"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.

Wednesday, November 30, 2016

A public impropriety/corruption complaint was filed against Delaware County Judges Gary Rosa and Richard Northrup for siding with a court-connected suspect in a criminal investigation

Today, I filed a complaint with the New York State Commission for Judicial Conduct against Delaware County judges Gary Rosa and Richard Northrup for publicly taking sides in criminal investigation and prosecution of Sharon O'Dell, the now-former Delaware County Clerk.

Here is the complaint in its entirety.

Let's see if the complaint-shredding NYS Commission for Judicial Conduct will find any impropriety in the judge's actions or will toss the complaint without investigation, as it usually does.

I will continue to cover this story.

Stay tuned.

A new criminal and disciplinary complaint was filed against judge Jonathan S. Follender, of Town of Denning Court, Ulster County

I wrote on this blog about a criminal complaint I filed against attorney (and judge) Jonathan S. Follender for filing a false public document, and against the Delaware County Clerk Sharon O'Dell and her personnel for knowingly filing that false public document.

I also wrote on this blog about Sharon O'Dell's instant "retirement", endorsement of that retirement by a local "women's bar association" infested with law clerks, judges and relatives and employees of judges, and about the lavish "retirement" party, complete with food and balloons thrown in Sharon O'Dell's "honor", with posting of "mock lockup" pictures of Sharon O'Dell fraternizing with the Sheriff who is supposedly investigating her.  

Now that Sharon O'Dell "retired", Debra A. Goodrich, her deputy, took over - and filed yet another false public document offered for filing by Jonathan Follender, during the criminal investigation of her boss, and of herself. 

On November 4, 2016, Debra A. Goodrich and Jonathan Follender filed a "partial satisfaction of judgment".

The criminal complaint against Jonathan Follender was for filing, on September 26, 2016, a $10,961.50 judgment, with 9% interest

based on a court order that allowed only for a $1,751.60 judgment  with costs allowed by the court, and after the $8,470.00 that I put in escrow during appeal was released to Follender prior to filing a judgment based on the money he just received, as if it is a new judgment, with a 9% interesting ongoing.

See what the Turnover order of July 18, 2016 said:

The Turnover Order clearly allows Follender to file only a judgment for $1,751.60 plus costs, and refers to a "previous judgment" (already entered) for $8,470.00  (which grew during the pendency of appeals to $8,501.05) which the court ordered to be satisfied, by turning over funds to Follender out of the court escrow:

Once again, the September 26, 2016 judgement filed by Follender was based only on the Turnover Order of July 18, 2016.

The Turnover Order of July 18, 2016 ordered satisfaction of a "previous judgment" of April 10, 2016 by releasing funds I put into escrow during the pendency of appeal.

Yet, Follender:

  • took the money ordered to be released to satisfy the April 10, 2016 judgment; and
  • illegally put the amount just received right back into a new judgment of $10,961.60, without court permission, and with an ongoing 9% annual interest.

Then, when I filed a criminal complaint against Follender, and he was caught red-handed, he filed yet another false public document, this "partial satisfaction of a judgment":

In the "partial satisfaction", Follender claimed that

the Judgment he filed on September 26, 2016 was based not on Turnover Order only (which is what the judgment says), but also on the judgment from an April 10, 2014 order (referenced by the judge as "the previous judgment", already existing);  

Follender did not even try to amend the judgment of September 26, 2016 as being based on two orders instead of one, as the text of that judgment says, before filing the "partial satisfaction" of a judgment of September 26, 2016 based on receipt of funds a week prior. 

Follender filed the "partial satisfaction" 10 days after the police received my criminal complaint against him and ONLY because I filed a criminal complaint against him, otherwise the triple judgment would have remained filed, with 9% interest accruing on $8,470 plus $10961.50 - instead of $1,751.60 with costs, total.

Follender also claimed that he has actually received "partial satisfaction" of a judgment filed on September 26, 2016 "on or about September 17, 2016", a full week before he filed a new judgment under the Turnover Order, with an ongoing 9% interest on the amount already received a week prior.

Follender authorized the Delaware County Clerk - who by that time resigned - "to cancel, satisfy and discharge the judgment" (the September 26, 2016 illegal judgment) to the extent of $8,301.00, while leaving the "previous judgment" mentioned by Judge Tormey unsatisfied.

Debra Goodrich, who was herself under criminal investigation because of filing of the previous fraudulent judgment of September 26, 2016, entered and filed the new fraudulent "partial satisfaction" of judgment that tried to represent the judgement of September 26, 2016 as a legitimate judgment, and tried to claim "partial satisfaction" by receiving satisfaction funds prior to entry of a judgment, for the 2nd time, in a full amount - which is abject fraud.

So, I turned Follender in again.

I filed one more criminal complaint against him, and one more complaint to the Judicial Conduct Commission, and one more complaint to the Attorney Grievance Committee.

Let's see if the law applies to Follender, or if he is immune.

So far Follender engaged in a frivolous proceeding against several people whose representation I undertook only after a default judgment was entered in 2009, to make motions to vacate and appeal - in M & C Brothers v Torum, Delaware County Index No. 2007-280, claiming breach of contract and fraud where his client did not satisfy conditions precedent of the contract.

Follender's client, the timbering company, was supposed to obtain a large (1 million dollars, as far as I remember) insurance policy before attempting to claim specific performance or breach of contract, and never obtained that policy, nor demonstrated that it had funds to obtain that policy to demonstrate to the court that the client was willing, able and ready to perform the contract.

Thus, the whole proceeding was frivolous in the first place - not that it deterred Follender from prosecuting it.

Then, Follender made in that proceeding an outrageously stupid (and frivolous) motion to substitute a client "nunc pro tunc" because of the client's death, while his client was a corporation (that never dies) - the motion for the "death of a corporation" was actually granted by a Harvard-educated judge, the now retired judge Eugene Peckham

Peckham did not see a problem with a motion made claiming the death of a corporation and granted the motion.

Peckham also did not see a problem that there was no affidavit of service of his Order to Show Cause to strike an answer and to enter a default judgment, a jurisdictional requirement to even review such a motion - and entered the default judgment anyway, and subsequently refused to grant a motion to vacate because of his own illegal actions, and stalled the appeal from the denial of the motion by refusing to settle the transcript, which was his obligation.

I was actually sanctioned and then suspended for withdrawing one of the two pending appeals - which I did only and exclusively because I could not file a settled transcript, since Peckham refused to settle it.  Yet, Peckham was protecting himself by preventing me from filing the settled transcript of the motion hearing - which shows that it is completely wrong to give to judges whose decisions are challenge on appeal control over that appeal by giving them authority to settle transcripts for the appellate record.
Peckham also did not see a problem with awarding the accrual of 9% interest on the judgment Follender's client did not deserve in the first place (because it never obtained the insurance policy as the contract required) covering the periods of adjournments of court proceedings which were not caused by the defendants.  Follender actually got 9% interest on damages for periods of adjournments that he himself requested, thus providing encouragement to connected attorneys like Follender to delay litigation in order to get more money in damages at the end.

Peckham also did not see a problem to join, as a partner, a firm that was litigating a case which he previously handled as a judge, without disclosure of the firm's disqualification. Nor did Peckham see a problem acting, without disclosure, as a "judicial hearing officer" (a retired judge with the same functions as an acting judge) in the same court which handled the case where his law firm appeared.

Peckham fought disqualification

even after I presented to his partner the law requiring his law firm's mandatory disqualification from the case:

Peckham and his law firm were disqualified from the Kilmer v Moseman case, but were never sanctioned.

This was one "stellar" judge on M & C Brothers v Torum case who ruled for a fellow judge Follender - not surprisingly, given the level of competence and integrity demonstrated by Judge Peckham.

The next judge who ruled in favor of Follender in two Torum cases - one where I was an attorney of record, AFTER the default judgment was entered, and one where I wasn't (a homestead petition against my former client's home) - was the legendary Judge Carl F. Becker who sanctioned me simply for breathing.

Becker first sanctioned me for (1) delaying satisfaction of the judgment - because the judgment was satisfied by one of my two clients, but I continued to litigate the motion to compel production of concealed deposition transcripts, or identity of the stenographer and Follender's client's expert.

As soon as Becker sanctioned me for allegedly delaying satisfaction of the judgment, Follender moved in the already dead homestead petition litigation where I never appeared, to sanction me for (1) abandonment of my alleged clients, and for (2) satisfying TOO SOON the judgment that I was just sanctioned for delaying the satisfaction of.

Same as Peckham did not consider a motion for the death of a corporation stupid, Becker did not consider stupid a motion for sanctions against a person who never appeared as an attorney of record, for "satisfying a judgment too soon", because the satisfaction of the money judgment led to the death of subject matter jurisdiction in the case where Follender was invoking that subject matter jurisdiction by asking for sanctions.

Really, with Follender even going through his frivolous reasoning gives you a headache, yet, judges endorse whatever he says or does - because he is one of them, also a judge.

After Becker's recusal from all of my cases, including the homestead petition where Becker believed I was attorney of record, even though I never appeared there, never filed notices of appearance, and where respondents filed pro se affidavits, Judge Kevin Dowd was assigned.

Follender made false claims to Judge Dowd that I filed appeal in the homestead case (first, I was never attorney of record, then, no appeals at all were filed in that case, and none by me).

Follender then made false claims to Judge Dowd that I disobey the court by announcing I will not appear at a conference in the homestead petition - where, again, I was not attorney of record, and where Follender complained I caused the death of subject matter jurisdiction by causing to satisfy a money judgment "too soon", while having been sanctioned for delaying satisfaction of that same judgment.

Just bear with me.

I sued.

I showed in my pleadings, and through documentary exhibits, that I never was an attorney of record in the homestead petition, never abandoned my clients, and that jurisdiction in that case was dead, Follender claimed it himself in his pleadings to Judge Becker, so no "litigation immunity" for defamation applied to Follender. 

But, the next "stellar" judge was assigned to the case - Judge Tormey, the woman-hater whom I sued before in federal court, and
who was sued by three women: a court attorney, a private attorney (me) and a court interpreter.

My lawsuit against Tormey was dismissed on judicial immunity grounds (forgiving, without review, any malicious or corrupt acts to the judge), my cases were assigned to Tormey, and Tormey, naturally, used his power to retaliate and sanction me and imposed the judgment I am talking about in this blog, $8,470 for trying to sue the defamer for defamation - for bringing a meritorious action against Follender, in which he defaulted, but Tormey forgave him the default, establishing a new law in the 3rd Department where all three other departments would have given victory in the same case to me, by default.

Tormey claimed that it is not easy to determine whether an attorney is or is not an attorney of record - and thus Follender, in Tormey's opinion, could not be sued for claiming I was the attorney of record because Follender wanted me to be an attorney of record in a new case, because he wanted to use the known bias of the presiding judge against me to his own advantage - but I did not appear in that case, and he was pissed, so he just claimed that I was the attorney of record.

Yet, being an attorney of record can only be proven by either filing a notice of appearance, appearing physically as an attorney for a party, or being assigned to the case.  None of the three was present in the homestead petition, so, contrary to what Judge Tormey dishonestly said in his ruling, it was very easy to determine whether I was an attorney of record in the homestead petition.  I wasn't.

Tormey completely avoided addressing the issue whether the homestead court, at the time defamatory statements were made, had or did not have subject matter jurisdiction over the case, a determinative factor in the case whether Follender could claim litigation-related immunity.  And still granted Follender, a private attorney sued as a private attorney, "absolute judicial immunity".

I immediately applied the concept to my husband's case by making a motion to dismiss proceedings against him for lack of jurisdiction - and the motion was denied.

Judge Dowd claimed Judge Tormey's grant of absolute judicial immunity as "dicta" only.

Yet, now that Judge Tormey's grant of absolute judicial immunity is affirmed on appeal by the 3rd Department, it is the law of the 3rd Department - a private attorney sued for fraud has absolute judicial immunity for malicious and corrupt acts during litigation.

So, Judge Tormey - and the 3rd Department - struck down Judiciary Law 487 completely.

But, I was, of course, not on notice of the "dicta", that Judiciary Law 487 is no longer in existence because private attorneys have absolute judicial immunity for acts of deception during litigation, as Judge Tormey said.

Yet, since Tormey sent his decision about my allegedly "frivolous" conduct to the 4th Department disciplinary proceedings against me, and the 4th Department suspended me based on a motion for a summary judgment containing Tormey's decision as an exhibit, the fact that Judiciary Law 487 no longer exists is also the law now in the 4th Department.

Because court precedents applies equally to everyone, not just to the Neronis - right?

Tormey also lumped the two cases - one where I was an attorney of record, after the default judgment was entered by Peckham, and the homestead petition handled by Becker where I never appeared as the attorney of record - as one case, treated the two cases, with two index numbers and different sets of parties, as one case, and refused to correct his mistake.

On two appeals, judges (3rd Department that recused from my then-pending disciplinary case) and the New York State Court of Appeals, the Chief Judge against whose confirmation I submitted a written testimony to the New York Senate asking to conduct a criminal investigation of her rather than endorse her as the Chief Judge of the State of New York - affirmed that the two cases are one case, no matter what court records say.

So, I stand sanctioned, and robbed by Tormey and Follender to the order of $8,470 and counting - for truthfully stating that Follender defamed me by claiming that I abandoned clients in a case where I never appeared as an attorney of record and by bringing a disciplinary proceedings against me in a case where I never appeared as an attorney of record based on that fraudulent claim.

I now regret putting the $8,470 in escrow, I wouldn't have done it now, but then I was living in New York, and I was afraid that Follender and Tormey will put me in jail for not paying - and that "something will happen" to me in jail.  Things do happen to people in U.S. jails when people criticize the government.

But, once a fraudster is always a fraudster.

Follender was not deterred by the court when he brought a frivolous claim (in an unrelated proceeding where I did not participate) for a non-existing cause of action of loss of companionship of a dog - because he was never sanctioned, being a brother-judge.

As a brother-judge, Follender was never sanctioned, and thus not deterred by court sanctions when he brought a frivolous case in M & C Brothers v Torum where
  • he filed a breach of contract claim without showing satisfaction of condition precedent in the contract,
  • made a motion for the "death of a corporation",
  • obtained a default judgment without providing proof of service and claiming 9% interest on damages for periods of delay caused by his own client,
  • concealed transcript of his expert's deposition, as well as identity of his expert and the stenographer who was taking the deposition;
  • made fraudulent claims to the homestead judge that I "abandoned my clients" and "frivolously caused the loss of subject matter jurisdiction" by the court by causing to satisfy the money judgment too soon - after having me sanctioned for delaying satisfaction of that same money judgment; and
  • Follender got attorney fees for opposing my defamation and fraud action against him, even though my lawsuit was based on irrefutable documentary evidence, and Follender defaulted (imagine having a judge "deeming" record evidence of 2 completely separate court cases as "one" - and sanctioning a party for asserting what is in court records, it is only possible where one attorney is also a judge, the judge is a woman-hater and the sanctioned attorney is the judge's critic).
Follender also obtained against me an anti-filing order (in Delaware County Supreme Court only) and a threat of criminal prosecution if I ever file a civil action against Follender without the state court's permission.

Based on all the above history, Follender thought he can do absolutely anything, commit any fraud, and I will not be able to do anything about it.

Well, there are other legal remedies outstanding though.

Pressing criminal charges for a crime is one of them.

And that's what I did.

Follender partially backtracked, by filing the "partial satisfaction" of the illegal judgment he filed against me - but, by filing it, he confirmed his fraud, and committed additional fraud.

Fraud that is actionable against Follender, and, whatever the outcome with the corrupt criminal investigations or corrupt criminal proceedings against Follender and his co-defendants (if any such proceedings will ever be brought against them due to their status and connections), I have 6 years to sue him for it.

I will continue to post updates on this story.

Stay tuned.

Monday, November 28, 2016

New York #JudgeJillKonviser refuses to allow a criminal defendant to have a new trial despite DNA evidence that somebody else may have committed the crime

In our day and age, many people are being released from prison based on new DNA evidence establishing their innocence.

A case that was just decided in New York, by judge Jill Konviser,

The defendant was convicted for murder entirely on circumstantial evidence of three witnesses.

One witness saw what he though was the murder, the act of shooting by two hooded individuals, who were hooded to such a degree that the witness was unable to positively establish even their race, but "thought" they were African American - which is not enough for conviction of the defendant for murder.

The other witness was a close friend of the murder victim, witnessed that the victim grabbed the defendant, and that a co-defendant has shot the victim - which is not enough for conviction of the defendant for murder.

There was testimony from the third witness that, instead, the defendant grabbed the victim, the co-defendant fired, and there were some other shots - which the witness did not see because at that point she ran away.  That testimony was also not enough for conviction of the defendant.

So, the evidence against the defendant in the entirety was circumstantial and did not establish, beyond the reasonable doubt as is required in criminal proceedings, that the defendant - and not the co-defendant - committed the crime of murder, because only the co-defendant was seen as shooting at the victim, and the testimony of two witnesses who saw a scuffle between the co-defendant and the victim before the shooting, contradict one another, one witness said that the victim grabbed the defendant, and the other witness said that the defendant grabbed the victim.  That is not enough for a "beyond the reasonable doubt" conviction for murder.

In her decision denying the new trial to the criminal defendant, Judge Jill Konviser(-Levine) tried to hint at ineffective representation of counsel by claiming that the People have actually turned to the defense documents mentioning the black T-shirt (without disclosure that third-party DNA was found on that T-shirt) "in advance of trial" as part of "Rosario" material.

Pointing at "Rosario" material as timely disclosure of a link to undisclosed Brady material blocking a criminal defendant from claiming prejudice in a criminal trial resulting in a murder conviction entirely upon circumstantial evidence was not an honest reasoning by judge Konviser.

Rosario material is disclosure about prior testimony of a witness testifying at trial that is given after the witness is already sworn in.

Judge Konviser's claim that the Rosario material was turned in by the People to the defense "in advance of trial" did not mention the length of that "advance".  It could be - which is what usually happens at criminal trials - that the People turned over the Rosario material on the day of, or shortly before the day of trial, which, in a murder trial case, is a completely inadequate time to diligently read all the Rosario evidence and request an adjournment of trial to submit the T-shirt to defense experts.

Moreover, the defendant was most likely represented by an assigned counsel, and, though indigent defendants theoretically have a right to funds for experts and investigators, obtaining such funds is an impossible dream, see, for example, a fairly recent case decided by the Appellate Division 3rd Department describing the hoops that the defendant must jump through to get funds - and inadequate funds, not matching the current market prices for experts investigators - to get those funds.

The court in the case of People v Clarke legislated from the bench in enhancing County Law 722-C under which the defendant applied for such expert funds:

The 3rd Department ruled added to County Law 722-C that:

  1. granting funds for experts and investigators is a matter of the court's "discretion" (whim);
  2. that the defendant must prove his "indigence" for purposes of the motion - in this particular case, which I know personally, the defendant first had an assigned counsel, and for that, he had to prove his indigence to the court prior to that motion, so the 3rd Department is dishonest in implying, without directly claiming, that the defendant did not prove his indigence;
  3. that granting funds for experts and investigators to an indigent criminal defendant accused of a heinous crime - which crime is being proven against him by the People's use of investigators and experts funded by taxpayers without any restrictions and without any court permission whatsoever - can be allowed only in "extraordinary circumstances", and only when the defendant proves not just "necessity" (as the statute, County Law 722-C, says), but a "distinct necessity" for such funds, an illegal heightened standard imposed upon indigent criminal defendants by the appellate court.
An hour of review by such an expert several years ago ranged from $400.00 to a $1000.

Participation in a trial, pretrial DNA analysis, travel, waiting in the courthouse for the testimony and testimony itself may take days and months of work by an expert, not hours.

It is obvious that the allowed "statutory limit" of $1,000 for experts and investigators - and even that provided through the court's "discretion", and with proof of "extraordinary circumstances" and "distinct necessity" - is completely inadequate to present expert analysis to begin with.

That's why if People had an expert conduct DNA analysis, it was of paramount importance for the defense to get that analysis - because the defense itself would not have had the funds to conduct analysis of their own.

Since People have access to unlimited funds to investigators and experts to present their case, and indigent criminal defendants are restricted in New York by County Law 722-C to:

  1. court's discretion and permission;
  2. proof of indigence;
  3. proof of necessity;
  4. extraordinary circumstances dictating excess of funds for experts and investigators over $1,000 -
New York County Law 722-C is waiting for a federal constitutional challenge under the Equal Protection and Due Process Clause.

Moreover, County Law 722-C clearly indicates that funds for experts and investigators for indigent criminal defendants can be provided irrespective of whether the criminal defendant is represented by a court-assigned counsel.

Nevertheless, courts regularly deny County Law 722-C applications for funds for experts and investigators (if they are even filed, which happens very rarely) because the application is not made by an assigned counsel.

For example, when I represented indigent defendants (not as an assigned counsel, my fee was paid by the defendant's relatives or friends, which does not revoke the indigent status of such a defendant), a particular judge in Delaware County gave such defendants a "choice" -

  • either he or she chooses a counsel assigned by the judge (and that would not be me), and then the counsel will be able to apply for money for experts and investigators (even though such motions are allowed to be made ex parte, without notification of the People, the judge, the now retired Delaware County Judge Carl F. Becker, held such discussions in the presence of the People in open court), or
  • the defendant proceeds with me as his private counsel - and will lose his right to experts and investigators - even though such a ruling was contrary to the law, criminal convictions are rarely overturned on denial of funds for experts and investigators, so Judge Becker, and other judges who are denying such funds feel pretty cozy.

In the case that Judge Jill Konviser just decided, there was:

  • circumstantial evidence from three witnesses - based on which the defendant could not be convicted;
  • evidence of defendant himself upon which the defendant could not be convicted;
  • evidence from TWO out of THREE People's experts:
    • the autopsy expert testified - even though that expert could not establish that the defendant shot the victim;
    • the gun expert testified - even though that expert also could not establish that the defendant shot the victim; but
    • People did not call the DNA expert to testify - because then the reasonable doubt would have been screaming into the juror's faces.

So,  People put a pile of Rosario material on the defense "before trial" (possibly, on the day of trial) and hoped that the defense counsel, in the heat of the trial, will not be able to see the mentioning of a T-shirt that was sent for analysis, and to request an adjournment of the trial with an additional investigation and time and money for expert analysis by the defense experts, as well as for defense investigators to investigate the leads from the DNA evidence on the T-shirt.

People were supposed to reveal the finding of the T-shirt when it was found - in discovery, 20 days after the arraignment.

They did not.

People were supposed to reveal to the defense the finding of the DNA evidence as Brady material when they received the report of a third-party DNA, and turn over the DNA report.

Such a DNA report from the People would have satisfied both the "necessity" requirement under County Law 722-C for funds for experts and investigators for the defendant, and the "extraordinary circumstances" requirement.

That's exactly why the People did not give the report to the defense, and that's exactly why the mentioning of the black t-shirt was included not as Brady material, shortly after arraignment, but as Rosario material, in a pre-trial rush when a defense counsel receives a pile of documents from the prosecution on the day of trial or the day before trial.  If it is an assigned counsel, he or she lacks funds and physical ability to look through all the Rosario material, so such a "disclosure", especially an incomplete disclosure - of existence of a T-shirt with a biological material on it, but without disclosure of results of the DNA test - was prosecutorial misconduct designed to sway the jury towards conviction.

Yet, Judge Konviser chose not to see deliberate prosecutorial misconduct, and relied on a 1990 case People v Vilardi, 76 NY2d 67 (N.Y., 1990) in claiming that a criminal defendant who claims a Brady violation should also establish prejudice to be entitled to have his conviction vacated.

In Vilardi, though, the New York State Court of Appeals relied upon the U.S. Supreme Court case U.S. v Bagley, 437 U.S. 667 (1985) that provided that a conviction should be vacated if a Brady violation occurred and if, because of such Brady violation, there is a "reasonable probability" that the result of the trial would have been different.

Of course, what is a "reasonable probability" is a guessing game of the court.

And, in 2003, federal appellate judge Alex Kozinski, of the U.S. Court of Appeals for the 9th Circuit claimed that there is an "epidemic" of Brady violations in the country, and that only judges can stop it.

Well, judges do not stop Brady violations, but are, on the opposite, encouraging them, when they create "tests" where, even if a Brady violation occurs - as it happened in Bagley, Vilardi, and now, in Evans, the judge still looks further to engage in a speculation whether the jury would have reached a different result than it did had it been allowed to hear the evidence.

In this particular case, judge Konviser claimed that no relevance was established of the T-shirt, and the DNA on it, to the murder, because it was not found at the crime scene, but at a nearby building.

Yet, for some reason the police scouted the nearby buildings specifically for search of evidence that may help solve that same murder, themselves establishing the relevance of their findings.

Also, Judge Konviser was making a determination upon evidence that was not presented to the court.

Judge Konviser(-Levine) is not a novice as an attorney or on the bench.

She has 26 years of experience as an attorney,

and nearly 12 years of experience as a judge:

And, Jill Konviser worked for the government for 22 out of 26 years of her career as an attorney - including 5 years as an assistant district attorney.

Moreover, according to her biography on the website of the New York State Court Administration, her authority as a judge expired in 2015 - and thus she could not be appointed an Acting Supreme Court justice in 2016, and her decision may be void.

A judge may only be appointed as an "Acting Supreme Court Justice" if the judge is elected or appointed to another judicial position, and the underlying authority is still valid.

We are now in 2016.  Acting Supreme Court Justices may be appointed for a year, with further renewals.

The last time Judge Jill Konviser was appointed as an Acting Supreme Court justice, according to her official court biography, is in 2009, by Chief Administrative Judge Ann Pfau.

Judge Pfau resigned in 2011.

The next Chief Administrative Judge Gail Prudenti - who, in her own turn, resigned in the summer of 2015, did not reappoint Judge Konviser to be the Acting Supreme Court judge.

Judge Konviser tenure, by appointment, as New York Court of Claims judge, expired in 2015 - and there is no indication that she was reappointed.

Thus, she appears to have had no authority to author the decision in People v Evans as a Supreme Court Justice for Kings County, New York, on November 1, 2016.

Judge Jill Konviser-Levine is a political appointee to the bench.  She was reportedly the senior assistant counsel for Governor Pataki before being appointed to the bench of Manhattan criminal court.  Before Governor Pataki, Jill Konviser worked as an "Inspector General" for Attorney General Eliott Spitzer.

And, in order to advance a judicial career in New York, being friends with prosecutors is a more important than to be fair to criminal defendants, especially with the recently appointed new Chief Judge Janet DiFiore being a prosecutor herself.

In People v Evans, Judge Konviser ruled for the prosecution, for the government, obviously because she is part of the government and a career prosecutor herself.  Otherwise, no reasonable jurist would conclude that there was no reason for a jury to have ruled otherwise had they been presented the evidence that the police found some clothing with somebody's DNA on it in a building near the murder scene, had it tested for DNA and concealed the DNA report from the defense.  The concealment alone could have swayed the jury towards giving the defendant the reasonable doubt.

So, People v Evans is a clear case of prosecutorial misconduct - and of judicial misconduct in endorsing, and thus encouraging, a Brady violation.

This is not the first time when issues with appearance of impropriety were raised regarding Judge Konviser.

In 2007 she presided, without recusal, over a hate crime murder trial, while, reportedly, she has had a hand in drafting the then-recently introduced hate crime legislation under which the defendants were charged and prosecuted, an irreconcilable conflict of interest.

In 2014, she was accused by a defense attorney of failing to disclose ties to the Bronx Bombers, while presiding over the prosecution of the alleged stalkers of New York Yankees.

The judge's husband, William Levine, is reportedly New York City's top orthopedic physician, and the Yankees, consequently, were, at the time of the criminal prosecution, the Konviser-Levine family's likely present or potential source of income.

Dr. Levine publicly reveals in his official biography that he does supervise provision of surgical care to New York Yankees:

When Judge Konviser was challenged by defense attorney Lawrence LaBrew as to the appearance of impropriety of such an undisclosed tie of the judge's family with the alleged victims in a criminal prosecution, the judge reportedly snapped at the defense attorney and claimed that his conduct (in questioning her impartiality) is "bordering on contemptuous".

The State of New York did suspend a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding in 2008, and did suspend an attorney in 2015 for making a motion to recuse a judge in a case related to the criminal proceeding where the judge committed misconduct and engaged in a documented ex parte communication (an attorney who participated in that communication admitted to that on record), so Judge Konviser's "snap" at attorney LaBrew claiming his conduct in questioning her impartiality is "bordering on contemptuous" was a threat of suspension of his law license and livelihood - and a clear violation of his due process and 1st Amendment rights to say what needs to be said in order to secure his client's constitutional right to impartial judicial review.

Judge Konviser's "snap" and her open threat to go against the law license of an attorney who questioned her impartiality in a situation which involved a direct and irreconcilable financial conflict of interest for the judge, spells out the judge's readiness to abuse her power to protect her personal interests.

But, Judge Jill Konviser had all her bases covered where she could not be investigated or prosecuted for judicial misconduct because she was a member of the New York Commission for Judicial Conduct and herself meted out (or blocked) discipline to other judges, including herself.

Judge Konviser can rule - at times - in favor of the defense.  When it involves accusations against a police officer lying to the grand jury, then Judge Konviser can claim that the prosecution did not provide "enough guidance" to the grand jury and dismiss the indictment.

Otherwise - she is apparently a "hanging judge" for the prosecution, who lacks integrity to disclose her own and her families conflicts of interest in relation to cases, and who refuses to hold prosecutors accountable for Brady violations, in order to prevent vacatur of a conviction obtained by fraud.

This woman will go far in her career.  Are we looking at our next Chief Judge of New York Court of Appeals?

Or, maybe, the State's new Governor?  Or Attorney General?

She qualifies 100%.

Friday, November 25, 2016

Federal magistrate John Primomo taken off citizenship ceremonies and forced into retirement for telling new citizens they should leave the country if they do not like Donald Trump as president

An update on my recent blog about outrageous behavior of federal magistrate John Primomo at a citizenship ceremony where Judge Primomo told the new citizens that, if they do not like Donald J. Trump as the country's new president, they can just as well leave and go to another country.

Well, it is not the new citizens who do not like Trump who now leave the country, but it is judge Primomo who has abruptly left citizenship ceremonies - and is leaving the judgeship as well.

Judge Primomo reportedly turned in a retirement notice, effective September 2017, the next day after his "unusual" lecture to the new citizens.

The judiciary is supposed to be independent and free from influence.

Yet, what happened to Judge Primomo is a direct effect of the outrage in the media and social media coming from his statements.

Is it an encroachment on judicial independence?

I don't think so.

After all, the judiciary has given itself a gift of absolute judicial immunity for malicious and corrupt acts on the bench, and the U.S. Congress gave federal judges a gift of being free from discipline for whatever they do on the bench, leaving to victims of judicial misconduct only one remedy - appeal.

Yet, federal appeals in civil rights cases turned into rubber-stamping of what the misbehaving judges in the courts below say - through non-precedential summary opinions, which scholars claim are unconstitutional, without proper review of issues involved, see just 2 footnotes from the law review I just interlinked quoting Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit describing how judges, in their "discretion", decide cases through summary opinions - and nearly 100% of civil rights cases are decided this way by federal appellate courts:

So, there is absolute judicial immunity for malicious and corrupt acts on the bench - and the victim of judicial misconduct is barred from suing a judge.

And, there is a Judicial Misconduct and Disability Act, 28 U.S.C. 352, under which the absolute majority of complaints against federal judges - complaints about misconduct on the bench, bias, ex parte communications and fixing court cases - are rejected for "lack of jurisdiction", because the U.S. Congress, in its infinite wisdom (lobbied, no doubt, by the judiciary) decided that the only remedy a victim of judicial misconduct in office can have is to appeal.

And, there are appellate courts that, as a matter of discretion, decide (or, rather, reject) issues of judicial misconduct through summary opinions where

  • "facts need not be recited in detail because the parties to the dispute ... already know them" (why would then courts need to recite details of facts in any cases at all - including in the U.S. Supreme Court opinions?);
  • it is not important "to be terribly precise in
    • phrasing the legal standard announced"; or in
    • "providing the rationale for the decision"
  • it is not important for the judge to ponder precedential effect of the decision, "how the disposition will be applied and interpreted in future cases presenting slightly different facts and consideration",
  • "[t]he time - often a huge amount of time - that judges spend calibrating and polishing opinions need not be spent in cases decided by an unpublished disposition that is intended for the parties alone" - and that applies to the now published, but still non-precedential summary orders, too.
According to Judge Kozinski, "[p]ublished opinions, by contrast, are often of impeccable quality; decisions for publication must be complete on their face and adequately discuss the facts, nature, history and reasoning of the case".

Yet, while the appeal is ONLY REMEDY for victims of judicial misconduct in federal court, federal appellate court, through their alleged "discretion", turned that only remedy into nullity, becase, as a matter of discretion, whenever you raise issues of judicial misconduct on appeal, it is put onto the "summary order" track, decided, most likely, by interns and law clerks and not by judges, where:

  • facts,
  • nature,
  • history, and
  • reasoning of the cases do not even have to be stated.

It is futile to make motions to recuse federal judges - despite a prohibition for judges to decide motions directed at themselves which claim bias, they do just that, reject such motions - and appellate courts affirm such rejections through the sloppy summary orders.

With no remedy at law available for victims of judicial misconduct in federal courts, the only way of making the federal judicial misconduct known and trying to obtain some remedy remains exposure of such misconduct in the mainstream media (if it is brave enough to cover such an "sensitive" topic), or/and in the social media.

And, more and more we see judicial discipline imposed because news of such misconduct leaked first into social media, and then picked up by the timid mainstream media.

In this case, this was a court ceremony, but a citizenship ceremony.

So, those participating in the ceremony were:

  1. barred by judicial immunity from suing Judge Primomo;
  2. barred by Judicial Misconduct and Disability Act from complaining about judge Primomo's misconduct in office; and
  3. barred from appealing - because they were actually granted citizenship by judge Primomo in a court ceremony.

Their only remedy was making Judge Primomo's misconduct public.

They did - and Judge Primomo is going to be removed from the bench, not immediately, but within less than year at least.

So, victims of judicial misconduct should continue exposing that misconduct in the media.

The more we do that, the more changes we have hope of bringing about.

Monday, November 21, 2016

Arizona State Bar's selective approach to discipline against prosecutors and defense attorneys selling their clients' stories

I wrote on this blog about misconduct of an Arizona prosecutor Juan Martinez in publishing a book about the criminal trial of Jodi Arias and using as a sales pitch the materials of his office allegedly never presented to the court.

Prosecutor Juan Martinez was offered a "consent agreement" by disciplinary authorities - for putting him on "probation" because he published a book about a criminal case and sold in that book materials of his office or description of such materials which were not presented in court.

Juan Martinez adamantly refused to enter into the consent agreement, and the trial has not been yet scheduled in his disciplinary case.

On the other hand, the defense attorney in the same case, Laurence "Kirk" Nurmi, was offered, and reportedly accepted, an agreement for a 4-year suspension (not probation, like it was offered to prosecutor Martinez) for the very same conduct - of publishing a book about the very same trial.  The suspension consent agreement is still to be approved by the disciplinary court.

Both books:  Juan Martinez' "Conviction: the untold story of putting Jody Arias behind bars" and Laurence Kirk's "Trapped With Ms. Arias" continue to trade on, I've got the screenshots from for both books today:

And, even encourages buyers to consider buying these books - which are currently both grounds for disciplinary proceedings against their authors - together.

Attorneys have two cast-in-stone disciplinary rules - the rule of confidentiality of client information, and the rule that the attorneys cannot enrich themselves by selling information about the client's case, even if it is public.

Both rules are reasonable and go hand in hand with one another, because, if attorneys get more money for selling a client's story, there is no hope for confidentiality or effective representation - all that attorney will be doing is shaping the story to sell it better, instead of doing their jobs.

Prosecutor Martinez used as a sales pitch that he published in his book what was not presented in court, thus violating both of these rules.

Defense attorney Nurmi, apparently, did the same, describing in his book his interactions with his client

In the suspension agreement, reportedly, attorney Nurmi acknowledged that in his book he revealed evidence ruled inadmissible by the court and contents of confidential conversations with his client and her family members.

It is quite telling though that the disciplinary prosecutors did not make an effort to seek an injunction against the CONTINUED ENRICHMENT by both attorneys by selling the books and deriving a financial benefit from their own misconduct, and the misconduct apparently continues.

If the "consent orders" of discipline do not include prohibition to sell the books, and no preliminary injunctions against sales of the books are sought or entered by disciplinary courts, both attorneys are allowed and, in fact, encouraged, to publish books in sensationalized cases, because such books may bring more profit to attorneys than their legal careers, making suspensions or other forms of discipline ineffective.

Let's see what happens in Juan Martinez' disciplinary proceedings, but I have a funny feeling he will be given, as all prosecutors usually are, a slap on the wrist and will be allowed to practice - and commit misconduct - further.

Suspensions are only for defense counsel.

Prosecutors (the breeding pool of judges), when caught in the very same misconduct, can be offered "probation" and proceed on their merry way.

What else is new.

The California State Supreme Court overrides the State Legislature and orders funding of attorney discipline - the discipline that, according to the same court, has no meaning

That one decision made the entire attorney regulation system in California, the system that exists since 1926 and is mired in controversy since its beginning, completely meaningless.

Yet, it continued.

And, of course, California State Bar - regulating lawyers by lawyers, for reasons that have obviously nothing to do with protection of consumers of legal services (since suspended attorneys could provide as good a representation as licensed attorneys) - continued to operate like nothing happened.

In 2012, the annual dues of the State Bar were set by the State Legislature at $410.00 from every attorney licensed in California - which was necessarily put into the fees of California lawyers, as a cost of doing business.

 The State of California Legislature stopped short though from enacting a law that would demand the State Bar of California to split its regulation and its professional advocacy functions - which should be a requirement for an "arm of the government".

 Nevertheless, the funding bill that would allow the State of California to collect membership dues, did not pass this year.

 So, what did California State Bar do when it was stripped of ability to collect member dues for purposes of attorney regulation?

 Did it stop collect membership dues - because there was no law allowing California State Bar to do that?

No way.  The California State Bar bypassed the lack of Legislative bill authorizing it to collect annual fees and applied to the California State Supreme Court for an override of the Legislature.

The California Supreme Court stepped in and allowed the California State Bar - in the absence of the required bill allowing to charge annual membership fees - to charge every attorney a "regulatory assessment", without indicating an amount - so, the amount can be unlimited, to fund the disciplinary system, whether that particular attorney is subject to disciplinary proceedings at the time the fee is charged, or not.

So, the California Supreme Court is now defying the Legislature in order to allow its own "administrative arm", the California State Bar, to do exactly what the Legislature did not allow it to do - to collect membership dues, albeit in a somewhat reduced amount.

That is the same California Supreme Court, remember, that claimed that representation by a non-attorney (an attorney whose license was suspended for non-payment of those same membership dues) is effective representation - even though it is also unauthorized practice of law.

Let's recall that regulation of attorneys - by attorneys and judges - must be slam-dunk and free of any conceptual problems.  Because judges and attorneys are legal experts, right?  That was the underlying reasoning for allowing regulation of attorneys by attorneys and judges, and not by lay members of the public, right?

Yet, it is an ongoing mess.

Because the top state court of the State of California:

1.      makes prosecutors of attorney disciplinary proceedings its own "arm", creating an unconstitutional accuser-adjudicator problem;

2.      legislates (illegally) for funding for disciplinary proceedings from attorney-members of the State Bar; and

3.      makes attorney disciplinary proceedings meaningless because representation by a suspended attorney, in the opinion of that same court, is as good and effective as representation by a licensed attorney - so WHY LICENSE ATTORNEYS THEN?

And, you know how the State Supreme Court of the State of California got out of the quagmire that it is overruling the State Legislature and instead legislates on the issue of funding of California State Bar?

That's it - when every attorney licensed to practice in the State of California receives a demand for a "charitable donation" to fund a government agency's investigative and prosecutorial activities, that is called "voluntary" and not mandatory.

Of course, if a donation is voluntary, it cannot be of a pre-set amount from each licensed lawyer of the State of California.

Because, if a donation is voluntary, it may be given or not given, and, if given, it can be given in any amount at all, or "in kind", not of a set amount of $297.00 from every "donee".

Nevertheless, the "donation" ruse was immediately blown by the press, where the court's pretended non-interference with the State Bar's solicitations of charitable donations of $297 from every licensed attorney in the State of California in order to fund the State Bar's disciplinary proceedings (or, most likely, salary and benefits of disciplinary investigators and prosecutors) was presented as a direct order allowing the State Bar to do what the Legislature did not allow them to do - to CHARGE California lawyers an annual fee of $297.

Yet, at the same time as claiming that the court will not interfere with solicitations of "donations", the court also did two things:

And, on November 17, 2016, the California State Court issued a direct order allowing the State Bar to collect a "special regulatory assessment" from California attorneys, without indicating HOW MUCH IS TO BE COLLECTED.  So, since the order only speaks of a "regulatory assessment", but does not provide for the amount, supposedly that gives authority to the California State Bar to set that "assessment" at any amount, at its whim.

When a court orders financing of investigations and prosecutions of its own "arm" dealing with such investigations and prosecutions, at the time when the State Legislature, charged with that duty, specifically refuses to so do - because of controversies and unethical behavior within the State Bar - that legislative act makes the court so much an advocate for the prosecution that disciplinary activities that the court felt it has an "inherent constitutional authority" to fund became completely and irreversibly tainted.

I do not know about authority of the California Supreme Court to fund disciplinary prosecutions of attorneys.

But I know that the U.S. Constitution is the Supreme Law of the Land, and that the California State Constitution may not provide to California attorneys subject to discipline LESS protection than the federal Constitution does.

And, under the federal Constitution, when a Court acts as a legislator and an advocate, financing activities of a disciplinary prosecutor, and when the disciplinary prosecutor is considered an "administrative arm" of the disciplinary court, such a situation is intolerable under federal constitutional law as an "accuser-adjudicator" problem, invalidating all orders on discipline of California attorneys.

Not that the judiciary would care for doing anything unlawful.  They are the law in this country.