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:

• 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.

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.

WHAT IS A WRONGFUL CONVICTION?

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?  Pacer.gov 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 Pacer.gov.

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.

And that includes New York Chief Judge Janet DiFiore who was sued, multiple times, for retaliation and threats of retaliation against those who published information about her 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.