"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.

Monday, March 23, 2015

Wrongul convictions: What is a reversible error and prosecutorial misconduct in Arizona, is business as usual in New York

Chief Judge Jonathan Lippman has been declaring far and wide, left and right, that he is fighting for "access to justice", and is investigating and fighting the causes of wrongful convictions.

Yet, a major cause of wrongful convictions is right in front of Judge Lippman's nose, and the court system that he heads actively contributes to multiplying those convictions by failing to properly review and resolve challenges to constitutionality of statutes that help create such wrongful convictions.

One of such statute is the infamous New York Civil Rights Law 50-a that states:

§  50-a.  Personnel  records  of  police  officers,  firefighters  and
  correction  officers.  1.  All  personnel  records  used   to   evaluate
  performance  toward continued employment or promotion, under the control
  of any police agency  or  department  of  the  state  or  any  political
  subdivision thereof including authorities or agencies maintaining police
  forces  of individuals defined as police officers in section 1.20 of the
  criminal procedure law and such personnel records under the control of a
  sheriff's department  or  a  department  of  correction  of  individuals
  employed  as  correction  officers  and such personnel records under the
  control of a paid fire department or force of  individuals  employed  as
  firefighters  or firefighter/paramedics and such personnel records under
  the control of the department of corrections and  community  supervision
  for  individuals  defined  as  peace  officers  pursuant to subdivisions
  twenty-three  and  twenty-three-a  of  section  2.10  of  the   criminal
  procedure  law  shall  be  considered  confidential  and  not subject to
  inspection or review without the express written consent of such  police
  officer, firefighter, firefighter/paramedic, correction officer or peace
  officer  within  the department of corrections and community supervision
  except as may be mandated by lawful court order.
    2. Prior to issuing such court order the judge must  review  all  such
  requests  and  give  interested  parties the opportunity to be heard. No
  such order shall issue without a clear showing of  facts  sufficient  to
  warrant the judge to request records for review.
    3.  If,  after such hearing, the judge concludes there is a sufficient
  basis he shall sign an order requiring that  the  personnel  records  in
  question  be  sealed  and sent directly to him. He shall then review the
  file and make a determination as to whether the records are relevant and
  material in the action before him. Upon such a finding the  court  shall
  make  those  parts  of  the  record  found  to  be relevant and material
  available to the persons so requesting.
    4. The provisions of this section shall  not  apply  to  any  district
  attorney  or  his  assistants,  the  attorney general or his deputies or
  assistants,  a  county  attorney  or  his  deputies  or  assistants,   a
  corporation  counsel  or  his deputies or assistants, a town attorney or
  his deputies or assistants,  a  village  attorney  or  his  deputies  or
  assistants, a grand jury, or any agency of government which requires the
  records  described  in  subdivision  one,  in  the  furtherance of their
  official functions.

Please, note that the law does not apply to district attorneys, so theoretically DAs have access to such records and must disclose history of misconduct of police investigators of a certain criminal case as Brady material.

Yet, an opinion poll of several attorneys with years of practice, including my own experience, tells a different story.

DAs never disclose such information and, if pressured, use Civil Rights Law 50-a as a shield, telling the defense counsel to go ask the judge for a court order.

It is interesting to mention how unequal the rights of the district attorney and of the criminal defense counsel under Civil Rights Law 50-a are.

The DA has a right of access to misconduct information of police officers while a criminal defense attorney must beg a judge for a court order - and my experience and experience of attorneys who I polled is that motions like that always fail.

Yet,  the statute was specifically enacted to prevent impeachment of police officers on the stand during criminal trial.

When a statute is designed or is used to impair or prevent enforcement of a fundamental constitutional right, such as a right secured by the Confrontation Clause of the 6th Amendment of the U.S. Constitution, the statute must be immediately declared unconstitutional.

Yet, Civil Rights Law 50-a exists for a long time, and trial and appellate courts invariably either reject or outright ignore challenges to constitutionality of this statute.

I filed my share of motions to challenge constitutionality of Civil Rights Law 50-a and raised such challenges on appeal, with the same results, always - failure.

Challenges like this in New York are procedurally difficult, if at all possible also because of jurisdictional limitations of state courts where criminal proceedings are usually tried, and because of habitual refusal of federal courts to exercise their jurisdiction and to review challenges to constitutionality either during the criminal proceedings or after the criminal proceedings are over.

In New York, most if not all crimes are NOT brought in the Supreme Court,  the lower court of general jurisdiction.

Yet, challenges to cosntitutionality of statutes can ONLY be brought in the Supreme Court.

Thus, bringing a motion to challenge constitutionality of Civil Rights Law 50-a in a local justice court (where judges are not attorneys and may have no education at all) or at the County Court level must result in failure because these courts have no jurisdiction to review such proceedings.

Alternatives are to request to transfer criminal proceedings to the Supreme Court, or to bring a separate civil action for a declaratory judgment in the Supreme Court during the pendency of the criminal proceedings.

To try to bring such an action in federal court during the pendency of a criminal proceeding or after the criminal proceeding concluded in a wrongful conviction is an exercise in futility.

During the pendency of the criminal proceeding the federal civil rights case will be dismissed because of the so-called "Younger abstention".

If the federal civil rights lawsuit is filed after the wrongful conviction, it will be dismissed under the so-called "Rooker-Feldman doctrine".

On direct appeal from the criminal court, challenges to constitutionality of statutes, including Civil Rights Law 50-a, are simply ignored.

New York State Court of Appeals further ignores constitutional appeals as of right, arrogantly claiming, usually without any explanation that no "substantial" constitutional rights are violated, in the court's learned opinion - meaning that the court takes upon itself to pick and choose which constitutional rights are substantial and may not be violated and which are insubstantial and may be violated.

In fact, no one in the United States is allowed to either violate the U.S. Constitution or to allow themselves to decide which of its provisions may or may not be considered "insubstantial" and insignificant enough, so that they may be violated. 

Yet, judges who receive their authority through their oath of loyalty to the U.S. Constitution, undertake to decide whether, how and which provisions of that same Constitution they may violate or allow other branches of the government to violate.

How many wrongful convictions are out there because of existence of Civil Rights Law 50-a?

How many families were split?

How many lives and reputations were ruined?

How many children are growing up without the nurture and care of their parents?

How much taxpayers have paid and continue to pay or investigation, prosecution, incarceration and treatment during incarceration of innocent people whose conviction resulted from non-disclosure of history of misconduct of their investigators?

In Arizona recently a judge tossed a conviction of a woman who spent 22 years on death row, because prosecution did not disclose to the defense that the investigator on that criminal case had a history of misconduct.

So - what is a reversible error in Arisona, is, unfortunately, business as usual in New York.

And this is an open question to Judge Lippman:  will you in your last year of service on the court do something real about your own courts contributing to this problem by blatantly ignoring constitutional challenges to this statute and to other unconstitutional statutes that help multiply wrongful convictions?

At least, you will then be remembered not only by your association to your buddy Sheldon Silver and your ascention to power on his shoulders.

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