"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, December 30, 2016

How Ontatio County (NY) DA Michael Tantillo, with the help of Judge Craig Doran, robbed a person of his reputation and of 2 years of his life so far - by trying to hoist upon him DA's son-in-law as a juror

In a rare voice of wisdom, on December 23, 2016, New York Appellate Division 4th Department reversed a 2014 conviction for sexual abuse in the 1st degree because:

  • the trial court did not disqualify, for cause, a juror who was the son-in-law and father of the grandchild of the prosecutor; and because
  • the court precluded testimony of a witness to whom the alleged victim made a statement that the defendant did not commit the crime - the Brady evidence.

The conviction was for sexual abuse in the 1st degree, a D felony, for which the defendant was sentenced for 6 years in prison, at the age of 34, and has already served 2 years out of 6 and, which makes the least sense, the defendant now continues to remain in prison despite the reversal on the law,

even though the reversal, and especially the reversal on these grounds, returns the defendant to the situation where he is presumed innocent and charged with a crime where there is a witness claiming that the alleged victim told the witness that the defendant did not commit the crime he is charged with.

Moreover, as of today, New York State Department of Correction continues to list, as legal, the sentence against Todd Collins, which now amounts to a tort of defamation - because the sentence was vacated along with the conviction, and I hope that Todd Collins sues the hell out of the State of New York for, first, continuing to hold him in the state prison despite the reversal, and, second, continuing to claim that he is there on a 6-year-sentence for a D felony sexual abuse in the 1st degree, to be released only in 2020, even though his conviction was reversed a week ago, and his sentence is null and void.

Moreover, Todd Collins was convicted and sentenced under PL 130.65(3) - sexual contact with a minor under 11 years old - so the defamation is of an extreme order, that Todd Collins is a pedophile, which, because of the reversal, is simply not true.

Here are the "heroes" of the case:

1) the Ontario County (NY) District Attorney R. Michael Tantillo who objected against a challenge for cause of his own son-in-law and father of his own grandson on the jury for sexual abuse of a child:

Note how vindictive the incarceration of Todd Collins was - he was even transported to the state prison system on 12/18/2014, a week before Christmas, which is a clearly punitive measure.

Here is the presiding Judge Craig J. Doran

a magna cum laude graduate of SUNY Albany, and a cum laude graduate of the Albany Law School where he was the editor of the Law Review, a political animal who has been first elected into the New York State Legislature in 1994 at the age of 29, and has been very active in many committees, Task Forces and activities - other than, apparently, the activity of brushing up on the law of disqualification.

Judge Doran has, according to his official biography, 3 children, and DA Tantillo has at least one grandson - whose father he wanted to hoist upon the defendant as a juror in a trial for sex abuse of a child.

I wonder whether these public official's parental (and grandparental) feelings got the better of them over considerations of knowledge, fair application of the law, and at least appearing for the public as being impartial.

The first of the two important issues that the 4th Department's reversal is based upon in this case is:

  • that the defendant was forced by the court to take a relative of the DA, disqualified under CPL 270.20(1)(c).

CPL 270.20(1)(c) provides:

"A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (c) He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;  or that he is or was a party adverse to any such person in a civil action;  or that he has complained against or been accused by any such person in a criminal action;  or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict".

Consanguinity is a relationship by blood, affinity is a relationship by marriage. 

CPL 270.20(1)(c ) is, of course, unconstitutional as it is construed now by courts, as it discriminates against criminal defendants by not allowing them challenges for cause against jurors who are not in an official registered marriage, which is a very large percentage of New York families - but that challenge is not relevant there, because the reversal talks about a "son-in-law" of DA Tantillo, even though I would like the public to know of this problem with the statute.

CPL 270.20(1)(c ) does not have to be changed to be made constitutional though, the only things that needs to be done is to start interpreting "affinity" in a way adequately reflecting family dynamics in New York.

Any attorney working in custody or domestic violence cases in Family Court in New York knows that the majority of cases come from unmarried couples, and that, in my view, reflects not the fact that somehow unmarried couples split and divide children more, or engage in domestic violence more than married couples, but that the family dynamic in New York has changed, and the concept of "affinity", in interpretation of courts, now needs to reflect that.

The problem with jury selection now is that jury questionnaires may ask about "affinity" in the narrowest sense - based on marriage of jurors to individuals listed in CPL 270.20(1)(c ) - but not on a partnership, with or without children, but without a registered marriage - and this may obscure and conceal biases and prevent fair voir dire and jury selection.

Here is the chart of consanguinity degrees:

A child to a parent has the 1st degree of consanguinity.

That child's spouse has to be at least the 1st degree of affinity.

So, DA Tantillo's son-in-law had the 1st degree of affinity to DA Tantillo and was absolutely disqualified under CPL 270.20(1)(c ).

Yet, DA Tantillo opposed removal of his son-in-law from the jury for cause, knowing that his argument is against clear statutory law.

And, Judge Doran sided with DA Tantillo, knowing that both the judge's and the DA Tantillo's positions are against clear statutory law, leaving DA Tantillo's relative on the jury, and forcing the defendant to use one of his limited peremptory challenges to remove DA Tantillo's close relative (which defendant ran out of before the full jury was selected and impanelled).

The difference between challenges "for cause" and peremptory challenges in criminal jury selection in New York is that challenges for cause are unlimited, and peremptory (no cause) challenges are limited.

So, for a very large jury pool - jury pools have to be large in cases of alleged crimes involving children, as many people are prejudiced against the topic and will convict simply because a person is charged for such a thing - and with jury selection that may have many, many panels of jurors to weed through, Judge Doran and DA Tantillo robbed the defendant of 10% of chances (see CPL 270.25[2][c] allowing only 10 peremptory challenges in any felony cases below C felony, and Todd Collins was charged with a D felony) to strike down jurors without explaining to the obviously biased judge why he is doing it.

It is good that the 4th Department upheld the law and reversed the conviction.

It is bad that the 4th Department did not make a statement about prosecutorial and judicial bias and misconduct (the prosecutor, as a judge, is required to be unbiased in the case), to the point of trying to force the defendant into a Hobson's choice of either accepting the prosecutor's close relative on the jury (which was clearly against statutory law) or take him down by the use of 10% of the precious peremptory challenges - and running out of chances to disqualify one potential hold-out juror, which made a difference between a potential mistrial and a conviction.

Judge Doran's ruling in favor of illegal opposition of DA Tantillo was clearly biased in favor of prosecution - which was not an issue decided by the 4th Department, an appellate court that notoriously does not see issues of bias even if they are screaming in their faces.

The problem with not dealing with the issue of bias is that the 4th Department reversed and remanded the case to the same judge Doran and the same DA Tantillo who will now devise new tricks of how to screw the defendant in another way, in order to gain "tough of crime" and "child protector" badges, while illegally using a man as a stepping stone in their political careers.

It is interesting to mention that the court reversed and granted a new trial "on the first count of the indictment", thus implying that there were other counts upon which the defendant may have been still convicted.

But, Todd Collins' inmate information from the New York State Department of Corrections indicates that the conviction and sentencing for which he is incarcerated had only one count, so his entire conviction is reversed, and his sentencing, necessarily is made void - requiring his removal from state prison where he is serving that sentence, that became void as of December 23, 2016.

The second issue upon which the 4th Department reversed the conviction is that Judge Doran blocked testimony of a witness who wanted to testify that the alleged victim (the child under 11 years old) told the witness that the Todd Collins did not engage in sexual contact with the child.

As you understand, this D felony, with an extreme punishment of up to 7 years in prison (Collins got 6 out of 7), and a lifetime of being stripped of every plausible human right on release, as a registered sex offender and child molester, is provable by testimony only (he said - she said) in cases where "sexual contact" is simply touching - as in "he touched my child's breasts" - "but your child is 3 years old and he was picking her up by the armpits" (a real case, by the way), and blocking the testimony of a witness who claimed that the alleged victim told him that the defendant never committed the crime is of extreme importance and value in such criminal proceedings.

By the way, DA Tantillo had the audacity to oppose Todd Collins' the appeal where he had a clear personal interest.

And, Todd Collins now has to deal with the same biased DA and the same biased judge on re-trial.

I do not make claims whether Todd Collins "did it", or "did not do it".

I simply do not know.

But, his trial did not follow statutory law, he was robbed, by a biased and personally interested DA and by a biased judge of 2 years of his life already that he spent in state prison as a sex offender, with all indignities and dangers that sex offenders are exposed to in prisons, while now he is, first, not being released from prison despite he is presumed innocent, the State of New York stubbornly claims he is to remain incarcerated until 2020, even though his conviction has been voided a week ago, and - he is PRESUMED INNOCENT by law now.

Presumed innocent.

I wonder whether such a thing as the law remains important nowadays.

And I do not wonder whether Judge Doran or DA Tantillo will be held accountable for their egregious misconduct in this case.

They won't be.

They already weren't.

Most likely people will react to this case by stating that a pervert and a pedophile got off on a technicality - failing to see that it is not only about Todd Collins, but about all of people coming in touch with New York criminal justice and court system in general.

If judges and prosecutors, government officials, are allowed to violate the law and rob people of years of their lives without any accountability, they will keep doing it, again, and again, and again, and will continue to climb the career ladder.

Using you as stepping stones.

Unless you the people demand accountability.

Will you?

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