"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, August 26, 2018

#MeToo in New York has stopped at the doors of courthouses - and what New Yorkers can do about it

I am all for the rule of law.

And, I am all for proving allegations before marring a person's reputation - especially when allegations are about sexual harassment.

Such an allegation is very, very damaging to a person's reputation, and, yes, the ideal situation is that such allegations must be ruled upon by the court before anybody would be pointing a finger at a person and stripping him of his business, official position, or his reputation, or all of the above.

But, there is also the so-called #metoo movement.

And, in the State of New York, specifically, the #metoo movement, so far, has swept away two giants previously believed to be unsinkable - on allegations alone, without any court decisions on the subject of supposed sexual harassment:

1.  Harry Weinstein; and
2. the former New York State Attorney General Eric Schneiderman.

Just allegations - and they are gone, as well as their reputations.

But - we also have this.

Meet New York State Judge Douglas Hoffman.

Note that, as of today, Judge Douglas Edward Hoffman, of New York City Family Court - of all courts - has "no record of public discipline" as an attorney.

Note that judge Douglas Hoffman is still very much on the bench - on the bench of Family Court, deciding fates of families and children without a jury.  

For that, a person needs to have an extremely high level of judgment and moral character, don't you think.

Well, think again.

Here is the lawsuit.

Of judge Hoffman's former law clerk, a female attorney of Philippino descent, Alexis Martquez.

And, before I start analyzing the lawsuit - a big kudoz to Ms. Marquez' attorney, Anthony Vasillev, for a meticulously drafted lawsuit, and for his courage to take off the entire judicial system for - instead of helping the victim sexual harassment, firing the victim of sexual harassment and erasing half of the New York State anti-sexual harassment policy.

By the way, the New York State Governor Andrew Cuomo, running this year for re-election against a strong opponent, Cynthia Nixon, has just changed the state employee harassment in the workplace system, rerouting it into one committee which, as comments suggest, has no resources to handle the amount of complaints and will be simply used to sweep complaints under the rug - just as the New York judicial system did with Ms. Marquez' complaints and with complaints of other victims of sexual harassment by judges in New York.

Consider the setup.

A law clerk is an attorney.

Her law license - and livelihood - is regulated by judges.

She works for a judge.

A judge starts to come on at her - starts to sit close to her, talk to her about "imagine that we are married", "imagine that you are my girlfriend", tells her stories that he supposedly "did the baby thing" with his former law clerk.

Tries to contact her over the weekend on her personal email, asks her personal questions, demands that she talks to him in a "singsong female voice".

When the woman tried to set personal boundaries for a judge - in writing, by an email, the hell broke loose.

Documenting judicial misconduct was, in the New York judicial system, the ultimate faux pas for a female attorney - which ultimately cost her her job.

Because she did not want to stop, filed written complaints against the judge, refused to back out of them, and thus received, at first, hints that she might not be a "team player", and thus is not entitled to be "transferred" because of a "professional mismatch" with a judge.

So a "professional match", I understand, would be speaking to the judge "in a singsong voice", and "doing the baby thing" with the judge.

What Ms. Marquez discovered, as her lawsuit alleges, is that the New York court system is well aware of instances of sexual harassment by judges, but has developed a very intriguing way of dealing with such instances.

Here is the set of rules.

1.  The judge involved in sexual harassment remains on the bench, and he, of course, retains his law license.
2.  The law clerk/attorney who keeps mum about the sexual harassment, gets a bribe - a "transfer" to another good paying job, with good benefits, within the New York judicial system, while job listings in the system is not public (and if any jobs are listed, the listings are phony, since candidates are picked to fill these vacancies out of friends, families and political supporters of judges).
3. The law clerk/attorney who documents sexual harassment and demands accountability for the judge and remedies for herself - gets canned, and
4. People in the judicial administration who are supposed to handle such complaints "lawyer up", claim that direct communication with them is "inappropriate" and direct the victim of sexual harassment by a judge to litigate her claims.

Which Ms. Martez did - she filed a lawsuit.

Easy rules, aren't they?

During her nearly 2-year's ordeal Ms. Marquez has learnt that, for example,

1. the Chief Adminsitrative Law Judge of the Office of Court Administration of the State of New York Lawrence Marks had unilaterally - and in answer to her complaints - ERASED half, if not the most part, of the state court system's anti-sexual harassment policy.  The provisions erased are listed in the lawsuit.

2. Chief Judge Janet DiFiore - the one with the "Excellence" program, 

refused to help the female attorney, a victim of sexual harassment by a judge, and refused to help reinstate her when she was fired for "professional mismatch" in understanding of judge Hoffman, and for "not being a team player" in the belief of New York State court administration - for daring to document her plight and demand justice, think about it - for an attorney to demand justice from a court system, the gall!

By the way, DiFiore, in her "Excellence Initiative", called upon any person (including Ms. Marquez) to advise her what aspects of the court system in which DiFiore "is committed to achieve and maintain excellence" "giving the people of New York the level of justice services they have a right to expect and deserve" - but somehow remained deliberately deaf and blind when an appeal to "improve" the system and cleanse it of judges - sexual predators - reached her.

But, of course, this is the same DiFiore who was herself involved in many lawsuits before her ascension to the bench through nomination by her buddy Governor Cuomo whom she rescued once from a criminal investigation for corruption (I testified about it, about other instances of documented misconduct of DiFire and about my personal experience as an attorney, also documented, with prosecutorial misconduct of DiFiore's DA's office in a criminal case to the New York State Legislature in written testimony since the Legislature did not allow me to appear in person and give an oral testimony against DiFiore's confirmation - all I got for that is that DiFiore was still confirmed and retaliated by making illegitimate decisions on my court cases that came to "her" court, without recusing herself).

And, it was the same DiFiore who was known to have called a journalist who dared to run a critical article about herself and her attorney husband and yelled at the journalist that her husband is on first-name basis with U.S. Supreme Court justice and has their direct phone lines.  Talking about integrity.  Talking about impartiality of judicial review as to every and all appeals coming from DiFiore to the U.S. Supreme Court.

There is also a sinister side to DiFiore that the so-called "mainstream media" is unwilling - or afraid? - to explore, there are too many bodies of African Americans "coincidentally" surrounding her reign - as a prosecutor and as a judge.

This is the same DiFiore who appointed her own husband to a Committee for Constitutional Convention in New York - as an anniversary present no less.

This is the same DiFiore who already made at least one judicial decision that I know of in favor of organization her husband participates in managing.

I do not know whether Ms. Marquez and her attorney will have enough guts to present evidence of DiFiore's dishonesty and corruption to the federal court - especially that DiFiore and the Chief Judge of the federal appellate court (2nd Circuit) Robert Katzman appoint judges to the "shadow court system" - the State-Federal Judicial Council, membership in which both New York State and New York federal system refuse to disclose, and thus lawsuits against DiFiore in front of courts within jurisdiction of the 2nd Circuit become not only futile, but downright dangerous for litigants and their attorneys.

None of judicial decisions coming out of the 2nd Circuit may be treated as legitimate - since there is absolutely no assurance for the public that such decisions were made in court and on the merits of the case, and not through the "telephone law" and through the secretive State-Federal Judicial Council.

Attorney, with whose assistance the New York judicial system "lawyered up" instead of helping the victim of sexual harassment at the hands of a judge - was none other than the already "famous" John McConnell.

I wrote about John McConnell 3 years ago, in relation to his efforts to pretend to be a private lawyer of Judge Brian Burns of Otsego County and to threaten legal action against a father of a teenage mentally ill boy who Burns sentenced as an adult and not as a youthful offender, to many years in state prison, in retaliation for his father's written plea for mercy.

The complete cast of characters for the lawsuit is as follows:

So, let's not forget.

Harry Weinstein - toppled on allegations of his ALLEGED victims, without a court decision that sexual harassment actually happened.

Eric Schneiderman - resigned upon allegations of sexual harassment, also no judicial decisions.

Judge Douglas Hoffman remains very much on the bench, very much with his law license intact, with "no record of public discipline" and continues to unilaterally decide fates of New York parents and children in Family Court.

Moreover, his victim is fired, specifically for exposing him, and half of the state court system's sexual harassment policy is faithfully erased for the benefit of Judge Hoffman - as alleged in the lawsuit - by the Chief Administrative Judge Lawrence Marks.

And, these people continue to regulate access to justice - not only of Ms. Marquez, but by all New Yorkers, regulate attorneys, so that they would be honest and competent, and call each other "Honorable" - as a job title.

Honorable - no matter what he does.

What is interesting that, in connection with Ms. Marquez' lawsuit, the union of court employees took a stand in her defense (the sad part is that it took a stand after she was fired and after the lawsuit was filed) and demanded from the state authorities to create a commission to oversee the New York State Judicial system -

  1. the spending of the multi-billion-dollar budget;
  2. the secret hiring and firing process;
  3. the harassment policy.
The problem with such a demand is - that a Judicial Conduct Commission already exists.

And not only exists - but was just used as a model to create yet another "Commission", to supposedly fight prosecutorial misconduct.

So much for the model.

Apparently, the model does not work - since the union of insiders, court employees, ask to create an independent (from the judiciary, with its "presumed integrity") body to reign in judicial misconduct.

So, we have 2 attorney regulation systems in New York:

1. for prosecutors, 
2. another for non-prosecutors - where judges who regulate attorneys, would not regulate prosecutors, because - who knows, a prosecutor may decide to "regulate" and prosecute a judge, right?

And, now there is a demand to create 2 judge-regulation systems - the Commission for Judicial Conduct and … another Commission for Judicial Conduct, that "would work".


Of course, the misconduct - both judicial, and prosecutorial - will continue for as long as judges (and prosecutors) will "enjoy" (the term they usually use in legal documents) the so-called "immunity" from civil lawsuits, protecting judges (and prosecutors) even for malicious and corrupt acts on the bench.  And, until prosecutors (who already "enjoy" the permanent bribe from judges, absolute immunity for prosecutor's own misconduct) are removed from their positions of "legal advisers" to the grand jury, which makes no sense since the prosecutor is a side to a criminal lawsuit and may not be allowed to advise the decision-making body, but it is, "by law".   And, until the public is allowed DIRECT ACCESS to the grand juries to ask grand juries for investigations against rogue judges and prosecutors, and other public officials who commit misconduct.

In this case - where the judge was an employer and not an adjudicator of a court case - the judge might not get away with immunity so easily, but we'll see how the State-Federal Judicial Council (oops) the federal district court will rule.

As to misconduct of judges, elections are coming, and New Yorkers may demand from the candidates to various offices - accountability, to create REAL, EFFECTIVE mechanisms of accountability for judges and prosecutors.

No immunity.

Remove prosecutors from position of legal advisors of grant juries.

Direct access of people to grand juries.

Very easy remedies.

Not costing any money at all.

Do you think New York candidates for public office will dare promise that?

Or, will dare implement these solutions when they actually come into office?

If not, there is another remedy.

A statewide public referendum.

Enough is enough.

Tuesday, August 21, 2018

As of yesterday, New York State recognized that its attorney regulation system is politically motivated

Yesterday, New York State Governor Cuomo has signed a bill creating a Commission on Prosecutorial Misconduct.

The wrongfully convicted, criminal defender association, civil rights advocates rejoice.

They have "won".

Won what?

Of course, nobody in New York State legislature (where legislators are predominantly attorneys whose licenses and livelihoods are controlled by a different branch of the government, courts, talking about "checks and balances") dared to go at the core problem that makes prosecutorial misconduct possible - judicial and prosecutorial immunity given by judges to themselves and to the only people who can hold them criminally accountable, prosecutors.

And, nobody looked at the fact that, naturally, judges would not discipline prosecutors - because otherwise prosecutors will start turning judges for corruption and violation of constitutional rights of litigants into criminal grand juries - or call in the FBI, after all, it is a federal criminal offense, and New York courts have a "concurrent" jurisdiction on federal issues.

The created Commission has the exact same flaws that the Commission upon which it is modeled, the New York State Commission for Judicial Conduct:

  1. conflicts of interest in appointment of members;
  2. secrecy in operation;
  3. lack of standing for complainants to appeal dismissed meritorious complaints.
In other words, it is a waste of taxpayer money, and, as I wrote before, a dangerous illusion created - and already spread with fanfare, that the state of New York is some kind of a "trailblazer", not only in number of wrongful convictions, but in "creating a remedy".

An effective legal remedy, ladies and gentlemen, is a remedy that people can take to court and win for themselves, every single victim winning a recourse for themselves in every single case, on an individual basis.

A legal remedy would be the right to sue the damned suckers in federal court - and such a right, believe it or not, was created by the U.S. Congress when it enacted the Civil Rights Act, 42 U.S.C. 1943, only the federal judiciary - that has NO RIGHT under Articles I and III of the Federal Constitution, to change that legislation - did just that, and gutted it as far as lawsuits against themselves and their prosecutors is concerned.  

The judiciary created for prosecutors and for themselves "absolute immunity", a de facto permission to violate that same U.S. Constitution, the oath to uphold which was the condition for them to take office in the first place.

A legal remedy would be if a victim of judicial or prosecutorial misconduct could directly address a grand jury and ask it to conduct an investigation of the matter and bring criminal charges against the perpetrators.

That is not what the Commission is for.

It is a barrier between the people and the government, a secretive, conflict-ridden barrier that gives the victim no "standing" (right) to even challenge ANY decisions of the Commission, no matter how arbitrary they are, including putting complaints against prosecutors directly into the garbage bin.

I hate to be right on this one, folks. 

Yet, come January of 2019, when the Commission on Prosecutorial Misconduct starts operating, you will see I was actually right - when your complaints start being tossed, and when all explanation you will receive will be - none.  Dismissed, and that's all.  And you will have no right to appeal the dismissal.  Because the Commission has "exercised its discretion".

And you will have the solace, the satisfaction, the "remedy" of being able to put your complaint down the garbage chute.   

Of course, for that, you did not have to pay millions of dollars of your hard-earned taxpayer money for yet another secretive  - and useless for you - government entity.

But let's return to the question that is staring every New Yorker in the face now.

Now there are TWO systems of attorney regulation in New York, one for non-prosecutors, and one for prosecutors.

One for prosecutors is headed by the Executive branch of the government, one for non-prosecutors - by judicial branch of the government.

Why the need for two systems of attorney regulation?

Oh, because the judicial branch which creates and appoints attorney disciplinary committees and considers them part of itself 

(so that it combines in itself all three branches of the government - legislative, executive and judicial - it legislates the rules of conduct for attorneys, investigates attorneys, files charges, prosecutes them, and them adjudicates them, too, talking about constitutional "checks and balances" that that same judiciary must uphold, according to every judge's constitutional oath of office)

WOULD NOT, for years, discipline prosecutors - those prosecutors that have caused New York to lead the nation in the number of wrongful convictions.

So, instead of yanking the judiciary from its position of regulator of attorneys and instead introducing a regulator (if it is needed at all) that would be neutral and would act not in a self-serving manner, "the solution" was to create a parallel system of attorney regulation.

And, people are making careers on "winning" the bill - because, being attorneys (the sponsor of the bill) or future attorneys (some of supporters of the bill), they are AFRAID to do the right thing and create the real remedy for the people, which will not require ANY funding from the budget at all.

1.  Abolish prosecutorial and judicial immunity - and allow people to obtain their own legal remedies in cases of prosecutorial misconduct in their own civil lawsuits; 

2. allow direct access of the people to the grand juries to ask for investigation and prosecution of rogue prosecutors (and judges).

Instead, New York State shot itself in the foot and has become the first state in the nation that recognized that the system of attorney regulation is a politically motivated sham.

Tuesday, August 14, 2018

Racism in law school grading? What else is new

An interesting article was published on Above the Law - it alleges that good grades in law school are linked to the identical race of the professor and the law student.  In other words, white students get better grades from white professors than black students from white professors.  

I wonder if the American Bar Association will be looking into this.

Of course, that same American Bar Association, according to this book by law professor James Moliterno, was created to and worked hard over the decades of its existence to quash civil rights movements of "unwashed immigrants", communists or "communist sympathizers", labor movements, and against racial desegregation and, generally, civil rights lawyers as sources of "incivility" in the profession.

So, I will not hold my breath if the ABA will, in fact, fight racism in law schools.  After all, law schools, according to many law experts, and some lawsuits, were created and are maintained in order not to let racial minorities too close to power.

The race to sign - or not sign - into law the Commission on Prosecutorial Misconduct in New York. Either way, people will lose

A bill, approved by both chambers of the New York State Legislature, that seeks to create a Commission of Prosecutorial Misconduct, is sitting on the desk of the New York State Governor Andrew Cuomo, a former prosecutor.

Andrew Cuomo lingers with signing it, being under pressure from the District Attorney's association.

New York Attorney General, also a prosecutor, reportedly recently provided Andrew Cuomo with a memorandum - which was only spoken about, but not published - that supposedly argues that the bill is unconstitutional, according to the State Constitution, and the Attorney General, the person and office that actually DEFENDS violators of state and federal constitution in court against their victims, claiming that it is their duty to do that under New York Public Officers Law Section 17, is now concerned about constitutionality of a bill.

I've written about that bill, and that, even though my heart is on the side of the wrongfully convicted, and against prosecutorial misconduct that I have seen for years in New York courts when I practiced as a criminal defense attorney, and even before that, when I worked as a legal assistant for a criminal defense attorney - the Commission fashioned after a toothless tiger wrought with conflicts of interest, the New York State Commission for Judicial Conduct - is not the solution.

The decision against prosecutor Mary Rain was authored by a panel of 5 judges where at least three of them - Garry, Mulvey and Devine - were exposed for their own misconduct and multiple violations of people's civil rights (which is a federal crime in the United States), but remain on the bench, with their law licenses intact.

Prosecutor Mary Rain was suspended for pitching to the jury a negative inference from the defendant's failure to deny his guilt during a police interrogation until directly asked (something many, many prosecutors do without any discipline, and that prosecutor Mary Rain, based on that, probably, considered as not even a disciplinary offense for a prosecutor to do),

Critics of the bill - legitimately - questioned, why the bill was even necessary since it duplicates the system of attorney discipline already in place.  If that system does not work, or if it has a policy to selectively exclude prosecutors - why not try and reform that system?  And why not address the issue of selective policies like that - after all, numerous people reported selective policies of grievance committees, including insiders:

1. of whitewashing powerful attorneys - through a lawsuit of a grievance committee prosecutor fired for whistleblowing;

2. of targeting minority lawyers - that was revealed in a testimony before the New York State Commission on Attorney Discipline in 2015 - and disregarded;

3.  and now, in selective non-enforcement of attorney discipline against prosecutors.  Suspension of Mary Rain does not count, since it was done on June 27, 2018, after the bill for creating the Commission for Prosecutorial Misconduct was approved by the New York State Senate on June 14, 2018, and then by the New York State Assembly on June 19, 2018.

Let's watch the panel of judges who suspended Mary Rain - something that never happened in New York history, suspension of the law license of a public prosecutor for prosecutorial misconduct.

Let's remember their names:

Elizabeth Garry;
Robert Mulvey;
Michael Lynch;
Eugene Devine;
Sharon Aarons

These political animals will go far.  Watch out for their appointment to the New York State Court of Appeals, that is what usually happens when a judge of an intermediate appellate court makes a decision that is a favor to one of the political branches in the New York State government.  And these 5 judges gave a BIG favor to the opponents of the Commission on Prosecutorial Misconduct.

Before they are elevated to the Court of Appeals, watch out for their re-election campaigns, since they are all, technically, Supreme Court justices that MUST be re-elected.

Garry was elected in 2006 for 14 years - and thus must run for re-election in 2020.  Given that Garry was admitted to practice law in 1991, at the minimum age of 25 (18 - graduation from high school, 22 - from college, 25 - from law school), she is 54 now, 16 years from mandatory retirement at 70.

Mulvey was re-elected in 2014 for 14 years - his re-election campaign is not due until 2028.
Mulvey was admitted in 1981 at the minimum age of 25, he is at least 64 years now, 6 years from mandatory retirement in 2024, so he will retire before the need to get re-elected, so his job is the last sinecure to gain a better pension, not to mention to give political favors to some powerful people like a prosecutors' association (who knows when Mulvey's old sins would surface, one would never err to create powerful allies - to suspend one prosecutor in order to save all others from a more pointed commission dealing with prosecutorial misconduct).

Michael Lynch, a former prosecutor, was elected in 2005 - he will be up for re-election in 2019, watch out for this one, Cuomo might elevate him to the Court of Appeals to save him the need, and expense, of an election campaign.

Michael Lynch is 65, his mandatory retirement is within 5 years, so if he runs for re-election for another 14 years, that would be a major waste for taxpayers since he will only be able to fulfill 4 years of his 14 term.  This is the most likely candidate for promotion to the New York State Court of Appeals out of this crew.

Eugene Devine - former public defender and former counsel for social services (a great combination) - was elected in 2006, so he is up for re-election in 2020.

Eugene Devine was admitted in 1976 at the minimum age of 25, is at least 67, will have to retire within 3 years, in 2021.

His re-election in 2020, one year before mandatory retirement, is also a waste of time.  Of course, the Governor can prolong his stay by "certification" for 3 2-year spans, but not on the Appellate Division, in a lower court.  He is also one of the more likely candidates for promotion to the New York State Court of Appeals - to save him from the need and risk of a re-election campaign and to boost his salary for retirement purposes.

Sharon Aarons - the only dark-skinned judge on the court and the only immigrant judge on the court (she was born in Jamaica) - was elected in 2009, her term is until 2023.

Sharon Aarons was admitted in 1990 at the minimum age of 25, so she is 53 now, 17 years from mandatory retirement.  She may also be spared the need to run for re-election and promoted to the Court of Appeals, considering the big favor she has provided to prosecutors, as well as that the Governor is the former prosecutor and in debt to Chief Judge Janet DiFiore, also a former prosecutor, as I have testified to the New York Legislature at the time of her appointment by Cuomo.  Yet, she was never a prosecutor, so she may be passed by.  And, being of dark skin and being promoted to the Court of Appeals in New York may be a death sentence - given what happened to the only dark-skinned female judge of the New York State Court of Appeals Sheila Abdus-Salaam who was found dead in the Hudson river in April of 2017, although not prone to suicide by accounts of all who knew her, then the investigation quickly thwarted, closed in less than a month from her death, and a gay white man quickly appointed in her place, in June of 2017.  

Sharon Aarons, given the political and other circumstances, may have to run for re-election in 2023 to keep her place on the appellate court - if she is not promoted to the NY Court of Appeals.

I am not saying that prosecutor Mary Rain did not commit misconduct.  I am saying that it is routine in New York for prosecutors to do just the same, and never to get disciplined.  

Mary Rain was obviously singled out by a political crew of judges as a sacrificial lamb to undermine the bill for the Commission for Prosecutorial Misconduct - a Commission that these judges, who are also licensing judges and judges who appoint those attorney grievance committees that engage in selective non-enforcement of attorney disciplinary rules against prosecutors - see as undermining their power over all attorneys, including prosecutors, and as a move that highlights that regulation of attorneys in New York is political.

Nothing like a political move in order to prove that attorney disciplinary system is not political, but who expects logic, intelligence or, God forbid, integrity from people who try to assert their power and advance their career?

But - back to the flaws pointed out by critics of the bill, and by prosecutors fighting against introduction of the Commission.

1.  a system of attorney regulation and discipline already exists, prosecutors are part of it - so why duplicate it?

A valid point.

Of course, a public prosecutor should be removable from office only through impeachment, not through actions of committees of competitors appointed without input from the public - but, again, who looks for logic, or rights of the public, when the power of the self-chosen few is involved.

2.  8 out of 11 Commission members - a super-majority - are appointed by members of the government, while prosecutors are supposed to prosecute crimes committed by anybody, including and especially, the government.

A valid point.

But, right now prosecutors are disciplined by attorney grievance committees 100% appointed by the government, state intermediate appellate courts.  In the Commission of Prosecutorial Misconduct, at least 3, a minority are appointed not by the government.  So, validity of that point is undermined by the current system of attorney regulation.

At the same time, the editorial, published on June 21, 2018, 6 days before the first-in-New-York, PR-suspension of public prosecutor Mary Rain by the political crew of judges in the 3rd Department, pointed out that the government regulating prosecutors may do it for political reasons and not to protect the public from their misconduct - as was proven by Mary Rain's suspension.

3.  The Governor has a power to remove prosecutors for misconduct already.  Why duplicate that?

A valid point.

4.  Documents of the Commission will be condfidential.  Why should the public invest money into the Commission not knowing that it is doing its job - if it is fashioned on Commission for Judicial Conduct, it will be tossing the overwhelming majority of complaints without even an attempt at investigation, no matter how well-founded the complaint can be, and how many documents irrefutably pointing at misconduct would be provided in support of a complaint.

As to Commission for Judicial Conduct, a federal court sitting in NY already ruled - in answer to the lawsuit I brought on behalf of myself and my three clients - refusing to block attorneys "serving" in such Commission to practice under the circumstances of conflict of interest, or to derive advantage in litigation from their "service" on the Commission (of judicial conduct), refusing to declare that the lack of appellate review when complaints are tossed without an investigation is unconstitutional and refusing to declare that a full record of investigation on dismissal of a complaint against a judge should be provided to the complainant.

The court ruled as follows:

The court has declared that "a private citizen does not have standing to initiate or maintain a disciplinary proceeding against an attorney or a judge, or to appeal if the court or commission declines to discipline".

That's it.

That is the applicable precedent - to the new would-be Commission for Prosecutorial Misconduct, too.

The court blatantly told the victims of judicial misconduct whose complaints to the Commission for Judicial Conduct were tossed, without an investigation, by attorneys who practiced before the judge that was subject of the Commission's investigation, and who derived personal, financial, benefits from non-disciplining the judge - that the victims have no standing (no right) to complain if their complaints are tossed without investigation.

What kind of recourse is that?

Why does Commission of Judicial Conduct need to exist and suck public money?

Why does Commission of Prosecutorial Misconduct, fashioned after the Commission for Judicial Conduct, need to exist and also such public money - if the public HAS NO SAY in the actions of the Commission?

I understand, once again, that the wrongfully convicted groups want to do something - anything - to relieve the situation, but how will this money-sucker Commission will relieve the situation if it will be similarly permeated by conflicts of interest and where all proceedings will confidential and the public will similarly have no right to appeal tossing of meritorious complaints into the garbage without an explanation?

Do New York taxpayers have extra money to burn on more sinecures for those who will be "serving" the public by blocking the public from getting a remedy for great wrongs done to them by bad prosecutors?

That is my main objection to the creation of the Commission for Prosecutorial conduct, too.  It is a waste of money and creation of a dangerous illusion that something is being done to resolve the glaring problem that the supposedly democratic New York has the most number of wrongful convictions after the racist death penalty case, Texas.

I understand the urge of wrongfully convicted New Yorkers to have SOMETHING, ANYTHING done to resolve the problem - as they are calling upon Govenor Cuomo to sign the bill.

Yet, signing this particular bill and putting into being the Commission the way it is created by the Legislature, will do more harm than good.

There are a couple of other points that - reportedly - the AG's office advised to the Governor about in a non-published memo, but I will abstain from commenting on the memo until I see it first-hand.

It is an interesting race - whether Cuomo will sign the bill, since there is an almost certainty that it will be challenged on state constitutional grounds, and, given that the New York State Court of Appeals is headed by a former state prosecutor who was cheered at her swearing-in ceremony by the DA's association in 2016, we know what the verdict of the court may be.