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

This is my 7th article in the series covering the (pre-arranged and pre-fixed) lawsuit by New York prosecutors that was part of an agreement to dupe New York voters into voting Governor Cuomo back into office and voting certain senators back into the New York State Legislature, a well-known "bait-and-switch" fraudsters' trick:

• you give the person-to-be-tricked a bait (like signing into the law the existence of the Commission for Prosecutorial Conduct while not announcing that you have no plans whatsoever to actually put it into existence); 
• you wait until voters vote for you based on this historical development, advertised as such ("First in the Nation" etc.); and then
• after those whose re-election depended on this bait are re-elected, you stall that much-waited-for Commission, less than a month before it was supposed to start operating - in accordance with the law STILL ON THE BOOKS, explaining to the public that it is "because of the lawsuit".

This "bait-and-switch" plan has become known - only after it was fully put into fruition - because of the slip-of-the-tongue of an insider of this whole scheme, an exoneree Jeffrey Deskovic who has made his exoneration into business and the basis to build his career.  Of course, he is ALREADY exonerated. Those who wait to challenge prosecutorial misconduct, and wait to complain to the Commission about prosecutorial misconduct that has drummed up their wrongful convictions, can wait some more.

By the way, the text of the prosecutors token lawsuit that was used for the "bait-and-switch" is here.

As to other articles in the series, 

Part I can be read here.

Part II - here.

Part III - here.

Part IV - here.

Part V - here.

Part VI - here.

In the prosecutors' lawsuit, the central issue was the supposed violation - in the law creating the Commission - of the constitutional principle of separation of powers, you know, the principle underlying the "checks and balances" premise, that the 3 branches are checking upon one another (instead of colluding with one another - which is what the reality is, as the case with the Commission showed once again).

Now, any criminal defense attorney has a risk of die laughing when reading prosecutors' lawsuit.

Because that would be, I bet, the very first time that criminal defense attorney would see a prosecutor argue FOR constitutional rights.

The usual setting for a prosecutor to address constitutional rights is to laugh them into non-existence, in and out of court, which is what prosecutors do consistently and quite successfully - hence, the number of wrongful convictions and the number of people in prisons in the U.S.

Tell a prosecutor in court about constitutional rights of the accused - and you will see the reaction.

They will laugh, most likely.

Because anybody raising constitutional issues is a "bleeding heart liberal", or want to "get out of jail free".  That's it.  That's the range of "constitutional arguments" of an average prosecutor in New York (who, most likely, will then become a judge - the majority of New York, and American, judges are former prosecutors, with the respective mentality as to constitutional rights, and there is NO former criminal defense attorneys on SCOTUS, but several prosecutors).

So, when prosecutors start arguing constitutional rights, it sounds unusual, to say the least.

And, when they hire somebody to argue it who have no clue about civil rights litigation and constitutional rights - and who has to present them in such a way as not to disturb the unconstitutional schemes that benefit their clients - that becomes... well, not even funny.

I already wrote how lawyers for New York prosecutors in this lawsuit exposed a flaw in the law regarding the creation of the Commission for Prosecutorial Conduct that destroyed prosecutorial immunity for the most powerful prosecutors in the State of New York - the Attorney General and Assistant Attorneys General.

The argument regarding the supposed violation of separation of powers is much, much more entertaining.

Because, by trying to prove one thing, attorneys for New York prosecutors have proven another -

• that the EXISTING attorney regulation is completely unconstitutional, under the state and federal constitution; and
• that THAT unconstitutionality is OK for prosecutors - because it works in their favor, which says a lot about prosecutors' integrity.

First of all, the entire way how the Commission was stalled this month, was a violation of the principle of separation of powers.

The Governor de facto rescinded a statute on the books by refusing to do his duty and to populate the Commission, refused to make appointments to the Commission.  

The Governor has no right to do that, since he is the Chief Executive Officer of the state, and absolutely MUST execute the law on the books - and make those appointments to the Commission.

And, the Governor absolutely DOES NOT have the power to rescind a law on the books, that is only and exclusively the power of the Legislature.

And, the Legislature DID NOT rescind or amend that law yet, so that law is still operational and must be obeyed.

But - that was pre-arranged, and the Governor did it just as well, because of prosecutors' lawsuit - arguing, as their main point, that creation of the Commission violates the "fundamental constitutional principle" of separation of powers.

If Cuomo violates that same principle - in favor of prosecutors - that's good, even though it is a clear separation of power.

So, prosecutors argue to the court in their lawsuit that separation of powers is a fundamental constitutional principle.

THERE ARE STATUTES AND, THEN, STATUTES

"The New York State Constitution clearly sets forth the distinct roles and responsibilities of each branch of state government.  It is a bedrock principle of our democracy that no statute, no matter how noble its ostensible purpose, may violate that constitutional structure".

Read that?

In the very same lawsuit the prosecutors acknowledge constitutionality of the present scheme of attorney regulation.

Yet, in the current scheme of attorney regulation the court carries out the function of ALL THREE branches of the government - 

• it legislates the rules for attorneys;
• it appoints investigators and prosecutors and considers them "the arm of the court" (making court a party and the adjudicator of all attorney disciplinary proceedings); and
• it adjudicates such proceedings.

Prosecutors have no problem with such a scheme - because, over the last 50 years, only two prosecutors still in office were disciplined (both for criticism of the regulator, judges), and neither one was removed from office.

That unwritten policy was exactly why the public got enraged and wanted a separate body making prosecutors accountable.

That body - prosecutors say - cannot be put into being because it violates the "bedrock principle of our democracy", violation of the separation of power.

The present system of attorney regulation that violates that principle - can do just fine.

Prosecutors' attorneys in this lawsuit actually provided much more proof in their arguments - inadvertently so - that the current system of attorney regulation in the State of New York is unconstitutional.

Let's look how they managed to accomplish that noble feat.

REMOVAL OF A PROSECUTOR FROM OFFICE IS AN EXCLUSIVE EXECUTIVE FUNCTION

Let's single out the main points of the argument.

1. District Attorneys are elected executive officers.
2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".

After reading the draft of this pleading, prosecutors should have, probably, fired their attorneys - because they put their clients' collective feet into their collective mouths very-very far.

But, that did not happen.  And, the pleading was filed - and even portrayed to the public (as was pre-arranged, as I was later told, "gamed out") as THE lawsuit because of which both the Governor and the Legislature immediately stalled (without officially rescinding or amending) a statute on the books which they just voted in and signed into law.

Do you know of any other occasions when any other law was stalled by all three branches of the government because a lawsuit challenging its constitutionality was filed - while no judicial decision on it has been made?

I don't, and I was handling civil rights litigation, filing constitutional challenges to various New York statutes for several years, and now cover such filings in my blog for 4 years so far.

Now, let's go back to the argument of violation of "separation of powers principle".

1. District Attorneys are elected executive officers.
2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".

The question is - poor dears, but what do we have NOW that you embrace and call constitutional?

You claim that the Court of Appeals may not remove a prosecutor from office because removal of a prosecutor - by the State Constitution - is an EXECUTIVE FUNCTION, and thus, the exclusive power of the Governor.

But - you do not contest the fact that right now Appellate Divisions have that same power to remove prosecutors by suspension or disbarment?

And, you are even arguing, on behalf of Appellate Divisions (without standing, since Appellate Divisions are not suing - and for a DA's Association to argue on behalf of Appellate Divisions is a very interesting proposition, with interesting implications), that the Commission unlawfully encroaches upon the authority of the Appellate Division to do the very same thing that you contest in that very lawsuit - a judicial removal of an executive officer that only the Chief Executive officer has the power of, by the State Constitution?

Let's go back.

1. a prosecutor is an elected executive officer - argue prosecutors to the court;
2. removing a prosecutor is an exclusive executive function;
3. that executive function, removing of a prosecutor, can be done only and exclusively by the State Chief Executive Officer, the Governor - that is a requirement of the New York State Constitution;
4. The Commission's composition is unconstitutional - because most of its members are to be appointed not by the Executive, but by the Legislative branch, a violation of the "bedrock principle" of separation of powers;
5. It is unconstitutional, under the same principle of separation of powers, according to the prosecutors, to allow the Court of Appeals to remove prosecutors - because removal of prosecutors is an executive, not judicial power, BUT
6. judicial removal of prosecutors by the Appellate Division is proper; and
7. the Court of Appeals should not intrude and diminish the exclusive jurisdiction of the Appellate Division to remove prosecutors [discipline attorneys]; while
8. while the "exclusive jurisdiction" of the Appellate Division has sprung from delegation by that "exclusively executive power" by the Legislature to the court (Appellate Division) - which was in violation of the same constitutional principles of separation of powers, because, see above, only the Governor has the power to remove prosecutors, by the State Constitution, as a "bedrock principle of our democracy".

Huh?

Remember when I said that the idiots chosen by the DA's Association to represent the Association in the pre-fixed lawsuit did not advertise any knowledge in the three main areas of law, expertise in which was necessary to plead this lawsuit:

• constitutional law;
• occupational licensing;
• attorney regulation?

It tells, doesn't it?

This argument is COMPLETELY frivolous, because arguments here are MUTUALLY EXCLUSIVE.

If removal of a prosecutor is an exclusive executive function - by the State Constitution, no less - and can be done only by the State Governor, why the hell do you:

• attack the Legislature for unconstitutionally delegating executive power to one court, but 
• defend delegation of that same executive power by that same Legislature to another court?

And, didn't your idiot attorneys just prove that the Appellate Division exercises - unconstitutionally - EXECUTIVE functions when they regulate attorneys in general (which is confirmed by the fact that all other occupational licenses are issued and removed in New York by the executive branch of the government)?

But, if the Appellate Division exercises executive functions - isn't it unconstitutional, as your idiot attorneys argue in that same lawsuit?  As judges engaged in non-judicial functions, in violation of the State Constitution?

And, if that is unconstitutional, why the hell do you defend that on behalf of those same Appellate Divisions?

Or - did you just confirm what people of the State of New York guessed long time ago, and that's why they demanded a separate body to discipline prosecutors, from other attorneys - that while prosecutors tolerate that Appellate Divisions violate the "bedrock" constitutional principle of separation of powers by disciplining prosecutors (a constitutional exclusive executive function), they tolerate it only because there is an unwritten policy by which Appellate Divisions DO NOT REMOVE prosecutors from office (the exclusive constitutional function of the State Governor) by suspension or disbarment - no matter what they do?

But, if that is true - shouldn't prosecutors then be stripped of their judge-given absolute prosecutorial immunity in civil rights lawsuits - because it was given to them IN RETURN and ON A CONDITION of being subject to attorney discipline, and the risk of removal in that attorney discipline?

Oh, but while defending the "exclusive jurisdiction" of the Appellate Division to discipline and remove prosecutors - while at the same time arguing that it is an executive function belonging exclusively to the State Governor, by the State Constitution, and while attacking at the same time the decision of the Legislature to give that removal power to another court, the Court of Appeals, on separation of powers argument - didn't you also argue that the Court of Appeals should not engage in removal of prosecutors because it is unconstitutional FOR JUDGES on yet another principle - 

the State Constitution forbids judges to carry out non-judicial functions?

Ok.

So, reviewing complaints against prosecutors and removing prosecutors from office is an unconstitutional non-judicial function for one court, the Court of Appeals - and, then, must be the same way non-judicial unconstitutional function for another court, the Appellate Division.

The cost of hiring idiots to represent you in court, right?

So, the WHOLE ATTORNEY REGULATION scheme, where Appellate Divisions remove attorney licenses (including, potentially, may remove prosecutors from office by revoking their attorney licenses) are NOT JUDICIAL PROCEEDINGS, but are ADMINISTRATIVE, EXECUTIVE proceedings.

Just a logical extension of the same argument.

But then, wait - it then turns out that attorneys (including prosecutors) do not have ANY judicial review of ADMINISTRATIVE decisions to remove their licenses (as other licensed professionals in New York do - by Article 78 or by a civil rights lawsuit in federal court)?

• Because an Article 78 against the Appellate Division is not allowed by New York State law.
• Because judiciary is immune from lawsuit in federal court, and
• because, if disciplinary proceedings revoking occupational licenses of attorneys (as compared to doctors or taxi-drivers) are considered "judicial", then the judicially invented "Rooker-Feldman doctrine" bars such lawsuits in federal court.

So - did prosecutors JUST tell the public that Appellate Divisions, FOR DECADES, were acting in an unconstitutional fashion, engaging in "non-judicial functions", which are prohibited by State Constitution?

But - prosecutors did an even better trick than that.

They said that Appellate Divisions engaging in the same conduct that they called unconstitutional for the Court of Appeals - non-judicial functions prohibited by the State Constitution - claimed that Appellate Divisions are ok in doing that, because another section of the State Constitution supposedly allowed Appellate Divisions to engage in non-judicial functions while not allowing to do the same to the Court of Appeals.

Figure:

This argument - read in conjunction with the argument regarding the unconstitutional non-judicial functions of the Court of Appeals in investigating and removing prosecutors - reads like that:

• it is unconstitutional as a violation of our bedrock principle of democracy, separation of power, folks, BUT,
• if the Legislature allowed violation of the State Constitution, it is ok.

But then - if prosecutors are happy to allow the Legislature to violate the State Constitution in one way, why are they not happy that the Legislature is violating the separation of powers and the State Constitution in any other way?

But, we are not finished with idiotic and mutually exclusive arguments in prosecutors' lawsuit yet.

Here is yet another one.

The Commission on Prosecutorial Conduct and the Court of Appeals are not enumerated Civil Departments - as the State Constitution requires for discharge of executive functions - and thus mau not remove executive officers, prosecutors, from power

The Commission is unconstitutional because it is not included into the enumerated Civil Department Structure of the executive branch.

While Appellate Divisions - courts that do the exact same thing that the Commission is supposed to be doing, create rules of discipline for prosecutors, file complaints, investigate and discipline prosecutors - and while also not being included into the same enumerated Civil Department Structure - are doing just fine, according to prosecutors' lawsuit, and can continue to engage in the same "constitutional violation" that prosecutors are unhappy about with the Commission for Prosecutorial Conduct, with prosecutors' blessings.

While these idiotic arguments prove to the public the importance of carefully choosing your attorney and double-checking his levels of competence in certain areas of law not to look like complete idiots when lawsuits like that are filed, the lawsuit WAS filed.

And, folks - is it because of THESE super-frivolous and absolutely stupid arguments that judge David A. Weinstein assigned to the case (a former Governor's attorney and a former Assistant Attorney General) went outside of his role of a neutral arbiter and urged parties to "stipulate"?

And, it is because of THESE super-frivolous and absolutely stupid arguments that the newly re-elected New York State Governor Andrew Cuomo and the New York State newly-elected Legislature have stalled a statute on the books, entirely in violation of their duties?

They are laughing at you, folks.

They do not even try to make an effort in making their argument borderline plausible and legally valid.

Simply because this lawsuit (without telling the public) was fixed before it was filed, simply because it was pre-arranged that the Commission for Prosecutorial Conduct will not see the light of day, but was just an instrument to dupe voters into electing the same corrupt and incompetent idiots into office - the DA's Association has hired two idiots having no clue in the areas of law that they are required to know to handle such a lawsuit - to put together a hodgepodge of wording interspersed with citations to the State Constitution and court decisions (case law), but being completely, glaringly contradictory and mutually exclusive, because what was said there, did not really matter - the result was prearranged and gamed out.

  

Consider this: a victim of a wrongful conviction, a 3rd year law student of Pace Law School considers that "if it was illegal, it would not have made the news as being signed with chapter amendments agreed to.  Me and my colleagues GAMING THINGS OUT, IN CONSULTATION WITH PEOPLE ON THE INSIDE, does not constitute anything improper or illegal".

That's one way to put one's foot even further into one's mouth.

So, following this principle - if the news publicizes something that the government has done, that MUST be legal?

And, if somebody like Deskovic, drumming up his business of lecturing around the country to crocodile pits on the advantages of vegetarian diet, in order to bring donations to his non-profit and advance his future career as a lawyer, "GAMED OUT" the stillborn Commission, while ardently arguing to me at the time of that Commission signed into law that it was not stillborn - in order to dupe people not "on the inside" into voting the idiots who made the agreement into office again - that does not somehow constitute "doing something illegal or improper".

With such moral and ethical flexibility - Deskovic will be a good fit into the New York legal profession.

But, with his belief - near the end of his training at a prestigious law school - that the government publicizing something is proof of its legality - I would put the quality of teaching at his law school in question.

After all, all convictions that prove to be wrongful are fiercely publicized by the government as rightful - including, I am sure, how Deskovic's own conviction for rape and murder, from which he was exonerated after having spent 16 years in prison, was publicized.

So, ladies and gentlemen, there are good violations of the "bedrock doctrine" of separation of powers and bad ones.

Prosecutors want the bad ones gone, but the good ones to stay - in fact, they defend the good ones without even having standing to do that (on behalf of the Appellate Division - the exclusive counsel of the Appellate Division, by Public Officers Law Section 17, is the State Attorney General).

And this constitutional gerrymandering - I want a constitutional violation of a bedrock constitutional principle of our democracy if it benefits me - is the actual essence of government ethics - of prosecutors, the Governor, the Legislature, and the judicial branch - in the State of New York.

At least they honestly presented it to the public.

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

This is part 6 of my series of articles about the lawsuit of prosecutors, and relating lawsuits and actions of the New York State Government, to prevent accountability of those who cause wrongful convictions in New York, where New York holds the 2nd shameful place in the number of wrongful convictions, after Texas.

The lawsuit is here.

Part I can be read here.

Part II here.

Part III here.

Part IV here.

Part V here.


Protection of whistleblowers in New York State is non-existent, even if they work in the court system, see description of how that works at the end of Part 5.

A prosecutor is a powerful public official who has an opportunity to retaliate against a whistleblower by discrediting him with a criminal prosecution - and conviction - and putting him in prison, for a very long time.

Of course, that would be witness tampering, a federal crime, but would a prosecutor care about that - because will a federal prosecutor prosecute a state prosecutor? Not in a thousand years.

So, the law regarding the Commission for Prosecutorial Conduct DOES have some really good provisions, and one of them is - authority of the Commission to give transactional (full) immunity to whistleblowers of prosecutorial misconduct.

Here is how the government itself explains transactional immunity:

Such an immunity blocks prosecution for any criminal offenses that a prosecutor can possibly conjure up out of a certain set of facts.

That is what bothered prosecutors and what they wanted stopped - and what they had stopped at this time, illegally.

You know how many times the words "transactional immunity", or "immunity" - are mentioned in prosecutors' lawsuit?

SEVEN (7) times.

Meaning, that immunity really, really bothered prosecutors and they really, really wanted to get rid of it.  In which they succeeded so far, contrary to the law.

Here is how these words were mentioned in the prosecutors' lawsuit to nix the Commission for Prosecutorial Conduct:


Page 6

If the CPC "deems it necessary and proper", it can confer broad transactional immunity from prosecution upon witnesses who appear before it.  Id. at paragraph 499-d(2).

Pages 9-10

"Article 15-A also permits the CPC to call and grant transactional immunity to any witness it choses (so long as it "deems it necessary and proper" to do so (Judiciary Law paragraph 499-d(2)), even if such immunity could thwart ongoing or future criminal prosecution)."

Page 10-11

"Article 15-A violates that clear intent by permitting the CPC to: … (2) grant immunity to those who prosecutors might otherwise prosecute".

Page 12


"And because Article 15-A provides no appellate review of the CPC's discretion to obtain evidence, incorporate evidence into the public record, grant immunity, or conduct investigations that may interfere with active prosecutions, the statute will inevitable cause a flood of collateral litigation under CPLR Article 78 by prosecutors alleging unlawful, arbitrary, and/or capricious conduct by the CPC (citations omitted)".

Page 16

"The non-judicial functions unconstitutionally assigned to judges appointed to the CPC include: … (3) conferring immunity upon witnesses involved in CPC investigations..."

Pages 24-25

"Prosecutors are painfully aware that every decision they now make will be scrutinized by a hybrid political commission operating without constitutional constraints, and that this commission may sanction them, publicize sensitive material pertaining to their cases, and grant immunity to witnesses with virtually no due process."

Pages 25-26


"Prayer for Relief. WHERETOFORE, because paragraphs 1 to 79 establish that no provision of Article 15-A of the Judiciary Law remains by which the CPC may be lawfully constituted and begin operation, and because Plaintiffs would be irreparably harmed if the CPC were to begin accepting complaints, initiating investigations, or conducting hearings, Plaintiffs respectfully request that a judgment and order be issued:

D.  Preliminarily and permanently enjoining the CPC from conducting any hearings into the qualifications and conduct of prosecutors, including a prohibition on ordering any records or papers from prosecutors, or ordering any appearance by witnesses or prosecutors before the CPC, or granting immunity to any person..."

That means - it is very, very important for New York prosecutors to block any government entity from being able to give protection to whistleblowers against them - in other words, they asked the court to prevent doing exactly what they are doing - obtaining evidence against criminal defendants based on immunize testimony (while often not disclosing the fact of giving immunity to witnesses to the defense, despite having a duty to do that - which is in itself prosecutorial misconduct).

Imagine.

Prosecutors want a "right" to be able to go at witnesses regarding their own misconduct with criminal charges, they complain that the Commission, by granting full transactional immunity to such witnesses, prevent prosecutors from retaliating against those who testify regarding prosecutors' misconduct.

And - guess what?

The Legislature and the Governor stipulated to stall the Commission and not to grant whistleblowers of prosecutorial misconduct protection already given to them under the law.

Of course, it is not within authority of either the Legislature, or the Governor to "stipulate" suspension of certain laws, already on the books, through either

• refusing to fill vacancies on the Commission (the Governor); or
• suspending indefinitely the law (the Legislature).

The Legislature has only THREE options:

• To enact (introduce, start, put into being);
• amend (change);
• rescind (take back, abolish)

a statute/law.

There is no option to "stipulate temporary suspension" of a statute already on the books.

The law regarding the Commission for Prosecutorial Conduct:

• has been enacted;
• has not been amended;
• has not been rescinded -

and thus, is in full force, and both the Legislature and the Governor MUST OBEY IT.

So, those who were waiting for the Commission to come into force, have a right to sue the damned suckers for dereliction of their duties and to compel them to do their duties, as prescribed under the New York State statutory law.

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

This is Part V of my series of articles dedicated to the fate of the Commission for Prosecutorial Conduct - challenged in a lawsuit of the New York State District Attorneys (prosecutors) Association, a lawsuit fixed, as people "in the know" inadvertently blurted out, before it was filed, and stalled by New York Governor Cuomo and the Legislature, defendants in the lawsuit - as was pre-agreed before the lawsuit was filed (not that voters new it when voting for Cuomo and for New York candidates to the Legislature in November of 2018).

The law for creation of the Commission was signed, with much publicity and with "bipartisan support", on August 20, 2018, right before elections into the said Legislature and for the said Governor's office.

The text of the lawsuit is here.

Part I can be read here.

Part II - here.

Part III - here.

Part IV - here.

When we are talking about wrongful convictions, we need to, first and foremost, analyze, whether there are incentives for those investigating and prosecuting crimes to create wrongful convictions, and, if there are, identify and list such incentives - with a view of figuring out how to eliminate them.

And, while Cuomo and the Legislature stalled creation of the Commission - and, thus, are letting so many wrongful convictions go unprevented and those which already happened, unpunished - the New York judiciary "helped" New Yorkers by making wrongful convictions not just possible, but probable and inevitable.

Yesterday, the Chief Judge of the New York State Court system, a career prosecutor Janet DiFiore who was appointed despite overwhelming testimony against her with evidence of her own prosecutorial misconduct and prosecutorial misconduct of her office, issued a decision that will, no doubt, continue to add to the number of wrongful convictions in New York - without giving criminal defendants and their attorneys an ability to prove that the conviction is wrongful.

53 pages explaining why Civil Rights Law 50-a "lawfully" may block a Freedom of Information Request for records documenting misconduct of a police officer, a public employee.

Since the decision is published in an electronic format, it is word-searchable.

Try searching it for words "6th Amendment" and "Confrontation Clause".

You won't find either.

But I, probably, mistakenly, thought that every single police officer and every single judge in the U.S., including the glorious state of New York, are sworn to protect the FEDERAL Constitution, with all its little wee bits, like the 6th Amendment's Confrontation Clause - one of the main barriers to wrongful convictions.

But, if you search the legislative notes to this statute, how it was introduced, you will find that this particular statute was introduced intentionally and specifically to prevent impeachment of prosecution's witnesses, police officers, by criminal defense attorneys.

In other words, the statute was meant to deliberately interfere with criminal defendants' confrontation rights guaranteed by the 6th Amendment Confrontation Clause as the main truth-finding tool at trial.

So, if you do not know about misconduct of police officers - you cannot impeach him, can you?

If you, as a defense attorney, ask a question of a police officer on the stand, before the jury - were you ever disciplined for misconduct - the police officer can "testi-lie" to you, under oath, with full assurance of never being held accountable for that.

Because - he will drum up a conviction for the prosecutor, the prosecutor will advance his career, be re-elected, then will be elected as a judge - so the prosecutor will never prosecute a police officer who helps him, by lies under oath, does not matter, to advance his, prosecutor's career to the top coveted position - the judiciary.

And, what will be a way for you to impeach the officer, prove to the jury that he is lying?

DiFiore said - Civil Rights Law 50-a prohibits disclosure of records of police misconduct in response to Freedom of Information requests by the public (that hires police officers for the public's own protection, pays their salaries and is, thus, the police officers' employer).

DiFiore does not say that Civil Rights Law 50-a is unconstitutional, under the 6th Amendment, because it was meant to violate criminal defendants' confrontation rights and undermine effectiveness of cross-examination in criminal trials.

Not at all.

Do not expect a former career prosecutor who invited only police and prosecutors - and no defense attorneys - to her swearing in ceremony in February of 2016 - to support constitutional provisions protecting criminal defendants (presumed innocent, by the way, at the time of trial).

Can a criminal defendant receive such information about misconduct of police officers who would testify at his trial in any other way?

Not only he can, but the prosecutor must disclose this information.

It is called "Brady material", impeachment evidence of witnesses.

But, do prosecutors usually do that?

Of course, not - they cannot drum convictions otherwise.

And, is there any accountability for prosecutors violating the Brady rule?

Of course, not.

No prosecutor (including DiFiore herself) has ever been disciplined in New York for violation of the Brady rule.

Hence, creation of the Commission for Prosecutorial Conduct, that people hoped, will address violations such as that - violations paving the way to wrongful convictions.

Which is currently stalled, and we are made to patiently wait until the Legislature guts even he toothless legislation that it created, in order to please prosecutors - who have power to criminally charge legislators and Cuomo, so, there is a lot of (if you don't, I will do that to you) thing-y looming in the air in those negotiations.

But, since you cannot get information about police misconduct under FOIL, and you cannot get it under the Brady rule, you cannot get it, period - and police officers can "testi-lie" happily, knowing that nobody can every catch them by their lying tongue on the stand.

Thus, the jury will think that the police officer - testifying usually in his uniform - is very, very credible, because there is no evidence saying otherwise, such evidence being deliberately, "by law" hidden from the criminal defendant.

Don't you think this is a coincidence in time that Cuomo and Co. stalled appointments to the Commission and "the parties stipulated" to wait until the Legislature "amends" the law regarding the Commission - and that DiFiore issued her decision on Civil Rights Law 50-a at the same time?

There are no coincidences between these guys, everything was long pre-coordinated.

They are LAUGHING at you, New Yorkers.

They are LAUGHING at our efforts to put prosecutorial misconduct under control and obtain accountability for it.

They say - no matter what you try, even when you thing you've succeeded, we will still find ways to dupe you and overpower you, you and your puny federal constitutional rights that we swear to uphold, in a token to get to that position of power - over you.

Under these conditions, wrongful convictions are INEVITABLE, they are actually COVETED by prosecutors, they are their path to glory, to the permanent employment (federal judiciary, preferably), to their permanent, absolute, unaccountable power over the public - people, property and public policy.

No token oaths of loyalty to the U.S. Constitution every prosecutors is laughing at, often into criminal defense attorneys' faces, will offset that powerful incentive to drum up convictions, rightful or wrongful, does not matter.

As a cherry on the cake - consider what the President of New York Court Officers Association Dennis Quirk said to me today in response to my comment about DiFiore's decision about Civil Rights Law 50-a - in a purely professional forum, comments to an article in New York Law Journal, during working time, at about 10 am 

when Dennis Quirk was supposed to be working and earning his exorbitant salary that New York taxpayers pay him through their collective noses:

So, in the opinion of a court employee and the President of the New York State Court Officers Association - who works in a criminal court, by the way, and is supposed to be neutral to criminal defendants (presumed-innocent people) who are subjected to criminal trials in that court - 

if you do not like having New York prosecutors drum up wrongful convictions with the help of an unconstitutional statute, designed to violate criminal defendants' 6th Amendment Confrontation right - you can all "go back to Moscow".

Can you, though?

Isn't it just a little bit brazen for a public officer, during his taxpayer-paid time to browse Facebook and spread bigotry and his views that a constitutionality of a state statute regarding constitutional rights of criminal defendants (and, ultimately, legality of criminal convictions, all criminal convictions in the State of New York) is not up for discussion?

By the way, Dennis Quirk's pro-prosecutorial leanings (despite working in the court system) are well-known.

He was recently sued for slander by a former chief clerk of a New York State court, Michael Pulizotto, for calling Pulizotto a "low-life rat" you know for what?

For being a whistleblower on prosecutorial and judicial misconduct, of course - according to Pulizotto, Quirk called him a "low-life rat" and harassed him over collecting evidence of judicial and prosecutorial misconduct (just like Quirk harassed me online today, until he was caught and quickly erased his bigoted statement - but not before we saved scans).

It is very possible that one of the basis for harassment of Pulizotto by Quirk was envy - Pulizotto was an attorney, and much hire paid as a chief law clerk.

Of course that lawsuit was dropped "to concentrate on the federal lawsuit", this one - where New York State Officers Association was one of defendants, I will dedicate a separate blog article to this lawsuit, it is ongoing, same as the lawsuit of another fired court employee - whistleblower of sexual harassment by a judge Alexis Marquez, I wrote about that lawsuit before on this blog:

For secretly recording (an act perfectly allowed by New York Penal Law) the Staten Island Judge Judith McMahon, the wife of the local district attorney Michael McMahon - who, after stating that she is relinquishing control over criminal courts, to avoid the apparent conflict of interest, kept it.

So, the clerk recorded her, for years, and finally publicized her misconduct.

Neither Judith McMahon nor her husband Michael McMahon lost their law licenses, nor were they disciplined in any way.

They both kept their positions and have "no record of public discipline" as attorneys.

The whistleblower, Michael Pulizotto, who painstakingly collected evidence of misconduct of both of these miscreants before publicizing it, lost his job.

And Dennis Quirk, the longtime President of the Court Officers Association 

decided to kick Michael Pulizotto some more by calling him a "low-life rat" - and thus demonstrating his loyalty to misbehaving judges, in order to preserve his job security.

So, one might say that Dennis Quirk has a systemic hatred to whistleblowers of at least some official misconduct:

• regarding misconduct of police officers ("if you don't like it, move back to Moscow);

• regarding judicial and prosecutorial misconduct ("a low-life rat").

This is how you keep working for the government - and "earning" good money while playing on Facebook, don't you - by keeping your mouth shut and trying to shut down those who do protest judicial misconduct, right?

But, the point is that people of the State of New York cannot possibly expect a decline in wrongful convictions in the state - while there is such a policy towards official misconduct:

• to hide it, the U.S. Constitution requiring its disclosure in criminal proceedings be damned);
• to punish those who expose judicial and prosecutorial misconduct
• by demoting or firing them:
• Bobette Morin - she sued and obtained a $600,000 settlement, albeit paid by taxpayers, not by Judge James Tormey who tormented and demoted her after she refused to spy for him against a political opponent in elections, Tormey was never disciplined, was since re-elected and continues to be the Chief Administrative Judge of the 5th Judicial District of the State of New York;
• Michael Pulizotto, here is his lawsuit, ongoing at this time, here is the docket report of the case as of today;
• Alexis Marquez;  here is her lawsuit against New York court system for cover up of sexual harassment by judges, punishing whistleblowers and scrapping the court system's anti-sexual harassment policy;
• by losing their livelihood completely (through revocation of their law license) - for lawyers-whistleblowers (like Doris Sassower, John Aretakis, Gino Giorgini - all suspended indefinitely for criticism of judicial misconduct).

This is the preliminary statement of the lawsuit of Michael Pulizotto, an attorney and former chief law clerk, against the New York Court system.  Note the statement about chances for a fair trial for criminal defendants.

If this is the opinion of an attorney who has spent many years as a confidential law clerk of a judge, and saw misconduct up close, to the point of starting to record it - for which he lost his job, but the judge and the prosecutor (husband-wife team) did not lose anything, what IS the chance for any New Yorker not to become a victim of a wrongful conviction?

Especially now, when DiFiore has made it safe for police to lie under oath in criminal cases and to drum some more wrongful convictions - while the Legislature and the Governor put a clamp upon creation of the Commission for Prosecutorial Conduct?

How about zero chance?