Appellate Division 3rd Department Attorney Grievance Committee claims that fraud upon the court is not attorney misconduct - for those attorneys who work for the government

In 2011, Appellate Division, 3rd Judicial Department, on application of its Attorney Grievance Committee, disbarred an attorney.

The disbarment was based upon the Petition that stated as its basis to request disbarment, among other things, the contents of the attorney's disciplinary file, which the Attorney Grievance Committee did not make part of the record.

The attorney made several applications for access to contents of the record based on which he was disbarred.

The Attorney Grievance Committee refused to provide such records.

So, the attorney sued.

During litigation, the Attorney Grievance Committee's (AGC's) counsel, Assistant New York State Attorney General Bruce Boivin, told me (I represented the Plaintiff) that the ACG does not have the file I am trying to get.

Well, if they do not have the file, the order of disbarment must be voided, since it was based on claims under oath, of the Committee, made upon existence of the file.

Federal U.S. District Judge (Senior Status) Lawrence E. Kahn whose own law license and livelihood is in the hands of defendant ACG who appeared in front of him (because without that license he cannot be a judge)

dismissed the case stating that:

• an attorney does not have a constitutional right of access to his own disciplinary file upon which he was denied his law license and livelihood, that
• the order of disbarment is final (even if fraudulent - which he did not mention) and, thus, the U.S. District Court lacks jurisdiction, under the judicially created Rooker-Feldman doctrine, to review the case, and
• ACG, and its now former attorney Steven Zayas, is absolutely immune from lawsuit for denying access to the file.

Right after the dismissal, while the appeal was pending, Monica Duffy was made by the then-Chief Judge of New York Court System Jonathan Lippman a member of the State Commission for Attorney Discipline.

As a member of the Commission, Monica Duffy authorized three public hearings to be held by the Commission, and made impassioned personal statements in one of the hearings that there is NO selective non-prosecution of prosecutors and that all attorneys, notwithstanding their "area of practice" are equally prosecuted by the ACG:

 Of course, when making those impassioned statements, Duffy knew she was lying, and did it with audacity, in full knowledge that, in the absence of mechanisms in the ACG to investigate and prosecute their own attorneys for misconduct, nobody will ever discipline her for that lie.

After all, she engaged in professional misconduct in several disciplinary cases I know of, to the point of fraud upon the court, and stalled complaints against herself.  Moreover, when given a chance as a member of the Commission on attorney discipline to put in a mechanism of disqualification of ACG members and attorneys for conflict of interest, she did not do that - protecting herself from discipline.

Duffy's Commission also issued a report recommending to allow appeals of dismissals by ACG, and, based on the report, new rules of attorney discipline were issued by the New York State 4 Appellate Departments, now "allowing" a very limited appeal of dismissals of complaints against attorneys.

At that point, I criticized the measure as not a measure at all, because of the absolute discretion not to investigate, which will be used by ACG to continue to do what it is doing - whitewashing government-employed attorneys and attorneys with connections to the rich and powerful, and using attorney discipline as a tool to target and strip of ability to earn a living critics of the government, especially civil rights attorneys and critics of the judiciary.

And, back in Neroni v Zayas, since 2013, I was arguing that the lack of indication on ACG's "form letters" refusing to investigate or prosecute an attorney of any archive numbers or any identification numbers indicates that ACG, coupled with ACG refusal to give access to their archives after claiming to the court, and obtaining orders of discipline based on their "records" - which obviously do not exist - indicates that ACG shreds all complaints against attorneys ACG is supposed to protect and pursues claims only against attorneys ACG is supposed to target.

When complaints against "protected" attorneys are shredded, ACG thus destroys, for the future, the opportunity to do what it does to "unprotected" attorneys - claiming that it had complaints against such attorneys in the past.

As a comparison, New York State Commission for Judicial Conduct, which also operates as a shredder of complaints against judges, at least assigns numbers to its form letters refusing to investigate a complaint, thus allowing to, at least for Commission's own purposes, track how many complaints were lodged against a particular judge.

Here is proof that Monica Duffy, when preparing the "report" for "new fair and effective rules" of attorney discipline, was mocking the public and wasting taxpayer money while never intending to change her corrupt ways.

I filed with Duffy's committee a complaint against attorney Jonathan S. Follender when Follender, as a private attorney, serving his greed, filed a fraudulent judgment, with interest, which was not authorized by a court - a clear fraud upon the court.

I also filed a complaint against Follender with the New York Judicial Conduct Commission (because Follender is also a part-time town justice) and with criminal authorities, asking to prosecute him for several crimes, including felonies.

The felony investigation still proceeds.

The proof that I provided to ACG is documentary and IRREFUTABLE.

It is IRREFUTABLE that Follender committed a crime of fraud upon the court.

The ACG does not have to wait until the criminal investigation is complete and until the criminal court pronounces its decision - violation of rules of professional conduct is complete on the face of the record.

So, what did ACG do?

Did it start a sua sponte disciplinary proceedings against Jonathan Follender?

Oh, no.

It did exactly what the public criticized it for in public hearings in 2015 - selective non-prosecution of Jonathan Follender  as a private attorney because he is also a judge.

Monica Duffy sent me a form letter claiming that, as a matter of discretion (her own choice) she refuses to even INVESTIGATE my complaint.

She also used very interesting - and diametrically opposite - statements:

1. Duffy relied on the new rules that Duffy helped create, 22 NYCRR 1240, specifically on 22 NYCRR 1240.7(d)(1)(I), which allows, according to Duffy, to "decline to investigate".  Declining to investigate is declining to review or analyze.

Yet, in the next phrase, Duffy states that there was a review on the merits:

2. "After a careful review, it was determined that your complaint does not involve behavior constituting professional misconduct".

So, according to Duffy, when an attorney, for purposes of personal financial benefit, files with the court a fraudulent judgement for over $10,000 not authorized by court, that behavior does not constitute professional misconduct.

In other words, fraud upon the court does not constitute, to Duffy and ACG, professional misconduct. 

Which is diametrically opposite to what Duffy's Committee stated to the court in pursuing sua sponte proceedings against my husband, for actions that did not constitute fraud upon the court, because the agreement in the judgment of divorce that he supposedly violated was not in writing, as was required by the Statute of Frauds, and was unenforceable, and because there is no cause of action in New York for interfering with prospective rights of inheritance of third parties - not that the law mattered in any way for the committee that had an order to take my husband's license no matter what the law said.

Here is some more evidence of the conceptual mess that reigns in Duffy's head:

1) fraud upon the court IS attorney misconduct - for purposes of bringing a sua sponte disciplinary proceedings against my husband, who filed a complaint against Robert Harlem (a retired judge) and Richard Harlem to the same ACG, and ACG's member John Casey made a choice - to accept subjects of Robert Harlem and Richard Harlem as his law firms' paying clients in litigation against my husband, and to prosecute and take the license of my husband, a complainant against Case's clients and an opponent suing them - for fraud upon the court;  John Casey's law firms (two, in succession) have been the Harlems' private attorneys for 6 years so far;

2) to claim that an attorney is liable for fraud upon the court for making fraudulent claims in litigation is punishable by frivolous conduct sanctions and loss of a law license - that is what Duffy claimed in a motion for a summary judgment in my disciplinary proceedings, including an order of sanctions imposed upon me by corrupt Judge Tormey whom Follender requested to sanction me for suing Follender because I sued Tormey in federal court (a lot of logic involved) - and Tormey obliged.

Tormey also ruled that Follender, a private attorney in the action, has ABSOLUTE JUDICIAL IMMUNITY for any untrue statements he made to the court - thus voiding Judiciary Law 487 by creating a jurisdictional bar for civil actions to prosecute private attorneys for fraud upon the court.

3) When I immediately moved in my husband's proceedings to dismiss for lack of jurisdiction because now the same court (a different judge) claimed that fraud upon the court is non-prosecutable, barred by absolute JUDICIAL immunity - I was laughed at by Judge Dowd, who claimed I should have realized that what Judge Tormey said by granting Follender absolute judicial immunity against Judiciary Law 487 was "mere dicta".

4) When I sued ACG's attorney Steven Zayas for fraud upon the court - claiming that I neglected two clients in 2008 when I was not an attorney and could not have any clients as an attorney - the case was dismissed based on "absolute quasi-judicial immunity", claiming that Judiciary Law 487 is inapplicable to government attorneys.

5) When I sued on behalf of my husband in federal court challenging constitutionality of Judiciary Law 487 that absolves from accountability under that law a large group of attorneys working for the government, the same Duffy asked to dismiss the action, and it was dismissed, "for failure to state a claim" - by the same Judge Kahn, whose own law license and livelihood was in the hands of 3rd Department's ACG.

6) Now, Duffy claims that she does not see fraud upon the court in anything that Follender did, even though what Follender did is a fraud upon the court - irrefutably so, based on the documents I provided: a court order saying that a money judgment must be entered for $1,756, and Follender making it a judgment of over $10,000 with 9% interest - as she did not see any fraud in her own fraud upon the court in my disciplinary case where she refusd to investigate and prosecute HERSELF.

7) Back in 2009, the New York State Court of Appeals voided the civil part of Judiciary Law 487 by allowing damages to be obtained for "attempted fraud", based on reasoning that equated Judiciary Law 487 (its civil part) with criminal statutes, both in New York, and in England going back 700 years.  Since there is no such thing as "attempted tort", only "attempted crime", New York State Court of Appeals effectively eliminated the civil portion of Judiciary Law 487 since 2009 - yet, it continues to be applied to those who the government chooses to deprive of livelihood, like critics of government, and especially judicial and prosecutorial, misconduct.

It is interesting to mention that, while declining to investigate Follender, Duffy misrepresents the very same rules that she helped create.

First of all, Duffy has no "discretion" to decline to investigate despite 22 NYCRR 1240(d)(1)(I) she relied upon - because she herself is disqualified from review of my complaints.

Duffy, who engaged in fraud upon the court in my husband's disciplinary case and in my case, who claimed to the court that she is relying on contents of her "file" but is refusing to reveal the contents of her "file", while her attorney Bruce Boivin claims that there is no "file", and who is, at this time, the subject of an unresolved complaint by me against herself - cannot, as a matter of due process of law, review and deny investigation to me, she must seek assignment of a special prosecutor for both my complaint against her, and my complaint against Follender.

Duffy disqualified herself from review of all complaints made by me and my husband in June of 2014 as being unable to be unbiased towards us, as subject of disciplinary proceedings, or as complainants, and the only reason why I filed my complaint against Follender with ACG3 was because it was the right venue - ACG4 previously refused to review a complaint against an attorney from my husband claimed it first needed to be filed with ACG3.

Of course, she will now be claiming, if I raise this issue, that I do not have a right to appellate review of dismissals of my complaint against an attorney, based on the decision of another judge of the U.S. District Court for the Northern District of New York, Judge Mae D'Agostino, who made a decision in favor of New York judiciary while failing to disclose that at the time of presiding over the case she was member of and Chairperson of, a secret-membership organization where state judges, defendants in the action, were members of a group that she was Chairperson of, and were making decisions about cases with D'Agostino ex parte, behind closed doors.

The federal court system now fights my FOIA request for lists of members of D'Agostino's secret organization, by the way.

Anyway, here is what D'Agostino ruled about people's right to appeal dismissals of their meritorious complaints about misconduct of judges (or attorneys):

So, D'Agostino relied on the 2nd Circuit (while both courts are part of the case-fixing ring of state and federal judges, and are currently fighting to block my FOIA request to reveal lists of members of that criminal ring, called the New York State-Federal Judicial Council) in claiming that a victim of judicial misconduct, a public citizen, a member of a popular sovereign (We the People) lacks "a judicially cognizable interest in the prosecution or nonprosecution of another".

That was from the ruling made in 2013.

But, didn't it all change in 2015 when Duffy's Commission introduced a new rule - that a victim of attorney misconduct CAN now appeal the dismissal, and thus now DOES have "a judicially cognizable interest in the prosecution or nonprosecution of another"?

That was the illusion that the "new rules" of attorney discipline were supposed to create.

The rules provide for a right to appeal dismissal or non-investigation of complaints against attorneys - in response to a public outcry in public hearings in 2015 that attorney disciplinary committees are whitewashing and refusing to investigate and prosecute misconduct of government-employed attorneys.

Here is the portion of the new rules of attorney discipline on the subject of the right to appeal non-investigation or dismissal of complaints against attorneys:

The subsection (3) above is the one that Duffy relied upon at the end of her write-off letter:

In her write-off letter, Duffy claimed that my written request for review (appeal) "must be based on information and/or argument not previously presented to the Committee".

22 NYCRR 1240.7(e)(3) does not have such a restricting requirement - Duffy invented it after the fact, legislating post-factum while at the same time acting as an investigator, prosecutor and adjudicator in the matter - a conflation of all possible roles in violation of the separation of powers principle.

And, the "review" (appeal) ends within the Committee - the investigator, prosecutor, legislator and adjudicator - the Committee that is immune for anything wrong it may be doing.

No further appeal is allowed - and, if you sue, you will bump back into what D'Agostino and the 2nd Circuit (after discussions through New York State-Federal Judicial Council, in cahoots with state judges and their secret "advisors" that they refuse to disclose) said: you have no "judicially cognizable" right to appeal the dismissal or declining to investigate.

What conclusion can we all, as citizens, draw from all of this mess?

1) There should not be situations where the authority to:

• legislate;
• investigate;
• prosecute and/or
• adjudicate - in all and any combinations of those 4 functions - be vested into the same governmental body, and especially into the body where members of the Committee are "unpaid volunteers", whose own business and livelihood depends on approval or disapproval by the judiciary

In other words - members of the Committee have a conflict of interest in whether to investigate or prosecute a private attorney (Follender) who is also a judge.  A panel of people who have nothing to do with the legal profession or the judiciary should, separately, investigate or make the decision whether to prosecute or not prosecute.

2) The so-called "prosecutorial discretion" as to whether to bring or not to bring charges where the complaint is clearly meritorious, should be eliminated - if somebody violated the law, no matter what kind of law, that person MUST be prosecuted.

Because prosecutorial discretion has long become the equivalent of prosecutorial corruption.

Had my husband, or I, been a part-time justice, Duffy would never have prosecuted us.

Yet, since we were not, and, instead, we complained about judges, our law licenses were taken, and all public officials involved play run-around as to applicability of fraud upon the court, Judiciary Law 487, to us, mere mortals, and to the sky-dwellers, attorneys connected with the government.

So that attorneys who commit fraud upon the court invariably come out without any accountability, and even win against whistleblowers, in our case - even having their cronies take the whistleblowers' law licenses in exchange (as it happened with Harlems) for bribery of the prosecutor, John Casey, by hiring him and paying his law firms tens of thousands of dollars in legal fees at the time he was supposed to prosecute the Harlems.

I did not exhaust all the arsenal of legal remedies against Follender though, and the case of his disciplinary proceedings is not yet closed.

I still have a 6-year statute of limitations to sue him for fraud upon the court, and to turn him back in after a jury verdict of fraud upon him - which I am confident I can obtain from a civil jury.

And, the criminal state case against Follender is still out.

But, that's my personal case.

Hundreds of people file criminal and disciplinary complaints in New York and around the country against well-connected attorneys, judges and other public officials.

Most of the complaints are routinely nixed as a matter of "prosecutorial discretion", and the public is denied an elementary right to appeal that conduct.

My suggestion to the public is to:

1. demand from their legal representatives in the legislatures passing of a legislature that 
1. would abolish the so-called "prosecutorial discretion",
2. would put the matter of decisions whether to bring or not to bring charges outside of the "self-regulating" legal profession and judiciary, into the hands of lay and neutral public panels, with members of the panels having no connection to the legal profession or judges; and
3. would vest the complainants with a state right to appeal dismissals.

Actually, New Yorkers can demand putting these issues, as well as the repeal of prosecutorial and judicial immunity and governmental immunities of any kind, up for vote in the 2017 constitutional referendum, to amend the New York State Constitutional.

This is NOT about me only - this is about the public who tried, without any positive result, back in 2015, to assert in public hearings that there is no proper right to appeal improper dismissals of meritorious complaints against the government.

For us, "mere mortals", the "protections" created by "disciplinary" or "ethics" commissions by the government are just pulling wool over our eyes - an illusion.

It shouldn't be an illusion.

We the People can expect true accountability for misconduct - of government attorneys, prosecutors and judges.

Government officials must be held accountable for any wrongdoing in office, and whether to prosecute or not prosecute them should not be within the hands of individuals who have financial interests in the way they use their "discretion".

Whether to be or not to be ethical, should not be a matter of Duffy's, or anybody else's, corrupt discretion.

Kudoz to Kansas #JudgeEvelynWilson for her bravery. A judge accused of "slandering veterans" for stating the obvious - that the military teaches soldiers how to kill people

Sometimes, the show-off respect to the veterans of the military in this country borders on the bizarre.

We still have homeless veterans - showing that the country DOES NOT respect its veterans appropriately.

We still have teens arranging, and "hundreds" attending indigent veterans' funerals, with press reports about it, while there are no press reports of the same teens and the same "hundreds" helping those veterans not to be alone, and not to die alone while they were still alive.

But, the veteran status is often used to advance political gains, protect people in power from accountability, or raise "politically correct" issues of the day.

For example, it is likely the respect to the veteran PA Judge Ronald Castille (former Philadelphia DA) that prevented him, despite his raging misconduct and "flagrant conflict of interest", from being taken off the bench and disbarred for his "role" in Williams v Pennsylvania, for

• having his office obtain a murder conviction, of a black man, Terrance Williams, for killing the perpetrator of sexual abuse upon him when he was a child, based on fraudulent testimony and based on hiding the Brady material from the defense;
• seeking and obtaining his death sentence,
• being elected based on the claims of "being tough on crime" and using that death sentence as a statistic that elected him to the bench, and then
• repeatedly - for 4 times, without a recusal, denying the man habeas corpus petitions, and in the last denial, lashing out at his defenders for doing their jobs.

A Florida judge recently "agreed" to a reprimand only for his role in advocating for a dangerous and violent criminal, only because he was also a military veteran, just like the judge was.

Yet, in Kansas, an appellate court, while affirming the sentence imposed by a judge, recently blasted a sentencing judge for stating the obvious, when revoking probation and imposing a 68-month (5 years 8 months') sentence against a person where:

The judge considered, in the context of the threat to kill somebody, that the defendant was, in fact, very capable of killing that person because he was professionally trained by the military to kill - which was the truth:

So, that was a military veteran who was given the leniency of probation instead of prison sentence, and who blew it by violating conditions of probation, and engaged in dangerous conduct.

And, somehow the judge was criticized - by an appellate court no less for "unnecessarily slanderous" comment that the court attributed to all those who served in the military.

Yet, what exactly was slanderous?

That our military personnel is not taught how to kill?

What then does the training of our military personnel include?  Crocheting?

In combat, it is "kill or be killed", and soldiers are taught how to survive - yes, by killing people and by defending their country.

But, when they come home, and engage in civilian professions, there is no denying that their skills of how to kill people remain with them.

And, thus, if a military veteran, a person professionally trained to kill in order to defend his country, is trying to use those skills against the public - like this particular military veteran did:

- his military training MUST be considered an aggravating factor, whatever the politically correct crowd says.

Imagine yourself in the place of defendant's victims: his ex-wife and her "family members".

Imagine that your ex-husband, a military veteran who - yes, was trained to kill, and knows how to kill using various weapons - threatened to kill you and your family, and was arrested with a machete in his car, in violation of his conditions of probation.

He did not know of conditions of probation?

He did not know the law does not allow him to threaten to kill people?

He did not know he is not allowed to have weapons in his car?

Of course he did know - otherwise he would have been held in competent to stand trial.

How else should the judge have considered defendant's military experience? 

A machete is a dangerous weapon in anybody's hands, and especially so in the hands of a trained soldier - yes, who was trained to kill, not to crochet with it.

What IS slanderous is assuming that all military veterans will turn their skills of how to kill people against their fellow citizens in civilian life and against their family, or former family members, as it happened here.

Because, condemning a judge for considering the "trained to kill" factor against the military veteran who DID break the law as a slander against ALL military veterans, implies that all military veterans also commit crimes.  And that is what is truly slanderous.

Let's give veterans their respect where it belongs.

Let's help them get treatment when they need it.

Let's make it so that there are no homeless veterans in this country.

But, let's not allow the veteran status to escape accountability for breaking the law.

Kudoz to Shawnee County District Court Chief Judge Evelyn Wilson for her bravery and her independence in proper application of the law.

Andrew Cuomo's New Year's Eve veto on the criminal defense act and the need for deregulation of the legal profession

On New Year's Eve, New York State Governor Andrew Cuomo has dealt a blow to a bipartisan bill seeking to ensure constitutionally required effective assistance of counsel for criminal defendants and removal of funding for such criminal defense from counties to the state, see, for example, an article about the New York State House passing the bill.

Here is how the bill was passing through New York State Senate, to see the full text of the bill, check the box "text" when you follow the link

The bipartisan bill was introduced, and passed through both chambers of the New York State Legislature, in response to a settlement in a class action against several upstate counties that could not provide counsel to indigent criminal defendants at arraignments.

Instead, a month ago Cuomo signed into law another bill providing for a "group counsel" at arraignments - who will perfunctorily appear at arraignments of all criminal defendants horded into one court and will trigger for them the time for discovery and motions, while providing no meaningful assistance, since the measure did not provide additional funding and would not relieve the overload.

It is apparent that Cuomo's signing one bill, but vetoing the other, was based on at least two major considerations:

• money; and
• power.

The vetoed bill would have required to shift at least a part, if not all, funding of indigent criminal defense in the state from counties that have to raise property taxes and foreclose on homes of people who cannot pay them in order to satisfy the mandate to fund criminal defense.

Apparently, Cuomo did not want the State of New York to fund criminal defense out of its own budget, and preferred to continue to saddle counties - and through counties, homeowners - with the criminal defense funding, even though, as the settled class lawsuit showed, and as numbers of New Yorkers running from the state lately (because of high property taxes) keep showing, funding criminal defense through taxes upon homeowners is a bad idea:

• both for homeowners who cannot afford it and prefer to leave the state rather than remain and lose their homes through inordinately high taxes, and
• for criminal defendants who 
• do not get properly funded criminal defense, and
• who continue to get assigned counsel who are dependent upon the presiding judge for handouts of future assignments, and, because most judges are pro-prosecution and consider discovery, motions and pre-trial hearings that assigned counsel may ask for an unnecessary nuisance, assigned counsel who would pester a judge with motions and requests for pre-trial hearings, most likely will not get further assignments - it happens all the time in New York.

So, money and power.

Yet, the solution is quite on the surface - it is already contained in the U.S. Supreme Court decision Johnson v Avery of some 48 years ago, and was developed and pointed out by professor Ilya Somin last year - it is:

• allowing representation by an unlicensed counsel of the criminal defendants' choice, and
• creating an independent State Public Defenders' office with its separate budget - same as prosecutor's offices with a budget, and/or
• voucherizing assigned criminal defense - giving the criminal defendant a voucher to choose his/her own criminal defense representative (licensed or unlicensed), for the exact same amount of money per hour, irrespective of education, training, licensing or certification.

This way, assigning counsel to indigent criminal defendants will be removed from the power of presiding judges, will stop being the "stick-and-carrot" of the local criminal defense bar, and will allow indigent defendants to have court representatives of their choice, those who truly work for their clients, and not those who are favored by a certain judge for reasons unrelated to their performance.

Yet, many judges consider choosing attorneys for the poor, and thus holding the local bar on a financial leash, as their own important personal perk - I've heard that many times from the recently retired Judge Becker who yelled at my clients that they will either have the judge choose their assigned counsel for them, or, if they choose me as counsel retained with their friends or extended family's money, the judge will not allow them money for experts and investigators, even though they do qualify for it under the law.

Lawsuits against judges based on such "selective assignment" process universally get dismissed by federal courts on "absolute judicial immunity" grounds protecting the judge from liability for malicious and even corrupt acts in the assignment process - where assignments may be granted out for election campaign contributions or behind-the-scenes agreement with the judge (who is usually a former prosecutor) that the assigned counsel will not raise too much waves in defense of his/her client and will allow the prosecution the boon of at least some conviction, whether it was warranted by the law and the facts of the case or not.

Such assigned counsel usually:

• routinely do not ask for a felony hearing within 144 hours of detention of their indigent client, thus:
• depriving their indigent clients of an opportunity to be released from jail for free, without bail;
• depriving their indigent clients of an opportunity to get information in felony cases at the earliest stages of the case, when the prosecution did not yet have time to coach their witnesses as to how to lie under oath;
• routinely do not ask for discovery; and
• routinely do not make motions, especially motion to disqualify the prosecutor or the judge for misconduct or bias, or to dismiss, or for any other numerous reasons that an omnibus motion in a criminal case may be brought;
• routinely do not make necessary objections at trial, making appeals impossible.

When an indigent criminal defendant is then convicted as a result of neglect or a complete sellout by the assigned counsel who was concerned more about his/her own future assignments from the same judge and from other judges, than doing their duty for their client, New York state law then protects the assigned defense attorneys, and not their clients/victims - by not allowing their clients to sue them for malpractice unless they overturn the conviction (a near impossibility), the very conviction that would not have happened but for the assigned counsel neglect or sellout.

And, appellate court are extremely liberal in deciding what conduct of a criminal defense attorney constitutes, or does not constitute constitutionally acceptable representation, in order not only to have the conviction stand, but also to protect the assigned counsel favored by the judge from liability.

As a contrast, an attorney in a civil case in New York can be sued for malpractice without a prior condition that the court decision that was the result of the attorney's malpractice be first overturned. 

Putting a member of the County's establishment who, most likely, will consider the wishes of judges anyway in order to assign counsel - like the Onondaga County did a little earlier than Cuomo vetoed the bill - will not provide to indigent defendants either a court representative of their choice, or a skilled or independent court representative, for a simple reason.

The person "chosen" to head the "program" of assignment has been entrenched in the county for 17 years, Kathleen Dougherty, represented the County as its deputy attorney, and was thus part of the problem with providing counsel for indigent criminal defendants which resulted in a class lawsuit, and was part of the problem with selectively racist solitary confinement of juvenile delinquents in the County that is now challenged by a new class lawsuit by NYCLU.

Putting the fox in charge of the chicken coup is never a good idea.

Cuomo is a personal friend of New York Chief Judge Janet DiFiore, a recent prosecutor whose office is so entangled with the local judicially that her Assistant District Attorneys handled plea allocutions and recited waivers of constitutional rights instead of the judge - despite challenges of such practices in motions (I personally filed such a motion on behalf of a client, seeking to disqualify DiFiore's office because of that, and other misconduct).

DiFiore's office was also in cohouts with assigned counsel (I have proof) in order to sell out the client and have the client plead guilty to bogus charges - and do it quickly, before an independent counsel would come in.

DiFiore, as a prosecutor, is aware of the usual incestous relationships of the District Attorneys with presiding judges, who usually assign, following DA's lead, direct requests or "good relationships" with the judge, attorneys who would not put up a fight on behalf of their clients, or who would simply sell them out - thus helping prosecution.

Of course, giving indigent criminal defendants vouchers to choose their own counsel will eliminate the sinecures where assigned counsel are assigned, at $75 an hour, for contributions to the judicial election campaign, or for wining and dining the judge, or for giving jobs or recommendations to judge's relatives or friends, or to those attorneys who will silently agree with the implied requirement to do nothing for their client and multiply convictions, so that the DA himself will become a judge, running on the usual platform of "being tough on crime".

Instead, those who truly do their job for their clients - whether they do or do not have the necessary approval from the judiciary through either licensing or assignments - will be able to provide representation in court, whether the presiding judge, or the state judiciary, or the connected attorneys in the attorney disciplinary committees appointed by the judiciary, like these court representatives or not.

Voucherization of the criminal defense, coupled with allowing unlicensed individuals to provide representation in court, will eliminate a lot of corruption in courts - and especially because unlicensed individuals may not lose a license, and thus be sanctioned for raising the "sensitive" issues on behalf of their clients (such as police, prosecutorial and/or judicial misconduct) that the fear-seized defense bar at this time will not raise, for self-preservation reasons, for fear to lose their licenses and livelihoods, completely controlled by the judiciary.

It is apparent that Cuomo's veto is:

• anti-fairness;
• anti-requirement of constitutional effective assistance of counsel;
• anti-settlement decision requiring New York to comply with the 6th Amendment right to counsel for indigent defendants;
• anti- Johnson v Avery, because, if the State of New York cannot properly fund indigent criminal defense, it cannot enforce its attorney regulation and prohibit representation of criminal defendants by unlicensed court representatives of their choice - and especially that people under New York law are PRESUMED to know the law; and
• anti-homeowners who are already losing their homes in tax foreclosures in order to fund financial mandates put upon counties, including the criminal defense funding mandate

but

pro-preservation of judicial control of the identity of court representatives for the criminal defendants.

It is apparent that the legal establishment, and Cuomo is part of it, will not cede its grip on putting indigents, and minority indigents, in jail by controlling who is allowed to represent the poor and how such representation will be funded.

I understand that there are budgetary concerns as to how the state will fund criminal defense for the indigents.

Yet, there were no budgetary concerns this year for dramatic raises in salaries for both judges and prosecutors, raises that were voted for by attorneys whose financial well-being is dependent on the judiciary, and who were thus disqualified by their partiality from legislating on the subject.

In the triangle of prosecutor-judge-defender - the defender is the only one whose office was not established and whose salaries were not tied to judicial salaries and were not raised.

Here is the official funding request/budget by New York State Courts for 2016-2017:

Nearly 2 billion dollars for the court system.

Nearly 80% of people unable to afford an attorney to represent them in those courts, and the Chief Judges of the State of New York repeatedly lament the justice gap and, as the former Chief Judge Jonathan Lippman said in one of his addresses to graduating law students where I was personally present, we should close our courthouses if we cannot provide proper access to justice to the poor.

Yet, courthouses, marble, granite and all, built by graft and evidence of shamelessness of the State judiciary, lavishing upon taxpayer money in the time of ongoing budgetary crisis and the "justice gap", are very much open.  To rich litigants.

And judges and prosecutors received their salary raises to sit like kings on thrones - and wields kingly power - out of those marble taxpayer-backed palaces - and do it with disdain to the poor.

And, salary increases, and renovations of marble palaces for the judiciary are happening while close friend of the Chief Judge Governor Cuomo nixes the bill that would have give the necessary funding to provide constitutionally required court representation for the poor in criminal court. 

Salary increases, by the way, were given to judges because judges claimed that they are entitled to raises of their salaries to $200,000 as a compensation for having to preside over cases of pro se litigants, in other words, of the poor (who are supposedly dumb and their dumbness affects the judges' tender sensibilities, requiring salary increases as a compensation for additional stress).  And, they get what they wanted.

Yet, only 25 million dollars out of the entire budget of over $2 billion dollars is requested in the New York State court budget for the indigent defense fund - while the State Legislature, through a the bill that passed both House and Senate, and died by veto at the hand of Cuomo, friend of New York Chief Judge DiFiore - indicated that $800,000 - instead of $25,000 provided in the court budget - is needed.

The remaining $775,000 will be paid by New York homeowners, some of whom will lose their homes if they are unable to pay.

Meanwhile, Governor Andrew Cuomo repeatedly finds money for pet projects of his various rich friends - the friends who Preet Bharara keeps investigating and catching, without touching Cuomo himself.

That money should be instead channeled for criminal defense.

If at least some of the funding burden is lifted off New York State's homeowners, maybe they will have an incentive to stay instead of leaving the state in droves.

As it is now, Cuomo's veto perpetuated New York's ongoing violations of indigent criminal defendants' 6th Amendment right to effective representation of counsel.  

It was done allegedly out of budgetary concerns - so the $800 million dollars that the indigent criminal defenses could, but did not receive from state budget, will be squeezed out of homeowners, to the point of foreclosure and sale of their homes and leaving them homeless.

Great measure and great motivation, Governor Cuomo.

Additionally to be thrown out of their homes because they cannot fund the County's mandate for indigent criminal defense, New York taxpayers will also have to pay now for more 6th Amendment violation lawsuits.  

And settlements in such lawsuits may amount to more than the needed funding for the voucher/State Public Defender office.

I bet, under such circumstances, the exodus from New York State will continue.

Public schools should not "teach for the test", but law schools should? The glorified brain-dump of the bar exam is further glorified by scared law professors

Let's review the logical chain of events:

1. Attorneys in the United States and in every state of the United States are licensed to protect consumers of legal services from bad providers of legal services;
2. Attorney regulation is, thus, help by the government to the consumers in pre-checking providers of legal services for their knowledge, skills and integrity;
3. An attorney's license is proof of their minimally acceptable knowledge, skills and integrity necessary to provide legal services for the public;
4. A license can only be given if the attorney passed the bar exam;
5. An attorney will only be allowed to sit for a bar exam if he graduated from an ABA-accredited law school;
6. since there is an overproduction of attorneys in the United States for paying jobs, and not enough paying clients, less capable law students want to pay for law school;
7. since less capable students want to pay for law schools, law schools lower their standards and accept anybody who can line up the money to pay for law school - without any care what kind of providers of legal services law schools will be producing;
8. as a result, since standards for admission were lowered by law schools, bar passage plummeted;
9. since bar passage plummeted - ABA started to pluck accreditation, and the government started to stop giving loans for tuition of law schools for which ABA plucked accreditation;
10. as a result of ABA's threat to pluck accreditation, and of the government to withdraw the lifeline of student loans upon which law schools, and law professors, exist, two law professors, both interested in preserving their livelihood, published an article where they claim that the main goal of law schools is now - gasp! - prepare law students for passing the bar exam.

Not to have knowledge and skills allowing them to properly represent clients - remember the main reason why attorneys are regulated, to provide assurance to the public of minimal qualifications of attorneys?

So, no, law schools do not have to produce attorneys who meet those minimal assurances - they only need to produce attorneys who can pass the bar, a pass-fail one-time brain-dump.

And, this article was published at the time when teachers across the United States are starting to rebel against "Teaching for the Test", claiming that such teaching gives students no real, well-grounded education, does not encourage or develop creative and critical thinking necessary to be a citizen in a democracy, and actually stifles critical thinking.

The bar exam does the same.

Yes, there is a lee-way in answering essays in a free-form, but you have to hit the existing grading points anyway.  You are not graded so much on performance, skills, attentiveness of research.  Law research is slow and time-consuming.

In a bar exam, you have to brain-dump a certain amount of points you were stuffed with during your bar-prep course to score a "pass", and forget about whatever you were stuffed with for the rest of your professional life.

Once you have a license, only criticism of the government or committing a bad crime can cause you to lose it, and even that crime will not be either charged or prosecuted vigorously if you have connections and/or work for the government.

So, law professors whose livelihood depend on law schools that overproduce attorneys that causes unemployment of attorneys that causes less people want to go to law school that causes law schools to grab anybody who can pay, including with loans, which causes low-quality candidates to apply and sit for the bar which causes law school graduates to flunk the bar which causes ABA to pull accreditation from law schools and the government to pull loans for tuition from law schools which causes unemployment among law professors - two law professors who are cause and effect of what is wrong in law education now offer how to fix it, for good.

And, their brain-fruit is: teach for the test!

It is as "refreshingly novel", as it is a mockery of why attorneys are even regulated - because, as a consumer of legal services, I would be disgusted to accept a survivor of a brain-dump as proof of knowledge and integrity, to the point justifying the government to jam that brain-dump survivor down my throat and prohibiting me, under the threat of criminal prosecution for aiding and abetting unauthorized practice of law, to choose a court representative who I trust, license or no license.

It is not teaching for the test that can relieve problems in the market of legal services and the "justice gap".

It is deregulation, removing from the government authority to force consumers to choose providers from a limited government-approved coral, removing from the ABA, a corporation with foreign capital, from deciding the issue of who is and who is not entitled to receive legal education, and less consumers of legal services, every single one of whom is presumed, as a matter of law, to know the law, the competent adults or guardians of incompetents, to decide what is good for them.

But deregulation can leave law professors, and attorneys whose only value for consumers is a pulse and a law license, without their bread-and-caviar.

So, back to test-training, law schools, train to the point of automatic answers without thinking, that's your main job now of those who will later serve as elite in all branches and all levels of our government.

The brain-dump survivors.

They are good for democracy.

1. 
   

A reversal in New York for failure to allow pro se representation

A felony conviction was reversed in New York by the 3rd Department because the defendant was denied the right to represent himself.

The 3rd Department made an interesting point in the case - that the extent of legal knowledge to represent himself for the defendant is irrelevant, what is relevant is only the defendant's capacity to waive his right to counsel.

Now the defendant, an inmate, will be retried, representing himself, likely with the same result - because now he will not only be competing against a legally trained professional prosecutor, but also will be building his defense in jail, with only paper - and often inadequate - law library to help him.

At least, the appellate court had the decency of supporting the defendant's claim that the court improperly denied him the negative inference charge to the jury about the missing evidence - the clothes that were washed and not submitted for discovery, eliminating the only physical evidence of defendant's crime, and making the People's case rely upon words of testimony only.

Let's see how the defendant will fair on retrial.

I will continue to monitor this case.

Stay tuned.

How Ontatio County (NY) DA Michael Tantillo, with the help of Judge Craig Doran, robbed a person of his reputation and of 2 years of his life so far - by trying to hoist upon him DA's son-in-law as a juror

In a rare voice of wisdom, on December 23, 2016, New York Appellate Division 4th Department reversed a 2014 conviction for sexual abuse in the 1st degree because:

• the trial court did not disqualify, for cause, a juror who was the son-in-law and father of the grandchild of the prosecutor; and because
• the court precluded testimony of a witness to whom the alleged victim made a statement that the defendant did not commit the crime - the Brady evidence.

The conviction was for sexual abuse in the 1st degree, a D felony, for which the defendant was sentenced for 6 years in prison, at the age of 34, and has already served 2 years out of 6 and, which makes the least sense, the defendant now continues to remain in prison despite the reversal on the law,

even though the reversal, and especially the reversal on these grounds, returns the defendant to the situation where he is presumed innocent and charged with a crime where there is a witness claiming that the alleged victim told the witness that the defendant did not commit the crime he is charged with.

Moreover, as of today, New York State Department of Correction continues to list, as legal, the sentence against Todd Collins, which now amounts to a tort of defamation - because the sentence was vacated along with the conviction, and I hope that Todd Collins sues the hell out of the State of New York for, first, continuing to hold him in the state prison despite the reversal, and, second, continuing to claim that he is there on a 6-year-sentence for a D felony sexual abuse in the 1st degree, to be released only in 2020, even though his conviction was reversed a week ago, and his sentence is null and void.

Moreover, Todd Collins was convicted and sentenced under PL 130.65(3) - sexual contact with a minor under 11 years old - so the defamation is of an extreme order, that Todd Collins is a pedophile, which, because of the reversal, is simply not true.

Here are the "heroes" of the case:

1) the Ontario County (NY) District Attorney R. Michael Tantillo who objected against a challenge for cause of his own son-in-law and father of his own grandson on the jury for sexual abuse of a child:

Note how vindictive the incarceration of Todd Collins was - he was even transported to the state prison system on 12/18/2014, a week before Christmas, which is a clearly punitive measure.

Here is the presiding Judge Craig J. Doran

a magna cum laude graduate of SUNY Albany, and a cum laude graduate of the Albany Law School where he was the editor of the Law Review, a political animal who has been first elected into the New York State Legislature in 1994 at the age of 29, and has been very active in many committees, Task Forces and activities - other than, apparently, the activity of brushing up on the law of disqualification.

Judge Doran has, according to his official biography, 3 children, and DA Tantillo has at least one grandson - whose father he wanted to hoist upon the defendant as a juror in a trial for sex abuse of a child.

I wonder whether these public official's parental (and grandparental) feelings got the better of them over considerations of knowledge, fair application of the law, and at least appearing for the public as being impartial.

The first of the two important issues that the 4th Department's reversal is based upon in this case is:

• that the defendant was forced by the court to take a relative of the DA, disqualified under CPL 270.20(1)(c).

CPL 270.20(1)(c) provides:

"A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (c) He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;  or that he is or was a party adverse to any such person in a civil action;  or that he has complained against or been accused by any such person in a criminal action;  or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict".

Consanguinity is a relationship by blood, affinity is a relationship by marriage. 

CPL 270.20(1)(c ) is, of course, unconstitutional as it is construed now by courts, as it discriminates against criminal defendants by not allowing them challenges for cause against jurors who are not in an official registered marriage, which is a very large percentage of New York families - but that challenge is not relevant there, because the reversal talks about a "son-in-law" of DA Tantillo, even though I would like the public to know of this problem with the statute.

CPL 270.20(1)(c ) does not have to be changed to be made constitutional though, the only things that needs to be done is to start interpreting "affinity" in a way adequately reflecting family dynamics in New York.

Any attorney working in custody or domestic violence cases in Family Court in New York knows that the majority of cases come from unmarried couples, and that, in my view, reflects not the fact that somehow unmarried couples split and divide children more, or engage in domestic violence more than married couples, but that the family dynamic in New York has changed, and the concept of "affinity", in interpretation of courts, now needs to reflect that.

The problem with jury selection now is that jury questionnaires may ask about "affinity" in the narrowest sense - based on marriage of jurors to individuals listed in CPL 270.20(1)(c ) - but not on a partnership, with or without children, but without a registered marriage - and this may obscure and conceal biases and prevent fair voir dire and jury selection.


Here is the chart of consanguinity degrees:

A child to a parent has the 1st degree of consanguinity.

That child's spouse has to be at least the 1st degree of affinity.

So, DA Tantillo's son-in-law had the 1st degree of affinity to DA Tantillo and was absolutely disqualified under CPL 270.20(1)(c ).

Yet, DA Tantillo opposed removal of his son-in-law from the jury for cause, knowing that his argument is against clear statutory law.

And, Judge Doran sided with DA Tantillo, knowing that both the judge's and the DA Tantillo's positions are against clear statutory law, leaving DA Tantillo's relative on the jury, and forcing the defendant to use one of his limited peremptory challenges to remove DA Tantillo's close relative (which defendant ran out of before the full jury was selected and impanelled).

The difference between challenges "for cause" and peremptory challenges in criminal jury selection in New York is that challenges for cause are unlimited, and peremptory (no cause) challenges are limited.

So, for a very large jury pool - jury pools have to be large in cases of alleged crimes involving children, as many people are prejudiced against the topic and will convict simply because a person is charged for such a thing - and with jury selection that may have many, many panels of jurors to weed through, Judge Doran and DA Tantillo robbed the defendant of 10% of chances (see CPL 270.25[2][c] allowing only 10 peremptory challenges in any felony cases below C felony, and Todd Collins was charged with a D felony) to strike down jurors without explaining to the obviously biased judge why he is doing it.

It is good that the 4th Department upheld the law and reversed the conviction.

It is bad that the 4th Department did not make a statement about prosecutorial and judicial bias and misconduct (the prosecutor, as a judge, is required to be unbiased in the case), to the point of trying to force the defendant into a Hobson's choice of either accepting the prosecutor's close relative on the jury (which was clearly against statutory law) or take him down by the use of 10% of the precious peremptory challenges - and running out of chances to disqualify one potential hold-out juror, which made a difference between a potential mistrial and a conviction.

Judge Doran's ruling in favor of illegal opposition of DA Tantillo was clearly biased in favor of prosecution - which was not an issue decided by the 4th Department, an appellate court that notoriously does not see issues of bias even if they are screaming in their faces.

The problem with not dealing with the issue of bias is that the 4th Department reversed and remanded the case to the same judge Doran and the same DA Tantillo who will now devise new tricks of how to screw the defendant in another way, in order to gain "tough of crime" and "child protector" badges, while illegally using a man as a stepping stone in their political careers.

It is interesting to mention that the court reversed and granted a new trial "on the first count of the indictment", thus implying that there were other counts upon which the defendant may have been still convicted.

But, Todd Collins' inmate information from the New York State Department of Corrections indicates that the conviction and sentencing for which he is incarcerated had only one count, so his entire conviction is reversed, and his sentencing, necessarily is made void - requiring his removal from state prison where he is serving that sentence, that became void as of December 23, 2016.

The second issue upon which the 4th Department reversed the conviction is that Judge Doran blocked testimony of a witness who wanted to testify that the alleged victim (the child under 11 years old) told the witness that the Todd Collins did not engage in sexual contact with the child.

As you understand, this D felony, with an extreme punishment of up to 7 years in prison (Collins got 6 out of 7), and a lifetime of being stripped of every plausible human right on release, as a registered sex offender and child molester, is provable by testimony only (he said - she said) in cases where "sexual contact" is simply touching - as in "he touched my child's breasts" - "but your child is 3 years old and he was picking her up by the armpits" (a real case, by the way), and blocking the testimony of a witness who claimed that the alleged victim told him that the defendant never committed the crime is of extreme importance and value in such criminal proceedings.

By the way, DA Tantillo had the audacity to oppose Todd Collins' the appeal where he had a clear personal interest.

And, Todd Collins now has to deal with the same biased DA and the same biased judge on re-trial.

I do not make claims whether Todd Collins "did it", or "did not do it".

I simply do not know.

But, his trial did not follow statutory law, he was robbed, by a biased and personally interested DA and by a biased judge of 2 years of his life already that he spent in state prison as a sex offender, with all indignities and dangers that sex offenders are exposed to in prisons, while now he is, first, not being released from prison despite he is presumed innocent, the State of New York stubbornly claims he is to remain incarcerated until 2020, even though his conviction has been voided a week ago, and - he is PRESUMED INNOCENT by law now.

Presumed innocent.

I wonder whether such a thing as the law remains important nowadays.

And I do not wonder whether Judge Doran or DA Tantillo will be held accountable for their egregious misconduct in this case.

They won't be.

They already weren't.

Most likely people will react to this case by stating that a pervert and a pedophile got off on a technicality - failing to see that it is not only about Todd Collins, but about all of people coming in touch with New York criminal justice and court system in general.

If judges and prosecutors, government officials, are allowed to violate the law and rob people of years of their lives without any accountability, they will keep doing it, again, and again, and again, and will continue to climb the career ladder.

Using you as stepping stones.

Unless you the people demand accountability.

Will you?