"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 Yorkers, if you don't like it, you can all go to Moscow - or can you? New York eases the creation of wrongful convictions while blocking the means to prevent them and make those who cause them accountable

This is Part V of my series of articles dedicated to the fate of the Commission for Prosecutorial Conduct - challenged in a lawsuit of the New York State District Attorneys (prosecutors) Association, a lawsuit fixed, as people "in the know" inadvertently blurted out, before it was filed, and stalled by New York Governor Cuomo and the Legislature, defendants in the lawsuit - as was pre-agreed before the lawsuit was filed (not that voters new it when voting for Cuomo and for New York candidates to the Legislature in November of 2018).

The law for creation of the Commission was signed, with much publicity and with "bipartisan support", on August 20, 2018, right before elections into the said Legislature and for the said Governor's office.

The text of the lawsuit is here.

Part I can be read here.

Part II - here.

Part III - here.

Part IV - here.

When we are talking about wrongful convictions, we need to, first and foremost, analyze, whether there are incentives for those investigating and prosecuting crimes to create wrongful convictions, and, if there are, identify and list such incentives - with a view of figuring out how to eliminate them.

And, while Cuomo and the Legislature stalled creation of the Commission - and, thus, are letting so many wrongful convictions go unprevented and those which already happened, unpunished - the New York judiciary "helped" New Yorkers by making wrongful convictions not just possible, but probable and inevitable.

Yesterday, the Chief Judge of the New York State Court system, a career prosecutor Janet DiFiore who was appointed despite overwhelming testimony against her with evidence of her own prosecutorial misconduct and prosecutorial misconduct of her office, issued a decision that will, no doubt, continue to add to the number of wrongful convictions in New York - without giving criminal defendants and their attorneys an ability to prove that the conviction is wrongful.

53 pages explaining why Civil Rights Law 50-a "lawfully" may block a Freedom of Information Request for records documenting misconduct of a police officer, a public employee.

Since the decision is published in an electronic format, it is word-searchable.

Try searching it for words "6th Amendment" and "Confrontation Clause".

You won't find either.

But I, probably, mistakenly, thought that every single police officer and every single judge in the U.S., including the glorious state of New York, are sworn to protect the FEDERAL Constitution, with all its little wee bits, like the 6th Amendment's Confrontation Clause - one of the main barriers to wrongful convictions.

But, if you search the legislative notes to this statute, how it was introduced, you will find that this particular statute was introduced intentionally and specifically to prevent impeachment of prosecution's witnesses, police officers, by criminal defense attorneys.

In other words, the statute was meant to deliberately interfere with criminal defendants' confrontation rights guaranteed by the 6th Amendment Confrontation Clause as the main truth-finding tool at trial.

So, if you do not know about misconduct of police officers - you cannot impeach him, can you?

If you, as a defense attorney, ask a question of a police officer on the stand, before the jury - were you ever disciplined for misconduct - the police officer can "testi-lie" to you, under oath, with full assurance of never being held accountable for that.

Because - he will drum up a conviction for the prosecutor, the prosecutor will advance his career, be re-elected, then will be elected as a judge - so the prosecutor will never prosecute a police officer who helps him, by lies under oath, does not matter, to advance his, prosecutor's career to the top coveted position - the judiciary.

And, what will be a way for you to impeach the officer, prove to the jury that he is lying?

DiFiore said - Civil Rights Law 50-a prohibits disclosure of records of police misconduct in response to Freedom of Information requests by the public (that hires police officers for the public's own protection, pays their salaries and is, thus, the police officers' employer).

DiFiore does not say that Civil Rights Law 50-a is unconstitutional, under the 6th Amendment, because it was meant to violate criminal defendants' confrontation rights and undermine effectiveness of cross-examination in criminal trials.

Not at all.

Do not expect a former career prosecutor who invited only police and prosecutors - and no defense attorneys - to her swearing in ceremony in February of 2016 - to support constitutional provisions protecting criminal defendants (presumed innocent, by the way, at the time of trial).

Can a criminal defendant receive such information about misconduct of police officers who would testify at his trial in any other way?

Not only he can, but the prosecutor must disclose this information.

It is called "Brady material", impeachment evidence of witnesses.

But, do prosecutors usually do that?

Of course, not - they cannot drum convictions otherwise.

And, is there any accountability for prosecutors violating the Brady rule?

Of course, not.

No prosecutor (including DiFiore herself) has ever been disciplined in New York for violation of the Brady rule.

Hence, creation of the Commission for Prosecutorial Conduct, that people hoped, will address violations such as that - violations paving the way to wrongful convictions.

Which is currently stalled, and we are made to patiently wait until the Legislature guts even he toothless legislation that it created, in order to please prosecutors - who have power to criminally charge legislators and Cuomo, so, there is a lot of (if you don't, I will do that to you) thing-y looming in the air in those negotiations.

But, since you cannot get information about police misconduct under FOIL, and you cannot get it under the Brady rule, you cannot get it, period - and police officers can "testi-lie" happily, knowing that nobody can every catch them by their lying tongue on the stand.

Thus, the jury will think that the police officer - testifying usually in his uniform - is very, very credible, because there is no evidence saying otherwise, such evidence being deliberately, "by law" hidden from the criminal defendant.

Don't you think this is a coincidence in time that Cuomo and Co. stalled appointments to the Commission and "the parties stipulated" to wait until the Legislature "amends" the law regarding the Commission - and that DiFiore issued her decision on Civil Rights Law 50-a at the same time?

There are no coincidences between these guys, everything was long pre-coordinated.

They are LAUGHING at you, New Yorkers.

They are LAUGHING at our efforts to put prosecutorial misconduct under control and obtain accountability for it.

They say - no matter what you try, even when you thing you've succeeded, we will still find ways to dupe you and overpower you, you and your puny federal constitutional rights that we swear to uphold, in a token to get to that position of power - over you.

Under these conditions, wrongful convictions are INEVITABLE, they are actually COVETED by prosecutors, they are their path to glory, to the permanent employment (federal judiciary, preferably), to their permanent, absolute, unaccountable power over the public - people, property and public policy.

No token oaths of loyalty to the U.S. Constitution every prosecutors is laughing at, often into criminal defense attorneys' faces, will offset that powerful incentive to drum up convictions, rightful or wrongful, does not matter.

As a cherry on the cake - consider what the President of New York Court Officers Association Dennis Quirk said to me today in response to my comment about DiFiore's decision about Civil Rights Law 50-a - in a purely professional forum, comments to an article in New York Law Journal, during working time, at about 10 am 

when Dennis Quirk was supposed to be working and earning his exorbitant salary that New York taxpayers pay him through their collective noses:

So, in the opinion of a court employee and the President of the New York State Court Officers Association - who works in a criminal court, by the way, and is supposed to be neutral to criminal defendants (presumed-innocent people) who are subjected to criminal trials in that court - 

if you do not like having New York prosecutors drum up wrongful convictions with the help of an unconstitutional statute, designed to violate criminal defendants' 6th Amendment Confrontation right - you can all "go back to Moscow".

Can you, though?

Isn't it just a little bit brazen for a public officer, during his taxpayer-paid time to browse Facebook and spread bigotry and his views that a constitutionality of a state statute regarding constitutional rights of criminal defendants (and, ultimately, legality of criminal convictions, all criminal convictions in the State of New York) is not up for discussion?

By the way, Dennis Quirk's pro-prosecutorial leanings (despite working in the court system) are well-known.

He was recently sued for slander by a former chief clerk of a New York State court, Michael Pulizotto, for calling Pulizotto a "low-life rat" you know for what?

For being a whistleblower on prosecutorial and judicial misconduct, of course - according to Pulizotto, Quirk called him a "low-life rat" and harassed him over collecting evidence of judicial and prosecutorial misconduct (just like Quirk harassed me online today, until he was caught and quickly erased his bigoted statement - but not before we saved scans).

It is very possible that one of the basis for harassment of Pulizotto by Quirk was envy - Pulizotto was an attorney, and much hire paid as a chief law clerk.

Of course that lawsuit was dropped "to concentrate on the federal lawsuit", this one - where New York State Officers Association was one of defendants, I will dedicate a separate blog article to this lawsuit, it is ongoing, same as the lawsuit of another fired court employee - whistleblower of sexual harassment by a judge Alexis Marquez, I wrote about that lawsuit before on this blog:

For secretly recording (an act perfectly allowed by New York Penal Law) the Staten Island Judge Judith McMahon, the wife of the local district attorney Michael McMahon - who, after stating that she is relinquishing control over criminal courts, to avoid the apparent conflict of interest, kept it.

So, the clerk recorded her, for years, and finally publicized her misconduct.

Neither Judith McMahon nor her husband Michael McMahon lost their law licenses, nor were they disciplined in any way.

They both kept their positions and have "no record of public discipline" as attorneys.

The whistleblower, Michael Pulizotto, who painstakingly collected evidence of misconduct of both of these miscreants before publicizing it, lost his job.

And Dennis Quirk, the longtime President of the Court Officers Association 

decided to kick Michael Pulizotto some more by calling him a "low-life rat" - and thus demonstrating his loyalty to misbehaving judges, in order to preserve his job security.

So, one might say that Dennis Quirk has a systemic hatred to whistleblowers of at least some official misconduct:

  • regarding misconduct of police officers ("if you don't like it, move back to Moscow);

  • regarding judicial and prosecutorial misconduct ("a low-life rat").

This is how you keep working for the government - and "earning" good money while playing on Facebook, don't you - by keeping your mouth shut and trying to shut down those who do protest judicial misconduct, right?

But, the point is that people of the State of New York cannot possibly expect a decline in wrongful convictions in the state - while there is such a policy towards official misconduct:

This is the preliminary statement of the lawsuit of Michael Pulizotto, an attorney and former chief law clerk, against the New York Court system.  Note the statement about chances for a fair trial for criminal defendants.

If this is the opinion of an attorney who has spent many years as a confidential law clerk of a judge, and saw misconduct up close, to the point of starting to record it - for which he lost his job, but the judge and the prosecutor (husband-wife team) did not lose anything, what IS the chance for any New Yorker not to become a victim of a wrongful conviction?

Especially now, when DiFiore has made it safe for police to lie under oath in criminal cases and to drum some more wrongful convictions - while the Legislature and the Governor put a clamp upon creation of the Commission for Prosecutorial Conduct?

How about zero chance?

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