New York State Senate violates Freedom of Information Law that it enacted

I was taught Freedom of Information Law in Albany Law School by adjunct professor Robert Freeman, the director of New York State Committee for Open Government.

Professor Freeman was pounding into our heads, among other things, one of two absolute rules of how Freedom of Information Law in New York operates: the FOIL request may be made by any PERSON, anywhere in the world, and the government entity to whom the FOIL request is made, does not have a right to impose additional information requirement beyond indication that "a person" is asking for information and beyond the contact information that person provides.

(The second rule, which is not relevant for this blog, was that the government may never ask for the reason why the records are requested - the rule that government entities in New York regularly violate when FOIL requests are made). 

Also, government entities must provide various means of making FOIL requests.

With these rules in mind, I went to the website of New York State Senate today to verify NYS Senate's contact information for a FOIL request.

The easiest way to make a FOIL request is by e-mail.  An e-mail allows the inquirer to keep an electronic proof that the request was made, what kind of request was made, when it was made and that the government entity received the request.

Mail does not give such assurances, even certified or overnight mail, because the government can always claim that it received an empty envelope.

The "fill-in-your-info" option on the website of the government does not provide to the inquirer any proof that the FOIL request was made.

NYS Senate has the worst possible option - the "fill-in-your-info" option.

Here is NYS Senate's FOIL form as obtained from its website today:

Here is where the violations start.

While not giving their e-mail address for contact for you, while not providing to you an opportunity to file your FOIL request by e-mail, NYS Senate absolutely requires you to provide your e-mail address, even if you want to provide a different type of contact information.  

What if the inquirer wants to give some other form of contact information - a telephone number, a home address, a mailing address?  Does not matter, if the inquirer does not provide an e-mail address, s/he will not be able to submit the FOIL request.

This is a violation of Freedom of Information Law, an excessive information sought from the FOIL inquirer as a condition of satisfying the FOIL request.

 This is the next TWO FOIL violations.

The government entity has absolutely no right to require from people their home addresses as a condition of satisfying FOIL requests.

Moreover, a form for "country" is not in there, so NYS Senate only satisfies FOIL requests coming from within the United States, another FOIL violation.

See, your business address is "optional", but your home address is required?  There is no such requirement in  new York Public Officers Law.

Disclosure of the inquirer's phone number and business address is optional, but e-mail and home address are required?  There is no permission in Public Officers Law to condition disclosure under FOIL on whether the inquirer gave away to the government his or her home and e-mail address, but not just the "optional" telephone number.

Here, several FOIL violations.

First, NYS Senate misleads inquirers by stating that it will e-mail records "as electronic files" only if such records are available in the form of electronic files.

That's not the law.

Under the law and existing advisory opinions of the Committee for Open Government, the governmental entity that is subject to FOIL, must render records into electronic format if that does not present too much problem for that governmental entity.

For example, if the records requested exist on a computer, it is as easy to print on paper, as it is into a PDF file, to then send it electronically.

Or, if records exist on paper, and if it is as easy to scan as to copy (large governmental entities such as NY Senate must have high-speed printers/scanners), the governmental entity may not impose the printing and payment requirement upon something that could be easily scanned and sent by e-mail on a CD.

The cost of the CD is the only cost that can be charged under the circumstances, and even that is questionable if the items can simply be scanned or printed into a PDF file and then sent by e-mail.

Here is yet another FOIL violation.

The government may not put such "innovations" into the FOIL request form.  

The government has an obligation to answer all FOIL requests within the period of time required by statute, and to clearly state the reasons for denial of FOIL requests, if such requests are denied.

The government entity has no right to offer an "option" to the inquirer, who may have no legal training, to not receive the response from the government entity that is required by law, as it may mislead the inquirer into believing that the government entity is allowed to not answer the FOIL request anyway.

Even though this is a routine request to confirm that you are a human and not a robot, you already confirmed it by now by putting in your personal information, so this requirement is completely redundant.

Only after you have satisfied all of the above, NYS Senate allows you to push the "submit" button:

Submitting such a FOIL request provides to you absolutely no confirmation that you did submit a FOIL request.

For legislators to violate the law they themselves enacted - not amend, legislators have a right to do that, but violate without amending it?

And, the beauty of it is that 7 YEARS AGO, an advisory opinion of the New York Committee for the Open Government of August 12, 2009, stated the following, in regards to NYS Senate's stubborn insistence of charging people $.25 for paper records instead of sending them by e-mail:

"...while I am unfamiliar with the means by which the record of your interested is stored, I believe that it can be assumed in most instances that records are now commonly prepared or generated on computers, as in the case of this response, which is being drafted on a pc. Once a record is prepared and stored electronically, it can be transferred to an electronic storage medium, i.e., a disk, or transmitted electronically, i.e., via email."

7 years down the road, NYS Senate continues with the same FOIL violation it was already caught in back in August of 2009.

It's Albany.

It's New York.

It's the order of business.

The statutory rape against inmate laws expose #PrisonerLitigationReformAct for what it is - a sham to completely deprive prisoners of civil rights

I wrote on this blog about the effect of the so-called Prisoner Litigation Reform Act on civil rights litigation of prisoners.

The social media is inundated with horrifying stories of prisoner abuse.

Prisoners in U.S. state and federal prisons are being:

• worked as slaves in for-profit prisons;
• beaten and murdered by guards;
• sexually abused by guards;
• deprived of proper medical care, and/or medication;
• deprived of water;
• starved (lost weight during incarceration and was "unrecognizable"), see also the description of how unrecognizable the mentally ill man allegedly arrested for a theft of a 5-dollar cake, was, when his body was given to his family, according to his aunt:

"... the body of a once 6-foot-3, 185 lb. man, looked like a different person.

“I said this is not my nephew,” she says describing her nephew’s body. “I asked them are you sure you have the right person. “I said this was not my nephew. Probably 90 pounds and about 70 years old.”

Here is this "90-pound 70-year-old man", #JamychealMitchell - before the torture by starvation.  He was 23 at the time of arrest for allegedly stealing (he died while presumed innocent) a $5 cake, he was 6'3" and 185 pounds in weight.

A 100 pound loss of weight over 4 months - and nobody cared or sounded an alarm?

What kind of jail was it, a Nazi concentration camp?  Looks like it.

A mentally ill man who was 24 years old and NOT CONVICTED of any crime, he was just arrested and charged, and ordered to be held without bail for petty theft?  And starved to death while being in jail for 4 months in pre-trial detention?

What an absolutely horrible death!

What a torture!

In New York, inmates were starved as a measure of "discipline" right up until end of December, 2015.

Yet, most of prisoner's lawsuits claiming that their constitutional rights were violated, are dismissed.

And, the U.S. Congress invented an easy way to dismiss those lawsuits, alleging HORRIFIC constitutional violations and human rights violations - the Prisoner Litigation Reform Act, imposing a 15-day (!) statute of limitations on prisoners to start the process of "exhausting all administrative remedies" before their right to sue in federal court under 42 U.S.C. 1983, the Civil Rights Act, may arise.

A free person whose constitutional rights are violated, is not so restricted.

Even though ANY statutes of limitations for constitutional violations are unfair, because, first, no such statute of limitations exist in the statute itself, they are superimposed by court decisions in violation of Article III and Article I of the U.S. Constitution (only the U.S. Congress, and not the courts, have the exclusive right to legislate and amend federal statutes), a 15-day statute of limitations imposed upon inmates who are under complete control of the very people to whom and against whom the inmate must file grievance - to protect his or her right to sue in federal court for constitutional violations, is simply unconscionable.

Back in law school, I was an intern at Prisoners Legal Services of New York, a non-profit dealing with prisoner complaints about guard brutality, deprivation of medical care and other violations of human rights.

I saw, in letter after letter from inmates, stories about retaliation of prison authorities for trying to file grievances and secure their right to a federal lawsuit.

Imposition of "exhaustion of administrative remedies" condition upon inmates within the system that may abuse them even more for trying to do that exhaustion is a deliberate exposure - "by law" - of inmates to the risk of more grievous harm, from the same abusers, if they so much as dare to follow the conditions precedent imposed upon them to secure their right to vindicate constitutional violations in the first place.

Prisoners are in the "custody" of state or federal authorities who run the prison, to the point that there are state laws indicating that an inmate does not have legal capacity to consent to sex because the inmate is under complete control of the prison administration and that same guard.

That PLRA makes no sense whatsoever, can be illustrated with the recent case of sexual abuse that reportedly happened in Delaware  County Jail, Delhi, New York.

Before I start covering this case, it must be noted that, according to reports, sexual abuse in jail by prison employees is persistent.

Rape victim advocates know how difficult it is for such victims to come forward and make a disclosure.  Sometimes it takes years.

In the case of suing prison authorities for deliberate indifference under 42 U.S.C. 1983, for knowingly allowing a sexual predator to prey on inmates - even if prison authorities truly knew about the sexual abuse and allowed it to continue - rape victims are allowed only 15 days to come forward and report the rape, while their abuser is still lurking around and can do even more damage to them.

Does it make any sense?

Is it fair?

Look what reportedly happened in Delaware County jail, Delhi, New York.

A jail guard on the intake, reportedly, had sex with an inmate.

Reportedly, "[d]etails about the alleged sexual encounter were slim, other than that it happened while the woman was confined at the correctional facility in Delhi in early 2015".

Let's compare the dates.

It happened - in jail where everything is under surveillance and videotaped - IN EARLY 2015.

We are now at the end of March of 2016, so more than a year passed after the sexual assault - VIDEOTAPED sexual assault, most likely.

And, charges were brought against the guard ONLY NOW?

And the guard "resigned" ONLY NOW instead of being immeidately fired as soon as the sexual assault was caught on videotape?

So, if the CO's "brothers and sisters" in jail covered him up, WHAT ELSE did they cover up?

For how long was the rapist allowed to be around inmates after he raped an female inmate?

Now, the legal remedy for the victim would be:

1) sue the County in state court - but then she would have had to file a "Notice of Claim" within 90 days of rape, while being in the custody and under control of the rapist.  I wonder whether not firing the rapist immediately was part of the plan of Delaware County to prevent the filing of the Notice of Claim against the County.  I will FOIL the County to verify whether the Notice of Claim was filed;

2) sue the County in federal court under 42 U.S.C. 1983 - for that PLRA requires the victim, within 15 days' time, to start the process of "exhausting state administrative remedies".  I will FOIL the Delaware County to verify whether PLRA grievances were filed.  In both cases, the rape victim would have had to complain about her rapist while being in the custody of that same rapist.

Apparently, she complained only when she was released - thus losing her right to sue the County in state or federal court, but saving herself from worse physical and sexual abuse.

And, the County, with all of those surveillance cameras in jail available, are claiming that they've "just learnt" about it, and are lamenting about how horrible the sexual misconduct of the jail guard was.

Note that the jail guard in question was not fired, but was allowed to "resign".

Note that there is no indication that the person accused of statutory rape is put in jail.

See the comments under the article announcing the criminal charges filed against the jail guard:

People are afraid to come forward and reveal their true name, even claiming they were victimized in the same jail as co-workers, not inmates.

Free people are afraid.  What can be said about inmates who is in physical control of jail employees to the point that the state law makes them incapable of giving consent to sex.

So, the state law makes inmates incapable of giving consent to sex, but the federal law requires them to risk being raped even more to be able to secure a remedy for violation of their civil rights when they are raped while state jail/prison authorities are deliberately indifferent to their plight, like the Delaware County Jail appeared to be?  

And, against this "encouraging" background, let's look at the new case that is being heard by the U.S. Supreme Court at this time, as to whether the inmate exhausted all "available" administrative remedies under PLRA.

There is a lot bickering going on in this new U.S. Supreme Court case Ross v Blake as to whether the inmate jumped through all of the hoops put out for his inconvenience by the state, or just some.

This is the "land of the free", ladies and gentlemen, seeking to deny an inmate a right to vindicate constitutional violations committed against him while he was in custody, on a technicality - because he may not have exhausted all "administrative remedies".

It is good that the inmate had the courage to exhaust ANY remedies, while being in complete PHYSICAL control of those who abused  him in the first place - night and day, physical, food, medical and armed control.

In control of those people whose disciplinary records are not even disclosable to the public, at least in New York, under the insultingly named Civil Rights Law 50-a.

In control of those people who can:

• starve you to death;
• deprive you of medication and medical care (that happens in Delaware County jail a lot, I had a lot of complaints from inmates about it, and personally ensured provision of medical care to some of them, against resistance of Delaware County jail);
• beat you up;
• sexually assault you...

Civil rights litigation by inmates is not about the taste of peanut butter, which is the reason why PLRA was put in place.

It is about horrible violations of most basic human rights in state and federal jails and prisons.

PLRA should be repealed.

It is an unconscionable statute putting people's lives and safety at risk by requiring them to ask for more retaliation, more brutality, more sexual abuse from the abusers who have complete physical control over them.

This "complex" question of retroactivity in criminal cases

The U.S. Supreme Court is reviewing now reportedly a very complex question of retroactivity of its decisions pertaining to unconstitutionality of a "'catch all' part of the definition of violent felony, called the 'residual clause'". 

Now there is a reportedly VIROGOUS debate, by the U.S. Supreme Court, at taxpayers' expense, as to HOW RETROACTIVE that decision should be, how far back it should go, whether the U.S. Supreme Court's decision rendering a certain statute unconstitutional applies to ALL convictions based on that UNCONSTITUTIONAL statute, or only those "pending on collateral review".

Think about it.

A person is sitting in jail, and his or her conviction is based on admittedly-unconstitutional statutory law.

Yet, courts are VIGOROUSLY DEBATING whether the decision that the inmate's order of conviction was also unconstitutional - because it was based on admittedly unconstitutional statutory law - can be vacated, or whether the inmate should continue to sit in jail.

Every law student is taught in school the case of Marbury v Madison where the U.S. Supreme Court said that any law that violates the U.S. Constitution is VOID (not voidABLE, but VOID, as if it never existed, a nullity, a nothing).

The same says the Supremacy Clause of the U.S. Constitution.

So, it is a no-brainer, based on existing law and U.S. Supreme Court precedent to answer the "vigorously debated" question of "retroactivity" without ANY debate.

All convictions based on the law declared unconstitutional, no matter when they were obtained, must be vacated - because they are VOID, same as the statute of conviction of sentencing declared unconstitutional.

A "vigorous" debate is - should we vacate ALL unconstitutional convictions, or just SOME?

What are we paying those judges for?

The Albany law firm O'Connell and Aronowitz, PC and its pattern of abuse of its partners's powers as public officials and of discrimination against people with disability

I wrote on this blog about the law firm O'Connell and Aronowitz, PC that 

• had a flat-lump-sum retainer agreement signed by a legally blind person without reading the retainer agreement to that person; 
• did no real work over 4 months of representation of that person;
• steered the legally blind person into a felony plea with a claim that, once again, the legally blind person drove a truck (where evidence in the case showed that that same truck at that same time was driven by somebody else, who was charged and convicted for speeding), and
• steered their legally blind client into signing an agreement the legally blind person could not see and that was not read to him, where he waived his right to sue the presiding judge (Carl Becker), all federal and state law enforcement officers participating in his criminal case, and the prosecutor (Richard Northrup of Delaware County, now a judge - who at the time of the case employed, without disclosure, Becker's law partner John Hubbard, John Hubbard disclosed that fact only in January of 2016, when Becker was no longer a judge, Northrup was no longer a District Attorney, he was a new County Judge elected with Becker's support and unlawfully sworn in by Becker, when Becker was no longer a public official, and Hubbard was the Acting District Attorney in Northrup's stead);
• was fired from that case before sentencing;
• threatened me, my husband, their former legally blind client with a "grand larceny" if we "touch" the bail money that belonged to our legally blind client as a matter of law, because the back of the bail receipt was not endorsed to O'Connell & Aronowitz, PC;
• wrote an inappropriate letter to Judge Becker, after being fired from the case, causing Becker to refuse to issue a proper order of bail exoneration, and causing Becker to issue an order that threw the Delaware County; 
• caused Delaware County to spend thousands upon thousands of dollars on litigation over the bail money - which I won for my legally blind client, at the cost of my law license; see conflicts of interest in that case, in addition to John Hubbard being the law partner of Judge Becker, described here;
• threatened me, through its representative at an appellate settlement conference in August of 2009, that they will ask for sanctions against me if I go ahead with my appeal of improper grant of the bail money to O&A;
• I won an appeal - and Delaware County, where the Treasurer was Carl Becker's likely girlfriend, according to her statements in his election campaign of 2012, and where Carl Becker's buddy, colleague and boss of many years, former Delaware County Attorney Richard Spinney admitted to an ex parte communication with Becker on the issue of bail money - refused to release the money, necessitating a contempt proceeding against the County, and a motion to recuse Becker who assigned himself to the case despite his obvious disqualification and misconduct, claiming at sentencing of my legally blind client that he is not as blind as he pretends to be (Becker sanctioned me for my request to step down from the bail interpleader case, and had my law license suspended based on that sanction);
• O&A partner Stephen Coffey, at that point the Vice-Chair for the NYS Commission for Judicial Conduct whose threatening letters to Becker bore a clear appearance of impropriety, given the power Coffey had over Becker as the Vice-Chair of the Commission that could discipline or remove Becker from office, committed misconduct in revealing and openly filing with the Delaware County Supreme Court the sealed pre-sentencing report of his former legally blind client who fired him;
• Becker ordered the Delaware County, but not O&A to return the money, which decision resulted in yet another appeal that I won for my legally blind client, once again, at the cost of my law license;
• O&A would not give back my client's bail money despite TWO appellate court decisions;
• O&A's partner Stephen Coffey refused to comply with discovery demands in remanded cases, somehow raising as a basis of denial of discovery demands my husband's disbarment, which was irrelevant to the case;
• I won another appeal for my client, now from Becker's decision - and, after a disciplinary complaint against Coffey, who would not give the money back, as ordered by TWO appellate court orders, and who, instead of complying with discovery, mocked me as a wife of a disbarred attorney (which had no relevance to the case whatsoever), got the bail money back for my client.

After which, my law license was suspended based on Becker's illegal sanctions imposed upon me in that case.

Think about the stress O'Connell and Aronowitz put upon their legally blind client - to whom they failed their MOST BASIC obligation to at least READ to him the retainer agreement, to at least READ to him what he was signing as part of the plea agreement.

O&A retaliated against that disabled individual for firing them - for cause - by revealing his private information from a sealed pre-sentencing report, by improperly threatening him, his then-girlfriend and his attorneys, with a grand larceny prosecution, and by plunging him into years of litigation to get back the bail money where his right to that bail money, as the appellate court held, twice, see here and here, was established as a matter of law.

Stephen Coffey or O&A were never sanctioned for their egregious misconduct in this case.

Becker was never sanctioned.

Northrup was never sanctioned.

The only two people sanctioned was my husband and I, people who brought up and exposed misconduct of these powerful public officials.

My husband, Frederick J. Neroni, was disbarred shortly after filing a criminal assigned appeal for Richard Carbone where he raised issues of Becker's misconduct, after John Hubbard (Becker's undisclosed law partner, who was served with the appeal and who opposed the appeal) threatened my husband that he is "burning his bridges" by raising the issue of Becker's corruption in that appeal.

I was suspended in November of 2015, after a 2-year fight in several courts over my license, where the punishment was based ENTIRELY upon Becker's sanctions imposed upon me after I complained about him, sued him and made motions to recuse him - for DOCUMENTED misconduct.

Stephen Coffey was quietly removed from the NYS Commission for Judicial Conduct, but his law firm's partner Paul A. Feigenbaum continued to be assigned as a referee to the Commission's cases (see Commission's annual reports for the lists of referee, the reports are in PDF format and word-searchable, it's all there) - as he was the whole time when Coffey was the Commission's member, thus irreversibly tainting any complaints made to the Commission about Becker, before Coffey's resignation and after.

Coffey was freely advertising his membership in the Commission for Judicial Conduct during that membership, and some time after he left the Commission.

Now, the Commission does not readily reflect Coffey's membership on its website, other than through annual reports, and Coffey quietly removed any mention of his participation in the Commission from his official biography on his law firm's website (after I used it in several court proceedings).

Coffey was a member of the Commission from 1995 to 2011.

For all those years, Feigenbaum was the referee of the Commission appearing in front of Coffey.

Becker was a (usurped) judge from 2002 to July of 2015.

Coffey was on the Commission at the time of my complaints against Becker in 2009, 2010 and 2011, the complaints involved Coffey's own behavior, but he did not recuse.

I know for a fact that I am far from being the only one who filed complaints against Becker, many people did that, but Coffey, who had a huge conflict of interest where Becker was concerned, apparently voted along with the rest of the Commission to not even investigate those complaints.

With all of the above, Coffey parades on the website of his law firm his following "achievements":

Coffey excelled in the criminal field by duping a legally blind person into signing a $17,000 retainer agreement that allowed Coffey to do no work, but steer the legally blind defendant into pleading guilty for driving a truck, and into signing a waiver of liability for the judge - the very same judge who Coffey was supposed to investigate and prosecute as the Vice-Chair of the Commission of Judicial Conduct.

Coffey then excelled in the civil field by illegally exposing a sealed document from the criminal proceeding in the civil proceeding, intimidating attorneys for the disabled client who fired him for cause - while knowing all along, as a matter of law, that he was wrong, and appearing to use his position of power to bend the law to his financial benefit.

Coffey's "fearless approach" in the Shields v Carbone and People v Carbone cases was only in trying to intimidate people over whom he had power, for his own benefit, to shake up the money from people and entities that did not legally belong to Coffey or his law firm.  As to his client, his "fearless approach" transpired only in fearlessly frivolous claim of a legally blind person driving a truck that was driven at that time by somebody else - a statement that Coffey urged his legally blind client to pronounce TWICE on record.

Coffey does not mention that he was a member, and a Vice-Chair for the commission of Judicial Conduct for 16 years, so his "victories" before judges he had power to remove, with the help of his partner, referee of the Commission Paul Feigenbaum, is nothing other than abuse of power by a public official.

I have no doubt that "under Coffey's leadership", backed up with his and Feigenbaum's power wielded as a member, Vice-Chair (Coffey) and long-time referee (Feigenbaum) of the NYS Commission of Judicial Conduct, judges did not know whether they bent to Coffey's whims quickly enough - as Becker did with his "unusual" bail exoneration orders that plunged Delaware County into years of litigation, even though it was clear as a matter of law, who the bail money belonged to - and that was not O'Connell & Aronowitz, PC, see here and here.

That's quite a victory - when a powerful public official is using his position of power to drum up business for his law firm.  

Quite a victory to be proud of.

Well, now - after all of that recounting of O&A's history, look what O&A has been recently caught in doing - again.

Blatant discrimination against disabled in the Albany parking garage.

A journalist investigation by the Albany Times Union's Chris Churchill and photographer John Carl D'Annibale revealed that O&A had 16 reserved parking spaces right next to the exit, spaces that are usually, and by law, federal Americans with Disabilities Act, are reserved for the disabled.

So, the disabled with limited mobility - on crutches and wheelchairs - must walk an extra distance so that O&A lawyers who are known for "fearless approach when confronted with injustice" should confront injustice - some place else - faster.

There was a suggestion made that yet another partner of O&A, Cornelius Murray was behind such cozy reserved spaces in Albany Parking garage - because Murray was the former Chairman of the parking authority.

Here is the hero, Cornelius Murray, from O&A's website:

Same as with Coffey's participation in the Commission for Judicial Conduct, Murray's being a Chairman of the parking authority is not mentioned in his official biography on O&A's website.

As reported by the Albany Times Union,

"Murray, in fact, was astonished by the allegation, given that it has been more than a decade since his chairmanship ended. O'Connell & Aronowitz did not get its reserved spaces until years later, and Murray wasn't involved in the negotiations, he said."

But of course.  The best defense is the "Sergeant Schultz" defense - I didn't hear anything, I didn't see anything and I don't know anything.

To imagine that O&A would not use the position of power of ANY of its members not to advance its position is, first, ridiculous, and, second, the outrage of Mr. Murray reveals more than he wanted to reveal - the fact that there were NEGOTIATIONS by O&A with the administration of the Albany parking garage for the reserved spaces.

And Cornelius Murray, even back when he was the Chairman of the Albany Parking authority, was caught in being less than forthcoming with the public on certain issues, prompting commentators to characterize Murray's defensive statements this way:

" His attempt to justify destroying the 18th century rum distillery with a garage reminds me of the boy who gets caught with hands in the cookie jar and proclaims only to be counting the cookies."

Not forthcoming then, not forthcoming now.  No surprises.

Does O&A know of the existence and requirements of the Americans with Disabilities Act?

A ridiculous question, right - they are lawyers, after all.

So, O&A, in exchange for "not leaving downtown Albany" were offered by Albany City government reserved spaces in violation of federal anti-discrimination law, and anti-discrimination law against people with disabilities?

What is the "consideration" for that exchange?

What is the value of O'Connell & Aronowitz for the Albany City government to try to lure O&A not to leave downtown Albany with parking spots that should have been reserved for the disabled?

So, O&A knowingly discriminate against the disabled, for their own convenience.

As they did with their client and then former client, Richard Carbone, a legally blind person, from 2008 onwards.

Because, with Coffey previously being a 16-year-member and longtime Vice-Chair of the NYS Commission for Judicial Conduct, and with O&A's Paul Fiedelman still a repeatedly "assigned" referee for that Commission, still wielding tremendous power of removal over judges in front of whom the law firm practices, everybody can be assured that this law firm will be allowed to bend the law to its whim however it likes - with NO repercussions.

That is not just Albany, New York, ladies and gentlemen.

That is the State of New York.

That's the order of business.

A judge presiding over his own divorce and being "fair and impartial" - how far "judicial discretion" and immunity can get us

I wrote on this blog previously about "accomplishments" of two judges, the now-retired Judge Carl F. Becker of Delaware County and of the Chief Judge of the 5th Judicial District James Tormey (sued by two female employees for misconduct in two separate lawsuits, one lawsuit resulted in a $600,000 settlement, after 4.5 years of litigation, for retaliation against the female employee when she refused to spy, at Tormey's urging, on a judge who was a Democratic judicial candidate, the other lawsuit, by a court interpreter claiming discrimination by Tormey and his friend Onondaga County DA William Fitzgerald, is still pending).

Both of these judges were deciding cases where they had their own personal interest.

Both were allowed to do that, where the appellate court (3rd Department) found that the question of their recusal was within their "discretion".

Judge Becker presided over a motion challenging not just his impartiality, but his legitimacy as a judge - denied the motion and sanctioned the challenger (me).

Judge Becker presided over motions to recuse him for misconduct and conflicts of interest that he believed were designed to harass him as a victim - denied them and sanctioned the challenger (me).

Judge Tormey, on request from a private attorney Jonathan S. Follender (who is also a judge in a justice court in Ulster County), presided over Follender's defectively served motion with a request to sanction me for suing Judge Tormey himself in federal court - granted the motion and sanctioned me.

In all of those above instances, where a judge has a personal interest in the outcome of the matter, and when a judge claims himself to be a victim of an attorney's conduct, he is definitely positioning himself as a victim and a person with an interest in the outcome of the case - the judge definitely is disqualified by due process and by statue, New York Judiciary Law 14, from presiding over the matter.

Did not prevent Becker or Tormey to preside over the cases where they positioned themselves as victims of my alleged conduct, and being the victim, prosecutor, judge, jury and executioner.

The appellate court claimed that in all of those cases, with obvious personal interest of both judges, Becker and Tormey had "discretion" to decide whether to recuse or not to recuse.

Of course, that's not true, but, with the "move up or move on" mentality of American courts, and where the Appellate Division 3rd Department as the last appellate court where the issues of discretion or no discretion may be raised, a party like me is left without a remedy when the court deliberately refuses to follow black letter law, including New York court rules (22 NYCRR 100), statutory law, Judiciary Law 14, and constitutional due process of law requirements.

Yesterday I read about a Texas judge though who is a rival of Becker and Tormey.

Judge Michael Herrera, of El Paso, Texas, was reprimanded (only!) by the Texas Supreme Court for - presiding OVER HIS OWN DIVORCE CASE.

How much remorse Judge Herrera felt is shown in his post-reprimand statement where he reportedly said the following:

"The public reprimand also said Herrera misused his position to satisfy his personal desires in the divorce action.

"That's what the state says, but I was I was very impartial on my own (divorce)," said Herrera, "It is constant lies and lies and lies."

Judge Herrera does not and would not get the difference.

He does not get it that he has no AUTHORITY to preside over his own divorce case - and that whether he was "impartial" or not presiding over his own divorce case, is irrelevant.  He was not supposed to be there.

Apparently, abusing his judicial position in such a drastic way did not get judge Herrera judicial discipline, or disbarment.

As abusing their judicial positions did not get judicial discipline to Becker or Tormey.

And, until judges presiding over cases where they have personal interest, do suffer the consequences of their actions, in a real way, nobody can expect real justice in our courts.

Think what other conflicts of interest Judge Herrera, for example, would not be disclosing if he brazenly presided over HIS OWN DIVORCE case - and, even after the reprimand, practically claims he had a right to do that.

The #BeckerSyndrome in a federal criminal case in Minnesota: "a counsel of one's choice" is not allowed when the judge has a grudge against private criminal defense attorneys, seeks to control the scope of advocacy for the criminal defendant, and to help prosecution win the case

In a high-stakes federal criminal case where the suspect was accused of helping ISIS, the judge refused to agree to the change of counsel requested by the defendant because of the disciplinary history of his new counsel.

And, as to the criminal case that was the reason for disciplinary history, "coincidentally", both attorneys in that case were disciplined, for different reasons - one was reprimanded and the other was disbarred.

The reprimanded attorney Mitchell Robinson, the one who was denied entry into the ISIS-suspect case, allegedly did not do investigations in a drug-trafficking case in 2014 which resulted in invalidation of the conviction, instead, relying on investigation by the co-defendant's counsel, and reportedly did not utilize potentially exculpatory evidence to absolve his client of charges, instead entering a stipulation that helped the government secure a conviction.

Yet, Mitchell Robinson was not suspended or disbarred, he has a valid law license, and thus, the court had no right to interfere into a criminal defendant's choice of counsel.

Nor was there any indication that the PROSECUTION in the same case where the prosecution pushed for conviction - and convicted - Mr. Robinson's client, despite having exculpatory evidence indicating that she was not guilty, was disciplined.

Two criminal defense attorney out of the same case disciplined, and no prosecutor - how typical.

As to ineffective assistance of counsel because of failure of the defense counsel to hire investigators, in some areas, like our God-forsaken Delaware County, New York, failure to order investigations, including to make a motion to the court by an assigned counsel for funds for experts and investigators - is simply a new standard of representation.

I know of several botched-up criminal cases in Delaware County, NY and in surrounding counties, both assigned and private, where a lot of money was paid to local attorneys, where attorneys hired no investigators whatsoever and did no investigative work of their own, instead pushing their clients into pleas or into unprepared trials, with no discovery or motions made before the trial.

Actually, being on the list of assigned counsel in Delaware County, New York is conditioned on:

• doing no discovery,
• making no motions, especially motions to recuse a judge or disqualify a prosecutor;
• asking for no money for investigators or experts.

Actually, attorney David Roosa (who lost his license for several years because of his criticism of Judge Becker) claimed in a federal lawsuit that if an attorney does any work as an assigned counsel, the attorney won't be assigned again.

By the way, I included David Roosa's statements about Judge Becker into my disciplinary motions - which were ignored and denied without an explanation, reasoning or grounds.  I suspect that they were never read, based on courts' principle of "too long - did not read".

In fact, I had at least three occasions when a certain judge, now retired - Carl F. Becker -  gave my private clients a "choice", either they fire me and choose an assigned counsel, and then you will have a "right" to experts and investigators, or you choose Tatiana Neroni (who made all those discovery requests, motions to dismiss, recuse and disqualify when she finds conflicts or appearance of conflicts of interest).

In fact, being entitled to funds for experts and investigators has nothing to do whether your counsel is private or assigned, but that was "the choice".  Yet, "the choice" was not a choice, and was false,  because an assigned counsel in Delaware County never asks and will never asks for such funds, for fear of being booted off the assigned counsel list.

Here is a portion of attorney David Roosa's federal lawsuit specifically on the subject of assigning judge's control of the level of advocacy provided to the criminal defendant:

So, according to policy established by Becker (who is such a close personal friend of the current judge, former District Attorney Richard Northrup that Richard Northrup allowed Becker, after he retired from the bench, to swear Northrup in, which Becker had no right to do as a private attorney and not any kind of public official, so you may be assured Northrup will follow Becker's policies like a puppet), assigned counsel in Delaware County will be denied payment - and then assignment to cases - if they do not allow Becker to "control the degree of advocacy" by the assigned counsel, and in fact when they do ANY work for their clients other than pushing them into plea bargains or providing a luke-warm representation at trial.

Assigned counsel in Delaware County, according to my information and belief and personal knowledge (not about my own cases, I was not assigned after a couple of cases assigned by lower justice courts where I provided as good a representation as in my private cases), either push their clients into pleas, or go to trial unprepared, with no prior motions, or discovery, and thus exposing their clients to the extreme uncertainty of the jury trial.

My readers can check the truth of my words by simply filing a Freedom of Information Request with Delaware County as to any records of money paid for experts and investigators in criminal cases for the past 10-20 years, and as to assigned counsel's vouchers where the assigned counsel puts in the number of hours worked on the case and what kind of services were provided. 

I doubt that any "responsive records" for a request exist for payments by the County to experts and investigators in criminal cases of the indigent exist, in other words, that any such motions were made by assigned counsel - or won, at the same time when the District Attorney's office has a STAFF investigator Jeff Bowie, on salary, and while the District Attorney's office routinely hires experts for criminal trials.

Going back to the ISIS-suspect case, any criminal defendant has a right to a counsel OF HIS CHOICE, whether that choice is right or wrong, and a judge has no authority to deny a criminal defendant his choice of counsel.  I believe, the judge's denial of the choice of counsel to the criminal defendant, because the counsel requested was Mitchell Robinson, previously reprimanded and disciplined for "ineffective assistance of counsel", is a constitutional violation and a reversible error.

Mr. Robinson's failure to hire investigators in the previous case has no bearing on his ability to TRY a case.  Once again, his license was not suspended or revoked, and he was not prohibited to handle more criminal cases.

I will follow this case, as the judge apparently made a reversible error, depriving a criminal defendant, in a high-stakes case, of a trial counsel of his choice.

I am not making any judgement calls about Mr. Robinson.

I am only indicating that when a criminal defendant chooses his private counsel in a criminal case, a court has no authority to interfere with that choice.

By the way, here is the list of counsel for the criminal defendant in the matter, Mr. Hamza Ahmed, and the list of prosecutors, just for comparison.

The list of criminal defense counsel (this is as of today, where Mr. Robinson was not allowed to be substituted, but is still listed as Mr. Ahmed's defense attorney):

So, at this time, Mr. Ahmed is represented by ONE ASSIGNED defense attorney.

Here is the prosecution team:

The prosecution team counts FIVE prosecutors against ONE assigned defense attorney.

Now - why wouldn't the court assign FIVE defense attorneys to counter FIVE prosecutors?  And while denying Mr. Ahmed representation by a private attorney of his own choice?

Here is the decision of Judge Michael J. Davis denying Mr. Ahmed's right to a retained counsel of his choice.

Judge Michael J. Davis claims concern about alleged lack of experience of attorney Mitchell Robinson in a "high stakes case".

The case is a "high stakes case", just look at the number of counts against Mr. Ahmed:

Yet, a retained attorney of Mr. Ahmed's choice is denied to him, and an assigned counsel, ONE against FIVE prosecutors, is forced upon Mr. Ahmed, even though Mr. Ahmed has FIRED her, HIRED ANOTHER ATTORNEY, and the fired assigned counsel consented to the substitution:

While the judge claims concern about the criminal defendant, that concern whether a retained attorney will be able or willing to look through thousands of pages of discovery, is undermined by the judge's failure to equalize resources of the defense to resources of the prosecution by assigning as many attorneys to the defense team, as the prosecution team has, and by providing extra resources for review of those thousands of pages of documents by the assigned counsel.

It is more that I sense in this case the same motivation as Becker had not assigning David Roosa to the case and insisting on assigned counsel - in order to be able to control the amount of advocacy provided to the criminal defendant in a "high stakes case".

I must note here that Judge Davis' biography shows an extremely scant time that he worked as a private criminal defense attorney, while he did work for a considerable time as a public defender.

In his order denying representation by a private retained counsel, after the public defender (one) appointed by the court to counter a team of five prosecutors, was fired, Judge Davis wrote this:

Ok, so Judge Davis, based on his alleged own personal 40 years' experience with the criminal justice system, makes a judgement call, as an advocate for the criminal defendant, that the new retained attorney chosen by the criminal defendant is not good for him.

That's a violation of the Mr. Ahmed's constitutional right to counsel of his own choice, especially that the attorney who he is forced to accept representation of the attorney who he just fired - and it makes no difference whether he, as the court noted, did or did not have arguments or irreconcilable differences with that attorney.

Nobody denies Mr. Ahmed's assigned counsel JaneAnne Murray her credentials as a criminal defense attorney.

Yet, in this case, she is a FIRED attorney, FORCED upon the client who FIRED and REPLACED her.

A fired attorney can, at least theoretically, hold a grudge - and that is a problem in a "high stakes case".  That's as one problem.  

The other, main problem, that the currently assigned attorney is not Mr. Ahmed's attorney of choice.  Mr. Ahmed's attorney of choice, Mr. Robinson, a criminal defense attorney of 30 years of experience and only 1 reprimand (not matched with reprimand of the prosecutor in the same criminal case, which screams selective enforcement of laws), was not allowed - because of Judge Davis' personal dislike of private criminal defense attorneys who charge a flat fee,  and that statement spells jealousy of the judge, and requires, in my opinion, removal of the judge from the case, because:

• the judge attempted to pretend to be an advocate for the criminal defendant;
• the judge substituted the defendant's choice of counsel by the judge's choice of counsel;
• the judge assigned an inadequate - in number - criminal defense team as opposed to the existing prosecution team and did not provide to that defense team adequate resources to deal with the "high stakes case";
• the judge forced upon the criminal defendant a just-fired criminal defense attorney as his only counsel in a high-stakes criminal trial
• the judge denied the criminal defendant a retained counsel of his choice because of the judge's dislike of private criminal defense attorneys charging a flat fee for trial.

It seems to me that we see in Mr. Ahmed's case a Becker syndrome Mr. Roosa described in his lawsuit, where a judge prefers to have on the case a just-fired assigned counsel whose "scope of advocacy" the judge can control (by future assignments) instead of a retained counsel who the judge simply disliked and had jealousy about because of his "flat fee".

Here, Ms. Murray's scope of advocacy will be controlled not only by the waiving of the "carrot and stick" by the judge - the express intent to satisfy the billing of an outgoing assigned counsel before the final resolution of the case while banning from a case the hired retained counsel because of his "flat fee" retainer agreement that the judge did not like.

Ms. Murray's scope of advocacy was and is clearly controlled by her lack of resources.  One assigned criminal defense attorney faced with about 60,000 pages of discovery against a team of five prosecutors, with the supporting resources and power of the U.S. Attorney's office has little, if any chance of effective representation and successful defense.

It is clear that Judge Davis sends signals to the assigned counsel "to be good", at least by expressing a touching concern for the assigned counsel bills - before the criminal case even concluded:

Satisfying billing of an outgoing counsel before the final resolution of the criminal case seems strange.

And, the retainer agreement of Mr. Robinson was irrelevant to the decision of the judge whether to allow his representation, and should not have been even requested or considered by the court.

One other problem is that the judge required from the defendant to "provide to the court justification for substitution of counsel at this time".

The court is not entitled to an explanation on this subject.  A criminal defendant, especially in a case with stakes as high as here, has an absolute right to an attorney of his choice at ANY stage of litigation.  He can change his counsel, if he feels the counsel does not represent him to his satisfaction, in the middle of the trial, and the court has no right to inquire as to why.

The amount of discovery "turned over to date" is irrelevant as to whether Mr. Robinson could or could not step in to represent Mr. Ahmed.

It was clearly unfair to expect Mr. Robinson to review 28,000 pages of discovery BEFORE he was allowed to step into the case.  Usually, the new counsel does it AFTER he steps into the case, and the court provides him an adjournment to do that.

Mr. Robinson did not state to the court that he WILL NOT review discovery.

Mr. Ahmed's previous attorney had a year to review those thousands of pages, and Mr. Robinson should not have been put on the spot because he did not do in the short time after he was hired, what the previous counsel did over a year's time.

Judge Davis' claims of protecting the criminal defendant from an allegedly bad retained lawyer Mr. Robinson do not fly very far because the judge himself did not assign enough defense attorneys and resources to provide effective representation of counsel.

It is clear that Judge Davis was seeking to prevent a retained counsel to step into the case and see what may have been done wrong there - and in that, Judge Davis is clearly helping the prosecution.

My expert opinion is that the case is going towards a reversal on appeal full swing, because of Judge Davis' refusal to allow Mr. Ahmed to have a criminal defense attorney of his choice - and that is a huge waste of money for the taxpayers, not only injustice to Mr. Ahmed.

Stay tuned for the continued coverage of this case.