Is there any basis for federal criminal indictments against Dylann Roof interfering with the state prosecution? - Part II

In my previous two blogs, I described:

1) the standoff between the State Solicitor of the State of South Carolina and federal prosecutors where the State Solicitor asserted that the trial schedule in federal prosecution interferes and impedes the state prosecution in the murder trial of Dylann Roof, who shot to death 9 people and injured 3 in June of 2015 in an African-American church, and

2) general jurisdictional requirements for a legitimate federal criminal charge - and quoted a U.S. Supreme Court that invalidated a criminal conviction because it was based on a federal statute that the U.S. Congress had no power to enact.

I will now analyze each of the statutes that Dylann Roof was charged with violating from the point of view of their validity.

Dylann Roof was charged under the following criminal statutes:

1. 18 U.S.C. 247(a)(2), (d)(1)
2. 18 U.S.C. 249 (a)(1)
3. 18 U.S.C. 924(c )(1)(A);
4. 18 U.S.C. 924(c )(1)(C);
5. 18 U.S.C. 924 (j)(1), charging:
6.  Hate Crime Murder;

• Murder to obstruct free exercise of religion and affecting interstate commerce;
• Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

18 U.S.C. 247(a)(2) and (d)(1)

Charging Dylann Roof under this section was giving him too much credit.

There is no evidence that Dylann Roof had an intent to interfere with anybody's religious belief.

Dylann Roof shot up the church because it was convenient for his crime-planning, because Dylann Roof knew that the church was a place where, at a certain time, a large number of African Americans will be present.

His crime was a hate crime, but the prosecution will have a really hard time proving that Roof had an intent to interfere with the exercise of religion, and especially proving that beyond the reasonable doubt.

Moreover, subsection (b) which is incorporated into subsection (a) clearly indicates that Dylann Roof was chargeable with this crime is "in interstate or foreign commerce" or "affects interstate or foreign commerce".

And there lays another big problem for the federal prosecution.  Worshiping activities cannot, by any stretch of imagination, be equated with interstate commerce, and, under U.S. v Lopez, claiming that committing a crime in a church somehow interferes with interstate commerce is too attenuated to provide for federal jurisdiction.

This statute, 18 U.S.C. 247, goes back, reportedly, to

QUOTE
-----------

"the Church Arsons Prevention Act, sponsored by Sens. Lauch Faircloth (R-NC) and Edward Kennedy (D-MA), and, in the House, by Reps.

Henry Hyde (R-IL) and John Conyers (D-MI), was originally designed solely to facilitate Federal investigations and prosecutions of these crimes by amending 18 U.S.C. 247, a statute enacted by Congress in 1988 to provide Federal jurisdiction for religious vandalism cases in which the destruction exceeds $10,000.

Hearings were held on both the impact of these crimes and the appropriate response of government.

Federal prosecutors testified that the statute's restrictive interstate commerce requirement and its relatively significant damages threshold had been obstacles to Federal prosecutions. 

Following the hearings, Congress found that "[t]he incidence of arson of places of religious worship has recently increased, especially in the context of places of religious worship that serve predominately African-American congregations."

Legislators appropriately recognized that the nation's response to the rash of arsons should be more ambitious and comprehensive than mere efforts to ensure swift and sure punishment for the perpetrators.

In a welcome example of bipartisanship, both the House and the Senate unanimously approved legislation which broadened existing Federal criminal jurisdiction and facilitated criminal prosecutions for attacks against houses of worship, increased penalties for these crimes, established a loan guarantee recovery fund for rebuilding, and authorized additional personnel for BATF, the FBI, Justice Department prosecutors, and the Justice Department's Community Relations Service to "investigate, prevent, and respond" to these incidents. "

UNQUOTE
=========

So, criminal federal jurisdiction for 18 U.S.C. 247 was invoked because something MORE than efficient prosecution of perpetrators was needed.

What MORE than efficient prosecution of perpetrators in a criminal case is needed?

And how does this "more" justify invocation of federal jurisdiction over a purely state crime, committed on a state territory, in a church?

But, that pronouncement, in and of itself, indicated that the statute is unconstitutional.

States already have, under the 10th Amendment, exclusive police power over crimes committed in their territories, and exercise that power for the efficient prosecution and punishment of perpetrators of such offenses.

That was the power recognized by the U.S. Supreme Court in U.S. v Lopez in 1995 when the U.S. Supreme Court affirmed dismissal of a conviction based on the Gun-Free School Zones Act of 1990.

In fact, as Dylann Roof's case shows, the State of South Carolina's efforts to prosecute Dylann Roof is impeded by federal prosecution, where the defendant is trying to use the federal prosecution (based, likely, on unconstitutional statute enacted, in its criminal part at least, without any congressional authority) to delay and/or impede state prosecution which hurts, not helps the victims and hurts, not helps, the necessary prosecution of a HEINOUS crime - murder of 9 people and injury to three people.

Same as schools were held in U.S. v Lopez have nothing to do with interstate commerce, churches also have nothing to do with interstate commerce, or with commerce of any kind.

In fact, the Christian religion asserts that the church does not have ANYTHING to do with ANY commerce - where Jesus Christ has actually cleansed the Temple of merchants and money-changers.

Worship is a spiritual activity which has nothing to do with commerce, interstate, foreign or otherwise.

So, it is likely that counts 13 to 21 and 22 to 24 in U.S. v Roof (see table describing all counts here) are jurisdictionally invalid, and the federal government is wasting taxpayer money to prosecute Roof where the State of South Carolina is already prosecuting him for common murder, which is much easier to prove.

For the analysis of other statutes used as a basis of the federal indictment against Dylann Roof, stay tuned.

RE federal jurisdiction over violent crimes - #DylannRoof's federal and state murder trials; Part I

Recently, I described in this blog a standoff between South Carolina State prosecutors and federal prosecutors as to the timing of trials of criminal defendant Dylann Roof, a white man who stands accused of the shooting deaths of 9 people and of attempting to kill three other people in an African-American church in June of 2015.

I mentioned in that blog that I question validity of federal jurisdiction over violent crimes committed on state property and committed without any connection with interstate commerce.

To verify why exactly federal jurisdiction was invoked in #DylannRoof's case, I obtained his indictment from Pacer.gov and reviewed it.

Dylann Roof was indicted on July 22, 2015 on 33 counts under various federal statutes.

Here is the table of counts, statutes, and grounds to invoke federal jurisdiction in Dylann Roof's case.

Victims	Counts	Statutes	Basis of federal jurisdiction as stated in the indictment
Victims who were killed	1 to 9 13 to 21 25 to 33	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1) 18 U.S.C. 924(c )(1)(A); 18 U.S.C. 924(c )(1)(C); 18 U.S.C. 924 (j)(1)	Murder: caused bodily injury to the victim because of the victim’s actual and perceived race and color, resulted in death of the victim Obstruction of exercise of religion resulting in death, the crime “was in and affected interstate commerce” Murder as defined in 18 U.S.C. 1111, killing each victim with a firearm with malice aforethought
Victims who survived	10 to 12 22 to 24	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1), (d)(3)	Attempt to kill:  attempted to cause bodily injury to the victim because of the victim’s actual and perceived race and color Attempt to kill the victim, involved the use of a dangerous weapon and were in and affected interstate commerce

So, for each victim who was killed, Dylann Roof was charged with 3 counts of the federal indictment, under the following statutes:

1. 18 U.S.C. 249 (a)(1)
2. 18 U.S.C. 247(a)(2), (d)(1)
3. 18 U.S.C. 924(c )(1)(A);
4. 18 U.S.C. 924(c )(1)(C);
5. 18 U.S.C. 924 (j)(1), charging:

•  Hate Crime Murder;
• Murder to obstruct free exercise of religion and affecting interstate commerce;
• Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

For each surviving victim Dylann Roof was charged with 2 counts of the indictment:

1. 18 U.S.C. 249 (a)(1)
2.  18 U.S.C. 247(a)(2), (d)(1), (d)(3) charging

• attempt to kill based on race or color;
• attempt to kill involving a dangerous weapon and affecting interstate commerce

 No motions to dismiss were filed yet by the defendant, even though there may be glaring jurisdictional defects in the case.  It appears that it is the strategy of the defendant to keep the case in federal court, hoping for a more lenient outcome, despite jurisdictional defects.

What I mean by jurisdictional defects is that federal courts are courts of limited jurisdiction, and federal courts' jurisdiction is invoked only under two circumstances:

1) diversity,  28 U.S.C. 1332 (not applicable in criminal cases) and
2) federal question, 28 U.S.C. 1331:  

"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Moreover, the federal statute under which the "federal question" jurisdiction is invoked, must be constitutional, which means, it should be enacted within the powers of the U.S. Congress.

There is a 1995 criminal U.S. Supreme Court case so far where a criminal conviction based on federal statutes were vacated by the U.S. Supreme Court because the U.S. Congress had no authority to enact at least some portions of those statues.

That case is U.S. v Lopez and it has similarities with U.S. v Roof.

Here is the entire text of the case and citation, U.S. v. Lopez, 514 U.S. 549 (1995).

Alfonso Lopez was charged for violation of the "Gun-Free School Zones Act of 1990", 18 U.S.C. 922(q).

The U.S. Supreme Court ruled that the U.S. Congress had no authority to enact the Gun-Free School Zones Act of 1990, as regulation of schools has nothing to do with regulation of interstate commerce, the legal basis for Congressional authority to enact that statute.

The U.S. Supreme Court held in U.S. v Lopez:

"Held: The Act exceeds Congress' Commerce Clause authority.

First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. 

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined.

Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce.

Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to
authority to a general police power of the sort held only by the States. "
In view of the U.S. Supreme Court decision in U.S. v Lopez and in view of the standoff between the state and federal prosecution in U.S. v Roof, where the State Prosecutor from the State of South Carolina asserts that the federal prosecution impedes the speedy state prosecution and hurts the victims of Dylann Roof's crimes, let's see if federal statutes under which Dylann Roof was indicted were based on proper congressional authority, and if federal prosecution of Dylann Roof, interfering with the state prosecution, is even legitimate.

I will post review of statutes which formed the basis of the federal indictment against Dylann Roof in a separate blog or blogs.

Stay tuned.

Clarence Thomas on the right to due process: in "real" civil cases - yes, in criminal and related habeas cases - never

Judge Clarence Thomas is an interesting judge.

His confirmation was tainted with accusations of sexual harassment of a female attorney - while presiding over no less than the Equal Employment Opportunity Commission.

He is the only black judge on the U.S. Supreme Court - it is relevant, as you will see below in this post.

He is also the only judge who did not pronounce one word during oral arguments for 10 years - until the death of Judge Antonin Scalia whose decisions Judge Thomas always supported and joined with.

Therefore, Judge Thomas's post-Scalia opinions are most interesting.

I've analyzed so far three opinions of Judge Thomas made in June of 2016 - two dissents and one majority opinion.

Case No. 1.

Dissent in Williams v Pennsylvania - Judge Thomas opposed a reversal of a decision reinstating death penalty in a case where one of the judges participating in reinstatement, who was the Chief judge of the top appellate Court of the State of Pennsylvania and who killed 4 habeas petitions of the condemned defendant, was actually the prosecutor in the same case who made the decision seeking the death penalty and whose subordinates obtained the conviction by fraud, withholding of Brady material, eliminating black jurors from the case (the defendant was black, and a victim of sexual abuse since the age of 13 at the hands of the person who he killed when he turned 18) and repeated solicitation of perjury.

In Williams v Pennsylvania, Justice Thomas claimed in his dissent, among other things, that:

• when judge Ronald Castille (who was the DA authorizing the seeking of the death penalty of Terrance Williams) presided over habeas corpus proceedings, that was not "the same" case,
• the post-conviction proceedings - even where Judge/prosecutor Castille reinstated the death penalty he sought as a prosecutor - do not provide the same level of due process as criminal proceedings (even though criminal conviction was obtained by fraud by DA Castille's office), and
• common law does not justify reversal of a death penalty reinstated by judge-prosecutor.

In support of his "common law does not justify" line of argument, Justice Thomas said, among other things, the following:

"Most jurisdictions required judges to recuse when they stood to profit from their involvement or, more broadly, when their property was involved. ... see also Jim v. State, 3 Mo. 147, 155 (1832) (deciding that a judge was unlawfully interested in a criminal case in which his slave was the defendant)."

Now, this "argument" takes the concept of "disgusting" to a whole new level.

Think about it.

• A black judge who would have been a slave had his ancestors not been liberated during the Civil War,
• whose whole life and career would have been impossible without passing of the 13th and 14th Amendments,
• rules in favor of upholding reinstatement of death penalty against a black defendant
• who was convicted and sentenced to death because the white prosecutor's office excluded 14 out of 16 black jurors from the jury pool, withheld exculpatory evidence, elicited perjured testimony from their star witness on two key issues, and, where the prosecutor became an appellate judge refused to recuse from the defendant's case - FOUR times and reinstated his death penalty when another court reversed and remanded it based on testimony about misconduct of prosecutor/judge's own office.

And, under THESE circumstances, Judge Thomas considered it appropriate to cite, on the issue of whether the 14th Amendment Due Process was violated, a pre-14th Amendment case, from 1832, where a judge had to recuse because his own slave was a defendant in front of him - and had to characterize that case as a case of judge owning "property".

The judge owned the defendant.

That's the most disgusting ruling that can be expected from a black judge and from a person whose life and career would not have been possible without the 14th Amendment.

The question is - WHY?

Out of a great number of cases, WHY would a black judge pull an irrelevant case, predating the enactment of the constitutional amendment that is being litigated, and put in black and white that a white judge owned a black defendant as a slave, and because of that he could not preside - and that is supposedly the ONLY due process restriction for judges presiding over criminal cases and related cases?

All in all, Judge Thomas would have left the death penalty intact, allowing the white prosecutor to first obtain the death penalty, through criminal conduct of his office, get elected based on that death penalty conviction, and then block reversal and habeas corpus petition as a judge.

Such behavior of a prosecutor/judge does not, in Judge Thomas' view, create an appearance of impropriety and does not constitute judicial or prosecutorial misconduct in violation of the 14th Amendment.

Case No. 2

Majority opinion in Utah v Strief, June 20, 2016

Justice Thomas authored a majority opinion reversing the UNANIMOUS decision of the Utah Supreme Court and allowing police officers to engage in the following practice:

1) conduct an illegal stop;
2) obtain, through the illegal stop, information about identity of the stopped individual;
3) check that identity through the electronic system verifying whether the stopped individual has outstanding warrants, including for unpaid traffic and parking tickets, and
4) then arrest the individual and legitimize the illegal stop by the later-discovered outstanding warrant, and legitimize the results of the search.

Judge Thomas indicated that the police officer was not engaged in "flagrant misconduct", and that circumstances of the case are "attenuated", thus "curing" the initial illegality of the stop.

That was a criminal case.

The end justifies the means.

Case No. 3

Dissent in Dietz v Bouldin

In this case, a civil case, Judge Thomas said all the right words as to the possibility and presumption of taint where a jury is recalled after being dismissed.

Yet, once again, that was a civil case.

So, for Justice Thomas a presumption of taint - and thus due process violation - exists in a civil case, while the same Justice Thomas argued in Williams v Pennsylvania that there is no presumption of taint and appearance of impropriety where the prosecutor who sought and obtained the death penalty presided over the habeas corpus appeal by the prosecution and reinstated the death penalty, with a separate concurring opinion blasting the defense as "having an agenda" and engaging in frivolous (death penalty) litigation.

And, in Williams v Pennsylvania, Justice Thomas argued specifically that a post-conviction case is a CIVIL case and, consequently, less due process is allowed in such cases.

Which then raises a question, why Justice Thomas thinks that more due process should be allowed in a civil litigation over a car accident than in a death penalty case.

One "rule of Justice Thomas" is clear though - he favors finality of criminal convictions over fairness and constitutionality, and believes that fairness should be afforded only in "truly civil" cases. 

So, Justice Thomas' when making claims in his dissent in Williams v Pennsylvania that post-conviction habeas corpus relief is a "civil" case, the claims were pretextual, and Justice Thomas himself did not believe in such a designation of post-conviction habeas corpus cases.  He considered them criminal, because in the "regular" civil cases, like a car accident common law negligence case, he argued for higher level of due process than he would afford a condemned death penalty prisoner, a habeas petitioner.

I posted two blog articles about opinions of judges "on the left" and "on the right" of the U.S. Supreme Court, but displaying the same problem:

they act on their personal convictions and not the law, and they believe in the end of litigation justifying the means as to how the end is achieved.

That is, in and of itself, a result-oriented jurisprudence and a due process violation.

Which brings me to the big question - do we really need the U.S. Supreme Court?

Do we really need 9 people acting on their whims when taking a small number of cases out of an ocean of cases and issues that need to be decided, and when they decide cases and then imposing upon the entire country based their personal opinion about the law, irrespectively of what the U.S. Constitution that they are sworn to uphold, says?

Sonya Sotomayor makes a yoyo of the U.S. Constitution

In 2001, the now-U.S. Supreme Court Justice Sonya Sotomayor claimed that race and experience of a judge may and should influence the judge's decisions:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life".

The "richness of experiences" of Justice Sonya Sotomayor have resulted in a series of statements, in and out of court that, for a judge, are quite bizarre.

Of course, it is bizarre for a judge to claim that a decision, reviewing the same record and applying the same law, of a white male judge and a Latina female judge CAN be different.

After all, a judge is supposed to apply the law to the facts in the record, not "draw upon the richness of her experiences", which would make a judge an unsworn witness in the proceedings.

Yet, after making that speech, Sonya Sotomayor was promoted to the bench of the U.S. Supreme Court instead of barred from the bench.

Sotomayor's bizarre "drawings upon the richness of her experience" continued in a string of in and out of court statements in May and June of 2016.

In all of those statements, Justice Sotomayor's pragmatic point of view becomes clear - the ends justify the means, whether they are based on the law or not.

I.

Attorney slave labor is good - if it serves the poor

(Violation of 13th and 14th Amendments are justified)

On May 17, 2016, Justice Sonya Sotomayor claimed that, "had it been in her power", she would have made attorneys to work for free to be entitled to a right to earn a living at all.

That statement indicated that, for Judge Sotomayor, the means, even if the means are violating the U.S. Constitution she is sworn to uphold, justify the end - in the context of her speech, providing forced-labor legal services for the poor.

Forcing people to work in exchange for a right to earn a living is, in fact, in violation of  at least three constitutional provisions: the 13th Amendment, the Due Process Clause of the 14th Amendment, and the Equal Protection Clause of the 14th Amendment (because other professionals are not required to provide free services in order to be allowed to earn a living).

II.

Jury recall after dismissal is good

Violation of Due Process Clause of the 14th Amendment, right to impartial adjudication

On June 9, 2016 Justice Sonya Sotomayor authored a majority opinion in a diversity case in federal court which held:

Now.

The main issue was of substantive due process - whether it was fair to allow a dismissed jury who were, for a time being, no longer under oath not to talk to the public about the case and not to read about the case, to be recalled back to additionally deliberate and correct an error.

Since the case was not a federal question case, but a diversity case (the only reason it was in federal court is because the plaintiff and the defendant were citizens of different states within the United States), Justice Sotomayor was BOUND BY LAW to apply the substantive law of the state where the car accident (the subject of the lawsuit) occurred.

That is the requirement of the Erie doctrine.

As any law student will tell you, application of the Erie doctrine is "Civil Procedure 101".

Apparently, the majority in Dietz v Bouldin, including Justice Sonya Sotomayor, failed the competency test as to Civil Procedure 101 by not even mentioning the Erie doctrine or its application.

Instead, Justice Sonya Sotomayor found an "inherent power" of the FEDERAL court to make decisions of substantive law if the end (judicial economy) justifies the means - jury recall.

Since the holding was framed as the "inherent power" of the FEDERAL court (the Erie doctrine be damned), be assured that now juries will be recalled to "correct" whatever the court deems they did wrong in "federal question" cases - civil rights cases.

Not only the recall was a violation of the Erie doctrine where the federal court made a substantive decision without regard to the state law in the state where the litigated events occurred, but committing factual findings to the already "presumed tainted" jury was a clear violation of due process right to impartial court review.

Once the jury is discharged, their oath no longer applying, the jury have had the opportunity to talk to the non-jury member of the public, research the case on their own, and any attempts to verify whether the jury had ACTUALLY done that or not, should be precluded.

The opportunity creates the taint.

That's not what Justice Sotomayor said.

For Justice Sotomayor, the means (judicial economy) justified violation of the U.S. Constitution that she was sworn to uphold.

III.

The righteous 4th Amendment dissent

After Judge Sotomayor claimed in 2001 that, while on the bench, she would draw from the "richness of her experiences" as a "Latina woman",

after Judge Sotomayor claimed in May of 2016 that she would disregard the 13th Amendment in requiring mandatory pro bono service of attorneys as a condition of earning a living, in order to "close the justice gap" (created by attorney regulation, for which the easiest solution is deregulation, not mandated slavery);

after Judge Sotomayor claimed on June 9, 2016 that for purposes of judicial economy, in civil cases, already dismissed - and tainted - juries may be recalled to deliberate some more and "correct mistakes" made before the discharge,

on June 20, 2016 Judge Sotomayor got on the white horse and authored a "fiery" dissent on a 4th Amendment issue protecting civil liberties at large, and once again drawing on the "richness of her experience".

What Sotomayor says in her dissent makes sense. 

Yet, a judge shouldn't be drawing on her own experiences, as she did in her dissent, as Sotomayor does:

 - nullifies the value of the dissent and reduces it to a statement of an unsworn witness in the case.

And, when a judge acts as a yo-yo justifying violation of some constitutional rights, but not others - what is the value of her "fiery dissents" anyway?

Cutting off snakes' heads - episode 2: a new method of New York prosecutors to eliminate criminal defense attorneys

Recently, I wrote about a civil rights lawsuit filed by a criminal defense attorney George Galgano against Putnam County District Attorney and other defendants, for their role in bringing about illegal searches, retaliative investigations and retaliative felony indictment against attorney Galgano.

Apparently, a similar story is developing at this time in St. Lawrence County, New York, against criminal defense attorney Edward F. Narrow, a criminal defense attorney with 15 years of experience.

In an interesting case in St. Lawrence County, New York, a judge denied the motion made by the prosecutor to disqualify the District Attorney's office from a case of a certain defense attorney, Edward F. Narrow, because the DA's office plans to indict Mr. Narrow for a felony for his alleged role in the murder case of Oral "Nick" Hillary accused of murder.

A public scandal erupted when a St. Lawrence County Assistant District Attorney David A. Haggard was leaving his position in the DA's office.

At about the time when he announced that he was leaving his position, the St. Lawrence District Attorney Mary E. Rain, accused ADA Haggard of "collusion" in a criminal case, based on the alleged discussion of that criminal case with defense attorney Edward F. Narrow.

Here is DA Mary E. Rain:

Assistant District Attorneys to DA Mary Rain, listed as of today, are:

New York State law does allow law graduates to practice law on special admission if working in certain public offices, including the District Attorney's office.

But, an order of admission should be first obtained, because allowing an unadmitted individual to practice law is the supervising attorney's responsibility.

Apparently, such "formalities" were not met, and, if there was no order of admission before admission to the bar, DA Mary Rain, in allowing ADA Jirkin to practice law in her office was engaged in the crime of unauthorized practice of law, and that's what attorney Narrow reported.

So, attorney Narrow reported DA Rain for an ethical violation and commission of a crime.

ADA Haggard was leaving the office, after having worked a very short time, less than two years (from April 2014, announced that he is leaving in March of 2016), and was a witness to DA Rain stating that "during the period I worked with Ms. Rain, she indicated to [ADA Haggard] that she intended to use the grand jury to investigate individuals that she disliked", and that the list of those Ms. Rain disliked reportedly included:

• County Attorney Stephen D. Button,
• Chief Public Defender Steven G. Ballan,
• former county Board of Legislature Chairman Joseph R. Lightfoot,
• attorney Edward F. Narrow,
• former County Administrator Karen M. St. Hilaire
• and others.

So, Mr. Haggard, apparently, joint the list of individuals that DA Rain disliked when DA Rain made an extraordinary accusation of collusion against her own subordinate, ADA Haggard, without indicating what the collusion actually was citing "confidential investigation".

So, DA Rain openly bad-mouthed two people she obviously disliked, but claimed "confidential investigation" to allow herself not to be specific.

The claim of collusion by the DA against her own subordinate is extraordinary.

It is usual for a prosecutor to discuss a pending case with a criminal defense attorney.

Prosecutors discuss potential plea bargains with criminal defense attorneys all the time.

In fact, the absolute majority of criminal cases are decided through plea bargains.

So, why did DA Rain allege "collusion" between her own subordinate and a criminal defense attorney?

Attorney Narrow upset DA Rain by complaining to the disciplinary authorities that DA Rain allowed one of her Assistant District Attorneys, Jonathan S. Jirik, to practice law without a license by prosecuting cases before being admitted to the bar.

Jonathan Jirik is not admitted to the bar to this day, I checked today.

DA Rain also reportedly made a false statement that she forewarned a local judge, Judge Richards, that DA Rain is considering an indictment of Attorney Edward Narrow at a court conference, while Judge Richards stated that DA Rain never made such a disclosure at that conference.

So, DA Rain added lying about court proceedings and about disclosures made to the court, yet another ethical violation.

The DA's office asked to disqualify themselves because of a complaint filed by attorney Narrow pertaining to the murder case making the DA's office and the defense witnesses against each other.

The DA's affidavit cited to the case Berger v United States, a 1935 U.S. Supreme Court case that indicates the dual role of a prosecutor to (1) prosecute crimes vigorously, but at the same time (2) to be fair to the accused.

It is apparent that, when a defense attorney filed a complaint against the prosecutor during the pendency of a criminal case and when the prosecutor is retaliating against the attorney by preparing felony charges against him, the prosecutor cannot be fair to the attorney, and to his clients by extension.

It is also apparent that the DA's office is abusing its power to prosecute a defense attorney who dared to file a disciplinary complaint against the DA's office by investigating the complainant and planning to file a felony indictment against him.

In New York, conviction for a felony automatically disbars the convicted attorney.

So, the DA's office definitely does not play fair with Attorney Narrow where it took Attorney Narrow's (complainant against the DA's office) discipline into their own hands and abusing their power to obtain his disbarment.

Under the circumstances where the DA's office is subject of a disciplinary complaint of Attorney Narrow, the DA's office should seek a special investigator and a special prosecutor not so much or not only in cases where Mr. Narrow appears as a defense counsel, but to investigate and hold grand jury proceedings against Mr. Narrow as a suspect and defendant.

Yet, the DA's office is not seeking such a special investigator and prosecutor, instead, trying to pretend they are following ethical rules while, in fact, they are grossly violating those rules and seeking to disbar Mr. Narrow in retaliation for filing a complaint against the St. Lawrence County District Attorney and her staff.

Criminal defendants have their right to counsel of their choice, so, if attorney Edward Narrow or his office are hired in 59 pending criminal cases, the court must work around those defendants' constitutional right to counsel of their choice and effective representation of counsel.

I am wondering why Edward Narrow himself is not making motions to disqualify the DA's office on his clients' behalf - it is clear that the DA's office is so disgruntled as to Edward Narrow that it cannot be fair to his clients, and the DA's office recognizes it implicitly and explicitly, by making its own motion to disqualify themselves.

It appears that the judge was "playing safe", but here, "playing safe" can cost New York taxpayers, instead of appointment of one special prosecutor, to handle 59 criminal appeals throughout all appellate courts - not a good idea entirely.

Yet, after St. Lawrence County Surrogate Court Judge John F. Richey denied the DA's office its motion to self-disqualify from all cases of attorney Edward F. Narrow, Judge Richey reportedly appointed a special prosecutor to investigate and, if necessary, prosecute attorney Edward F. Narrow.

Guess who Judge Richey appointed to investigate and, if necessary, prosecute attorney Edward F. Narrow?

An attorney who was the defense attorney on the same murder case that is the subject of the investigation, Gary W. Miles, who can be called a witness in the case and who, based on his prior position as defense counsel in the same case as Mr. Narrow was, is in an extremely awkward position that may require him to use his knowledge acquired as a defense attorney to prosecute a crime.

Once again - of all available local counsel, to appoint as special prosecutor of one attorney, based on the attorney's alleged criminal conduct in a criminal case, the attorney's successor in representing the same client in the same case!

What was Judge John F.  Richey thinking when making such an appointment?

He "took the case out of the hands" of one conflicted prosecutor and put it into the hands of a prosecutor no less conflicted?

This extraordinary appointment of a very special prosecutor by Judge Richey prompted me to look into Judge Richey's own biography.

And, of course, Judge Richey is the ultimate insider of the court system, having worked as court attorney for two judges for 26 years before his unopposed election in 2015.

Judge Richey appears to have had no experience in criminal law before he was elected as a Surrogate's judge.

In his pre-election interview on YouTube judicial candidate John F. Richey stated that he is running for the Surrogate's Court because his "entire career was in the Surrogate's Court".

Judge Richey disclosed that in 1989, while working in Surrogate's Court of St. Lawrence County, he was hired as a part-time court attorney by the then-Surrogate Judge Rogers.

Judge Richey indicated that, while working for Surrogate Judge Rogers as her part-time court attorney, Judge Richey continued to maintain his private practice.

After 2 years of working as a part-time court attorney for Surrogate Judge Rogers, Judge Richey added a position as a part-time court attorney for a multi-bench judge Maine in Franklin County and left private practice entirely - in 1991.

In 1992 John F. Richey, according to his court biography (see above) also was elected as a village justice of the Village of Massena, where he "served" as a judge until 2002.

In 1995 John F. Richey's position as a court attorney for Judge Rogers became full-time, and Judge Rogers became an Acting Supreme Court justice.

John F. Richey was the court attorney for Judge Rogers from 1995 up to the time he was elected.

So, from 1992 to 2002 John F. Richey was a justice in a village within St. Lawrence County, and at the very same time, was a court attorney for a judge who carried out appellate functions in the same St. Lawrence County, so Judge Richey's decisions as a village justice were appealable to Judge Richey's employer, Judge Rogers, as assigned judge in County Court cases.

So, Judge Richey knows A LOT about conflicts of interest - he LIVED a conflict of interest, and financially benefited by such conflicts, it appears, for years.

John F. Richey claimed he wanted to be the judge because "he's been there for 26 years".

Apparently, John F. Richey cannot claim inexperience in criminal cases, after having been a court attorney for a multi-bench judge, and after being a court attorney for an Acting Supreme Court justice who must have been handling criminal cases - same as Judge Richey is doing now.

Therefore, appointing a special prosecutor with a conflict instead of a prosecutor with a conflict to investigate and prosecute attorney Narrow was clearly inexcusable.

I also did not see Judge Richey appointing a special prosecutor to investigate DA Mary E. Rain for targeting people she dislikes with criminal proceedings, lying about court proceedings and facilitating unauthorized practice of law.

Possibly because DA Rain works in collaboration with Onondaga County DA William Fitzpatrick, a corrupt yet powerful prosecutor and a law school buddy of the Chief Administrative Judge of the 5th Judicial District James Tormey.

And, a careful courtier such as Judge Richey knows how to please people in power to advance his career, as his career amply demonstrates.

So, is DA Rain unsinkable because of her connection to Judge Tormey's law school buddy now matter level of misconduct she is engaged in as a prosecutor? 

Future will show.

I will continue to cover the story about attorney Edward Narrow and abuse of power in St. Lawrence District Attorney's office.

Stay tuned.





















Stay tuned.