"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, 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%.

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