) and convicted (by a court) of a crime and locked up (the interview starts at around 15:40).

The attorney who helped that leader articulate (very well, by the way) constitutional issues involved in necessity of such direct grand jury access and in grand jury proceedings independent from prosecutors, John Wolfgram - was disbarred, tarred-and-feathered as "mentally incompetent" (an old-as-world idea to discredit your opponents as crazy when you have nothing to offer in terms of opposition on the merits), and bankrupted, despite being a war veteran and a holder of not only a law degree, but also a degree in philosophy of law.

Deskovic is on the verge of RECEIVING - from the hands of the judiciary, who are, in their overwhelming majority, former prosecutors, a law license.

He wants it.

He craves it.

He already publishes with pride pictures of himself lecturing to attorneys, judges and prosecutors about "ethics" in mandatory for attorney licensing continued legal education (CLE) courses.

He will not do anything to jeopardize the possibility of receiving a law license, and the place in attorney monopoly and the power (place in the government) that such a monopoly gives in the U.S. nowadays.

So, he instead dupes the public who GENUINLY believes him - as "one of them", an exoneree, into supporting legislative measures that will effectively BLOCK any possibility of holding prosecutors accountable.

After all, one has to take care of oneself and one's own career.

But, judging by Deskovic's statements that "just people", not licensed attorneys, are not qualified enough to take public office and review whether a prosecutorial misconduct was committed (while they are so qualified to sit on grand juries and trial juries - Deskovic does not even try to explain his reasoning), Deskovic is very far away from considering "just people" on par with himself.

He needs them as mindless cattle, for numbers only, to support his use of himself as a stamp of approval "from exonerees" upon giving the same people who caused wrongful convictions an opportunity to populate the body faking investigations of those wrongful convictions and prosecutions.

With predictable result.

Deskovic is no John Wolfgram, a brilliant philosopher of law and constitutional scholar, who tried to make grand juries do their jobs - and was expelled from the legal profession, bankrupted and proclaimed crazy for that.

Deskovic is just another fairly brainless, but actively greedy opportunist, hungry for money, power and fame.

He consistently proves it with his own statements, and actions.

How Jeffrey Deskovic betrayed the dream he claims he is serving, fighting wrongful convictions - from seeking Justice to seeking Just-US. Part I.

Jeffrey Deskovic, the famous New York exoneree, always had a weakness - flattery and recognition by people in authority.

That is how he has gotten wrongfully convicted in the first place.

According to description of facts of his own case provided in the federal court's decision denying summary judgment in one of his lawsuits, the police did not have enough evidence to even arrest him.

The police suckered him into taking a polygraph which turned into 9 hours of interrogation, brow-beating and wrongful confession - because they promised him a central role in a criminal investigation of the murder of 15-year-old older sister of his girlfriend.  Ok, at 16 you might not be able to resist such lures.

But, when you are 45-ish, like Jeffrey Deskovic is now - maybe, you should?

Not likely.

Let's compare certain positions - 

• Deskovic's position on causes of wrongful convictions and what needs to be done to eliminate them -  6 years ago nearly exactly,

• Deskovic's position several days ago:

• Deskovic's points in response to my criticism of the just-passed amendments to the Commission for Prosecutorial Conduct that Deskovic called upon his supporters and follows to ask the Governor to sign,
• and my point as to what needs to be done to eliminate wrongful convictions expressed 5 days ago

To which Deskovic answered thus:

Let's review what Deskovic "and his colleagues" worked for FOR 6 YEARS (note the period) - the starting point, those same 6 years ago - before going to law school and posing for photographs in the New York Senate, with judges, police officers, prosecutors, doing CLE lectures for these three groups and accepting awards from anybody who ives them - just for the fact that he was suckered into a wrongful conviction, then exonerated by sheer triple luck and then awarded millions of dollars when he sued for his wrongful conviction.  (The luck I am talking about is:  1. DNA evidence pointed at another killer,  2. DNA evidence from the crime Deskovic was convicted for was preserved,  3.  somebody took effort on Deskovic's behalf to prove the above and advocate for his release - the luck that does not happen in majority of wrongful convictions).

So, nearly exactly 6 years ago Deskovic answered the following question of a reporter: If there was one change, just one, that you could make in the criminal justice system, what would it be?

Deskovic:  Definitely criminalizing intentional prosecutorial misconduct



Now, compare it with my view expressed 5 days ago:



I also spoke about elimination of prosecutorial immunity - civil, by the way, there was never a prosecutorial immunity for criminal prosecution, Deskovic was mistaken in believing in 2013 that intentional prosecutorial misconduct is not criminalized, it can be charged as a number of state and federal crimes, the only problem is - who is going to charge it against prosecutors (many of whom since drumming up wrongful convictions to advance their career have become judges), when prosecutors, by laws lobbied by prosecutors, control public access to grand juries and are, in our "fair" "adversarial" justice system are operating, in an ex parte manner, as LEGAL ADVISERS of grand juries.  Imagine - a party in the proceeding operates as a law clerk advising the judge what to do, in an ex parte proceeding, and obtains a decision based on which he acquires the right to prosecute in the subsequent "public" "adversarial" "fair" proceeding - that is a wonder of the American criminal "justice" system.

What has happened over these 6 years that Deskovic transformed from an advocate for CRIMINAL penalties for prosecutors for intentional misconduct and drumming up wrongful convictions (which view I completely share) to telling me that working towards THAT SAME GOAL is "fighting against" what took him and his "colleagues" "six years to pass"?

What transformed a man who adamantly said in an interview that prosecutors and the judicial system target wrongful convictions only against the poor to a self-conceited peacock who tried to lecture to me that blocking the public from membership in the "public" Commission that seeks only to discipline (to the point of removal, but not to the point of criminal prosecution) prosecutors for creating wrongful convictions is justified - by STANDARDS no less.

That "standards" now require for Deskovic - that he is preparing to get licensed as an attorney - that a law license or working as a professor in a school approved by an Illinois corporation with foreign secret membership (the American Bar Association) is a REQUIREMENT FOR PUBLIC OFFICE.

Why - because of "standards", "quality control of education".

So, 6 years ago Deskovic, fresh-er out of prison at that time, with his memories of his wrongful incarceration that lasted 16 years (including denial of parole) fresh-er then, believed that these same people, with "standards", graduates of ABA-approved law schools and licensed attorneys - should be held criminally liable for wrongful convictions that they INTENTIONALLY cause.

Now, his beliefs suffered a dramatic transformation, and now he thinks that "someone receiving an inferior education from a school that does not meet accreditation standards should not be able to serve because they do not have the proper background for that.  They wouldn't be able to practice law: how can they be able to sin on a commission that reviews conduct of those who have went through the process of graduating from an accredited school, sat for bar exams etc. - all through an accredited/approved process".

So, Deskovic, on the brink of becoming a lawyer himself, now professes a belief that only people with law degrees are eligible for public service.  

And, only people with law degrees and law licenses 

(which in New York and across the United States also means - who never criticized a judge, including the judge who has caused a wrongful conviction) - 

people, so far, did nothing to investigate and prosecute prosecutors for wrongful convictions, 

the reason the bill for the Commission for prosecutorial misconduct was proposed in the first place - 

have the ability to properly investigate and prosecute THEMSELVES and get to the bottom why they THEMSELVES cause wrongful convictions.

The same people who create wrongful convictions - prosecutors, judges and public defenders - are the ONLY people who may, according to plan put into law by Deskovic, preside over investigations of public complaints of such wrongful convictions or wrongful prosecutions - where the decisions of that Commission, fashioned (as Deskovic openly acknowledged) after the New York State Commission for Judicial Conduct that shreds WITHOUT INVESTIGATION the overwhelming majority of meritorious complaints from the public,  will not be even appealable by the victims of prosecutorial conduct?

(The link above: this is how the federal court, judge Mae D'Agostino, the then-undisclosed Chairperson of the shadow judiciary, the State-Federal Judicial Council, the composition of which the 2nd Circuit still refuses to disclose to me in answer to my Freedom of Information request, so I do not know whether judges - defendants in this action - were or were not deciding this same case through participation in that "Council", said:  

"In the present matter, the Court finds that Plaintiffs lack standing to challenge the following: (1) the policy which allows attorneys who are members of the Judicial Conduct Committee from practicing law "in the courts where the mere appearance of such an attorney may influence the court;" (2) the New York State law "which provide[s] that no appellate review of denial of citizen complaints for judicial misconduct is available;" and (3) the policies of the Judicial Conduct Committee regarding the confidentiality of their records of investigation. See Dkt. No. 5 at ¶¶ 254-56. The law makes clear, a private citizen does not have standing to initiate or maintain a disciplinary proceeding against an attorney or a judge, or to appeal if the court or commission declines to discipline, see In re Attorney Disciplinary Appeal, 650 F.3d 202, 203-04 (2d Cir. 2011) (citing cases); and, therefore, Plaintiffs lack a legally cognizable interest in the disciplinary proceedings that follow the filing of a grievance, just as a crime victim lacks standing to challenge the decision not to prosecute. See Weisshaus v. New York, No. 08 Civ. 4053, 2009 WL 2579215, *4 (S.D.N.Y. Aug. 20, 2009").

Funny.

Especially from a person who lectured me on what due process is:

Only prosecutors (and other attorneys) eligible to investigate and prosecute prosecutors for misconduct, after a lifetime of not doing that through existing attorney disciplinary system, while denying the public the right of any voice on that Commission - through membership, the right of the complainant for participation as a party, or the right of the complainant to appeal dismissals of meritorious complaints, even without investigation - is NOT a violation of due process, according to the newly transformed Deskovic.

But, appellate review by the Court of Appeals of its own decision - is a violation of due process.

For that reason, and for the reason that the Court of Appeals "did not want" to uphold the law if the law puts a certain function on it, and the wish of the Court of Appeals as to how the law must be shaped - is somehow law of its own - the decision of the Commission (fashioned, mind, after the Commission for Judicial Conduct - where its decisions go only to the Court of Appeals, no problem with non-appealability at all) will go for review to the Appellate Divisions.

The same Appellate Divisions, mind, that have a policy of non-prosecution of prosecutors, which was the reason for creation of the Commission for Prosecutorial Conduct in the first place.

This kind of argument.

So, in 2013, 6 years ago, before going to law school, Deskovic considered that the main thing to be done is to make prosecutors who intentionally caused wrongful convictions, must be made CRIMINALLY accountable.

For that, there should be an effective GRAND JURY mechanism, eliminating prosecutors (institutionally interested parties) as parties controlling public access to the grand juries, directing the grand jury investigation, advising it and being able to be present in the grand jury while the public, the subjects of the investigation and the defense cannot.

Did Deskovic, with his "colleagues", fight for implementation of that grand jury mechanism?

Oh, no.

He is proud that he has given power to a body (after getting and publishing some snapshots of himself in the New York Senate and self-advertised his close connections to all three branches of power in New York) that will make true accountability of prosecutors impossible.

And now he claims that it is people who insist on Deskovic's OWN INITIAL VERSION of what needs to be done to fight wrongful convictions are - well, in the way.  Fighting against what he "fought for 6 years to pass".

Such a busy man.

So much effort, time and money dedicated to the "cause".

Dedicated "7 figures of money" into a cause - and squandered it on a TV show without a written contract.

"There is only one me".

"Body of work, time and money spent to the degree that he "contributed" "are the true barometers".

Body of work, mind.

Not the result.

Limelight, remember?

Wrongfully convicted because he was weak for flattery, and now suckered his supporters into supporting something that will KILL their dreams of every stemming wrongful convictions - also because of his hunger for proximity to power, money and the spotlight.

As to how well Deskovic manages the money of his foundation - public money - will be my next article.

Stay tuned.

Points of Jeffrey Deskovic, supporter of the just-signed into law amendments to the law regarding New York State Commission for Prosecutorial Conduct in answer to criticism of amendments

As promised, I am publishing answers to my criticism of the amendments to the bill for the New York State Commission for Prosecutorial Conduct (just signed into law by NYS Governor Cuomo) by Jeffrey Deskovic, a famous New York exoneree who has served 16 years in prison for rape and murder he did not commit, then was released because of a happy (for him) circumstance of DNA of the true perpetrator becoming available, sued Westchester County and recovered in trial 40 million dollars, later reduced to 10 million.

Interesting factual background of the case Deskovic v City of Peerskill is contained in the 2012 opinion of the federal court in this case that can be read here.  The decision is a denial of summary judgment to the defendants in the case, after which the case went to the jury trial.

Deskovic is now 

finishing an expensive private law school, Pace Law School,

is preparing for the bar exam and licensing by the judiciary that already favors him, giving him a right to lecture at Continued Legal Education (mandatory for attorneys to maintain their law licenses), is given left and right awards by different law-related individuals and organizations, lectures (for compensation) at Continued Legal Education courses certified by the New York State Court system, and, as he said to me, worked for 6 long years to put into being the Commission for Prosecutorial Conduct - supposedly to prevent further wrongful convictions.

Deskovic's conflict of interest, as I have stated before, in deriving income from being favored by the very same government that causes wrongful convictions in New York - the judiciary and prosecutors - as Deskovic is supposedly fighting against (for public image and future career) is apparent.

The initial bill for the Commission was enacted in the summer of last year, to go into effect in January of this year, but was shelved by the Governor who refused to make appointments to the Commission - which refusal, as Deskovic, who now rubs shoulders with people on the top of New  York corrupt government and is proud of it, was pre-arranged at the time the law was initially passed in the summer of 2018, before Cuomo's re-election, but the public was not told about that.

I wrote about the lawsuit of the New York State District Attorney's Association in 9 articles here:

Here is the text of the prosecutors' lawsuit.

And, here are my articles dedicated to the prosecutors' lawsuit challenging the initial bill creating the Commission for Prosecutorial Conduct in New York - and to events and individuals surrounding that bill.

Part I can be read here.  Prosecutors' challenge to the New York State Commission for prosecutorial conduct: shooting themselves, and the attorney regulation, in the foot - in more ways than one. Part I.

Part II - here.  New York prosecutors' lawsuit challenging the new Commission for Prosecutorial Conduct, Part II. The dance on landmines by people in blindfolds

Part III - here.  Voters and the wrongfully convicted in the State of New York, you have been duped - prosecutors' lawsuit challenging the New York State Commission for Prosecutorial Conduct was fixed before it was filed, the Commission was never planned to start its work on January 1, 2019, and many people knew it

Part IV - here.  Prosecutors' pre-fixed lawsuit challenging constitutionality of the New York State Commission for Prosecutorial Conduct, Part IV. The Legislature and the Governor inadvertently nixed prosecutorial immunity for the Attorney General and his Assistants and to special counsel assigned to prosecute criminal cases.

Part V - here.  New Yorkers, if you don't like it, you can all go to Moscow - or can you? New York eases the creation of wrongful convictions while blocking the means to prevent them and make those who cause them accountable

Part VI - here.  New York prosecutors' lawsuit's main point - DO NOT protect whistleblowers of prosecutorial misconduct. On the right of the Governor and the Legislature to stall the law already on the books

Part VII - here.  Not so funny: New York prosecutors argue violations of constitutional rights. The circus with prosecutors' "separation of powers" argument. 

Part VIII is here.  

The sham of Prosecutoricla Conduct Commission in New York, Part 8, one more "good violation" of the "bedrock principle" of separation of powers

Part IX is here. - The New York prosecutor's lawsuit - a selective approach to infringments upon prosecutorial discretion. 

I wrote about Deskovic's call for public support for the amendments and of my criticism of the amendments before they were passed - here, and about additional information regarding DA Soares leading the opposition to the amendments, and Deskovic, leading the support for the amendments, here.

Deskovic ran away from public discussion with me regarding the critical points about the amendments claiming that he has more important things to do, but what he already disclosed speaks volumes about not only 

• how the bill came about, but about 

• the value system of Deskovic himself, and 

• the two-class system in the U.S.,  attorneys and non-attorneys, that exists in the U.S. for a century, which now has gone as far as

• considering non-attorneys a second class of citizens not eligible for public office - even when the public office in question is to review the mess that the attorney class created towards non-attorneys (the predominant victims of wrongful convictions), and

• how this system is embedded into the heads of law students and attorneys - Deskovic is just one example of it.

Here are Deskovic's points in answer to my criticism of the amendments for the Commission for Prosecutorial Conduct that Governor Andrew Cuomo has just signed into law - but the DA Association still claim has constitutional defects and claim they will continue their lawsuit to challenge those defects.

==

Jeffrey Deskovic’s introduction and points to me.  I did some formatting of his text posted on social media to make it more readable – broke it into paragraphs.

You are working against the first Commission On Prosecutor Conduct in the country that took us 6 years to pass. Why? Some context:

The Commission was signed into law with the agreement that the Gov. was only doing so because chapter amendments were already agreed to between legislature and him. In the rough and tumble of the process, a memo from the NY Attorney General’s office which was leaked to the media questioned the Constitutionality of the Commission.

While I don’t believe that position was correct, the net impact is that if amendments addressing those areas in the memo are not addressed, the Commission will be more vulnerable in the pending lawsuit- which could end with the Commission being struck down.

Thus, not working for the passage of the amendments is a move against the commission.

Also, there is a reason why we are trying to get public support for the Gov. to sign the chapter amendments.

I know that it may not matter to you if the end result is that the Commission is ultimately scrapped/killed, because you never liked the idea anyway. But for those of us who worked for 6 years to pass the bill, we don’t want our work to go up in smoke.

1.     NOT ONE of the members of the new commission (as well as the old commission) is a person independent of the ties with the legal profession and the judiciary, the sources of wrongful convictions.

ANSWER: it is clear that a law degree would be very helpful in assessing whether misconduct occurred - findings are grounded in the law. 

Beyond that, I agree that it would have been desirable to have a lay person in there, preferably someone personally affected who was either exonerated or otherwise vindicated.  But that was not inserted in the original bill language nor the amendments, and so that is not an option at this stage. That is a change that anybody could work towards in the future; if you wish to put together a coalition group to spearhead this change, I will support you at key times: I am not willing to play a central role like I did in passing the Commission in the first place.

2.     The Court of Appeals, the authority removing judges, is removed from the bill and Appellate Divisions (that currently have a policy of non-prosecution against bad prosecutors) are inserted instead. That is a recipe for disaster, everything will remain the same.

ANSWER: that change was necessary in order to avoid a conflict in that in the case of a removal recommendation, the Court of Appeals may end up having to review the recommendation.

Obviously, they cannot review what they themselves have ordered in the first place: due process dictates that there is a review mechanism for such determinations, just like others have a place to appeal to. 

That is a cosmetic change, not substantive.

Plus, the Court of Appeals did not want that function - that could have caused an issue also.

3.     The number changes - the Governor is given in the new bill twice as many appointments as before, while the majority leaders of both houses now have twice less appointees. The power shifts to the Governor, big time, and we know what kind of Governor New York has and how he has been using his power so far.

ANSWER: as a general matter, changes to laws are not done specifically with a particular person or entity in mind.

Secondly, that was a deal they made, not one we necessarily endorsed or wanted.

I personally am not crazy about it. But we were not asked, and I don’t believe that everything must be perfect in order to support something. The issue is that at this point, we need the amendments passed to put the Commission in the strongest possible position .

This change therefore is not a reason not to support the passage of the amendments. if you wish to put together a coalition group to spearhead this change, I will support you at key times: I am not willing to play a central role like I did in passing the Commission in the first place .

4.     There is a discrepancy in requirements to appointees. For prosecutors, they can be former or retired prosecutors, but for criminal defense attorneys - they must be present-time defense attorneys, it is a discrimination.

ANSWER: it is not a discrimination: it was done because  the DA Association was threatening to jam the Commission from functioning  by telling it’s members not to serve which would therefore prevent a quorum from being achieved .

That was done quickly, not with the idea of excluding. Is it 100% symmetrical? No.

But again, that is not worth putting the Commission in a little bit more of an at risk position than not. 

If you want to assemble a coalition to fight for that change down the line, you are welcome to do so. I will support you. But I do not want to spearhead such an effort - I will be a supporting cast member, not a centralized figure.

5.     both criminal defense attorneys and prosecutors must be attorneys "in good standing", thus excluding from the process former criminal defense attorneys who were wrongfully suspended or disbarred for doing too good of a job for their clients, being licensed or not licensed must have no bearing on the experience and ability to hold that public office.

ANSWER: good standing is a common standard that is used as an eligibility requirement for other things when it comes to the law. There are attorneys who are disbarred/not in good standing for good reason: it is obvious that we cannot have those people serving on the Commission for obvious reasons. But in terms of those who are wrongfully disbarred, it would be impractical to suddenly bring up for review all those who have lost their license to determine if it was rightful or not all for the purpose of determining whether they should be allowed to serve on the commission or not.

6.     The Chief Judge now may appoint only a professor or dean from an "accredited" (by the ABA, an Illinois corporation with foreign secret membership) law schools - an unreasonable requirement giving improper power for the ABA over review of wrongful convictions.  And, the time when the Commission may start reviewing a case has changed dramatically: it cannot start its review of the case before criminal charges are filed or before the case has been investigated for under a year. That gives prosecutors a year to "properly" fabricate a case and make a wrongful conviction a given.

ANSWER: I cannot believe you are calling into question the validity of a school being accredited or not and therefore the purpose of requiring candidates to have graduated from such a school rather than a non-accredited school.  There is a such thing as standards, quality control of education, etc.  Someone receiving an inferior education from a school that does not meet accreditation standards should not be able to serve because they do not have the proper background for that.  They wouldn’t be able to practice law: how can they be able to sit on a commission that reviews conduct of those who have went through the process of graduating from an accredited school, sat for bar exams etc.- all through an accredited/approved process.  If you have an objection to those things, that is a separate fight than something related to the commission. Addressing them indirectly through the discussion on the bill is a roundabout way of challenging accreditation.

7.     Amendments castrating the bill were made to appease prosecutors who have filed a lawsuit.  When else did you see legislation changed because public officials whose misconduct the legislation is trying to address are upset about its effectiveness?

ANSWER: The changes were not made to appease the prosecutors, they were made to strengthen the bill.  

As I previously said, changes were made because the Gov. only agreed to sign the bill with the agreement that chapter amendments were made which were agreed to.

The DA’s were going to file suit no matter what; their lawsuit will go forward and a decision upholding the commission on the merits will have to be won. Interesting that you take the position that the changes will castrate the bill: when it was first passed you were already saying that it would not work, even prior to these changes.

9. 4 appointees from Cuomo and 3 from his friend-in-crime (literally) DiFiore, a former prosecutor = an absolute majority on the Commission of 11.

Imagine how those 7 will rule.

It is a stillborn, and shameful, concession, a waste of public money and a dangerous illusion that wrongful convictions are now going to be addressed. 

ANSWER: it is not stillborn.

Before the Commission has even began to work, you already declared it will not work.  You have not even given it a chance.

And by the way, feel free to form a statewide coalition in NJ (sic) to work for changes there ; give updates regularly; and let’s see something-anything-passed.

10. You, yourself a wrongfully convicted person, suggest to support THAT?

ANSWER: Yes, because since the Commission has not yet started to work and proven a record of not working, I am not going to say it will not work.

==

I will publish separately my comments to Deskovic's answers, and an article about interesting financial happenings in the Jeffrey Deskovic's Foundation which may shed more lights as to why Deskovic supports unsupportable bills for public bodies from which the public is blocked and that are designed to work contrary to their declared purposes.

All of that said, the Governor signed this "pre-agreed deal" into law.  The DA's Association has pledged to continue its lawsuit designed to kill the law castrated to appease them anyway.

Let's see how this shameful performance will unfold in the future.

For my comments/ responses to Deskovic's shameful answers and for the news about how the DA's lawsuit unfolds and how it continues to influence the creation and operation of the public body that was supposed to address the record number of wrongful convictions in New York - 

Stay tuned.