"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.

Friday, September 11, 2015

Rights assigned counsel in criminal cases in New York usually waive

Yesterday, I have published a blog about New York State raiding the Indigent Legal Defense Fund that is actually funded by conviction fines from the poor in the criminal justices courts where judges are not attorneys and do not have any minimum requirements for their education and training.

I would like to point out which rights assigned counsel most often waive, and most often without telling their clients that such rights even exist.  That I know because people often came to my office with a criminal record created through "plea deals" negotiated by assigned counsel and learnt for the first time that they had certain rights that were waived without their knowledge - and as a result they have a criminal record when the case could have been dismissed, and that the criminal record will affect their present legal position in a new case.

Here are rights that assigned counsel most often waive in felony cases (incarceration of over 1 year in state prison):

How and when it is asserted
Why it is important
What happens if the right is not timely asserted

Right to a felony hearing

If the defendant is in jail, the demand is to be made immediately.  By law, a felony hearing must be provided within 144 hours if the felony case is first brought in the criminal justice court

The purpose of the hearing for the defense is dual:
1)      Obtain a release of the Defendant from jail without bail (for free) if People refuse to provide a felony hearing (which happens often, because People’s evidence is not yet ready)
2)      To see what evidence People have before they coached their witnesses how to lie
Usually, assigned counsel waives the felony hearing.  As a result, their indigent (poor!) clients remain in jail because they cannot pay the usually high bail set for felonies, and prosecution is allowed by assigned counsel unlimited time to prepare their case. 
Speedy trial time limits
Asserted by not agreeing to adjournments

New York law requires that felonies be prosecuted by indictments of the Grand Jury, and such indictments must be brought within 6 calendar months from the filing date of criminal charges in the lower court.  Prosecution often misses the date, and then the felony case MUST be dismissed for failure to comply with the speedy trial statute.

Assigned counsel usually waive speedy trial time limits by agreeing to adjournments of proceedings in court.  Because of such waivers, People get extra time to prepare their case and dismissal on speedy trial grounds is not possible.
Right to indictment by the grand jury
Asserted by refusing a waiver of such grand jury proceedings when offered by the prosecution
Grand Jury proceedings provide an extra layer of protection since
1)      the grand jury may refuse to indict or may indict for a lower-level crime;
2)      legal sufficiency of the indictment may be challenged on many grounds, which may provide additional grounds for a dismissal of the case at a pre-trial stage

Assigned counsel routinely coerce their clients into waiving grand jury proceedings, often for nothing in return, and without explaining to their clients what rights exactly they are waiving and why such rights are important. After the waiver “by consent”, prosecution proceeds by the so-called “Superior Court Information” (SCI), usually on the same count as initial felony complaint was, and without any possibility for the criminal defendant to attack legal insufficiency of the SCI.
Right to be notified of the grand jury proceedings

The right is automatically asserted when a felony complaint is brought in the lower justice court, and the defendant appears there, with or without counsel.  “Appearance” is arraignment when the criminal defendant is first brought before the court.

If there is no such notification, a motion must be made within 5 days only (!) from the arraignment on the indictment in the County Court, otherwise the right to challenge failure to notify defendant of the pending grand jury proceedings is waived

If the felony proceedings started in the lower court where the defendant appeared, the prosecution must notify the defendant or his/her counsel of the pending grand jury proceedings, so that the defendant can have an opportunity to testify at the grand jury proceedings and call his/her own witnesses there

Failure to notify the defendant or his counsel of the pending grand jury proceeding, if timely brought up on a motion, leads to dismissal of the indictment (if the judge knows and properly applies the law).  Even if the judge denies the motion, making such a motion provides an extra layer of protection on appeal. 

Criminal appeals are notoriously difficult to win, and the most likely ways of winning a criminal appeal are on procedural grounds – when certain procedures were not observed.  Failure by prosecution to notify the defendant or his counsel of the grand jury proceedings is a reversible error on appeal, and waiving such a right (especially without telling the criminal defendant that such a right even exist) is client neglect and attorney misconduct – even though it is never prosecuted as such.

Prosecution in Delaware County, for example, fails to notify criminal defendants and their attorneys of the pending grand jury proceedings and asserts that as a matter of right even if such failures are brought up on motion.  Otsego County is better, I’ve never had a felony case there where I was not notified.

Assigned counsel routinely waive this right, as it requires immediate involvement into motion practice, while assigned counsel usually do not do motions in criminal cases and usually do not like to do any drafting under time pressure.

Judicial, police, prosecutorial misconduct
Must be affirmatively asserted in motions
Can be grounds for dismissal of the case (or reversal on appeal), waived if not properly asserted on record
Such issues are an unspoken “taboo” with assigned counsel, they are never asserted, and thus the criminal defendant loses his or her right to claim dismissal of the case in the interests of justice, often without knowing that such a right existed

For those of my readers who would like to see for themselves how the first of these rights are waived, you can attend felony arraignments in any local criminal justice court in New York - criminal arraignments are public hearings.

You will see criminal defendants, shackled and handcuffed, come one by one before the court with their assigned counsel, and go away back to jail in shackles and handcuffs, with their counsel not even trying to request a felony hearing.

That is, I understand, one of the "cost-effective" solutions for the indigent criminal defense that the Indigent Legal Defense Fund is funded to work on - when it does not give away to the State of New York the money it receives from fines squeezed out of the poor convicted because of "cost effective"/a.k.a. pathetic legal defense.

And the vicious circle continues.

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