"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.

Tuesday, December 22, 2015

The Brady rule, the Confrontation Clause, police misconduct and testi-lying and New York "blue wall of silence" statute

"Testilying" has become a set term in criminal defense community and describes deliberate lying of police officers under oath.

Happens all the time.

Wherever videotaping is available, such videotapes made it into the public domain and caused major publicity scandals.

New York is not one of those states.

Why not?

1)  New York has a criminal statute, Civil Rights Law 52, prohibiting "televising and broadcasting", as well as videotaping of PUBLIC court proceedings.  Makes no sense, doesn't it?  If it is a public proceeding, then any member of the public can see it, whether those who actually came to the proceedings, or those who did not come, but who can see those proceedings through a live-stream or videotaped testimony.

Such a prohibition prevents parties and their attorneys (those who actually do their duty to their clients instead of playing brown-nosing games with judges and prosecutors to advance their own financial well-being and political careers) from preserving the full record of behavior of witnesses, jurors, judges and prosecutors and interaction between them.

Witness testimony recorded on paper by a stenographer (and it will be a question whether the record was correctly taken, too) can be ignored by the court and the public.  You-tubed testimony reflecting body language of participants in court proceedings interacting with one another or reflecting attitude towards one another that is not reflected in the record, can change outcomes of court cases - and change people's lives, profoundly so.

Video-taping in the courtroom can also definitely change the way judges, prosecutors and politically connected attorneys operate in the courtroom.  If they start obeying the law and rules of civility at least out of fear of you-tube exposure, even that will be a good start as opposed to what is going on today in courtrooms across the U.S., and especially in New York where courtroom testimony is prohibited by a criminal statute.

2)  New York has a "civil rights statute", Civil Rights Law 50-a that allows a district attorney, a county attorney, a town attorney, even a "corporation counsel" access to personnel records of police officers - but does not allow the same access to defense attorneys in preparation for a criminal trial or during criminal trial.

In other words, the District Attorney who puts a police officer on the stand and hears him deny that he has ever committed misconduct or lied under oath to the court, has access to records that show that what the police officer says is perjury.  Yet, since it benefits the DA, and the criminal defense counsel does not have access to this information, the DA will never prosecute his own witnesses that helped the DA obtain wrongful convictions for perjury.

It is interesting to mention that, in New York, there is a presumption of disclosure of public records, see Public Officers Law 87 (also known as Freedom of Information Law, or FOIL) and its interpretations by New York courts.

Exceptions to FOIL are few, well enumerated, strictly construed, and there are "exceptions to exceptions":

There are exceptions-to-exceptions to FOIL, specifically:

  1. Statistical and factual tabulations or data - that New York agencies may not refuse to disclose if they have it;
  2. instructions to staff that affect the public - including, obviously, the "blue wall of silence" instructions if a police officer commits misconduct, injures or kills a member of the public or lies on the stand;
  3. final agency policy or determinations - including determinations regarding employment of police officers who committed misconduct;
  4. external audits, including but not limited to audits performed by the comptroller and the federal government.
Civil Rights Law 50-a obviously runs contrary to the exceptions-to-exceptions to FOIL and constitutes an exception-to-exception-to exception to FOIL that contradicts not only FOIL and its presumption of disclosure of public records, but also the requirement that the sovereign (the people) must know, in order to be able to govern properly, whether his servants (police officers) misbehaved.

Moreover, the 6th Amendment to the U.S. Constitution allows a criminal defendant to confront witnesses against him, and the right of confrontation does not mean much if the criminal defendant and his or her attorney will have no access to the information that the District Attorney has access to, specifically, to impeachment evidence against police officers.

On top of running contrary to FOIL (Public Officers Law 87) and the 6th Amendment to the U.S. Constitution, Civil Rights Law 50-a also runs contrary to criminal defendant's "Brady" rights - a right of a criminal defendant to have disclosed to him/her - with or without request to the DA, any information that diminishes or negates the criminal defendant's guilt, can provide leniency to him, and that includes impeachment evidence of DA's witnesses.

Once again, under the Brady rule (and that is federal constitutional law), the DA absolutely must disclose, with or without a request from a criminal defendant, the Brady material, including impeachment evidence about every and each one of police officers who participated in investigation and/or prosecution of a criminal case.

Civil Rights Law 50-a, on the contrary, prohibits disclosure of the very same records that federal law, the Brady rule, requires to disclose.

Under the so-called rule of pre-emption of federal law, Civil Rights Law 50-a is unconstitutional and should not be enforced.

The DA is a public official sworn to uphold the U.S. Constitution, its Supremacy Clause and the rule of pre-emption (voiding) of any state law that is inconsistent with federal law on point, especially with constitutional law.

All New York Judges are public officials sworn to uphold the U.S. Constitution, its Supremacy Clause and the rule of pre-emption.

Yet, Civil Rights Law 50-a exists since 1976 and, for 39 years so far is being used by New York prosecutors and judges to drum up wrongful convictions based on blocking criminal defense attorneys from impeachment evidence that they are absolutely entitled to have for purposes of preparation of their defense of a criminal case, as part of mandatory disclosure.

In December of 2014, New York State Committee asked the New York State Legislature to repeal the Civil Rights Law 50-a that is designed to impair cross-examination during criminal trials, in violation of two federal constitutional provisions (Due Process of the 14th Amendment and Confrontation Clause of the 6th Amendment).

New York State Legislature did not repeal that law so far, and it continues to fill New York prison's, at taxpayers' expense, with wrongfully convicted prisoners, while state prosecutors continue to advance their careers and ascend to judicial benches claiming such wrongful convictions as their big achievements in "protecting the public".

As recently as on October 22, 2015, NYS Appellate Division 3rd Department modified a dismissal of the entire Article 78 petition and remanded the part that the 3rd Department declared not covered by Civil Rights Law 50-a, specifically, records about misconduct of a former police officer after that officer resigned.

Yet, a right of a member of the public (the sovereign) to know about misconduct of police officer is one thing, and a criminal defendant whose liberty, reputation, family integrity and future right to earn a living depends on whether he has access to the right information at the right time (in the criminal case) is absolute, is secured by the Brady rule and his constitutional rights for effective cross-examination under the Confrontation Clause.

Moreover, the Equal Protection Clause of the 14th Amendment must protect criminal defendant's equal rights to information with the District Attorney and must prevent creation of a situation when the DA may knowingly put a lying witness on the stand while using a "Civil Rights Law" to impair civil rights of a criminal defendant to know such information to effectively defend himself.

Rights of prosecution and defense in access to information at the trial should be at the very least equal, given the stakes for the criminal defendant. 

Civil Rights Law 50-a should not be allowed to be used against a criminal defendant to undo the Brady rule, as it has been done in New York for 39 years.

In my time as a criminal defense attorney, I've made several motions challenging constitutionality of this particular law.  They were all rejected by courts, yet, as slow-but-steady progress in constitutional law shows, persistence is the key.

I am sure Civil Rights Law 50-a will soon finds its way to the garbage bin - where it belongs.

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