"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.

Monday, June 18, 2018

Commission on prosecutorial conduct in New York - a dangerous illusion about to be created by good intentions of wrongfully convicted together with special interest groups

I've written a lot about how the New York Commission for Judicial Conduct dumps the absolute majority of complaints about judges without investigation, no matter how well complaints are supported by documentary evidence, and how courts consider that the public have no say in it.

In this case, federal court said that members of the public (victims of misconduct) have absolutely no say (standing) to complain about non-prosecution of judicial misconduct.

And, the New York Commission for Judicial Conduct has permanent budget constraints, which ostensibly prevents it from properly handling the majority of complaints.  That is not true, of course - once I did talk to an investigator from the Commission when I did call them, and the person on the other end refused to send me documents by e-mail citing their "policy", the "policy" being that they are supposed to send out anything they send out only by fax.

Sending anything by fax in our day and time is not only technologically obsolete, but it also has the advantage - for the Commission - that such a transaction does not leave a record of what was sent, unless an e-mail.  Some policy.

Moreover, New York State Commission for Judicial Conduct is conflict-ridden.  Most members of the Commission are attorneys (whose licenses and livelihoods are regulated by judges) and judges.  The public is not allowed to have a say as to competence and integrity of judges, it is all decided behind closed doors by a "good ol' boys' club".

As a result, the majority of judges (double digits with 4-digit number of complaints filed each year) disciplined by the Commission are not licensed attorneys, they are justice court judges who wield much lesser power than those who the Commission allows to continue to sit on the bench, no matter what misconduct they engaged in.

Guess what, the NY Senate has just voted, and the NY Assembly is expected to vote this week on the law establishing a commission to deal with prosecutorial misconduct - fashioned after the useless New York State Commission for Judicial Conduct.

The sad part about this vote is that groups of wrongfully convicted New Yorkers support creation of this dangerous illusion.

Why it is a dangerous illusion?

Well, first of all, if it is fashioned after the Commission for Judicial Conduct, it will work the same way - only then it will be claimed that the mere fact that such a Commission exists is somehow giving the public a remedy against prosecutorial misconduct and the resulting wrongful conviction, which will not be true - as the case Bracci v Becker raising the issue of non-availability of appeals when complaints against judges are dismissed without investigation are filed by victims.

The supposed "remedy" is that there will be yet another group formed out of attorneys and judges, the cause of the problem, to deal with prosecutors behind closed doors, without the public being able to take part in the decisions or to contest it.

There are several problems that the Commission will be unable to meet.

The first is the identity of prosecutors who have caused wrongful convictions for people who have served years in jail.

It is an open secret that "serving" as a criminal prosecutor in the United States (and in the State of New York, too) is the stepping stone to become a judge.  The overwhelming majority of American judges are former prosecutors.

The number of convictions is used as the evidence for voters of "being tough on crime" in judicial elections of a prosecutor.

There is a very high probability, therefore, that prosecutors who have gained wrongful convictions are already judges at his time.  

If the general rule of attorney discipline is applied to prosecutorial misconduct, that there is no statute of limitations for attorney misconduct (including prosecutorial misconduct), but the prosecutor has become a judge, the following problems appear.

1.  judges are regulators of attorney licenses and livelihoods, they will not disbar their own for former prosecutorial misconduct;

2. there is already in place the system of attorney discipline in New York, hearings were held in 2015 before a special commission on attorney discipline, issues that attorney grievance committees refuse to deal with prosecutorial misconduct for political consideration were raised,  see testimony of Bill Bastuk before that commission (Bastuk was formerly counsel, coincidentally, for the Judicial Conduct Commission and one of the supporters of a separate commission for prosecutorial conduct fashioned after the useless and conflict-ridden Judicial Conduct Commission where Bastik once worked) and rejected by the commission.

If there is no statute of limitations on attorney misconduct, including prosecutorial misconduct, and attorney disciplinary bodies (under the guidance and as part of courts) have been working in New York for decades, why wasn't prosecutorial misconduct handled through these bodies?

Does it mean that attorney discipline in New York is handled as a selective, political process, and prosecutors are "spared" discipline - after being granted by the U.S. Supreme Court immunity for malicious and corrupt conduct in office specifically because discipline is (theoretically) available?

If that is true - and the Senate's vote to create an alternative Commission for prosecutorial conduct has already proven it - what does it say about the integrity of the judiciary, regulator of attorneys, and of the integrity of those commissions, "arms of the judiciary", consisting of attorneys, sworn "officers of the court"?

And why do we need "regulation" of attorneys - and, through attorneys, of access to courts - that is now admittedly selectively political in nature?  

It appears as if the public was duped first by the U.S. Supreme Court - that gave prosecutors immunity from lawsuits for civil rights violations (which are federal crimes, 18 USC 242), and then by state courts and their attorney disciplinary committees who refuse to apply discipline that was used as a pretext to give prosecutors that immunity.

Now, the public is about to be duped for the 3rd time - by expending money on creating and maintaining a "commission" that will block the public from dealing with the issue of prosecutorial misconduct directly.

There is still no remedy, the Commission is not creating a remedy, it is taking it away, and sucking up the much needed funds that could have been used otherwise.

And, there also exists an issue that the secretive Commission can, indeed, be used, but in the way opposite to the declarations of why it is created (same as with attorney discipline) - to disenfranchise the public and remove from office elected public prosecutors who actually do their jobs, but have stepped on toes of powerful public officials.

As attorney discipline was used against Pennsylvania elected public official, Attorney General Kathleen Kane.  Kathleen Kane had the misfortune of investigating the very people who suspended her license and caused her demise as an elected public official.

Yet another secretive body to deal with an elected public official, a prosecutor, is a very bad idea.

There is the procedure of impeachment.

As the recent recall of judge Aaron Persky in California showed, matters of misconduct of public officials causing grievous injuries to the public - and wrongful convictions are such injuries - must be subject to a recall of the prosecutor through a referendum.

And, if the same NY Senate put the same effort it did into creation of the useless secretive Commission for Prosecutorial Conduct, consisting predominantly of attorneys and judges and not of non-attorney members of the public:

into legislation abolition of prosecutorial immunity, prosecutorial misconduct would have disappeared overnight.

Only that would not happen - too many careers of too many powerful people depend on that.

So, urge your representatives in the Assembly to vote NO to the creation of the Commission of Prosecutorial Conduct.  

It is a dangerous illusion, a waste of much needed public funds, and a delay of the much needed reform in regulation of prosecutors, attorneys, judges and of access to justice in New York.

An important silver lining of the Senate's vote, as I mentioned above, is an admission by the NY Senate that attorney disciplinary committees, "arms of the court", are politically selective in regulation of prosecutors and do not do their jobs in attorney regulation of the only powerful people who have authority to put corrupt attorneys, corrupt prosecutors and corrupt judges (regulators of attorneys) in jail, through grant juries.

It is interesting how the current regulators of attorneys deal with attorney discipline:
  1. favoritism of the judiciary, regulator of attorneys, specifically to prosecutors, as revealed by the supposed necessity to create a separate body to regulate prosecutors, speaks loud and clear - gifts (immunity and no discipline) to prosecutors in return for non-prosecution of judges (unless prosecutors commit the ultimate no-no and criticize judges - the only prosecutors discipline in New York since the 70s were two prosecutors, the Albany DA Paul David Soares, and the Manhattan DA Elizabeth Holtzmann, for criticizing judges, regulators of their licenses);
  2. punishment for "regular attorneys" who do not have the power to assemble and advise a grand jury to indict, let's say, a corrupt judge - for speaking out against judicial corruption.

If we have a dishonest and political "regulator" of attorneys, dishonest and politically selective to the point of the public having to fund a separate commission to prosecute prosecutorial misconduct - why not get rid of that regulator and reform attorney regulation to make it not pollical and not handled by interest groups?

Is it such a difficult idea to fathom?

The public should now use the de facto admission by the NY Senate that the judiciary does and attorney grievance committees do not properly do their jobs as regulators of attorneys (and, through attorneys, of the public's access to justice), and to demand to deregulate the legal profession and allow the public to pick their own representative in court - without the in-between "protectors" of the public who protect only connected attorneys from discipline from commission of public crimes.  Or at least to remove interested parties (licensed attorneys, including judges) from regulation of the legal profession and of all parts of it - "just attorneys", judges and prosecutors.

And, the public should demand a legislation on recall of prosecutors (and judges), and a legislation on access to grand juries bypassing prosecutors with their grievances of crimes committed by public officials.

Foxes do not do a good job guarding chicken coops, attorneys (including judges and prosecutors) do not do a good job guarding consumer interests, consumers can do it well themselves.  

It is logical and reasonable, especially based on the necessity to create a separate commission to deal with prosecutorial misconduct, for consumers, voters to demand the NY Senate and Assembly to finally do their jobs and promote not legislation lobbied by yet another attorney-senator (as this particular bill's "sponsor" Senator John DeFrancisco is), not a legislation that will give power and jobs to yet another bunch of attorneys while blocking victims of prosecutorial conduct from having a remedy for wrongful convictions, but through an independent public review.

And that independent public review, the "sunrise review" of a packet of legislation to revamp the public's access to court and to criminal justice, should exclude SPECIAL INTEREST GROUPS at every single stage of it:

  • market survey - by independent experts only, not connected to attorneys, prosecutors or judiciary;
  • bill sponsoring - not by attorneys ("officers of the court") whose license and livelihood, theirs and their family members' (like John DeFrancisco's son with whom he co-owns a law firm) are in the hands of those same people who fail to regulate attorneys properly - which caused the Senator to veer the public away from the actual problems, prosecutorial immunity, lack of public access to grand juries, lack of recall procedures for public officials;
  • composition of any publicly funded bodies, or bodies having power of investigation or prosecution.

No special interests should be allowed close to creating, promoting or handling the regulation of public access to justice, including criminal courts, and to regulation of any professionals who deliver that justice - attorneys, prosecutors and judges.

Then maybe the shameful prosecutorial misconduct that is rampant in New York State (as evidenced by the supposed necessity of a separate commission to deal with it) will start to go away.

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