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):
- 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
- 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.
"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 , lv denied 94 NY2d 764 )".
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?