"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, October 21, 2016

Overpopulated American prisons and finality of wrongful convictions, illustrated - the New York case of People v Drayton

On October 11, 2016 the County Court of the Dutchess County, Judge Peter M. Forman,

made a decision refusing to vacate the murder conviction of a person with a name Omnipotent Unique Drayton for the killing in 2003 of Dennis Brown Jr.

Here is the decision.

In the decision, Judge Forman ruled for the office of the Dutchess County District Attorney where he himself worked for years in the past - on the basis that, even though the conviction could not have been obtained the way it was, under the new law, the new law "does not apply retroactively".

Here is the portion from Judge Forman's decision:

"In 2014, almost ten years after sentence was imposed by the trial court, Defendant moved for an order vacating his judgment of conviction pursuant to CPL §440.10. Specifically, Defendant moved to dismiss his judgment of conviction on the grounds, inter alia, that his right to due process was denied when the trial court charged the jury to consider the intentional murder and depraved indifference murder counts in the conjunctive, rather than in the alternative."


"By Decision and Order dated August 6, 2014, this court summarily denied that motion. Specifically, this court found that Defendant's claim that the trial court should have charged the intentional murder and depraved indifference murder counts in the alternative could have been raised on direct appeal."


"When the August 6, 2014 Decision and Order was handed down, existing precedent in the First, Second and Fourth Departments held that a trial court could charge intentional murder and depraved indifference murder counts in the conjunctive, rather than in the alternative, when the intentional murder count was based upon a theory of transferred intent. [see e.g., People v. Henderson, 78 AD3d 1506 (4th Dept. 2010); People v. Douglas, 73 AD3d 30 (2d Dept. 2010); People v. Page, 63 AD3d 506 (1st Dept. 2009)].

On April 7, 2015, the Court of Appeals abrogated that Appellate Division precedent [see People v. Dubarry, 25 NY3d 161 (2015)]. Specifically, the Court of Appeals held that, when a defendant kills one victim in the course of attempting to kill someone else, "that defendant cannot be convicted of both depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person." [id. at 165]."

In other words, the conviction, the way it was obtained against defendant Drayton, cannot be obtained under the current law.

And, naturally, defendant moved to vacate his conviction - which would seem logical.  If TODAY the law in New York is that a conviction may not be obtained the way it was obtained against the defendant, the defendant must be retried to apply the new law.

Judge Forman, relying on the decision of New York State Court of Appeals said - NO.

"Defendant now seeks leave to renew his motion to vacate his judgment of conviction on the grounds that Dubarry represents a change in the law that will change this court's prior determination. However, this argument is based upon the flawed premise that the rule announced in Dubarry will be retroactively applied to collateral attacks on final judgments of conviction.

"Courts are not generous in applying new rules of law to collateral proceedings given the underlying considerations of finality.'" [People v. Jean-Baptiste, 11 NY3d 539, 543 (2008), quoting People v. Favor, 82 NY2d 254, 261, n.2 (1993). See also People v. Jackson, 78 NY2d 638, 647 (1991) (finding that society's interest in the finality of judgments of conviction "is formidable")]. Drawing a "sharp distinction" between cases that are on direct appeal and cases that involve collateral attacks, the Court of Appeals has "recognized that to allow retroactive application of existing law to final convictions would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become a beneficiary.'" [Id. at 543, quoting People v. Pepper, 53 NY2d 213, 222 (1981)]."

Translation into plain English:  if you are convicted under the old law that was changed after the conviction, and after you exhausted all your appeals, your conviction remains "valid", even though NOW nobody else can be convicted the way you were.

Because "courts are not generous in applying new rules of law to collateral proceedings given the underlying consideration of finality".

Yet, it is not the point of whether the court is going to be "generous" or not when the law changes.

When the law changes, the court must apply the new law to all, it is called "Equal Protection of Law" guaranteed by the 14th Amendment of the U.S. Constitution that every judge is sworn to obey.

And it does not matter whether the conviction "became final" by that time or not.

Imagine that a criminal defendant is a gay man instead, and is moving to vacate his conviction for being gay under Lawrence v Texas, a U.S. Supreme Court case that declared, only 15 years ago, by the way, that the law of the State of Texas that criminalized homosexual relationships, is not constitutional.

Imagine that the same Judge Peter M. Forman is presiding and says that "courts are not generous" in vacating convictions that became final before Lawrence v Texas.

I wonder how long Judge Forman would remain on the bench after such a ruling - Chief Judge Moore in Alabama lost his judgeship for opposing U.S. Supreme Court gay marriage precedent just this month.

Yet, the law must apply equally notwithstanding the subject - whether the change in law affects the theories of presentation of how to convict for murder, or how to convict for any other crime.

If a law is changed, if it is not possible to convict a person under that law today, nobody can continue to sit in jail convicted under that same law - that is pure logic, common sense, and how all other laws, civil laws operate.

The concept of "finality" is the concept of collateral estoppel.

Collateral estoppel applies to factual issues and does not apply to issues of new law.

Moreover, finality of criminal conviction should not triumph over fairness - and it is clearly not fair to keep a person in jail based on a conviction that could not be obtained under the present state of law, which is true in Drayton's case.

Let's remember presumption of innocence.

Let's remember that presumption of innocence cannot be overcome by unlawful means.

Let's remember that presumption of innocence of Defendant Drayton, under the present state of law, was overcome by unlawful means.

That means that the conviction is void, and Defendant Drayton is still presumed innocent, and must be tried under the new law.

I understand it is costly to retry a case.

But isn't it costly to keep in prison a person whose conviction would not have been possible under the present state of the law?

Isn't it costly to use the taxpayers' money to monitor such people on parole, and to have them as outlaws, denied not only voting rights, but rights to reintegrate in society and be employed.

Defendant Drayton was charged with murder and robbery.

Yet, principles of "finality" applied by Judge Forman, an attorney of 34 years,

are applicable to all criminal cases where the change of law occurred after all appeals went through.

It is upon these principles of "finality" that the Antiterrorism and Effective Death Penalty (figure! - Effective Death Penalty) Act is based, contributing to mass incarceration of Americans, including mass wrongful incarceration, given that most cases are resolved in plea bargains, and in most cases overworked and underpaid assigned defense attorneys spend 7 minutes per defendant on misdemeanors, and not much more on felony case.

By the way, ineffective assistance of counsel even in death penalty cases fall upon deaf ears even of the U.S. Supreme Court - see the dissent of U.S. Supreme Court Justices Sotomayor and Ginsburg in the recent case where the U.S. Supreme Court denied certiorari in a death penalty case, condemning to death a person who was represented at a capital case by an attorney who has never before tried a death penalty case and did not do any investigation for his client.

I wrote on this blog about a federal judge Richard Kopf who blogged about not one, not two, but three reasons why he would authorize EXECUTING a person even if the judge knows the person to be executed is INNOCENT:

  1. where no federal legal remedy is available to stop the execution;
  2. where the petitioner could resort to speedy and fair PARDON process prior to execution (this one is decidedly British - Great Britain just pardoned gays convicted for being gays because it is no longer a crime - so if you are innocent, you can just as well ask to be forgiven, or else it would be ok to execute you, federal judge Kopf says);
  3. where petitioner "sat on his rights" - did not raise the issue of his innocence early enough and fast enough in the process (that same finality issue).

So, Judge Kopf also claimed finality as a defense not just for refusing to vacate the conviction, but to carry out the sentence of death and executing an innocent because, as Judge Forman now says, "courts are not generous" to vacate final criminal convictions, no matter what, it seems.

But, courts must be doing their jobs and applying the new law equally to all, those who were already convicted under the previous, now changed law, and those who remain only charged.

It is a gross injustice when it is not possible to convict a person at present, but it is somehow fair and proper to keep a person in jail under the already abolished law.

Such a "theory" does not rest well in the head of any reasonable person - only in the head of a judge who was a career prosecutor before coming to the bench, as the majority of judges in this country, unfortunately, are.

The triumph of finality over fairness that is currently the order of business in American courts is not legal.

Judges do not and should not have power to be "generous" or not generous where the new law is concerned.

Because otherwise, wrongful convictions will never be able to be reversed - they are final after all, and that they were obtained through application of laws that were wrong, or were changed, does not make a difference.


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