"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.

Wednesday, December 12, 2018

New York prosecutors' lawsuit's main point - DO NOT protect whistleblowers of prosecutorial misconduct. On the right of the Governor and the Legislature to stall the law already on the books

This is part 6 of my series of articles about the lawsuit of prosecutors, and relating lawsuits and actions of the New York State Government, to prevent accountability of those who cause wrongful convictions in New York, where New York holds the 2nd shameful place in the number of wrongful convictions, after Texas.

The lawsuit is here.

Part I can be read here.

Part II here.

Part III here.

Part IV here.

Part V here.

Protection of whistleblowers in New York State is non-existent, even if they work in the court system, see description of how that works at the end of Part 5.

A prosecutor is a powerful public official who has an opportunity to retaliate against a whistleblower by discrediting him with a criminal prosecution - and conviction - and putting him in prison, for a very long time.

Of course, that would be witness tampering, a federal crime, but would a prosecutor care about that - because will a federal prosecutor prosecute a state prosecutor? Not in a thousand years.

So, the law regarding the Commission for Prosecutorial Conduct DOES have some really good provisions, and one of them is - authority of the Commission to give transactional (full) immunity to whistleblowers of prosecutorial misconduct.

Here is how the government itself explains transactional immunity:

Such an immunity blocks prosecution for any criminal offenses that a prosecutor can possibly conjure up out of a certain set of facts.

That is what bothered prosecutors and what they wanted stopped - and what they had stopped at this time, illegally.

You know how many times the words "transactional immunity", or "immunity" - are mentioned in prosecutors' lawsuit?

SEVEN (7) times.

Meaning, that immunity really, really bothered prosecutors and they really, really wanted to get rid of it.  In which they succeeded so far, contrary to the law.

Here is how these words were mentioned in the prosecutors' lawsuit to nix the Commission for Prosecutorial Conduct:

Page 6

If the CPC "deems it necessary and proper", it can confer broad transactional immunity from prosecution upon witnesses who appear before it.  Id. at paragraph 499-d(2).

Pages 9-10

"Article 15-A also permits the CPC to call and grant transactional immunity to any witness it choses (so long as it "deems it necessary and proper" to do so (Judiciary Law paragraph 499-d(2)), even if such immunity could thwart ongoing or future criminal prosecution)."

Page 10-11

"Article 15-A violates that clear intent by permitting the CPC to: … (2) grant immunity to those who prosecutors might otherwise prosecute".

Page 12

"And because Article 15-A provides no appellate review of the CPC's discretion to obtain evidence, incorporate evidence into the public record, grant immunity, or conduct investigations that may interfere with active prosecutions, the statute will inevitable cause a flood of collateral litigation under CPLR Article 78 by prosecutors alleging unlawful, arbitrary, and/or capricious conduct by the CPC (citations omitted)".

Page 16

"The non-judicial functions unconstitutionally assigned to judges appointed to the CPC include: … (3) conferring immunity upon witnesses involved in CPC investigations..."

Pages 24-25

"Prosecutors are painfully aware that every decision they now make will be scrutinized by a hybrid political commission operating without constitutional constraints, and that this commission may sanction them, publicize sensitive material pertaining to their cases, and grant immunity to witnesses with virtually no due process."

Pages 25-26

"Prayer for Relief. WHERETOFORE, because paragraphs 1 to 79 establish that no provision of Article 15-A of the Judiciary Law remains by which the CPC may be lawfully constituted and begin operation, and because Plaintiffs would be irreparably harmed if the CPC were to begin accepting complaints, initiating investigations, or conducting hearings, Plaintiffs respectfully request that a judgment and order be issued:

D.  Preliminarily and permanently enjoining the CPC from conducting any hearings into the qualifications and conduct of prosecutors, including a prohibition on ordering any records or papers from prosecutors, or ordering any appearance by witnesses or prosecutors before the CPC, or granting immunity to any person..."

That means - it is very, very important for New York prosecutors to block any government entity from being able to give protection to whistleblowers against them - in other words, they asked the court to prevent doing exactly what they are doing - obtaining evidence against criminal defendants based on immunize testimony (while often not disclosing the fact of giving immunity to witnesses to the defense, despite having a duty to do that - which is in itself prosecutorial misconduct).


Prosecutors want a "right" to be able to go at witnesses regarding their own misconduct with criminal charges, they complain that the Commission, by granting full transactional immunity to such witnesses, prevent prosecutors from retaliating against those who testify regarding prosecutors' misconduct.

And - guess what?

The Legislature and the Governor stipulated to stall the Commission and not to grant whistleblowers of prosecutorial misconduct protection already given to them under the law.

Of course, it is not within authority of either the Legislature, or the Governor to "stipulate" suspension of certain laws, already on the books, through either

  • refusing to fill vacancies on the Commission (the Governor); or
  • suspending indefinitely the law (the Legislature).
The Legislature has only THREE options:

  • To enact (introduce, start, put into being);
  • amend (change);
  • rescind (take back, abolish)
a statute/law.

There is no option to "stipulate temporary suspension" of a statute already on the books.

The law regarding the Commission for Prosecutorial Conduct:

  • has been enacted;
  • has not been amended;
  • has not been rescinded -
and thus, is in full force, and both the Legislature and the Governor MUST OBEY IT.

So, those who were waiting for the Commission to come into force, have a right to sue the damned suckers for dereliction of their duties and to compel them to do their duties, as prescribed under the New York State statutory law.

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