THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Thursday, May 18, 2017
Ken Paxton's pre-trial pro-prosecution change of venue: Part I - if we change venue lists for prosecution becuase of County officials donating to the defendant, should be change venues of all criminal cases where county officials donate to the District Attorney?
That an elected AG is being prosecuted for something he allegedly committed before he was elected is a very rare occurrence and clearly smacks of a political persecution.
That impression is even stronger from the way how the trial was handled - with a judge moving the venue, without consent of the defendant, to another county - and, just "coincidentally", after Ken Paxton took a stand in support of President Trump in his immigration executive orders.
As much as I dislike the stand of Ken Paxton on the death penalty and several other issues, Ken Paxton's brief regarding President Trump's immigration executive order was the correct expression of the law in an ocean of pro-Clinton's sponsored politics that the fight against President Trump's executive orders have become.
Paxton went to the appellate court to move the trial back to his own county and to remove the judge who granted the prosecution's "last minute" request to move the venue.
The media Paxton's claim to the appellate court that the venue was moved without his consent "unprecedented".
Well, first of all, what is so unprecedented to demand a right to trial by jury of his own peers?
Peers means cross-section of his own community, where he resides and works.
That's the law, isn't it?
The venue was moved because allegedly the defendant tainted the jury pool.
As proof, the prosecution used, among other things, an exhibit showing the list of donors of Paxton's AG election campaign in 2013 - which included a number of prominent Colin County officials (the county from which the venue was moved).
Now, since the judge relied on that exhibit in moving the venue, that is what I would call unprecedented.
In each criminal proceeding, the jury is picked (is supposed to be picked) from the cross-section of the community.
Of course, while the jury pool formation is supposed to be random, ask my husband who worked in Delaware County, NY, for 37 years as a criminal defense attorney, and ask me, a criminal defense attorney's wife who worked in his office as a legal assistant for years before working in that same county as a criminal defense attorney for nearly 7 years - how many times were we called for jury duty over all these years.
How about - NONE? None at all. Not in town court trials, not in village court (when it still existed) trials, not in county court trials, not in Supreme Court trials, not in federal court trials.
At the same time, our neighbors were called to jury duty regularly.
The same is happening, by the way, in South Carolina. Our neighbors and new friends here report being called to jury duty several times a year, while we are left out.
Which creates a big question - how jury pools are formed? Is the process random, or are people with defense attorney background deliberately excluded from jury pools, in order to help the prosecution ahead of time?
I do not see media coverage on this sticky issue at all.
But, supposedly, in Texas the jury pool formation is all according to the law, random and drawing from the cross-section of the community.
If that is true, what difference does it make for the jury who were donors of Ken Paxton's 2013 election campaign?
Isn't there voir dire (jury-picking process) for that?
Isn't there a tool of striking prospective jurors for cause if they are subordinates to Ken Paxton's donors?
And, will it not be completely different if it would be Ken Paxton who would be asking to move venue simply because the prosecutor was elected with support, including donor support, from the same County?
Because that's exactly the fact in many counties across the country, the County is usually a very large employer, and those employees have many relatives and friends, and yet no connection, even a close connection, to County officers, high-ranking employees, relatives or friends, will strike a prospective juror if he claims that he pledges to be impartial?
That process should work the same way for the prosecution.
It is interesting to see how Ken Paxton, a prosecutor himself, points out major issues with the judge catering for the prosecution in truly unprecedented ways - doing their job of picking the jury instead of them, while denying the defendant a trial by the jury of his own peers.
And, an elephant of a question arises that the media appears to conveniently ignore - if County officials were election donors for a party in litigation, and if the judge deems the list of County donors important enough to change venue, does the judge and the prosecution recognize by that move that jurors in a given County may ALWAYS be influenced, behind the scenes, by the high-ranking County officials influence a picked jury behind the scenes?
Now that is an interesting proposition.
Monday, May 15, 2017
Public comment on New York's proposed standing order of discovery in criminal cases - Part III. Composition of the Task Force that proposed the standing discovery order in criminal proceedings supposedly meant to prevent wrongful convictions
- appointments to the Task Force,
- work of the Task Force, and
- non-compliance by the Task Force with New York State Open Meetings Law requiring notice to the public and opportunity for the public to be heard on issues of public concern to be proposed or decided by public bodies.
Here are the list of members of the Task Force that proposed the "standing order of discovery" that is supposedly needed to prevent wrongful convictions, but in reality will serve the opposite purposes:
- to preserve the environment that creates such wrongful convictions,
- protect the actors who create such wrongful convictions and
- intimidate or eliminate those who criticize such environment and such actors
First of all, let's point out who is eloquently absent from the Task Force that is supposedly convened to prevent wrongful convictions:
- exonerees from wrongful convictions and members of their families;
- consumers of legal services;
- members of the public independent of the court system, criminal justice system, legal services industry, and not interested in preventing reversals of criminal convictions.
- independent defense attorneys;
- representatives of New York State Trial Lawyers Association, or of the New York State Defenders Association - even as "ex officio members";
- civil rights attorneys who addressed issues of wrongful convictions or sued for wrongful convictions;
- consumers of legal services (including of criminal defense attorneys);
- those who have suffered from wrongful convictions and members of their families who also suffered;
- members of the public who would look into and investigate the real reasons for wrongful convictions.
You can also read here the written opposition and request to testify in opposition to confirmation of Janet DiFiore by exoneree Jeffrey Deskovic,
who was not allowed to testify against DiFiore, and, after DiFiore was confirmed and took her seat as the Chief Judge of the New York State Court of Appeals and as the Chair of this Task Force, DiFiore somehow did not appointed Jeffrey Deskovic to the Task Force, I wonder, why.
DiFiore is the chief regulator of the legal profession in the State of New York.
One of the co-chairs is a former New York State Court of Appeals judge - and now a private attorney - Carmen Ciparick who advertises her "public service" on the Task Force as part of her attorney advertisement, to drum more business for her law firm.
Ciparick is one of the former regulators of the legal profession in New York, as part of the Court of Appeals that sets the rules of attorney regulation.
What kind of involvement Ciparick can have in the "Task Force", you can see by the number of her memberships - it is not humanly possible for a busy appellate attorney, and especially the one past mandatory retirement age of 70 (Ciparick is 75), to be on so many boards, associations and task forces and have meaningful involvement in every one of them.
By the way, as part of Board of Trustees "Historical Society" of the courts of the State of New York, Ciparick is responsible for publishing and keeping published, the article about the felon former Chief Judge Sol Wacthler presented to the worldwide readers as a "luminary" (see my blog about that "luminary" article here) and praised for, de facto, defrauding the federal court by:
- claiming he had no mental issues for purposes of plea bargain;
- then, turning around and claiming, in a published book, he had mental health issues.
Judge Dwyer himself is dealing with criminal cases, and with some wrongful conviction cases. Therefore, when he at the same time co-chairs production of a 20-page document which is aimed mainly at censuring courts, attorneys, the press and the public not to use words "prosecutorial misconduct" "too broadly" (see that "issue" as No. 1 addressed in the document designed, supposedly, to prevent further wrongful convictions),
added to the fact that Judge Dwyer is a former career prosecutor, same as DiFiore,
that smacks of BAD pro-prosecutorial bias, which should require removal of Judge Mark Dwyer from all criminal cases immediately.
And, here are the "permanent members" of the "Task Force" - remember, the Task Force to prevent, not create, wrongful convictions.
Robert A. Adamo, Director, Division of Forensic Sciences, Westchester County Department of Laboratories and Research
This wonderful gentleman was in charge of that "forensic" lab for a long time, apparently helping DA DiFiore (now the Chair of this same "force") to obtain convictions. In a criminal case that I personally handled against DiFiore's office, DiFiore's office desperately tried to obtain a wrongful conviction of my client while any supposed or alleged evidence was lost or destroyed - which they refused to tell me until I filed a motion to compel and for sanctions. After that, DiFiore became a judge and retaliated by refusing to hear my constitutional appeal as of right in the disciplinary action punishing me for properly representing my indigent clients and making motions to recuse a biased judge, very logical.
I wonder if "evidence" - or, lack thereof, from the case I handled as an attorney, went through the hands of this lab Director, but very obviously, he is the last person to be a "permanent member" in a "task force" seeking to prevent wrongful convictions, as his lab is obviously joined at the hip with the DA DiFiore's office.
Mr. Adamo's reputation, as an expert and administrator, is at stake each time a conviction is reversed, so he is the last person to be on a task force that is supposedly investigating the causes of wrongful convictions and making suggestions how to prevent wrongful convictions.
The next wonderful member of the task force is James O'Neill, Commissioner of New York City Police Department.
Apparently, since Mr. O'Neill's police officers are collecting and presenting evidence in criminal trials, Mr. O'Neill's personal reputation, and reputation of his personnel, are at stake whenever a conviction is reversed. Same as with Mr. Adamo, Mr. O'Neill is an interested person and should not be on the Task Force. He may be deposed as a witness by the task force, but, as a "stakeholder" in the issue, he has a conflict of interest to be a member of such a task force.
The next "permanent member" of the "Task Force" is Zachary W. Carter, New York City Corporation Counsel - the attorney who, as a matter of duty, would OPPOSE in court, any civil rights lawsuits against NYPD for wrongful convictions.
The irreconcilable, disqualifying conflict of interest here is quite apparent, and, I believe, it is an ethical violation for attorney Carter to even be on this "Task Force", much less produce the document it produced for "public comment" - which is adamantly pro-prosecution.
The next "permanent member" of the Task Force is a Supreme Court Justice of Nassau County, obviously presiding over criminal cases, Judge William C. Donnino, who reached the mandatory age of retirement, 70, 6 years ago and at that point, left his position as a "supervising judge" of the Nassau County Supreme Court.
So, the 76-year-old busy Supreme Court judge, former career prosecutor and criminal court judge Donnino is trying to MAKE the law and MAKE the policy decisions INSTEAD of the Legislature, and do that in a way protecting prosecutors' reputation from being exposed and their careers and chances to become judges affected by making a proposal for, factually, censure of public opinion, attorneys and courts against "too broad" a definition of prosecutorial misconduct.
Other members are:
Professor Emeritus of Brooklyn Law School William E. Hellerstein, a constitutional law scholar thrown in for show, since his decision, even if against the chorus of police, "victims' advocates", prosecutors and judges/former prosecutors, can never outweigh the pro-prosecution supermajority of the group.
It is a wonder how such a busy man can also handle such a busy job on top of his professorship obligations.
The next "permanent member" of the Task Force is Seymour James, Attorney-in-Charge of the Legal Aid Society who is overseeing, reportedly, an organization of 1,100 lawyers. Once again, one must wonder how such a busy man can put a task that must be an exhaustive job in itself - digging through thousands of documents to get to the bottom of causes of wrongful convictions in New York. He either doesn't do his job as the Attorney-in-Charge of the Legal Aid Society properly, or his job of the permanent member of the Task Force properly, or both.
Moreover, one must wonder how such two supposedly pro-criminal defense people as professor Hellerstein and attorney James, who both have decades and decades of experience in New York state criminal justice system and know more than anybody how corrupt and rife with prosecutorial misconduct it is, could produce such a shameful document as the "proposal" that tries hard to censure public opinion from trying to define prosecutorial misconduct more broadly than pro-prosecution judges will do it in their orders.
The next "permanent member" is a former judge of 25 years, and now a director of a victim's advocates' organization Judy Harris Kluger, a former career prosecutor of domestic violence.
Victims' advocates, and prosecutors, often start assuming that the person is guilty at the time when s/he is still only charged with a crime and is presumed innocent by law.
Of course, Kluger's position as a director of a victim's advocates' organization creates an irreconcilable conflict of interest against having her on the task force to investigate causes of such convictions, as she obviously lacks neutrality needed for such an investigation.
The next "permanent member" of the Task Force is judge Richard B. Lowe, III, another former career prosecutor:
It is obvious that the public did not elect Judge Lowe to legislate as to policies of discovery in criminal proceedings, and that he cannot be, constitutionally, at the same time, a legislator and an adjudicator in the same courtroom. Yet, not just one, but 7 judges (1/2) are "permanent members" or chairs and co-chairs of the 14-member task force.
The next "permanent member" is the pre-eminent Chief Judge of the Appellate Division 3rd Department Judge Karen Peters, a corruptioner I wrote about here, a former career prosecutor and a judge regulating attorneys in 1/4 of the territory of the State of New York.
I have raised many times the issue that appellate courts in New York may not be at the same time legislators and adjudicators in attorney disciplinary proceedings, as well as "one" with disciplinary prosecutors, as both judges and prosecutors claim to be when sued in federal court and when Freedom of Information Requests against disciplinary prosecutors are filed.
Peters CREATED the mess when independent criminal defense attorneys are intimidated into silence and not making motions to recuse, which surely contributes to wrongful convictions.
Peters' court suspended in 2008 a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding (John Aretakis), disbarred in 2011 a criminal defense attorney (Frederick J. Neroni) who dared to file an assigned-counsel appeal raising the issue of judicial corruption, which led to threats by ADA John Hubbard that he is "burning his bridges" (undisclosed former law partner of the presiding trial judge).
Peters, as co-member of the Commission for Judicial Conduct, protected judges from discipline and, as the judge of the regulating Appellate Division, suspended and disbarred attorneys who complained about such judges.
Peters is the court whose "part", attorney grievance committees, have a policy of non-prosecution against criminal prosecutors.
Peters is the court that, as appellate court of criminal appeals, "defers" (exhibits bias) to decisions of trial judges because they did, and the appellate court didn't, see "demeanor of witnesses", while at the same time the only thing that prevents the appellate court from seeing that demeanor of witnesses is prohibition on videotaping court proceedings.
We do not see Peters on any task forces promoting cameras in the courtroom in the hands of the public.
And, Peters knows that investigations of attorney discipline are covered by Judiciary Law 90(10) and that only the Chief Judge of the Appellate Division (herself included), on motion, can disclose issues pertaining to attorney discipline, or through waiver of privacy from the attorney.
So, Peters knows better than to propose what she is proposing in her 20-page document: to MAKE prosecutors (against whom no disciplinary investigations are usually conducted as a matter of unspoken policy, no matter how bad their misconduct is), and, peculiarly, public defenders (defense attorneys, who are usually the target of disciplinary persecutions anyway) MUST somehow report to their supervisors that a disciplinary investigation has been started against them.
So, Peters as a "permanent member" of the task force trumped her own authority as Chief Judge of Appellate Division to EXCLUSIVELY decide whether to give access to such information.
And, Peters as a "permanent member" of the task force decided to MAKE attorneys waive their privacy under the guise of a court rule, in violation of Judiciary Law 90(10).
That's a position of "my law" - I own it, I make it, I break it.
Not a good position for a judge (1) regulating attorney licenses in 1/4 of the State of New York, and (2) trying to persuade the public that she is fighting wrongful convictions.
Moreover, when Judge Peters created a document where she tries to muzzle courts, attorneys, the press and the public against having their own opinion as to what prosecutorial misconduct is, she disqualified herself and her court from hearing criminal cases and hearing attorney disciplinary cases - as she is very obviously pro-prosecution.
The remaining "permanent members" of the Task Force are:
Cyrus Vance, the District Attorney for New York County - an interested person disqualified from being an investigator or decision-maker on the issue of wrongful convictions, and
Susan Xenarios - another director of a victims' advocates group.
There are also 8 "ex officio" members of the Task Force, also chosen by the Chief Judge of the New York State Court of Appeals.
Composition of that list is no better - they are all pro-prosecution stakeholders.
Somehow, Senator DeFrancisco, sponsor of the bill to establish Commission of Prosecutorial Misconduct, did not make the list of "ex officio" members of the Task Force.
Instead, on the list are:
Schneiderman recently argued in a civil rights case against a state judge (where Schneiderman represented the state judge) that a motion to recuse (which was granted) is good evidence in support of the judge's actions to then forcibly eject a Jewish litigant out of the courthouse after the motion was granted, with the help of an armed court attendant who was a known Nazi supporter.
Eric Schneiderman also argued in federal court, and won on his argument, that members of the public have no say as to whether meritorious complaints of judicial misconduct and of attorney misconduct (including prosecutorial misconduct) are or are not dismissed - see Bracci v Becker (members of the public have no say in dismissal of meritorious complaints of judicial misconduct) and Neroni v Zayas (members of the public have no say in dismissal of meritorious complaints of attorney misconduct).
Moreover, Eric Schneiderman, while being an "ex officio" member of the Task Force against wrongful convictions, appeared as an attorney in litigation where he opposed benefits for a wrongfully convicted exoneree.
Based on the above, Eric Schneiderman is definitely disqualified from being anywhere near this Task Force that investigates and is supposedly tasked to verify how to prevent or reduced possibility for wrongful convictions.
Judge Kamins also was involved, according to the report, in ex parte communications with DA Charles Hynes about criminal cases DA Hynes "actively pursued" in Judge Kamins' court
- which may be another significant part of wrongful convictions, only a Task Force consisting of judges and prosecutors who are doing it, would not notice such a cause, and would not investigate or fight it, would they?
Yet, here is what NYSBA report said in 2009 about wrongful convictions, among other things:
The report points out that prosecutorial misconduct may contribute to a conviction that may not be reversed, but where there are still significant violations of the law and prosecutorial misconduct, such as:
1) Rosario violations - failure by the prosecutors to give to the defense prior statements of testifying witnesses of the prosecution - by the way, the 20-page document concocted by pro-prosecution judges, prosecutors, chiefs of police and victims' advocates, does not include Rosario violations as prosecutorial misconduct;
2) Brady violations - failure by the prosecution to give to the defense any information in the possession of prosecution OR law enforcement pertaining to guilt or innocence, mitigation of guilt and impeachment of a prosecution's witness.
Here is also NYSBA's report on discovery in criminal proceedings from 2015, mentioning prosecutorial misconduct many times and indicating that there is no record of disciplinary proceedings in New York appellate divisions against prosecutors for Brady violations:
Yet, NYSBA report was timid, and did not mention
- ex parte communications between prosecutors and judges;
- judicial bias - the word "bias" is mentioned in the report only as witness bias; or
- corruption - the word "corruption" is used in the 147-report only once, in the physical sense of spoliation of physical evidence.
6. Thomas P. Zugibe - President of the State District Attorney's Association, the organization that, according to testimony of Mr. Bastuk, Chair of an anti-wrongful conviction organization called "It Can Happen To You" (somehow not a member of this Task Force) in front of the New York State Commission for Attorney Discipline, descended as paratroopers upon New York Senate to lobby against introduction of a Commission solely dedicated to deal with prosecutorial misconduct, because the current attorney grievance committees have an unspoken policy not to prosecute prosecutors, a stakeholder disqualified by interest of its members to participate in decisionmaking about laws regarding investigations and sanctions for prosecutorial misconduct.
Thomas Zugibe published an article opposing legislative creation of the Commission on Prosecutorial Misconduct, where he writes that:
a) the claim of too many wrongful convictions and prosecutorial misconduct as the cause of such wrongful convictions are overblown, because the "task force" of New York State Bar association found "only" 53 wrongful convictions from 1964 to 2009; of course, Mr. Zugibe self-servingly omits to mention that only COURT REVERSALS (which are very hard to obtain when misconduct is not properly addressed by an incompetent or intimidated attorney at trial or on appeal, or when the conviction is a result of overcharging and intimidation by BOTH police and prosecutors resulting in a false confession and a guilty plea, see also an opinion, one of many, deeming any conviction on a guilty plea unconstitutional), and the rarity of the court reversals are evidence not of the scarcity of wrongful convictions, but of the predominance of judges who are former prosecutors presiding over criminal cases and ruling "for their own":
c) Mr. Zugibe claims that - imagine the horror! - attorney disciplinary proceedings may disrupt criminal cases because they may be conducted during the pendency of the court proceedings.
In that, Mr. Zugibe pretends to be in some kind of a surprise, while that same rule is CURRENTLY applicable to ALL attorney disciplinary proceedings - where ALL cases of disciplined attorneys' clients are disrupted.
Mr. Zugibe's lamentations only make it clear that Mr. Zugibe has no idea that what he complains about ALREADY EXISTS and IS APPLICABLE TO HIM - another proof that prosecutors are not usually prosecuted or even investigated, so they do not even bother familiarizing themselves with rules regarding their own conduct - probably, even more reason to establish a separate commission to deal with prosecutors separately, so that they would know that they are not above the law:
7. David Zack - President of New York State Association of the Chiefs of Police, and an obvious disqualified stakeholder with an interest, too.
8. Jacqueline P. Flue - President, New York State Women's Bar Association.
Again, two general attorney association, 7 stakeholders connected with or representing law enforcement or prosecutors, and NO independent defense attorneys or defense attorney associations.
So, as public opinion pols push for creation of a commission to discipline prosecutors separately, to have some kind of control over the rampant prosecutorial misconduct in criminal proceedings, and, lobbying through the no-less-conflicted "Statewide Commission on Attorney discipline" offering a "compromise" of referring cases against prosecutors to existing attorney grievance committees (which was supposed to be happening anyway, but is not happening, which is the whole reason for the bill to create the Commission for Prosecutorial Misconduct) may not be working as well as the law enforcement - the bill has passed Assembly so far
prosecutors and pro-prosecution judges would want it to work, a pseudo-public clandestine "task force" has been created to try to stall creation of the Commission on Prosecutorial misconduct, under the "honorable" guise, of course, of fighting wrongful convictions.
Of course, when the initial material - composition of the Task Force - is as tainted by self-serving interests as this one, we can hardly expect a good product coming from it, but we can fully expect this "Task Force" to try to dupe the public into believing that they are acting in the public interest.
Of course, if that was true, the Task Force should have been transparent, not usurp the Legislative authority of NYS Assembly and Senate, not appoint stakeholders and not prevent the public and exonerees, victims of wrongful convictions from participating in its work.
I will continue to analyze motivations of the Task Force and how they are reflected in their proposal for standing orders on discovery in criminal proceedings in my next public comment articles.
Stay tuned.
Public comment on New York's proposed standing order of discovery in criminal cases - Part II. The proposal is trying to usurp the functions of New York Legislature.
I already addressed the lack of transparency in appointment and work of the Task Force, here.
The next problem is that the "standing order" is trying to:
- usurp the powers of the State Legislature as to important policy issues in criminal proceedings; and
- forestall or prevent, by providing a surrogate of a "standing order of discovery", the necessary legislative reforms of the state criminal justice system.
The proposal for a "standing order" affecting discovery in criminal proceedings is affecting several important policy issues which are the authority and job of the State Legislature and elected people's representatives to address, and not secretly appointed people who are not accountable to voters.
Policy issues that the 20-page proposal is attempting to resolve that are for the Legislature only to resolve are, and the list is not exhaustive:
- FIRST - the need for reform of discovery in criminal proceedings and putting discovery in criminal proceedings at least on equal grounds with the already existing discovery rights in civil court proceedings, and providing funding for such discovery;
- SECOND - the need for equal funding for investigators and experts for the defense on par with prosecution;
- THIRD - the need to address the role of prosecutorial misconduct in wrongful convictions as a STATE CONSTITUTIONAL ISSUE, as the U.S. Supreme Court expressly protected prosecutors from liability even for lack of training of their subordinates as to concealment violations, and thus not only refused to address the issue of wrongful convictions in the country as a federal constitutional issue, but also allowed wrongful convictions to continue to multiply;
- FOURTH - the lack of adequate funding for indigent criminal defense - the legislation that has gained bipartisan support and passed both the State House and Senate was recently vetoed by the "fighter of human rights" Governor Cuomo, but, since the issue was not resolved and the state continues to violate the 6th Amendment right to counsel for indigent criminal defendant, and thus the federal court order in a settlement of a recent class civil rights case, the issue is still to be resolved by the State Legislature;
- FIFTH - the need to ensure competence and integrity of assigned defense counsel whose continuous assignment usually depends on pleasing a judge (who is usually a former prosecutor) in not "making waves", not making discovery requests, motions to compel discovery, or motions to disqualify prosecutors or the judge for bias, conflicts of interest or misconduct - three independent criminal defense attorneys, my husband Frederick J. Neroni, myself and David Roosa (all of these attorneys lost their licenses, all of them due to complaints of the same judge who was helping the prosecution),
- SIXTH - the need to allow, as right to counsel, for the criminal defendants, including indigent criminal defendants, to have counsel of their choice, who they truly choose and trust, possibly through a system of:
- vouchers, and
- deregulation of the criminal bar, allowing criminal defendants to choose to represent them any person, not necessarily a person approved (through licensing) by the same government that is pursuing the defendant in criminal proceedings, which is an irreconcilable conflict of interest;
- SEVENTH - eliminate prosecutors from their positions of "advisors" of grand juries, undermining adversarial process of the criminal justice.
- EIGHTH- the need to eliminate the plea bargaining system which drums up convictions without regard to evidence, for purposes that have nothing to do with fighting crime:
- cutting "court congestion" in criminal cases and
- providing free labor to the for-profit prison industry, and
- providing work to unionized prison workers;
- NINTH - address the issue of non-discipline of criminal prosecutors for misconduct in criminal proceedings (which New York Legislature is attempting to address at this time, against vigorous opposition by the State District Attorneys' Association, through the legislative creation of the Commission on Prosecutorial misconduct);
- TENTH - eliminate prosecutorial immunity in lawsuits for misconduct to provide a meaningful remedy to the victims of wrongful convictions and to deter further wrongful convictions;
- ELEVENTH - to seriously address, with true participation of the public, true and effective accountability for prosecutorial misconduct as the cause of wrongful convictions.
- further protection of the prosecution as the breeding pool of judges (just read official biographies of New York state or federal judges to see that the overwhelming majority of judges came from prosecutors);
- further intimidation of the defense bar, and
- making wrongful convictions irreversible -
- transparency;
- availability for the public of a right to:
- contact their legislative representative;
- come and talk to that representative;
- send legislative proposals to that representative;
- testify in the Legislature as to those proposals
- put those proposals out for public referendums.
- did not elect any of the members of the Task Force AS LEGISLATORS - they did not even run as legislators, they were appointed by New York Chief Judge Lippman in 2009;
- these Task Force members have no accountability to the public, no duty to meet with them, and no incentive of being recalled from office, impeached or not elected for the next term to speak to members of the public;
- there is no possibility of a LENGTHY legislative process discussing all possibilities, all public needs, all conflicting public interests and conflicts of interests and weighing all options before introducing a legislature on important policy considerations - here, the proposal was made, through an announcement on New York State Court system's website, on April 6, 2017, and public comment, through written e-mails only to some unelected lawyer in the New York State Court system, will be closed within 2 months of that time, on June 5, 2017, without any public hearings.
Public comment on New York's proposed standing order of discovery in criminal cases - Part I. Lack of transparency.
The proposal is long, 20 pages, and a lot of traps and inconsistencies are hidden in it.
I am starting a series of articles analyzing this proposal, and will forward all of them as my public comment to this proposal.
Even if I do not live in New York State anymore, I continue to pay property taxes in that state which feed the work of prosecutors and police, so I do have a say in the matter, as a taxpayer.
Moreover, New York does not restrict public comment only to residents of New York state.
The very first problem that jumps to mind is the lack of transparency in:
- how the body that proposed this rule - the permanent New York Justice Task Force - was formed, without any input from the public, taxpayers, voters and consumers of legal services;
- how it convened - without following the Public Meetings Law, without notice to the public or opportunity to be heard, behind closed doors;
- how it formed its committees and subcommittees;
- how and from whom the Task Force solicited "recommendations".
- no say in the composition of the Task Force;
- no say in the work of the Task Force;
- no notice as to meetings of the Task Force;
- no opportunity to be present at those meetings or provide their own input to the work of the Task Force -
Saturday, May 13, 2017
That disruptive consumer of legal services...
If you remember, regulation of all occupations by the government, and that includes attorney licensing, is done under the pretext of protecting the consumer of legal services. That's why we have attorney monopoly in this country.
That's why you have to pay through your nose not for a service provider of your choice, but to a service provider approved for you by the licensing government if you need a will, a deed, a court representative - or go without that will, that deed, or that court representation.
Approval of your court representative, through attorney licensing, by the very government that sues you in civil or criminal cases, or who you yourself are suing in civil rights cases is especially precious.
So, here are the 4 "disruptions" that a legal professional cannot afford to ignore, in the opinion of innovator Michael McQueen:
- The Age of Automation;
- Empowered Consumers;
- Unconventional Competition; and
- Emerging Generations.
- laws about attorney regulation are "sponsored" and promoted by lawyer senators, many of them practicing licensed attorneys, guess who they are going to benefit - consumers or themselves?
- lawyer-legislators put lawyer-judges in charge of lawyer-regulation;
- lawyer-judges make rules so that only super-majority of lawyers "regulate" other lawyers, eliminating any source of dissent and any possibility of having, among providers of legal services, any lawyers who are out of step with the monopolistic legal establishment;
- lawyers issue ethical opinions for themselves and judges, who are also lawyers;
- lawyers overpower Commissions for Judicial Conduct -
- are more knowledgeable about the law, and can meaningfully participate in the choice of provider by considering not just the presence of a license, but the actual performance track of the provider;
- consumers demand the provider to explain to them what the hell he is doing after he's got their retainer money - not allowing attorneys to operate "under a cone of silence".
- refusing to fund indigent defense services;
- refusing to define what the hell they are regulating as "practice of law", but at the same time
- prosecuting those who engage in "practice of law" without a state approval/ license as a crime;
- yanking law licenses of those who do their jobs in the under-served areas of the law well, and refusing to reinstate those licenses on contrived grounds, expanding the meaning of UPL for such attorneys, as compared to never-licensed public; and
- throwing the public a bone of uneducated surrogates to "bridge the justice gap", and
- fighting lawsuits of consumers trying to assert their right to pick their own providers of legal services with psychiatric evaluations,
How to drown them?
How to attack them in court?
How to harass them, pursue them in criminal UPL prosecutions - ostensibly, to "protect the consumers", but in reality, to protect lawyers' own exclusive turf and captive-consumer markets?
Of changes.
Of having to actually change with times, use their brains, work and depend, like anybody working in the market should, upon market fluctuations and market prices, and to deliver value for consumer's money.