"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's proposed standing order of discovery in criminal cases - Part VII. The way to reduce wrongful convictions is to block opportunities to reverse wrongful convictions. How New York Court System and court-appointed Task Force is playing with statistics and pulbic opinion to make black appear white-ish.

I continue public comment on the proposed rule of "mandatory order of discovery" in criminal case - proposed by New York "Justice Task Force" consisting mainly of police, prosecutors, judges who are former prosecutors and "victims' advocates" - but not of the actual victims of wrongful convictions and THEIR advocates (criminal defense and civil rights attorneys).

So far, I have published 6 parts of my public comment:

In this blog, part VII, I will discuss the bait-and-switch tactics used by the "Justice Task Force" in its "proposal" to manipulate public opinion in order to persuade them that:

  • wrongful convictions in New York are not caused by prosecutorial misconduct, that
  • there are not that many wrongful convictions in New York, and that
  • prosecutors should not be accused of prosecutorial misconduct as much as they are nowadays, by the public and in the media.


First of all, while the declared mission of the New York Justice Task Force is to make sure that "the innocent are not convicted of crimes they did not commit"

their policy of what to deem a wrongful is quite narrow - the Task Force considers a conviction "wrongful" only if it was reversed or vacated by a court:

Note that in its "Appendix" to "Case Inquiries" the Task Force, while referring the public to TWO out-of-state advocacies for the wrongfully convicted, DOES NOT refer people to the in-state organization of exoneree Bill Bastuk "It Can Happen To You" that is insisting, through legislative efforts and testimony in front of New York Commission for Attorney Discipline, on institution of Commission on Prosecutorial misconduct.

The Task Force's policy creates a presumption of legality of any conviction that is not vacated or reversed.

In fact, it will not even TAKE a case for review if it is not reversed or vacated.

Yet, several major institutional factors prevent reversals and vacaturs of criminal convictions, of which the Task Force, being composed of those who bring about those convictions (the police, judges, prosecutors and "victims' advocates") are well aware:

  • if you were coerced or intimidated into a false confession and a plea of guilty, the only avenue available to you is a motion to withdraw the plea, and such motions most often are denied - so 99% of criminal convictions in New York (which happen on plea bargains) the Task Force will simply ignore - by policy;
  • if you had a bad representation by a private defense attorney or an assigned defense counsel, courts invented extremely low requirements for defense counsel to meet in order to affirm the conviction and find "effective representation".  All flaws of representation will be attributed to "counsel strategy" - and the Task Force will not take your case, no matter how bad the representation was in actuality;
  • appellate courts invented a policy (not that they are allowed to make policy, that is a legislative prerogative, but they still do it all the time) of "finality" of criminal convictions - and affirm the majority of criminal appeal based on that policy, thus only a handful of appeal are reversed at all, and practically in no appeals prosecutorial misconduct is mentioned;
  • appellate courts invented a "standard of review" (which is not contained in any statutes) that criminal appeals in New York are reviewed from the point of view "most favorable to the prosecution".  From that point of view, prosecutors never commit any misconduct, most criminal appeals are affirmed, and the Task Force will not take any cases for review or count them as "wrongful convictions";
  • the Task Force has a split loyalty and personality - in fighting against "wrongful convictions" it asserts as its first and foremost task protection of reputation of prosecutors - with such goals, it will not see prosecutorial misconduct if it is screaming in its face.
The Task Force did not report any efforts to discover complaints about prosecutors to disciplinary authorities, and did not report any efforts to (as suggested by exoneree Bill Bastuk in his testimony to the New York Statewide Commission for Attorney Discipline) investigate allegations of attorney misconduct in civil rights cases, whether such cases were or were not dismissed for prosecutorial immunity.

Such allegations are filed under oath (as required for civil rights complaints), and provide enough grounds to start investigations into misconduct.

Yet, since members of the Task Force (and their friends and colleagues) may suffer reputational loss because of their investigation, they do not use resources provided by law and public records to do their job - investigate prosecutorial misconduct that may result in wrongful convictions.

Instead, they falsely claim "dearth" of information about prosecutorial misconduct

Yet, for members of the court system to report the "dearth" of incriminating statistics ABOUT THEMSELVES is - how can I put it politely - counter-intuitive is the "PC" word.

First - you are in charge of collecting those statistics, so why didn't you do that?

Second - how many of those prosecutors who were involved in wrongful convictions have became judges (including the Chief Judge of the State of New York) and were themselves sued and complained about for prosecutorial misconduct? has plenty of records of such lawsuits.  Is the self-purpose of preventing embarassment the reason why there is a "dearth" of statistics of prosecutorial misconduct as a factor in criminal convictions?  But, isn't it a due process problem that a man cannot "sit in judgment" of him/herself - and should not be allowed to investigate him/herself and "find solutions" to problems that he or she has created?

Third - have you made motions ALLOWED to be made under Judiciary Law 90(10) to all 4 grievance committees seeking discovery of complaints against prosecutors over a number of years?

The "dearth" of information is because of attorney privacy, but Judiciary Law 90(10) allows you to at least TRY and ask the court to disclose private complaints against attorneys? 

Did you make such an effort?

Have you talk to the complainants?

Why not?

Is it because you do not want to reveal that attorney grievance committees SHRED complaints against prosecutors and that there is no such archives?

We have learnt it through investigation in a lawsuit, Neroni v Zayas, and even then, a federal court claimed that not keeping an archive of attorney disciplinary files (even when claiming to various courts that (1) such a file exists and (2) relying, without producing the records, upon the contents of such alleged records) was all right?

By the way, as a result of that investigation, my own law license was suspended...

But, as to the alleged "dearth" of information,

  • that is the result of the court system's own negligent (if not worse);
  • that is the result of the Task Force's neglect of its duty to make motions under Judiciary Law 90(10) for disclosure of disciplinary complaints against prosecutors, and records of how those complaints were investigated and resolved;
  • that is the result of the Task Force's unwillingness to obtain and analyze OPEN PUBLIC RECORDS, civil rights lawsuits against prosecutors on
Instead, the Task Force is "recognizing the work done" by attorney grievance committees "to collect data and statistics about attorney discipline generally" - including the shredding of their archives.

By the way, my husband and I were not the only people who alleged in a lawsuit (Neroni v Zayas) that an attorney grievance committee (of the 3rd department) shredded an attorney disciplinary file - in my husband's case, while claiming contents of the no-longer-existing file in court.

Disciplinary attorney Christine Anderson sued the 1st Department's (New York City) attorney grievance committee for firing her when she found out and opposed its white-washing operation when disciplinary complaints against certain politically connected attorneys were shredded, and other attorneys, not politically connected, were instead targeted with discipline. 

Yet, those same people who continue to "regulate" the legal profession as "Godfathers" operate a criminal syndicate (remember, the "regulators" of attorney licenses are part of the Task Force, too), seek to "prevent wrongful convictions" - by protecting prosecutors from "unwarranted" allegations of misconduct.

So, between the extremely narrow definition of what a "wrongful conviction" is, deliberate composition of the Task Force of those who CAUSE wrongful convictions and who have a reputational interest to prevent disclosure of information that certain convictions were wrongful, and various "policies" of appellate courts affirming most of criminal convictions, no matter what - victims of ACTUAL wrongful convictions in New York have no hope that this particular "Task Force" will get to the bottom of what causes those wrongful convictions, or make any honest changes to the system to make sure that no innocent is convicted of a crime in New York.

As to the interesting contents of the proposed "standing order of discovery", and its proposed enforcement, which is, interestingly, very much different from any other order of discovery in New York and from enforcement of other court orders, see my next blog.


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