Previously, I addressed aspects of the proposed rule in my public comment,
- 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.
This Part VI is showing that disciplinary prosecution of misconduct of criminal prosecutors is also a joke - and that the rule on "standing orders" of discovery in criminal cases will make disciplinary prosecutors even less amenable to discipline than they are now, and will increase wrongful convictions.
Prosecutorial misconduct is prominent in the "discovery order" proposal of the Task Force, as it is No. 1 reason why the proposal is even introduced - to instill into the public that, unless a court says a prosecutor committed misconduct, the public should not deem any conduct by prosecutors a misconduct.
Apparently, members of the public and the media cannot have their own mind as to what they observe and what they read about in court documents.
Yet, while the Task Force wants, very obviously, to suppress "wrongful perception" by the public and the media of what is or is not prosecutorial misconduct, it is interesting that in 2015 there was actual testimony in front of New York Commission for Attorney Discipline - where a person represented the wrongfully convicted (those who are not represented in the Task Force created supposedly to fight wrongful convictions), testified that
- defense attorneys are afraid to report prosecutorial misconduct, equating it with "burning bridges" for themselves,
- that disciplinary authorities do not prosecute prosecutors who are sued for civil rights violations, but given prosecutorial immunity (which is given ONLY because discipline is supposedly available - which it is not); and
- that prosecutors' organizations to prevent creation of the Commission for Prosecutorial Misconduct, and the failure of that organization to produce one case when prosecutors were actually disciplined, see testimony of the victim of a wrongful conviction Bill Bastuk, the co-founder of the organization "It Can Happen to You".
Well, there are actually two of such cases, where prosecutors were actually disciplined - but in both of them prosecutors were disciplined not for causing wrongful convictions, but for criticism of judges.
for criticism of a judge in a press-conference; and
2) Elizabeth Holtzman, a New York City prosecutor, for outing judge Irving W. Levine for demeaning the alleged rape victim in a criminal rape trial by reportedly ordering her, in chambers, to go on her all fours on the floor in front of him to re-enact the rape.
The judge in question was "cleared of allegations" in December of 1987, despite of an additional complaint by a female juror in a criminal trial indicating that Judge Irving W. Levine engaged in
That it was claimed later not "supported by the record" is not reassuring, since court transcripts in such cases are often altered by stenographers who want to keep their jobs, and attorneys who raise those issues are disciplined:
as it happened to me and as it happened recently to attorney Christine Mire in Louisiana.
Elizabeth Holtzman accused Judge Irving W. Levine in 1987, and he was "exonerated" by the investigation - or, much rather, the investigation did not consider the judge's behavior too bad for the judge to be removed.
Instead, prosecutor Holtzman was thrown under the bus.
Interestingly, even though her discipline was affirmed on appeal in 1991, her attorney registration does not show any discipline.
The bizarre part of it all is that Judge Irwing W. Levine WAS eventually removed from the bench - for favoring a friend in litigation, and he was ousted by the time discipline against prosecutor Holtzman for truthfully criticizing judge for misconduct, was affirmed on appeal.
But, back to our topic - the ONLY time when criminal prosecutors in New York are subjected to attorney discipline is when they criticize judges for misconduct.
Yet, the "standing discovery order" proposal has a purpose of instilling into the public mind that, unless a judge (himself, most likely, a former prosecutor, and likely the former boss of the prosecutor before him) rules that there is prosecutorial misconduct, there is no prosecutorial misconduct.
And, even though the proposal discusses "policies" of how a prosecutor may be referred for discipline by defense attorneys, and how prosecutors and defense attorneys can live in the "happily ever after" "sharing" "insights" about each other's misconduct
such "policies" are clearly defied by the testimony of an actual wrongfully convicted person Bill Bastuk (who, despite his activism, same as another New York exoneree Jeffrey Deskovic, did not make it to the Task Force against Wrongful Convictions):
Moreover, the proposal contains a direct threat against ASSIGNED (institutional) defense attorneys who will, according to the proposed rule, will have to report complaints against them at the stage of investigation (when they are covered by statutory right to privacy, Judiciary Law 90(10)), to their employers.
Thus, prosecutors can get the upper hand over "too stubborn" public defender or assigned counsel - simply by reporting them to the grievance committee, which will start investigation of anything a prosecutor referred, but nothing of what a defense attorney referred - and the defense attorney will immediately have to report the investigation to his employer and be fired, making it easier for prosecutors to continue to commit misconduct and ACHIEVE wrongful convictions.
So, the proposal will, thus, have the opposite effect to that (allegedly) sought - it will INCREASE wrongful convictions, and intimidate defense attorneys against fighting for their clients.
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