Yet another People v Smith - New York State Appellate Division 1st Department strikes a plea-bargained conviction for violations of the right to counsel

I posted an article today about an awful decision, People v Smith, of the New York State Court of Appeals authored by New York Chief Judge Janet DiFiore.

Yet, as a ray of hope, another People v Smith case - literally, the same last name - surfaced from the 1st Department where the court did the right thing and vacated a plea of guilty because the court advocated for the prosecution and violated the defendant's right to counsel at a critical stage of litigation.

The case, by the way, involved not only judicial misconduct of the trial judge, not only prosecutorial misconduct of the Bronx County District Attorney's Office because its prosecutors took advantage of unrepresented defendant, but egregious misconduct by defense counsel Gilbert Parris who did this:

Note the sequence of events:

Attorney Parris appears before the court without his client present and asks the court to relieve him because the client cannot pay.

First, attorney Parris knows better than that.

Attorney Parris could be relieved from the case either by notarized consent of his client - which was not there, or by a motion on an Order to Show Cause to the court to relieve him, after service upon his client and after a HEARING on that motion - which also was not done.

Instead, the judge skipped all of those pesky formalities called the law and just went ahead and relieved attorney Parris from the case - after a "discussion off the record", imagine.

Ok, attorney Parris is relieved now from the case and IS NO LONGER ATTORNEY OF RECORD.

What does attorney Parris do next?

In the absence of a criminal defendant who is NO LONGER HIS CLIENT, attorney Parris waives that criminal defendant's right to be present for what? - apparently for discussion of the prosecution's application for a buccal swab, a search of the defendant's mouth while the defendant was in custody.

 Why was defense attorney Gilbert Parris relieved from the case of Dwight Smith? Because Dwight Smith could NO LONGER pay him - after he did pay him initially.

Happens all the time, but that's not a justification for attorney Parris not to follow the law as to how to withdraw from a case (by the way, non-payment is not usually considered as a legal ground for withdrawal from a criminal case), and certainly not a justification to appear without his client, argue off record about withdrawing from the case, without a written motion or notice to his client, and, after obtaining that withdrawal illegally - even more illegally waiving his now FORMER client's right to be present at the argument about the buccal swab before an EX PARTE order for such a swab was signed.

Apparently, the court advised the defendant, who asked for an adjournment to get a new counsel to oppose the prosecution's belated application for a mouth (buccal) swab, that "all motions are finished" - confirming that Gilbert Parris, after being relieved from representation of the defendant, actually waived his right to oppose that motion.

In fact, the court, confirmed waiver of defendant's right to oppose the buccal swab by his no-longer-attorney Gilbert Parris in so many words:

Here is the "hero" in this case, attorney Gilbert Parris.

I wonder if attorney Parris will be disciplined for misconduct in this case - he richly deserves it.

One thing the 1st Department said though is not a correct statement of the law.

Further in People v Smith, the 1st Department stated that the right to counsel in New York criminal proceedings attaches at arraignment.

That is not correct.

In New York, state constitutional right to counsel attaches BEFORE criminal charges are filed if an uncharged individual asks for counsel,

and when criminal charges are FILED, before arrest or arraignment of the defendant.

That's why the police tries to talk to the defendant and obtain a confession BEFORE the charges are filed, and to persuade the defendant that he really does not need to ask for an attorney, but "just talk" to the police "amicably" - because once the defendant asks for an attorney, or once the charges are filed, the defendant cannot make a waiver of the right to remain silent without a lawyer present.


The above is Criminal Procedure 101 in New York, a 23-year-old New York State Court of Appeals case People v West.

The prosecutor, the judge, and the FORMER just-relieved defense attorney knew it, or should have known that case - that's elementary competence in the field you are practicing.

All participants knew that the defendant's right to counsel INDELIBLY attached under the New York State Constitution when the charges were filed, and that, once the court relieved one defense attorney, it had to either appoint another or wait until the defendant hires another attorney.

The court could not clandestinely proceed on the prosecution's motion "conveniently" using the just-relieved defense attorney to voice a waiver on behalf of his now-former client.

Yet, the court proceeded as a ton of bricks - and an advocate for the prosecution - pressured the defendant into a conviction on a plea, and sentenced him for 18 (!!) years in state prison.

So - the court struck the conviction on a plea, vacated the plea and dismissed the indictment - without prejudice, which means it may be resubmitted to another grand jury, and the process re-started again (at taxpayer's expense, of course, even though it was butchered by three taxpayer-paid employees: three judges and a prosecutor, and a private defense attorney).

The dismissal is a drastic measure for a violation of a constitutional right - and I absolutely salute the court for taking a hard stand against prosecutorial and judicial (and defense attorney) misconduct that occurred in this case.

I also wholeheartedly hope that

• the two judges mentioned in this case,
• the prosecutors and
• the defense attorney Gilbert Parrish who sold out his client for inability to pay (the client was later appointed an assigned, 18-b, counsel), failed to oppose a motion and, after he was unlawfully relieved from representation without a proper motion or notice to his client, waived the defendant's right to be present at a hearing out for non-payment,

be disciplined most seriously.

Here are the other judges, the "heroes" in that conviction:

the Bronx County #JudgeStevenLBarrett who relieved attorney Parris and then issued the ex parte order for a buccal swab - a Harvard Law School graduate (!)

Judge Barrett has been a licensed attorney for 44 years.  I hope that the last statement in Judge Barrett's attorney registration, "no record of public discipline", should change soon - Judge Barrett should not be allowed to escape without discipline after the stunt in People v Smith.

The second judge who decided this case is John W. Carter:

That's another Ivy-League educated judge - who has been a licensed attorney for 33 years - who does not know elementary law applicable to his job.

There was even a dissent in this case.

By judge Barbara Kapnick, a graduate of private Boston University,

and a "Master" of American Inns of Court, a secret-membership organization where judges and attorneys regularly meet behind closed doors and where judges obtain tangible benefits (wining and dining at attorneys' expense), and have ample opportunities for ex parte communications - so, whenever a judge's membership in Inns of Court is mentioned (or, as here, publicly paraded on the court's website), I keep wondering whether the judge's decisions are very straightforwardly bought.

And, of course, Judge Kapnick was on the "Board of Advisory Committee for Judicial Ethics" - see one of my first blog posts on this blog about this committee and its composition.

Here is Judge Kapnick's opinion in favor of upholding the conviction reversed and remanded by the majority:

Justice Kapnick says, in plain English, this:

1) defense counsel Parris was properly served with the motion for the mouth swab before the court relieved counsel of his duties, on March 11, 2009;

2) defense counsel did not oppose the motion for 50 (!) days, and on the 50th day since being served, defense counsel appeared in court without his client (who was in jail since he had to be "produced", so the court did not issue the securing order to produce the defendant);

3) THEN, after not opposing the motion for the swab for 50 days, and instead of arguing on the motion, attorney Gilbert Parris instead asked the judge, orally, off the record and in the absence of  his client, to relieve him of representation - and Judge Steven L. Barrett, a licensed attorney with 44 years of experience, and a judge of 31 years, allowed it.

Then Judge Carter, a Columbia Law School graduate, an attorney with 33 years of experience and a former prosecutor of 13 years (1987 to 2000) and a judge of 14 years (from 2002 to present), pressured defendant into a plea bargain based on illegal actions of the previous judge.

And all of that is ok for Justice Barbara Kapnick.

Ok, let's go further with her decision.

That's very sweet.

After his paid attorney sold him out for not paying him - and did that AFTER he was relieved (unlawfully) from representation without notice to his client or formal written motion, as it was supposed to be, CPLR 321(b), - defendant was just sweetly "informed" that there is nothing he or his new counsel can do - so he should just as well go ahead and allow the illegal swab before the "18-b" (attorney for the indigent) counsel is appointed.

You were already raped, there is nothing you can do about it, so just go ahead and allow yourself to be raped further.  Good logic.

Let's go further.

In judge Kapnick's "salient" view, failure to produce the defendant at the motion hearing is ok, and refusal of the defense counsel to oppose the motion while time on the motion lapses, without substitution of counsel, is also ok.

A very "salient" view for a judge, I must say.

That's another one of those "you've already been raped, so why do you stir" arguments.  The court already violated your rights, so your absence at the motion hearing, and your absence at the hearing where your attorney was allowed to withdraw, and where no adjournment was given for the motion to be properly opposed was not that important for you to attend.

Sidebar conferences at trial are important to attend - but a hearing regarding leaving you without counsel because your counsel did not want to oppose a critical motion without being paid is not important.

Ok, let's go further.

It's not the failure to adjourn the decision on the motion for the swab, or vacatur of that decision if that was made before relieving the attorney who DID NOTHING BECAUSE HE WAS NOT PAID that was the focus of Judge Kapnick mild motherly criticism of the judge's action - it was "imprudent" (but not unconstitutional) only to adjourn the actual illegal swab without the new attorney's presence, but then - it was not that important anyway.

Maybe, defense counsel presence at lineups will also be deemed by Justice Kapnick as not necessary either.  Why do we need defense counsel at all, please, remind me.

Justice Kapnick then lashes out against the majority for not simply suppressing evidence and remanding the case back, but dismissing the indictment completely, because of prosecutorial and judicial misconduct:

But, whether Justice Kapnick likes it or not, her opinion is a dissent only and does not have the force of law.

In People v Smith a criminal felony indictment was dismissed for violation of the criminal defendant's state constitutional and federal constitutional right to counsel - and that is a GREAT victory for criminal defendants in New York.

A great - and rare - case on judicial and prosecutorial misconduct that provides such a nearly complete (without sanctions against prosecutors and the sellout defense attorney) vindication for the criminal defendant.

Thumbs up to the 1st Department.