"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, April 11, 2016

New York State and its Appellate Division 3rd Department has set a precedent penalizing appeals in criminal cases

On April 7, 2016 the New York State Supreme Court, Appellate Division Third Judicial Department made a case in attorney disciplinary proceedings, Matter of Hennessey.

In that case, the court allowed the Attorney Disciplinary Committee to use materials from a dismissed and sealed criminal court case based on an exception to sealing the records of a criminal proceedings that is apparently contained in Criminal Procedure Law 160.50(1)(c ).

Criminal Procedure Law 160.50(1)(c) requires sealing of all documents of criminal proceedings that ended in favor of the accused, with one exception:

"(c) all official records and papers, including judgments and orders of  a court but not including  published  court  decisions  or  opinions  or  records  and  briefs  on  appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with  the  division of  criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency".

Here is what this statute and the court's decision in the Matter of Hennessey means.

First, the procedural history of the case.

  1. A criminal defendant pled guilty to a felony (I will omit the details, and will state the case in the most general terms, relevant to ALL criminal defendants);
  2. Notwithstanding the plea of guilty, the criminal defendant appealed the conviction, which was affirmed on appeal.
  3. After the conviction was affirmed on appeal, the top state court declared the statute upon which the defendant was convicted, unconstitutional - in another case.
  4. Based on that declaration, the defendant's conviction was vacated.
Seems pretty straightforward so far.

Here is where the complication starts.

The criminal defendant in question was an attorney.

By statutory law in the State of New York, conviction of a felony of an attorney results in an automatic disbarment by operation of law.

By the same logic, when such a conviction is vacated, the automatic disbarment should be automatically vacated and the attorney automatically reinstated, also by operation of law.

Not so fast.

Here is where the CPL 160.50(1)(c ) kicked in.

Attorney disciplinary proceedings are deemed in New York as "civil proceedings".

The 3rd Department did not want to automatically reinstate the attorney's license - even though it was reinstated by operation by law, without permission of the court, same as it was revoked by operation of law on the attorney's conviction, also automatically.

The 3rd Department refused to acknowledge automatic reinstatement.

Moreover, the 3rd Department went to extraordinary lengths to prevent such reinstatement.

  1. The 3rd Department issued a "confidential order" allowing investigation of the attorney before a petition was filed - even though normally the Committee does not need a court order allowing investigations; the court is not involved at the pre-filing stage in attorney disciplinary proceedings.  I will try to obtain that "confidential" order since it stopped being confidential because the attorney in question waived confidentiality in writing (see footnote 1 in Matter of Hennessey);
  2. The 3rd Department held his reinstatement "in abeyance" - even though it had no authority to do so, because by that time the attorney was already reinstated by operation of law as of the date his conviction was vacated, same as he was automatically disbarred as of the date of his conviction, without any input from the court;
  3. The 3rd Department denied both the attorney's motion to prevent unsealing of the records of his criminal proceedings and from the Committee to unseal such records by pointing to CPL 160.50(1)(c), saying to the Committee - here, those records are open for your review, even if the criminal case is dismissed and OTHERWISE sealed.

Now, if the 3rd Department Committee wanted to investigate and prosecute an attorney under such circumstances, the CORRECT procedure would be this:

1) the attorney is automatically reinstated when his conviction that resulted in his automatic disbarment, was vacated;
2) the committee files a disciplinary petition, and moves for a temporary suspension during the pendency of the disciplinary proceedings;
3) the attorney has a right to oppose;
4) the 3rd Department has a right to grant such a request for interim suspension - IF the grounds for the request are constitutional.

That procedure was not observed in Mr. Hennessey's case.

Moreover, had it been observed, the suspension would still have to be denied, because the underlying conviction was vacated on 1st Amendment grounds - which fully applies to any other prosecution by the state, in criminal or civil proceedings.


So, the 3rd Department, and its Attorney Disciplinary Committee wanted a certain result - and got that result.

Mr. Hennessey remains without a license.

They pretend they followed SOME procedure, even though the "procedure" they followed is completely illegal and the grounds they pursue discipline are completely unconstitutional.


Yet, if we forget for a second that this case is about an attorney, and go back to the generalities of the case, we come to this:

  1. A criminal defendant pled guilty to a felony (I will omit the details, and will state the case in the most general terms, relevant to ALL criminal defendants);
  2. Notwithstanding the plea of guilty, the criminal defendant appealed the conviction, which was affirmed on appeal.
  3. After the conviction was affirmed on appeal, the top state court declared the statute upon which the defendant was convicted, unconstitutional - in another case.
  4. Based on that declaration, the defendant's conviction was vacated.
Now, what happens next, in general terms, is:

5. BECAUSE the criminal defendant appealed his criminal conviction, after his criminal conviction was vacated, and his criminal case otherwise sealed, the record of his criminal appeal REMAINS OPEN to the public and for use in civil court proceedings.

And this, ladies and gentlemen, is the general rule and a precedent set by the 3rd Department and unrelated to the former criminal defendant's identity as an attorney.

So, now, the rule in the 3rd Department is:

  • you have a right to appeal, but -
  • if you win on appeal and your case is dismissed,
  • your appellate record remain open to the public - 
  • and MAY BE USED AGAINST YOU in other court proceedings.

Now, had Mr. Hennessey "simply" pled guilty without appealing that conviction by plea, and obtained an identical end result of having his conviction vacated after a later decision in an unrelated criminal case, the record of his criminal case would not have been open for review by the Professional Conduct Committee under CPL 160.50(1)( c).

The only reason why they are is because Mr. Hennessey appealed his conviction.

In other words, Mr. Hennessey is penalized for appealing his conviction - which constitutes a FACIAL equal protection and access-to-courts violation.

In other words, 

the State of New York as of the date of enactment of CPL 160.50(1)(c) (the entire statute, CPL 160.50,  was reportedly last modified on February 15, 2014

and the 3rd Department, as of the date of its ruling in Matter of Hennessey, April 7, 2016, 

announced to the whole wide world that they are PUNISHING criminal defendants FOR APPEALING their criminal convictions AS OF RIGHT - 

and they are accomplishing this punishment 

by creating an exception that, even if criminal defendants win a reversal or vacatur of their conviction, 

thus expunging their criminal record, 

SOME of that criminal record will be still available for OPEN review and 

can become a basis of other court proceedings against them - civil or criminal (criminal proceedings on the same subject are precluded by double jeopardy, but introduction of unadjudicated crimes as "prior bad acts" is possible in future criminal proceedings on other charges).

I bet, this one is awaiting a constitutional challenge in federal court, and I will hold my breath to see how the State of New York will be wiggling out of this disgusting "law".

But, I wanted New York State criminal defense attorneys, civil rights attorneys and criminal defendants to be aware of this little rule.

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