"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.

Friday, October 6, 2017

Bravo to the New York State Court Administration (a select team of its members) for creating a "pilot" program in order to comply with a settlement in one lawsuit - a pilot program that asks for another lawsuit

A Binghamton, NY newspaper announced today, as a positive new court rule aimed at saving costs for taxpayers that arraignments in criminal proceedings off-hours and on weekends will be "centralized" and held - gasp! - in county jails.

In response to my first comment about it

the newspaper answered this:

In response to my rebuttal of those arguments

the newspaper so far answered nothing.

So - this is my public comment on this supposedly benign and beneficial rule introduced by the New York State Court system.

First of all, here is the official press-release as to the rule.

This is that press release in full, if NYS Court administration will decide to remove that press-release for some reason.

Note the players who participated in "making this happen":

  • Chief Administrative Judge for Upstate New York #MichaelVCoccoma - a former prosecutor; this judge has SUCH a history of corruption that it is not even possible to relate everything I have written about him and his no less corrupt wife (Otsego County Attorney), you can simply keyword-search on the right in the search window his name and his wife Ellen Coccoma's name;

  • Chief Administrative Judge for the 4th Judicial District Vito C. Caruso - a former prosecutor;  I do not know this judge personally and cannot say anything critical about him other than all prosecutors-turned-judges retain their prosecutorial mentality on the bench, in my personal experience covering 16 years combined as an assistance to a criminal defense attorney and then as a criminal defense attorney myself;

The "pilot program" was introduced also with participation and blessing from 5 more corrupt judges:
heads of all 4 intermediate appellate courts of the State of New York:

None of these judges have a criminal DEFENSE background, most of these judges are former prosecutors or jailers or, like Judge Acosta, have a clear pro-prosecution stance, and it is obvious that the proposed "pilot program", while heralded as providing defense to indigent criminal defendants, is in reality anti-defense, even though it is propounded as being for the benefit of indigent defendants.

With the exception of Judge Vito C. Caruso, whose background I do not know personally, all of these judges had corruption in their past - you can search this blog for multiple, multiple articles based on original court court documents showing that plainly.

There is a, let's say, an discrepancy between the announced goals of the "state legislature" and the court "pilot program":


Press & Sun Bulletin also quoted Endicott Police Chief claiming that he never had a difficulty to locate judges for local arraignments (which was the whole reason to organize the "centralized arraignment") system, but that he is not against the centralized arraignment system.

But - of course, as a witness of the prosecution, why would the police object in holding court proceedings IN THEIR OWN OFFICE?

Imagine the same happening in any other state and in any other court proceeding - a court proceeding held in the plaintiff's office?

And, New York wants to make this perversity a MODEL for other counties and other states.

But - here is a short summary of the sticky issues that arise with such a beautiful arrangement, after which, as judge Veronica Gorman cogently claimed, defendants' cases will be "farmed out to whatever court it belongs in".

"Farmed out". A great statement by a judge.

And, even though the arrangement is supposed to be for the benefit of criminal defendants and to ensure their right for a criminal defense attorneys at arraignments, the only people interviewed by the Press & Sun Bulleting were a prosecutor, a judge and a police officer.  No criminal defense attorneys.

Because, a criminal defense attorney, if interviewed, could say the following:

Does the criminal defendant benefit from arraignment with counsel?

Yes and no.

A criminal defendant will definitely benefit by a GOOD counsel at every step of criminal proceedings.

Yet, the “chosen” assigned counsel “designated” to attend arraignments, most likely, will be “chosen” not for fighting for their client’s rights against biased judges and corrupt prosecutors.

After all, they are assigned by those same judges and their livelihood for continued assignments depends on being “good” to the system.

As a result, most assigned counsel prefer not to “stir the pot”, which results in massive waivers of defendants’ rights (without telling them) at arraignment – which is NOT GOOD for the defendant.

In NY, all crimes, felonies and misdemeanors, are initially arraigned at the level of justice/Town/City court, not at the level of a County Court.  County Court arraignments only happen after an indictment by the grand jury, and for that arraignments do not have to happen on weekends or at night, there is enough time after the indictment to arrange for a day-time arraignment in County Court.

At a felony arraignment at a justice court level, it is important for any defendant, and for an indigent defendant especially, to demand a felony hearing, which must be provided within 144 hours from the arrest, by state statute.

The demand for a “felony hearing” has a benefit, whether the hearing will or will not be provided:

·         If it IS provided within 144 hours, the defendant’s counsel gets to hear “raw” evidence, before the prosecutor taught all witnesses how to lie on the stand, and gets to cross-examine those witnesses – which will present an invaluable tool at trial, and may lead to the dismissal of the case;
·         If it is NOT provided, then, under the state law, the defendant MUST be released without bail, for free.

Apparently, especially for an indigent defendant having an opportunity to be released without bail is a tremendous boon.

Yet, the majority of assigned counsel in New York (I judge by 16 years of experience, first as a legal assistant in a private criminal defense attorney’s office and then as a criminal defense attorney myself, who has heard clients’ accounts about what happened when they had assigned counsel) WAIVE the felony hearing for their indigent clients, thus leaving their clients to rot in jail and giving the prosecution extra time and opportunity to round their wagons and coach witnesses how to lie.

Another important right that is usually waived by assigned counsel at arraignment is the right to a speedy trial under CPL 30.30 – a state statutory right in New York.

After people announced readiness for trial, they MUST bring the defendant to trial within certain short periods of time, depending on what he/she was charged with, but up to 6 months only (with a felony).

Assigned counsel routinely waive state statutory speedy trial restrictions, too, by agreeing to adjournments at arraignment, as a matter of “courtesy” to the prosecution.

The next problem for the arraignment in a County jail, as opposed to arraignment in the local court with jurisdiction to handle such arraignment – with some misdemeanors triable at the level of municipality, not county, such an arraignment will be outside of territorial jurisdiction of the municipal court, and thus illegal.

The next problem for the arraignment in a County jail is that New York is a large state, with large rural areas, a lot of mountains, bad country roads and snow and ice on those country/mountain roads in winter.

Moreover, rural population in New York is poor.  When moving arraignments from municipal courts to a “centralized” locations into large or larger cities, county seats where usually county jails are located, defendants will not be able to have witnesses who can vouch for them come to arraignment to argue for their release on bail, bond or own recognizance.

So, with “centralized” arraignments in county jails there is more likelihood that criminal defendants will not be released on bail, bond or own recognizance (ROR’d), and that will result in MORE people left in County jail and MORE expenditures, instead of cuts, for taxpayers – as Press & Sun bulletin claims.

No notice to the public

Holding a hearing in an office of a party’s witness

County Jails are part of County Sheriff’s Departments.

County Sheriff Departments are witnesses for the prosecution in criminal cases.

Holding court proceedings in jails, therefore, is holding court proceedings in the OFFICE OF A PARTY’S WITNESS and under that witness’s complete control.

No appearance of impropriety, I am sure.

No appearance as if judges are acting in concert with the police and prosecution against the defense.

Facility not designed or built for public hearing – safety issue

Courthouses are designed differently than jails, and are designed, from the point of view of public safety, in order to ensure QUICK access of a large number of people to fire exits.

Not so in jail where prisoners are, due to security issues, not allowed to take care of their own safety by simply going toward a fire exit.

Instead, there is a series of locked doors that have to be passed to navigate a jail.

There is, as a result, no way to accommodate a large number of people who would want to be present at a certain arraignment, to ensure the defendant’s right to a PUBLIC criminal proceeding, at ALL stages, or to evacuate a large amount of people from a public hearing in a facility where every single step of the way happens between two locked doors from the entrance to the improvised “courtroom” happens between two locked doors monitored by the police. 

Therefore, it is more than likely that such use of jails does not comply with the fire code, and will result in either restriction of the number of people to be present (which would violate the defendant’s right to a public criminal proceeding), or in endangering the public who came to attend that criminal proceeding.

Jail security rules: registration of members of the public by name, address and telephone number as a condition of access to a public judicial proceeding

All individuals, as a condition of attendance of a supposedly public criminal proceeding, must provide to the police their name, address and telephone number, in writing.

Jail security rules: “contraband” restrictions of what can be brought into the improvised “courthouse”

Anything other than recording devices and guns or knives can be brought into a courthouse in New York.

Yet, when a judicial proceedings is held in a jail, jail security and anti-contraband rules will apply, blocking people from bringing with them what they need – from personal medications to pens, pencils and paper, telephones, tablets and laptops to preserve their impressions from the proceedings in writing.

Jail security rules: restrictions on what can be worn to an open judicial proceeding
I was told by jail guards in Delaware County Jail, for example, that they have “security rules” prohibiting me from wearing a warm jacket over my thin shirt.  I was made to take off my jacket in order to be able to see my client and to freeze in a conditioned room.  No male attorneys wearing sport coats were subjected to the same “security rule”.

There are no such rules as to what can and cannot be worn in the courtroom in New York.  Yet, there obviously will be, if judicial proceedings are held in a jail – and this way, many people can be blocked from attending, rendering it NOT a public proceeding, as required by law.

Jail security rules: search of documents

I was told by jail guards in Delaware County jail of their “policy” to search defense counsel FILES and I was blocked from seeing my client when I refused to show the confidential files.

Since that requirement was presented to me as a POLICY, I must assume that all other defense attorneys allow such searches when visiting their clients in jail.

Therefore, making defense counsel attend judicial proceedings in jail subjects his confidential files to a search by the opponent, police, witnesses of the prosecution, which is a violation of due process, right to counsel and 5th Amendment right to remain silent.

Jail security rules: video surveillance of interactions between defense counsel and defendant

I always had a concern about consulting criminal defendants in jail, for fear that employees of the Sheriff’s department monitoring such meetings through video surveillance would lip-read what is being said – or record it outright.  Recording defense counsel in jail by the prosecution is not unheard of.  Moreover, video and audio recording through the surveillance system is under control of the police, who are prosecution witnesses.

Jail security rules: police control over members of the public for coming and going, including to the bathroom

Whoever visited inmates or pretrial detainees in a County jail in New York knows the routine.

·         You show your ID to the police officer/ guard and you will NOT be allowed into jail without a valid government-issued ID – unlike in the courthouse;
·         You write down in the registration book your name, address and telephone number – which you do not do to enter a courthouse;
·         You subject yourself to a search and leave behind clothes and items that are prohibited to be taken into jail – plainly speaking, you are left with the bare minimum to wear and nothing in your hands or pockets, which does not happen when you enter the courthouse;
·         You go through a metal detector – that is the ONLY thing that coincides with the required procedure when you enter a courthouse;
·         If you are cleared through a metal detector, the first locked door into the jail is opened for you by the Sheriff’s personnel, then closes behind you, and you find yourself in a small room locked on BOTH sides by the police – in a courthouse, you are free to go into the courthouse and navigate it without going through any locked doors or police accompanying you;
·         After you found yourself in a room locked on both sides, an armed jail guard/police officer arrives and takes you through the second locked door, accompanies you through the jail, brings you to the third locked door, a door to the room where you are to meet with the inmate, notifies the surveillance on the radio that you have arrived at that door, the door buzzes to open, you come in – and the door LOCKS behind you.

And, you remain in that locked space until the police officer allows you out by unlocking the door, and you need to state your reason why – for coming and going, for going to the bathroom, etc.

This is NOT how public meetings work, this is NOT in compliance with open meetings or public court proceeding law, and many people would not attend arraignments in jail specifically because they will feel that they are not members of the public present at public criminal proceedings, but they are prisoners subjected to indignities of being locked up, registered, restricted in every way, locked and monitored by the police at every step.

So, from the location of the arraignment, people having a natural aversion to go to a jail to attend any meeting, including a court proceeding, to jail security rules, to privacy issues to lack of transportation for defense witnesses to get to the centralized arraignment to be heard on bail or release - will all result in:

  • members of the public discouraged from attending such arraignments;
  • defendant deprived of a PUBLIC arraignment;
  • police trying to arrest defendants on weekends and at night to make the arraignment not public;
  • defendant will end up deprived of important rights by having an "assigned defense counsel on duty", one in the pocket with the police and prosecution, waiving his rights left and right.

So a group of prosecutors-turned-judges devised a scheme of how to utilize the money that the New York State Legislature gave the New York Court system (and not the Criminal Defense bar, mind, and not criminal defendants themselves, through vouchers), to satisfy the requirements of the settlement in a lawsuit.

Of course, the corrupt prosecutors-turned-judges could only utilize money in a way that serves the prosecution - and they did.

The resulting "pilot" program is hailed by a prosecutor, hailed by the police, hailed by a judge, but nobody cared to ask whether the actual intended beneficiaries of the program - criminal defendants, and defense attorneys - are satisfied with it.

And, as a result of Press & Sun's article pitching the program as a convenience to judges, prosecutors and police "to make it easier to get a defendant before a judge after hours" - a problem that did not exist in the first place, according to the interview with the Endicott Police Chief

and simplifying the arraignment as a simple formalit, 

without mentioning important federal and state statutory and constitutional rights that defendants lose through such a "streamlined" judicial proceedings at the prosecution's witnesses' office, readers provided the following understanding of the goal of the new measure in their comments on the Press & Sun Bulletin's article:

Great job, Press & Sun Bulletin.  Great journalism.

Now, let's sum up again how this "innovation" was announced, and how it was perceived.

Declared goal as per press release
Prosecution’s view of the goal
Judge’s view of the goal
Police view of the goal
Public view of the goal

Ensuring indigent criminal defendant’s constitutional right to counsel to comply with a settlement in a lawsuit against the State of New York for violating indigent defendants’ 6th Amendment right to counsel, confirmed by the U.S. Supreme Court in the year 1963, 54 years ago

Convenience to police, cuts of expenses

Convenience to judges

Convenience to police
Consolidation of "services" at arraignment to cut public expenses on such arraignments.

Crime control

And what it will actually do is:

  • make arraignments of indigent criminal defendants secret proceedings - which will bring yet ANOTHER class lawsuit, based on the issues I listed above.

Count on the "bright" New York State Court Administration to do exactly the opposite of what they were supposed to do -

  • violating criminal defendants' rights as a pledge to protect them; and
  • literally, asking for a new class lawsuits as to rights of indigent criminal defendants while trying to "ensure compliance" with a settlement in a previous such lawsuit.

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