"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.

Sunday, June 4, 2017

Public comment on New York proposed "standing discovery order" in criminal cases - Part VIII: the new proposed "standing order" is slanted towards prosecution, changes constitutional and statutory law without authority, and will drum up wrongful convictions through plea bargains

This is a continuation of my public comment about the proposed "standing order of discovery" in criminal cases by the New York Justice Task Force.

So far, I have published 7 parts of my public comment on this proposed rule:

Part I - lack of transparency in the composition or operation of the "Task Force";

  • Part II - that the proposal is trying to usurp the authority of the New York State Legislature;
  • Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;
  • Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and
  • Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.
  • Part VI - how the rule will protect prosecutors from allegations of misconduct instead of protecting the public from wrongful convictions, and
  • Part VII - on the "dearth" of information about prosecutorial misconduct created by members of the Task Force, and used by members of the Task Force not to do their jobs.

  • In this blog, Part VIII, I will analyze the actual proposed standing order of discovery, proposed by the Task Force to be made in every criminal case.

    The screw-up starts from the very first paragraph about the order of discovery directed at the prosecutor:

    So, first of all, the court order of discovery will be issued on the following conditions:

    • if the prosecutor and "counsel for defendant" are present at the arraignment - so, that excludes issuing such an order if a criminal defendant wants to represent himself; and
    • that the defense attorney must provide to the prosecution a demand for discovery under CPL 240.10(1) and CPL 240.20 - even though certain materials, such as the so-called Brady and Rosario materials (withholding of which may lead to wrongful convictions, must be provided by the prosecution without any demands from the defense, automatically).  I wonder whether this rule will be used by prosecutors by claiming that the defense never asked them for the Brady material,  so they "thought" they do not need to give it.
    Yet, the proposed standing order of discovery aimed at the prosecution is EXCLUSIVELY aimed at Brady material - that is supposed to be provided by the prosecution to the defense WITHOUT ANY DEMAND FOR DISCOVERY and WITHOUT ANY COURT ORDER.

    Nevertheless, the order indicates that it will only punish for withholding of the Brady material only if it is "willful" - and you know same as I do that no judge will EVER find withholding of Brady material by any prosecutor "willful".

    And, look at how the proposed order gives the prosecution more time for disclosure than the statute does - thus unlawfully changing the criminal procedure statute.

    According to New York Criminal Procedure Law (CPL) 255.20, all motions in a criminal case (including motions to compel disclosure) must be made 45 days from arraignment with counsel.

    In a felony case, that deadline usually comes long before the trial.

    That means that the demand for discovery must be made long before these 45 days expire, in order to be able to:

    • serve the prosecution with the demand for discovery (demand to produce);
    • give the prosecution 20 days to respond (plus 5 days for mailing), and
    • if the prosecution refused to provide certain materials, to make additional demands to produce, in order ensure compliance of the prosecution.
    All of that takes time.

    By statute, and usually demands to produce are made at arraignment or close after that date (once again, prosecution MUST provide Brady material without a demand to produce, but a statutory demand to produce imposes upon the prosecution an ADDITIONAL obligation and CUTS its time to provide the documentation.

    Remember that the prosecution was preparing the cases (especially a felony case), likely, for months, especially in case of an indictment by a grand jury that the prosecution was preparing, so, it must not be difficult for the prosecution to provide its file to the defense on time, and failure to do so must PRESUMPTIVELY constitute misconduct.

    When such a court order directing disclosure is issued, the prosecutor comes under immediate contempt of court power and under immediate obligation of compliance and disclosure.

    Yet, the newly proposed court rule concocted by a "Task Force" dominated by prosecutors and former prosecutors, suggests that, by order of court, disclosure will be "presumptively timely" if provided 30 days before trial in a felony case and 15 days before trial in a misdemeanor case.

    So, if a defense counsel, within 45 days of arraignment, makes an omnibus motion that includes a motion to comply with the demand to produce, the court, under the new rule, will now be able to marinate the defense counsel for months, telling the prosecutor at the very outset of the case that he can delay disclosure of Brady material until 30 days before trial - likely putting additional expenses upon the defense counsel for rush investigation of materials he is ambushed with only 30 days before trial, while a criminal case may drag its feet through the court system for months.

    And, such dilatory tactics by both the court and the prosecution, will be considered not misconduct, but "presumptively timely" disclosure.

    As to disclosures "subject to a suppression hearing", such as a 710.30 notice (a statement or identification), such disclosure can be made under the new "standing order" no later than 15 days before a suppression HEARING.

    Before a suppression HEARING, there must come a MOTION from the defense counsel for such a hearing, within 45 days of arraignment with counsel.

    And, in order to make such a motion, the defense counsel must have materials on hand to make it a PART OF that motion.  A defense counsel cannot move to suppress what he does not know exists.

    Thus, the order:

    1) piles an impossible task of clairvoyance upon the defense counsel, obligating him or her to FORESEE what materials are withheld by the prosecution that may be subject to suppression, for purposes of making a motion;

    2) dooms motions to suppress by allowing the prosecution not to disclose ANY information until "15 days before a suppression hearing", which will not happen without a proper motion, and, ultimately,

    3) enables prosecutorial misconduct that it is claiming it is trying to prevent.

    Note that at the very same time, the criminal defendant (who is entitled by the 5th Amendment to remain silent throughout the criminal proceeding) is required by New York Statutes to disclosure to the prosecution:

    • an alibi defense; and
    • whether the defendant is going to raise the affirmative defense of mental incapacity to form an intent -

    Compare - the defense must make disclosures to the prosecution, despite the 5th Amendment protection, within 8 days after the criminal case starts, and the prosecution does not have to disclose anything to the defense, despite a constitutional obligation, until 30 (felony) or 15 days before trial or hearing.

    And, obligations of defense counsel for disclosure of such unconstitutional "notices" are put into a court order, thus putting the defense counsel under the gun of disobeying the court order if he does not make his client speak to the court and the prosecution about the case, in violation of his or her 5th Amendment rights.

    Moreover, the "standing court order" will impose upon the defense counsel an additional court-ordered obligation to comply with these unconstitutional demands to waive the e criminal defendant's 5th Amendment right to remain silent, as the statute requires, within 8 days of service of the demand, or suffer waiver of that particular defense (the prosecution does not suffer a dismissal of the case for non-compliance with discovery).

    Thus, the "standing order of discovery" favors the prosecution by giving prosecution additional time in discovery and absolving them from sanctions for non-compliance with discovery demands and motions, and by putting upon defense counsel an additional contempt-of-court obligation to comply with prosecution's demands for discovery exactly within the very limited statutory time-frame (8 days after service of the demand).

    Not too much of a bias in favor of prosecution, right?

    But, a great big cherry on top of the cake given by the Task Force to prosecutors under the guise of providing protection to criminal defendants, is this, the "notice" that the court WILL NOT find a prosecutor subject to sanctions unless his non-disclosure of Brady material is "willful"  (deliberate delay of prosecution's compliance with statutory demands to produce until 30 days before trial are already claimed not to be willful, presumptively, without looking at the circumstances of the case):

    Compare the warning by the court to the prosecutor that he will NOT be sanctioned for non-disclosure of constitutionally required material unless his nondisclosure was "willful and deliberate" with a notice that any parent gets in, as an example, New York Family Court - in a custody, visitation, or child support proceeding:

    Note that the proposal for the "standing court order" in criminal cases is not even talking about jail or fines against prosecutors for contempt of court - as parents without any legal knowledge (as compared to prosecutors) are threatened with.

    And note that the notice to parents greatly differ with notice to prosecutors where the prosecutors (who are fully aware of their federal constitutional duty of disclosure of Brady material) are babied in the court order and assured that they will NOT be sanctioned, unless their conduct is willful and deliberate, while a parent is told, in bold font, that he MAY BE fined, and jailed, or BOTH, if his behavior is willful.

    The difference is not purely grammatical.

    In the parents' case, New York courts, most of the times, find a parent in contempt of a child support order as a matter of POLICY - even when the parent shows evidence of indigence, by IMPUTING income upon a parent who is unemployed and cannot find a job.

    In the prosecutors' case, on the opposite, courts presume good faith on behalf of a member of the government, who, like the presiding judge him/herself, is given absolute immunity for CORRUPT acts - thus incentivizing such behavior.

    It does not make any sense, does it?

    Presuming bad faith of a parent who has no immunity coverage, and presuming good faith of a government official who is immune for malicious and corrupt acts and who has an interest in committing those malicious and corrupt acts (fabricating criminal cases) to advance his career for more money and more power?

    It is apparent that, the proposed order of discovery will make prosecutorial misconduct even easier and less prosecutable than it is in New York now.

    After all, prosecutors, even if complained to the grievous committee, will point at a court refusing to impose sanctions upon them as the basis to dismiss the disciplinary complaint without an investigation or prosecution.

    And, you know what will flourish because of this "standing order", if it is accepted as a court rule (and I have no doubt it will be so accepted, so, criminal defendants and counsel in New York, brace yourself)?

    Wrongful convictions through guilty pleas.

    Look at the timing of plea negotiations as opposed the deadlines of discovery in the proposed "standing order".

    Prosecution MUST disclose Brady material with or without demand from the defense - that's the law that those proposing the "standing order" do not care about.

    Yet, the standing order deems non-disclosure of Brady material (information that somebody else committed a crime, or that a prosecution's witness was bought or retracted his or her story) as not being subject to sanctions until 30 days (felony) or 15 days (misdemeanor) before trial.

    Nearly 99% of criminal convictions across the United States, including in New York, are obtained through plea bargains.

    And, criminal convictions are always brought up during election campaigns by prosecutors and prosecutors who are running to become judges - as career accomplishments.

    So, what will be the easiest way for a prosecutor in New York to obtain these career accomplishments after this rule is promulgated by the New York court system?

    Fabricate a criminal case, delay disclosure of Brady material until "30 days before trial" (conduct that is presumed by the proposed standing order as timely and in good faith) and, while withholding evidence that may help the defendant win a dismissal of the case, obtain a guilty plea and send the defendant to plea.

    And, the prosecutor may then claim that he did nothing wrong, obtained a guilty plea with a court's double-blessing (through an order of discovery and a plea allocution).

    This way, the prosecutor will not be subject to a lawsuit (absolute immunity) and will not be subject to attorney discipline (claiming he did not have to disclose Brady material until 30 days before trial - which was never scheduled because of a guilty plea).

    Thus, by claiming that the prosecutor PRESUMPTIVELY did not do anything wrong unless he failed to disclose Brady material 30, or 15 days before trial (that usually happens only in 1% of criminal cases), the order practically endorses and encourages the prosecution to conduct plea negotiations without disclosure of Brady material, long before any trial is scheduled.

    And, with this, the due process right to a fair prosecutor (do we even remember such a right exists any more?) goes out the door, with the court system's blessing - because, from the point of view of the Task Force that presumes validity of any criminal conviction unless it is vacated or reversed by a court, no matter by what misconduct it is obtained, withholding information about innocence or mitigation while trying to put an innocent person behind bars is not at all a sanctionable conduct for the prosecution, prosecutors need to be protected from the public opinion calling a spade a spade and branding prosecutorial misconduct, and the public and the press should be told what to think prosecutorial misconduct is - by the courts.

    There is more than one way to ensure reduction of "wrongful convictions", right?

    • change the definition of what a wrongful conviction is, create some rules that will make a court finding of prosecutorial misconduct impossible,
    • help prosecution obtain plea bargains by withholding evidence, all with waivers of the defendants right to appeal,
    • keep information about failures to disclose under wraps, then
    • claim the "dearth of information" that prosecutorial misconduct is responsible for wrongful conviction and
    • chastise the public, the press and the defense counsel for using the words "prosecutorial misconduct" too much, and "incorrectly"  - and voila, the "problem" of wrongful convictions is solved.

    Is it?

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