"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, December 9, 2018

New York trial and apellate judges openly defy constitutional rights of criminal defendants. Now, a criminal defendant in a murder trial was forced to be represented by a hostile attorney, who retaliated by setting his client up for a 40-year sentence.

I have written on this blog about a torture case.

A torture conducted by an American judge in an American court against a criminal defendant, simply because the defendant was trying to insist on an argument that he has a right to make a pro se motion to replace his lawyer - who he sued, together with the presiding judge - and to make a motion to recuse.

For insisting on his constitutional rights, the criminal defendant was tasered several times, and then removed from the trial and held away, without any medical attention, in the courthouse's holding cell, while the hostile lawyer who did not make any objection to the  judge's torture of his client in court, or against his client's removal from the trial, "represented" him.

The "representation" ended up, of course, with a conviction that was appealed, and on appeal the prosecution had the audacity to argue that the defendant supposedly "waived" his right to appeal the judge's bias because the hostile lawyer (who the defendant sued before trial, fired and wanted removed) failed (naturally) to make a motion to recuse.

The appellate court (in Texas)

1. condemned torture without calling it torture; and
2. remanded the case to the same judge - who committed torture in the first place - with an instruction how to retry the case, without torture, in such a way that the conviction would now stick.

Now, I hear a lot that Texas and New York are two different things, that Texas is heavily pro-Republican and against the defendants' civil rights.  And, New York, on the opposite, is pro-Democrat and pro-defendants' civil rights.


New York has just created its own precedent by which an indigent criminal defendant - in a murder trial, no less, same as in Texas - was forced by the judge to proceed to 

1. a suppression hearing, and then
2. to a trial

represented by a hostile lawyer with whom the defendant had an ongoing conflict - existence of which the court did recognize.

And, of course, "official" legal scholars and their outlet, the New York Law Journal, has shifted the public's attention from what really happen, this way:

So, according to New York Law Journal, it is not so much a criminal defendant with a risk of spending the rest of his life in prison was stripped of his right of an attorney who would at least not have a conflict with the defendant and a grudge against him because of the conflict, but it is a lawyer who "lost his bid to withdraw" - because of his "client's" "unjustified hostility".

Let's first look who are our "heroes" who produced this pearl of wisdom - in the court below and in the appellate court.

The "hero" who decided that a criminal defendant in a murder trial can be denied a lawyer who he can trust not to retaliate against him because of the ongoing conflict between them - in a case that poses a risk of depriving the defendant of his liberty for the rest of his life - is the now-already retired judge Ronald A. Zweibel.

Here is his attorney registration:

Considering that the minimum age of an attorney when he is admitted to the bar in New York State is 25 years and deducting it from Judge Zeibel's year of admission, 1967, we get his approximate year of birth, 1942. He is 77 years old now.

He was 73 years of age, 3 years past mandatory retirement for judges in New York, at the time of the first sentence of defendant George Ventura in 2014, which was, according to the decision, amended for an unknown reason in 2016.

The "heroes" who affirmed the 40-year conviction in this case, appellate judges who affirmed his conviction and sentence under the circumstances, were judges

Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ. 

Judge Rolando Acosta

This is not the first time when Judge Acosta has issued a decision undermining criminal defendant's confrontation rights under the 6th Amendment of the U.S. Constitution.

In 2016, Judge Acosta affirmed on appeal the use of testimony of a witness in a criminal proceeding from outside the country (from Egypt) through Skype, despite obvious authentication problems and teleprompting implications of such testimony.

The alternative would be to deny the prosecution's presentation of that witness, and to dismiss the criminal charges, with prejudice, for failure of the prosecution to be ready for trial and produce a witness in court - for no fault of the defendant.  

In 2017 he has issued a decision reversing, on state statutory grounds, the trial court's correct decision requiring the release information about misconduct of police officers - under a state statute that had, as its purpose, undermining criminal defendant's 6th Amendment rights for effective cross-examination and impeachment of police officer testifying for prosecution in criminal proceedings.

The case name was Matter of Luongo v Records Officer.

In 2018, interestingly, the case was again heard on appeal - now by the 2nd Department, I understand, the 1st Department recused - and still supported dismissal of the petition, thus protecting employee records of police officers from the prying eyes of the public employing those officers and especially from the prying eyes of criminal defendants who have a federal constitutional right to see those records, which constitute a Brady material, information that can form a basis of impeachment of a police witness on cross-examination in a criminal proceeding.

So, on December 4, 2018 Judge Acosta violates yet another criminal defendant's 6th Amendment Confrontation rights, which he appears to do systematically - which the New York Law Journal misrepresents as a decision affecting only the lawyer's rights, saying nothing about the defendant's rights violated by the judge - and 3 days after that the same New York Law Journal allows the judge to use itself as a forum, now expressing disdain to criminal defendants' constitutional rights on yet another subject - the so-called waiver of the defendant's right to appeal:

Let's put what the judge said about violations of the criminal defendants' right to appeal at the level of the lower court in a larger font:

"In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what's the point?"

The point being that if the appeal waiver is not proper, then not only the sentence, but the conviction that has led to the sentence becomes appealable.

But, that, apparently, escapes the judge who is the presiding judge of one of the 4 intermediate-level appellate courts in the State of New York, and a regulator of attorney's licenses in a large area, New York City and surroundings.

Judge Acosta explained his court's policy (while policies are legislative in nature, and courts in New York do not have authority for legislative policymaking in the appellate process) in disregarding challenges to constitutionality of challenges to appeal waivers entirely:

  • the court's convenience, his court's protection of itself against too many cases on the docket ("deluge" of cases): 

"Although appeal waivers have been upheld since 1989 (People v Seaberg, 74 NY2d 1 [1989]), recent comments by practitioners regarding the fairness and enforceability of these waivers has brought the issue to the fore (see, e.g., David Loftis, Appeal Waivers Are Not Truly Voluntary, NY Law Journal, Nov. 15, 2018, citing Prof. Nancy Gertner, Having the Right to Appeal is an Issue of Fairness, New York Times, February 4, 2016); Larry Cunningham, In Defense of Appeal Waivers, NY Law Journal, Nov. 26, 2018.  The Second Department’s recent decision in People v Anardo Batista (___AD3d ___, 2018 NY Slip Op 07445 [2d Dept 2018])—where it specifically addressed, among other things, the appellate delay created by trial courts’ “perfunctory appeal waiver colloqu[ies]” (id. at p. 8)—has also raised the question of what appellate courts should do when faced with a deluge of waiver cases."

The First Department has had a different experience with this issue.  Indeed, even though we take the appeal waiver issue seriously, we have streamlined our approach and do not experience the delays that our colleagues in the Second Department deal with."

Yeah, right, they "take the appeal waiver issue seriously" - this seriously: 

"In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what's the point?"

And, the idiot even boasts that he has less work than the 2nd Department as a result of his unconstitutional policy.

Judge Acosta also has a pronounced mania of grandeur:

"In our experience, excessive-sentence cases consume very little of our precious time, even though we have decided hundreds of such cases in the past five years. "

In translation into plain English this means that Judge Acosta considers it beneath his court to dedicate too much time - any time at all, actually - to cases of "excessive sentencing".  After all, if people will spend in prison, at the expense of New York taxpayers, more time than they should, that is not such an important issue.

Hundreds of cases in the "past five years" regarding challenges to excessive sentences were reviewed with hardly any "precious" time of the court spent on it - in other words, criminal defendants in such cases were denied thorough (or any) judicial review of their case.

While a judge has NO RIGHT to pick and choose, to which case he needs to dedicate his undivided attention, and which type of case he can review on the basis of "they have already won - so what's the point?"

A wonderful approach for an appellate judge, don't you think?  The prosecution has already won, so what's the point of appealing it?

Acosta openly states that when the case of discretion in cases challenging excessive sentencing presents itself - the court automatically refuses to exercise its discretion, as a matter of policy:

" more commonly, the panel chooses not to determine whether an appeal waiver prevents it from exercising a discretionary sentence-reduction power that it declines to exercise in any event" - and the New York Law Journal publishes it without any attempt for critical assessment of that "policy".

Acosta also openly states that 

But, when that is not the case, and to the extent that deciding “whether a particular sentence is excessive [can be] less time-intensive” than determining the validity of an appeal waiver (see Batista, 2018 NY Slip Op 07445, p. 13 [Scheinkman, P.J., concurring]), it only makes sense to adjudicate the appeal more efficiently by resolving the former issue instead of the latter.  Appellate courts, as well as trial judges, of course, take this approach all of the time to expedite the resolution of cases (see, e.g., People v Chapman, 101 AD3d 406, 406—407 [1st Dept 2012] [declining to decide whether the introduction of Molineux evidence was proper, since the admission of the evidence was unquestionably harmless])."

What he is saying is:

the court's review of a challenge to constitutionality of an appeal waiver can be more time consuming than the review of a challenge to the supposedly excessive sentence (punishment).


Judge Acosta does not say, but it is obvious:

because the review of a challenge to constitutionality of an appeal waiver 

  • is mandatory;
  • requires extensive research into the history of constitutional claims and into underlying law - constitutional provisions, statutory law and court precedents; and
  • such a challenge may address the guilt/conviction, not just the punishment

the review of a challenge to excessive sentences 

  • addresses discretion of the lower court and of the appellate court;
  • does not require extensive research;
  • addresses only the punishment - and thus, can be rejected automatically.

Acosta, thus, admits that his court, as a matter of policy, jumps over constitutional issues that may involve challenges to the defendant's guilt or innocence - "preferring" not to see such challenges or to see it "as" challenges to the length of punishment only.

This is an unconstitutional leap over the challenge involving the guilt stage to the challenge involving only the punishment stage, and a clear demonstration of the court's bias in favor of the prosecution.

Acosta is openly - to the point of brazenly publishing his "policy" - engages in self-praise for such a good method, saving the court such a lot of "precious" time:

"Because of this method, this Court has issued only a small number of decisions finding the appeal waiver invalid.  In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what’s the point?"

What's the point of existence of the appellate court then if it considers it beneath itself to do its work?

What's the point for New Yorkers to pay to Judge Acosta $210,500 a year for not doing his job?  Because Acosta considers his time too precious to consider constitutional issues, reducing them to issues of his own discretion, and deciding ahead of time that he will exercise that discretion in favor of the prosecution?

Based on just the Chief Judge Acosta's record, is it any surprise how Judge Acosta decided the case where 

So now, because of the 1st Department's presiding judge consistent policies to undermine constitutional rights of criminal defendants on appeal - in order to save the court's "precious time", we now have a precedent denying an indigent criminal defendant his right to be represented by an attorney who he truly trusts with his liberty - lifelong liberty.

Instead, in the 1st Department, at least, the court, while recognizing that THERE IS A CONFLICT between the defendant and his attorney, and thus, a high risk that the defendant will be deliberately set up by his hostile attorney to be convicted and sentenced, the court still undertakes to decide whether the defendant's hostility towards his attorney - acknowledged by the court - is "reasonable" or not.

And a hostile attorney may retaliate against his client by setting the client up for a conviction, and by "not preserving issues for appeal", like the attorney did in George Ventura's case - because, according to New York's other court-invented unconstitutional "policy", only in civil cases clients of lawyers can sue their attorneys for causing a wrongful judgement through malpractice - in criminal proceedings a criminal defendant must first have the conviction caused by his lawyer's malpractice reversed, which is usually impossible to do - and only then sue him for malpractice:

"Carbone has appealed his criminal conviction but, at this point, his undisturbed determination of guilt precludes anyrecovery for negligent representation (see id.; Matter of Swain v County of Albany, 268 AD2d 747, 748-749 [2000], lv denied 94 NY2d 764 [2000])".

So, the attorney for George Ventura - who had a conflict with his client - did not preserve for appeal the issue that his client's 6th confrontation rights were violated:

"defendant forfeited his right to confront the witness and rendered his witness's out-of-court statement admissible. Defendant did not preserve his claim that the witness's statement was insufficiently reliable to be admitted, and we decline to review it in the interest of justice"

but, under New York "caselaw" criminal defense attorneys can freely violate their clients' constitutional rights, negligently or, as in this case, deliberately in retaliation for his public humiliation in court at the hands of his client - with impunity.

In other words - in New York indigent criminal defendants, thanks to courts' gutting of their constitutional right to counsel in different ways simply do not have a right not only to an attorney of their choice - 

a feat that can be easily accomplished if the court only determines eligibility for a taxpayer-paid attorney, but not the identity of that attorney, the court then issues a voucher for a criminal defendant, and it is the criminal defendant, and not the court, who chooses an attorney he can truly trust with his liberty in a criminal proceeding - 

but even to an attorney who would not have a conflict of interest in the case, a personal grudge against his client.

By the way, not only the attorney had a conflict of interest in that case.

The trial judge had, too - and a huge one, at that:

One does not become a Chairman of the New York State Crime Victims Board forcibly - it is a voluntary choice.

The judge who has a record to be an active victim's advocate may not be allowed to preside over criminal proceedings.

As judge Zweibel was allowed by the State of New York to do - for decades.

The name of the trial lawyer in People v Ventura was not revealed in the appellate opinion, obviously, on purpose.

I was able to locate the initial article about George Ventura's arrest in 2012 for the shooting death of Richard Cedeno, and

an article as to how the person that George Ventura accused of shooting, Richard Cedeno, died.

Naturally for New York's criminal "justice", habitually discriminating against people of color, defendant George Ventura is brown-skinned

By another interesting coincidence, the supposed victim of George Ventura's shooting was Richard Cedeno, who, in 2007, was a supposed passenger in a car where the driver, Jose Rivera, shot a plain-clothes police officer.

In this situation, a criminal defendant would have to be double-cautious in his choice of an attorney, the attorney's competence, integrity and courage - as the actual shooter, investigated by the NYPD, could very well be from within the NYPD.

I wonder whether this is the reason why the Internet appears to be scrubbed clean of any mentioning of George Ventura's attorney and why his current appellate attorneys refuse to talk to reporters about the case - and why the appellate judges did not identify the trial attorney who sold George Ventura out and set him up for a 40-year sentence.

Are they afraid?

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