"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, August 29, 2016

The sad consequences of putting a political appointee at the top of the main State Court - decisions that are ragingly unconstitutional and insane

I recently ran a blog about the insane decision of the New York State Court of Appeals putting an "affidavit of errors" in a criminal case a jurisdictional requirement and more reliable than a transcript produced from audio recording of an entire case.   I would like to share some more thoughts about issues that the case raises.

The insane decision, People v Smith, was authored by the new Chief Judge of the Court of Appeals, Janet DiFiore, a political appointee of Governor Andrew Cuomo and the former career prosecutor of a lifetime.

And, unfortunately it shows the mentality with which prosecutors in the State of New York and this country approach criminal cases - criminal proceedings, with all constitutional "protections" (invariably interpreted against the defendant) are so much slanted against the defendant, and judges are usually so biased towards prosecution that prosecution does not have to think, the only thing it needs to do is to fabricate charges, and judges will go along usually with any crap put in front of them.

But, that mentality, as People v Smith shows, produces truly insane decisions when a prosecutor with such a mentality starts authoring judicial decisions requiring real thought and real legal analysis.

I already did analyze People v Smith earlier, but, while preparing to reply to a comment on that blog, I picked up on some more issues that the decision raises, and would like to share those issues here.

Issues  # 1, 2 and 3 - on reliability of court recording equipment, trustworthiness of judges handling court recording equipment and legitimacy and enforceability of the rules of New York State Court Administration

The New York State Court of Appeals acknowledged in the decision that transcripts produced from audio recordings

  1. made with the help of the court's own equipment,
  2. when such recording equipment is under the judge's control and
  3. in compliance with the rule of the New York State Office of Court Administration

are not reliable.

That turns ANY rules of New York State Court Administration - including the rule of frivolous conduct, 22 NYCRR 130.1-1, the rule of judicial conduct, 22 NYCRR 100, and any other rules not mandatory to comply with.

If that is so, why have those rules?  In other words, the New York State Court of Appeals, while aiming to do one particular thing - prejudge a case, kill a criminal appeal and make it so much more difficult to appeal from misdemeanor cases (handled by justice courts, "not of record" with presiding judges who do not have ANY required level of formal education, even Kindertarten) - in fact, invalidated ALL of its own court rules - as unreliable.


Also, the New York State Court of Appeals indicated that court audio recording equipment should not be trusted - and that judges who control such recording equipment in justice courts should not be trusted.

If judges should not be trusted, how can they be allowed to preside over cases?

That is one interesting consequence of the decision.

Issue # 4 - an equal protection problem: why the same transcripts, produced off court audio recordings, are unreliable for appeals in misdemeanor cases, but are reliable for appeals in felony cases? 

Justice courts in New York state handle not only misdemeanors - to which People v Smith applied.

Justice courts also handle initial stages of felony proceedings, such as the initial arraignments in felony proceedings, setting bail and the so-called preliminary hearings, or, in the legal jargon, "felony hearings" that responsible defense counsel usually require of the prosecution, and especially if the defendant is held in jail.

And, when a criminal defendant appeals from a felony case, he produces all transcripts of all proceedings held "on record" - and that usually includes felony hearings (if they were held), arraignments and bail hearings in the lower, justice courts.


So, here is a series of million dollar questions in the aftermath of People v Smith:

1) Why any portion of felony proceedings in New York are handled by a court "not of record" where both the recording equipment for creating the record in the initial stages of such proceedings is unreliable and judges handling that recording equipment are not trustworthy - where an affidavit of the ENTIRE criminal proceedings (which could be months of conferences, motion hearings and trials) is officially deemed, by the highest court in the state MORE reliable than an audio recording produced on court equipment by the presiding judge handling that court equipment?

Didn't the handling of the initial proceedings by justice courts in New York become a constitutional problem as a result of People v Smith?

2) A jurisdictional/interpretational problem for the intermediate appellate court - intermediate appellate courts in New York always require that on appeal appellants provide transcripts of all proceedings "held on record".

I touched upon that issue in my previous blog - but only in regards to appeals from Family Courts. 

I will repeat and expand the question here - how do appellants now appeal as of right to intermediate appellate courts in New York in the aftermath of People v Smith, claiming that any courts where stenographers do not take record of court proceedings are courts "not of record", even those where audio record is taken on court's own equipment?

That includes:

  1. appeals from convictions on misdemeanors, DESPITE People v Smith,
  2. appeals from all Family Court proceedings, and
  3. appeals from convictions in felony cases where a portion of the felony case was handled by a justice court.
After People v Smith, how do appellants deal the transcript requirements in proceedings held "on record" to intermediate appellate courts?

An appeal from a misdemeanor conviction has two "as of right" stages New York - County Court and Appellate Divisions.

Now that "Affidavit of Errors" is established as a jurisdictional requirement, can the court even require a transcript of proceedings if it was not from proceedings "held on record".  Aren't transcripts from such proceedings just reduced to meaningless documents having no legal force and unreliable?

And, as a result:

Issue # 5  Another million dollar question, now to taxpayers - isn't the funding of expensive audio recording equipment for New York justice courts AND Family Courts is now illegal under People v Smith?

Issue # 6 Isn't making defendants pay for transcripts from audio files created by courts "not of record" and to provide such transcripts as part of Record on Appeal now illegal under People v Smith, because such transcripts has no legal force as compared an affidavit from memory?

Issue # 7  If defendants (or respondents in Family Court) are indigent, isn't it now illegal to have their transcripts from audio files created by courts "not of record" paid by the Counties/taxpayers - when such transcripts, in accordance with People v Smith, the decision of the top court of New York State, do not have legal force, are not necessary and "affidavit of errors" are now the only reliable standard for record on appeal from courts "not of record".


I know from experience that prosecutors, especially career lifetime prosecutors like Janet DiFiore who authored People v Smith, are not used to thinking even a couple of steps ahead, because their "thought muscle", let's put it this way, is atrophied from not being used over the years - and it's not being used over the years because anything is given to prosecutors by courts anyway on a silver platter, no matter how unlawful or insane their actions are, but still. 

What kind of mess DiFiore just created?

And now to Issue # 8.  Affidavit of Errors on WHOSE MEMORY?

The trial attorney definitely cannot inject himself/herself as a witness into the proceeding that can be reversed AND REMANDED BACK to the trial court - because then the attorney will disqualify him/herself for that remand.

Then, we are talking about the memory of the criminal defendant?


Now the LEGAL STANDARD for appeal "as of right" is dependent on the MEMORY OF THE CRIMINAL DEFENDANT?

First of all, is average human memory of ANY human being CAPABLE to retain and accurately recall BETTER THAN THE AUDIORECORDING what occurred in proceedings (traumatic, stressful proceedings for the defendant) over the period of days, months, sometimes years?

If that would be true, ladies and gentlemen, why are we such idiots and why we even invest, as taxpayers into audio AND VIDEO recordings of our government?  Isn't it cheaper not to waste money on all that super-expensive video equipment and streaming from, let's say, U.S. Congress and other public hearings?

Chief New York Judge Janet DiFiore in People v Smith did not even consider the question whether human memory is even CAPABLE of producing an accurate "Affidavit of Errors" that the statute sets as a "jurisdictional requirement", or whether it is fair to require a defendant not only sit their and prepare a defense, but to produce the "Affidavit of Errors".

Second, can a statute or a court interpreting that statute presume that a particular defendant must have that "better than audio recording" memory for purposes of Affidavit of Errors?

What is the evidentiary basis of such presumption?

Will now courts be checking memories of all criminal defendants at arraignments to verify whether they are able to produce a reliable Affidavit of Errors?  Or will that not be required?

Third, how can an "appeal as of right" depend upon VARYING individual human qualities of criminal defendants, such as their memories, which can differ because of genetic predisposition, disability, and depend on quality of education, which, in turn, depends on moneys invested - or not invested - into such education of a particular defendant?

And, fourth, shouldn't the defendant be advised by the court at the outset of criminal proceedings, at arraignment, that the defendant must memorize the entire proceeding and spot errors in it in order to have a right to appeal?

From which flows, as a fifth, doesn't spotting errors in the trial require a legal training - and then, the Affidavit of Errors illegally requires a trial lawyer to memorize the proceedings, on top of everything else the lawyer is doing - and for the lawyer to inject himself as a witness in that proceeding and produce an "Affidavit of Errors" (whether he is retained for the appellate stage of the case or not) in order for his client to preserve his right to appeal?

So MANY bizarre questions arise out of ONE case "authored" by a political appointee/career prosecutor, the newly minted Chief Judge Janet DiFiore.

Isn't the answer to all of that insanity created by DiFiore not only that she does not think - or does not care - what legal consequences her decision will produce or how insane will it look (because nobody ever will get her off her throne due to her political connections, favors owed to her by high-standing politicians, and compromising information she knows about too many high-standing politicians and can hold over their heads).

Isn't the answer to all that is that courts will not even review all these issues and simply reject them as "frivolous" - based on their absolute "discretion"?

But wait - didn't DiFiore in People v Smith just scrap all court rules, including rules of frivolous conduct, as unnecessary for application and overridden by even insane statutory requirements, like the one putting the "Affidavit of Errors" in appeals from courts "not of record"?

And isn't the answer to the whole mess created by People v Smith in that the pre-judged POLICY of the decision is to simply make appeals from justice courts handled by incompetent and uneducated judges impossible or next to impossible?

Or, isn't the answer readily suggested by People v Smith is that the Affidavit of Errors, even though deemed a "jurisdictional defect" if not provided, is A FORMALITY, and a defense counsel can put together a couple of issues, have the defendant sign the affidavit, submit the affidavit to the court - and then proceed STILL with the "unreliable" transcripts from the "unreliable" audio file, like it was before?

But, then, doesn't People v Smith teach to accept crookedness of court decisions, and that certain things need to be done unlawfully and in violation of criminal defendant's rights - in order to preserve defendant's rights?  Because that's exactly what the requirement to produce Affidavit of Errors means - it means violation of the defendant's right to remain silent, or right toe effective assistance of counsel at trial - in order to preserve his right to appeal.

DiFiore definitely needs to be taken off the bench - for a thinking disability.  Mental disability is constitutional grounds for removal of judges in the State of New York, isn't it?

Issue # 9 Doesn't a criminal defendant have a right to remain silent, even throughout criminal appeals?

Courts have held that, pending appeal, a convicted criminal defendant cannot be forced to admit guilt or punished for not admitting guilt - thus meaning that courts recognize that the right to remain silent extends during the pendency of criminal appeals, otherwise criminal appeals will be meaningless and moot if a defendant can be simply forced to confess as soon as he is convicted by the lower court.

If, in accordance with People v Smith - and a statute - now IN ORDER TO APPEAL, the Defendant MUST SPEAK and produce an "Affidavit of Errors", doesn't it violate the defendant's constitutional right to be silent?

*   *   *

As I said above, I understand that prosecutors are not required to think - but prosecutors who are appointed as judges (and especially as judges of the highest state court handling constitutional appeals, and constitutional criminal appeals) are expected to think.

And, if Difiore has a "thinking disability", as she demonstrates by producing decisions such as in People v Smith, she should be taken off the bench.  Shouldn't she?

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