Public comment on New York's proposed standing order of discovery in criminal cases - Part III. Composition of the Task Force that proposed the standing discovery order in criminal proceedings supposedly meant to prevent wrongful convictions

In Part I of my public comment to New York Justice Task Force's proposal of standing discovery orders in criminal proceedings I pointed out the first problem affecting legitimacy of the Task Force itself and of its suggestions and proposals - lack of transparency in

• appointments to the Task Force,
• work of the Task Force, and
• non-compliance by the Task Force with New York State Open Meetings Law requiring notice to the public and opportunity for the public to be heard on issues of public concern to be proposed or decided by public bodies.

Part II addressed the issue that the Task Force is trying to usurp the Legislative authority for important policy-making in criminal proceedings, in violation of state constitutional requirement for separation of powers, and to do it in a clandestine manner, without public hearings, in an extremely short period of time, so that to push through certain ideas that are not in the public interest, but in the interest of certain "stake-holders".

The next big problem, discussed here in Part III of my public comment is that the Task Force consists of people with self-interest to prevent proper investigation of wrongful convictions and their reasons, and to continue with the existing status quo that creates wrongful convictions in the first place, and thus it is futile to expect it to create anything but a roadway to suit their personal, financial, career and reputational need while creating roadblocks or favorable climate for intimidation and persecution of critics of governmental misconduct leading to wrongful convictions.

Here are the list of members of the Task Force that proposed the "standing order of discovery" that is supposedly needed to prevent wrongful convictions, but in reality will serve the opposite purposes:

• to preserve the environment that creates such wrongful convictions,
• protect the actors who create such wrongful convictions and
• intimidate or eliminate those who criticize such environment and such actors

First of all, let's point out who is eloquently absent from the Task Force that is supposedly convened to prevent wrongful convictions:

• exonerees from wrongful convictions and members of their families;
• consumers of legal services;
• members of the public independent of the court system, criminal justice system, legal services industry, and not interested in preventing reversals of criminal convictions.
• independent defense attorneys;
• representatives of New York State Trial Lawyers Association, or of the New York State Defenders Association - even as "ex officio members";
• civil rights attorneys who addressed issues of wrongful convictions or sued for wrongful convictions;

In other words, absent from the Task Force are those who have the vital interest that the Task Force is supposedly protecting:

• consumers of legal services (including of criminal defense attorneys);
• those who have suffered from wrongful convictions and members of their families who also suffered;
• members of the public who would look into and investigate the real reasons for wrongful convictions.

Instead, the Task Force is composed predominantly from those people who usually cause wrongful convictions, or have an interest in preventing reversals of criminal convictions, from reputational, personal, career or financial point of view.

Let's start looking through the member list name by name.

The chair of the Task Force is New York's Chief Judge Janet DiFiore, a former career prosecutor - I recently wrote about her shenanigans as the District Attorney and judge, her apparent corruption and misconduct.  I also started to publish civil rights lawsuits against her further showing her corruption and misconduct, and I still have several of her lawsuits to publish.

You can also read here the written opposition and request to testify in opposition to confirmation of Janet DiFiore by exoneree Jeffrey Deskovic, 

who was not allowed to testify against DiFiore, and, after DiFiore was confirmed and took her seat as the Chief Judge of the New York State Court of Appeals and as the Chair of this Task Force, DiFiore somehow did not appointed Jeffrey Deskovic to the Task Force, I wonder, why.

DiFiore is the chief regulator of the legal profession in the State of New York.

One of the co-chairs is a former New York State Court of Appeals judge - and now a private attorney - Carmen Ciparick who advertises her "public service" on the Task Force as part of her attorney advertisement, to drum more business for her law firm.

Ciparick is one of the former regulators of the legal profession in New York, as part of the Court of Appeals that sets the rules of attorney regulation.

What kind of involvement Ciparick can have in the "Task Force", you can see by the number of her memberships - it is not humanly possible for a busy appellate attorney, and especially the one past mandatory retirement age of 70 (Ciparick is 75), to be on so many boards, associations and task forces and have meaningful involvement in every one of them.

By the way, as part of Board of Trustees "Historical Society" of the courts of the State of New York, Ciparick is responsible for publishing and keeping published, the article about the felon former Chief Judge Sol Wacthler presented to the worldwide readers as a "luminary" (see my blog about that "luminary" article here) and praised for, de facto, defrauding the federal court by:

• claiming he had no mental issues for purposes of plea bargain;
• then, turning around and claiming, in a published book, he had mental health issues.

The article published by the Historical Society where Ciparick is on the Board of Trustees praises Sol Wachtler for, literally, saving the New York State Court system from a flood of motions to vacate, which would be motions to vacate wrongful convictions, because a mentally unstable Chief Judge decided cases.

By the way, the website of the Historical Society, as of today, still did not take Judge Sheila Abdas-Salaam off the list of living and sitting Court of Appeals judges, more than a month after her death - Ciparick had no time, as a trustee of the Historical Society, to address the issue:

You can expect a lot of good things, as a Chair of a Task Force convened ostensibly to fight wrongful convictions, from a licensed attorney and former judge of the court regulating attorneys who officially endorses, as a trustee of a publishing organization, the praise of a convicted felon for defrauding a federal court, in order to "save" New York court system - from motions to vacate wrongful convictions.

Makes a lot of sense.

Another co-chair is a sitting judge of criminal court Michael Dwyer.

Judge Dwyer himself is dealing with criminal cases, and with some wrongful conviction cases.  Therefore, when he at the same time co-chairs production of a 20-page document which is aimed mainly at censuring courts, attorneys, the press and the public not to use words "prosecutorial misconduct" "too broadly" (see that "issue" as No. 1 addressed in the document designed, supposedly, to prevent further wrongful convictions),

added to the fact that Judge Dwyer is a former career prosecutor, same as DiFiore,

that smacks of BAD pro-prosecutorial bias, which should require removal of Judge Mark Dwyer from all criminal cases immediately.

And, here are the "permanent members" of the "Task Force" - remember, the Task Force to prevent, not create, wrongful convictions.

Robert A. Adamo, Director, Division of Forensic Sciences, Westchester County Department of Laboratories and Research

This wonderful gentleman was in charge of that "forensic" lab for a long time, apparently helping DA DiFiore (now the Chair of this same "force") to obtain convictions.  In a criminal case that I personally handled against DiFiore's office, DiFiore's office desperately tried to obtain a wrongful conviction of my client while any supposed or alleged evidence was lost or destroyed - which they refused to tell me until I filed a motion to compel and for sanctions.  After that, DiFiore became a judge and retaliated by refusing to hear my constitutional appeal as of right in the disciplinary action punishing me for properly representing my indigent clients and making motions to recuse a biased judge, very logical.

I wonder if "evidence" - or, lack thereof, from the case I handled as an attorney, went through the hands of this lab Director, but very obviously, he is the last person to be a "permanent member" in a "task force" seeking to prevent wrongful convictions, as his lab is obviously joined at the hip with the DA DiFiore's office.

Mr. Adamo's reputation, as an expert and administrator, is at stake each time a conviction is reversed, so he is the last person to be on a task force that is supposedly investigating the causes of wrongful convictions and making suggestions how to prevent wrongful convictions.

The next wonderful member of the task force is James O'Neill, Commissioner of New York City Police Department.

Apparently, since Mr. O'Neill's police officers are collecting and presenting evidence in criminal trials, Mr. O'Neill's personal reputation, and reputation of his personnel, are at stake whenever a conviction is reversed.  Same as with Mr. Adamo, Mr. O'Neill is an interested person and should not be on the Task Force.  He may be deposed as a witness by the task force, but, as a "stakeholder" in the issue, he has a conflict of interest to be a member of such a task force.

The next "permanent member" of the "Task Force" is Zachary W. Carter, New York City Corporation Counsel - the attorney who, as a matter of duty, would OPPOSE in court, any civil rights lawsuits against NYPD for wrongful convictions.

The irreconcilable, disqualifying conflict of interest here is quite apparent, and, I believe, it is an ethical violation for attorney Carter to even be on this "Task Force", much less produce the document it produced for "public comment" - which is adamantly pro-prosecution.

The next "permanent member" of the Task Force is a Supreme Court Justice of Nassau County, obviously presiding over criminal cases, Judge William C. Donnino, who reached the mandatory age of retirement, 70, 6 years ago and at that point, left his position as a "supervising judge" of the Nassau County Supreme Court.

So, the 76-year-old busy Supreme Court judge, former career prosecutor and criminal court judge Donnino is trying to MAKE the law and MAKE the policy decisions INSTEAD of the Legislature, and do that in a way protecting prosecutors' reputation from being exposed and their careers and chances to become judges affected by making a proposal for, factually, censure of public opinion, attorneys and courts against "too broad" a definition of prosecutorial misconduct.

Other members are:

Professor Emeritus of Brooklyn Law School William E. Hellerstein, a constitutional law scholar thrown in for show, since his decision, even if against the chorus of police, "victims' advocates", prosecutors and judges/former prosecutors, can never outweigh the pro-prosecution supermajority of the group.

It is a wonder how such a busy man can also handle such a busy job on top of his professorship obligations.

The next "permanent member" of the Task Force is Seymour James, Attorney-in-Charge of the Legal Aid Society who is overseeing, reportedly, an organization of 1,100 lawyers.  Once again, one must wonder how such a busy man can put a task that must be an exhaustive job in itself - digging through thousands of documents to get to the bottom of causes of wrongful convictions in New York.  He either doesn't do his job as the Attorney-in-Charge of the Legal Aid Society properly, or his job of the permanent member of the Task Force properly, or both.

Moreover, one must wonder how such two supposedly pro-criminal defense people as professor Hellerstein and attorney James, who both have decades and decades of experience in New York state criminal justice system and know more than anybody how corrupt and rife with prosecutorial misconduct it is, could produce such a shameful document as the "proposal" that tries hard to censure public opinion from trying to define prosecutorial misconduct more broadly than pro-prosecution judges will do it in their orders.

The next "permanent member" is a former judge of 25 years, and now a director of a victim's advocates' organization Judy Harris Kluger, a former career prosecutor of domestic violence. 

Victims' advocates, and prosecutors, often start assuming that the person is guilty at the time when s/he is still only charged with a crime and is presumed innocent by law. 

Of course, Kluger's position as a director of a victim's advocates' organization creates an irreconcilable conflict of interest against having her on the task force to investigate causes of such convictions, as she obviously lacks neutrality needed for such an investigation. 

The next "permanent member" of the Task Force is judge Richard B. Lowe, III, another former career prosecutor:

It is obvious that the public did not elect Judge Lowe to legislate as to policies of discovery in criminal proceedings, and that he cannot be, constitutionally, at the same time, a legislator and an adjudicator in the same courtroom.  Yet, not just one, but 7 judges (1/2) are "permanent members" or chairs and co-chairs of the 14-member task force.

The next "permanent member" is the pre-eminent Chief Judge of the Appellate Division 3rd Department Judge Karen Peters, a corruptioner I wrote about here, a former career prosecutor and a judge regulating attorneys in 1/4 of the territory of the State of New York.

I have raised many times the issue that appellate courts in New York may not be at the same time legislators and adjudicators in attorney disciplinary proceedings, as well as "one" with disciplinary prosecutors, as both judges and prosecutors claim to be when sued in federal court and when Freedom of Information Requests against disciplinary prosecutors are filed. 

Peters CREATED the mess when independent criminal defense attorneys are intimidated into silence and not making motions to recuse, which surely contributes to wrongful convictions. 

Peters' court suspended in 2008 a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding (John Aretakis), disbarred in 2011 a criminal defense attorney (Frederick J. Neroni) who dared to file an assigned-counsel appeal raising the issue of judicial corruption, which led to threats by ADA John Hubbard that he is "burning his bridges" (undisclosed former law partner of the presiding trial judge).

Peters, as co-member of the Commission for Judicial Conduct, protected judges from discipline and, as the judge of the regulating Appellate Division, suspended and disbarred attorneys who complained about such judges.

Peters is the court whose "part", attorney grievance committees, have a policy of non-prosecution against criminal prosecutors.

Peters is the court that, as appellate court of criminal appeals, "defers" (exhibits bias) to decisions of trial judges because they did, and the appellate court didn't, see "demeanor of witnesses", while at the same time the only thing that prevents the appellate court from seeing that demeanor of witnesses is prohibition on videotaping court proceedings.

We do not see Peters on any task forces promoting cameras in the courtroom in the hands of the public.

And, Peters knows that investigations of attorney discipline are covered by Judiciary Law 90(10) and that only the Chief Judge of the Appellate Division (herself included), on motion, can disclose issues pertaining to attorney discipline, or through waiver of privacy from the attorney.


So, Peters knows better than to propose what she is proposing in her 20-page document: to MAKE prosecutors (against whom no disciplinary investigations are usually conducted as a matter of unspoken policy, no matter how bad their misconduct is), and, peculiarly, public defenders (defense attorneys, who are usually the target of disciplinary persecutions anyway) MUST somehow report to their supervisors that a disciplinary investigation has been started against them.

So, Peters as a "permanent member" of the task force trumped her own authority as Chief Judge of Appellate Division to EXCLUSIVELY decide whether to give access to such information.

And, Peters as a "permanent member" of the task force decided to MAKE attorneys waive their privacy under the guise of a court rule, in violation of Judiciary Law 90(10). 

That's a position of "my law" - I own it, I make it, I break it.

Not a good position for a judge (1) regulating attorney licenses in 1/4 of the State of New York, and (2) trying to persuade the public that she is fighting wrongful convictions.

Moreover, when Judge Peters created a document where she tries to muzzle courts, attorneys, the press and the public against having their own opinion as to what prosecutorial misconduct is, she disqualified herself and her court from hearing criminal cases and hearing attorney disciplinary cases - as she is very obviously pro-prosecution.

The remaining "permanent members" of the Task Force are:

Cyrus Vance, the District Attorney for New York County - an interested person disqualified from being an investigator or decision-maker on the issue of wrongful convictions, and

Susan Xenarios - another director of a victims' advocates group.

There are also 8 "ex officio" members of the Task Force, also chosen by the Chief Judge of the New York State Court of Appeals.

Composition of that list is no better - they are all pro-prosecution stakeholders.

Somehow, Senator DeFrancisco, sponsor of the bill to establish Commission of Prosecutorial Misconduct, did not make the list of "ex officio" members of the Task Force.

Instead, on the list are:

1.  Eric T. Schneiderman, NYS Attorney General, a career prosecutor and official statutory counsel, under Public Officers Law 17, for all State judges, including all judges-members of the Task Force, in lawsuits against them for civil rights violations, including corruption or misconduct that may have led to wrongful convictions, look at the history of litigation by Schneiderman AGAINST civil rights lawsuits.  

Schneiderman recently argued in a civil rights case against a state judge (where Schneiderman represented the state judge) that a motion to recuse (which was granted) is good evidence in support of the judge's actions to then forcibly eject a Jewish litigant out of the courthouse after the motion was granted, with the help of an armed court attendant who was a known Nazi supporter. 

Eric Schneiderman also argued in federal court, and won on his argument, that members of the public have no say as to whether meritorious complaints of judicial misconduct and of attorney misconduct (including prosecutorial misconduct) are or are not dismissed - see Bracci v Becker (members of the public have no say in dismissal of meritorious complaints of judicial misconduct) and Neroni v Zayas (members of the public have no say in dismissal of meritorious complaints of attorney misconduct).

Moreover, Eric Schneiderman, while being an "ex officio" member of the Task Force against wrongful convictions, appeared as an attorney in litigation where he opposed benefits for a wrongfully convicted exoneree.

Based on the above, Eric Schneiderman is definitely disqualified from being anywhere near this Task Force that investigates and is supposedly tasked to verify how to prevent or reduced possibility for wrongful convictions.

2.  State Senator Michael Nozzolio, who is also currently a Commander in New York Naval militia (a really good candidate to investigate causes of wrongful convictions where misconduct of prosecutors and law enforcement are front and center causes) - the one who voted for a bill making unauthorized practice of law a felony while continuing to practice law and being "an officer of the court" while being a State Senator, thus violating constitutional separation of powers and ethical rules against self-interested legislative activity by Senators;

3.  State Assemblyman Joseph R. Lentol, a former career prosecutor - Chair of the Commission on the Committee of Codes (so, the Task Force, while usurping the power of both the Assembly and the Senate, tried to appease the State Legislature by including one Assemblyman and one Senator as "ex officio" members, which did not make legislating by the Task Force any more legitimate);

4.  Michael C. Green - Executive Deputy Commissioner, New York State Division of Criminal Justice Services, who would really be a good candidate to investigate and advise as to how to punish those who feed him, law enforcement and prosecutors;

5.  Claire P. Gutekunst - President, New York State Bar Association which issued a 187-page report on wrongful convictions in 2009, after having its own Task Force on Wrongful Convictions chaired by a recently disgraced judge Barry Kamins who resigned in 2014 when facing removal, amid a scandal in the media that he has engaged in campaign advice to District Attorney Charles Hynes who was accused in participation in wrongful convictions.

Judge Kamins also was involved, according to the report, in ex parte communications with DA Charles Hynes about criminal cases DA Hynes "actively pursued" in Judge Kamins' court

- which may be another significant part of wrongful convictions, only a Task Force consisting of judges and prosecutors who are doing it, would not notice such a cause, and would not investigate or fight it, would they?

Yet, here is what NYSBA report said in 2009 about wrongful convictions, among other things:

The report points out that prosecutorial misconduct may contribute to a conviction that may not be reversed, but where there are still significant violations of the law and prosecutorial misconduct, such as:

1) Rosario violations - failure by the prosecutors to give to the defense prior statements of testifying witnesses of the prosecution - by the way, the 20-page document concocted by pro-prosecution judges, prosecutors, chiefs of police and victims' advocates, does not include Rosario violations as prosecutorial misconduct;

2) Brady violations - failure by the prosecution to give to the defense any information in the possession of prosecution OR law enforcement pertaining to guilt or innocence, mitigation of guilt and impeachment of a prosecution's witness.

Here is also NYSBA's report on discovery in criminal proceedings from 2015, mentioning prosecutorial misconduct many times and indicating that there is no record of disciplinary proceedings in New York appellate divisions against prosecutors for Brady violations:

Yet, NYSBA report was timid, and did not mention

• ex parte communications between prosecutors and judges;
• judicial bias - the word "bias" is mentioned in the report only as witness bias; or
• corruption - the word "corruption" is used in the 147-report only once, in the physical sense of spoliation of physical evidence.

Possibly, NYSBA was included as the "ex officio" member of the Task Force because it is a convenient expert whose credentials the Task Force can tout in its support, while they know that NYSBA will tread the required line and will never accuse prosecutors or judges of misconduct, bias, collusion or corruption, and thus, such causes of wrongful convictions may be conveniently excluded.

6. Thomas P. Zugibe - President of the State District Attorney's Association, the organization that, according to testimony of Mr. Bastuk, Chair of an anti-wrongful conviction organization called "It Can Happen To You" (somehow not a member of this Task Force) in front of the New York State Commission for Attorney Discipline, descended as paratroopers upon New York Senate to lobby against introduction of a Commission solely dedicated to deal with prosecutorial misconduct, because the current attorney grievance committees have an unspoken policy not to prosecute prosecutors, a stakeholder disqualified by interest of its members to participate in decisionmaking about laws regarding investigations and sanctions for prosecutorial misconduct.

Thomas Zugibe published an article opposing legislative creation of the Commission on Prosecutorial Misconduct, where he writes that:

a) the claim of too many wrongful convictions and prosecutorial misconduct as the cause of such wrongful convictions are overblown, because the "task force" of New York State Bar association found "only" 53 wrongful convictions from 1964 to 2009; of course, Mr. Zugibe self-servingly omits to mention that only COURT REVERSALS (which are very hard to obtain when misconduct is not properly addressed by an incompetent or intimidated attorney at trial or on appeal, or when the conviction is a result of overcharging and intimidation by BOTH police and prosecutors resulting in a false confession and a guilty plea, see also an opinion, one of many, deeming any conviction on a guilty plea unconstitutional), and the rarity of the court reversals are evidence not of the scarcity of wrongful convictions, but of the predominance of judges who are former prosecutors presiding over criminal cases and ruling "for their own":

b) Mr. Zugibe pretends he, a licensed attorney of many years, somehow does not know that there are no specific requirement to complaints against ANY attorney, and claims the lack of sworn complaints contemplated against prosecutors as something especially horrific and discriminatory against prosecutors; and also pretends not to know that current attorney disciplinary committees already have the same "broad subpoena power" as the Commission on Prosecutorial Conduct is proposed to have, and already have the power to make attorneys testify against themselves - which I see as either dishonest or incompetent since Mr. Zugibe appears not to know current rules of attorney conduct regulating his own law license; 

 c) Mr. Zugibe claims that - imagine the horror! - attorney disciplinary proceedings may disrupt criminal cases because they may be conducted during the pendency of the court proceedings.

In that, Mr. Zugibe pretends to be in some kind of a surprise, while that same rule is CURRENTLY applicable to ALL attorney disciplinary proceedings - where ALL cases of disciplined attorneys' clients are disrupted.

Mr. Zugibe's lamentations only make it clear that Mr. Zugibe has no idea that what he complains about ALREADY EXISTS and IS APPLICABLE TO HIM - another proof that prosecutors are not usually prosecuted or even investigated, so they do not even bother familiarizing themselves with rules regarding their own conduct - probably, even more reason to establish a separate commission to deal with prosecutors separately, so that they would know that they are not above the law:

Somehow Mr. Zugibe did not consider it improper to make public comments and take a position on something that his Task Force is yet to come up with proposals about - which surely should have disqualified him from this body.

But, what can we expect from a prosecutor who has, for his entire career, "enjoyed" lack of discipline as a matter of policy of the grievance committees dominated by appointees of judges/former prosecutors, and absolute immunity for malicious and corrupt acts given to him as an illegal gift by the U.S. Supreme Court under the guise that attorney discipline is actually available.

7.  David Zack - President of New York State Association of the Chiefs of Police, and an obvious disqualified stakeholder with an interest, too.

8.  Jacqueline P. Flue - President, New York State Women's Bar Association.

Again, two general attorney association, 7 stakeholders connected with or representing law enforcement or prosecutors, and NO independent defense attorneys or defense attorney associations.

So, as public opinion pols push for creation of a commission to discipline prosecutors separately, to have some kind of control over the rampant prosecutorial misconduct in criminal proceedings, and, lobbying through the no-less-conflicted "Statewide Commission on Attorney discipline" offering a "compromise" of referring cases against prosecutors to existing attorney grievance committees (which was supposed to be happening anyway, but is not happening, which is the whole reason for the bill to create the Commission for Prosecutorial Misconduct) may not be working as well as the law enforcement - the bill has passed Assembly so far

prosecutors and pro-prosecution judges would want it to work, a pseudo-public clandestine "task force" has been created to try to stall creation of the Commission on Prosecutorial misconduct, under the "honorable" guise, of course, of fighting wrongful convictions.

Of course, when the initial material - composition of the Task Force - is as tainted by self-serving interests as this one, we can hardly expect a good product coming from it, but we can fully expect this "Task Force" to try to dupe the public into believing that they are acting in the public interest.

Of course, if that was true, the Task Force should have been transparent, not usurp the Legislative authority of NYS Assembly and Senate, not appoint stakeholders and not prevent the public and exonerees, victims of wrongful convictions from participating in its work.

I will continue to analyze motivations of the Task Force and how they are reflected in their proposal for standing orders on discovery in criminal proceedings in my next public comment articles.

Stay tuned.