Not so funny: New York prosecutors argue violations of constitutional rights. The circus with prosecutors' "separation of powers" argument.

This is my 7th article in the series covering the (pre-arranged and pre-fixed) lawsuit by New York prosecutors that was part of an agreement to dupe New York voters into voting Governor Cuomo back into office and voting certain senators back into the New York State Legislature, a well-known "bait-and-switch" fraudsters' trick:

• you give the person-to-be-tricked a bait (like signing into the law the existence of the Commission for Prosecutorial Conduct while not announcing that you have no plans whatsoever to actually put it into existence); 
• you wait until voters vote for you based on this historical development, advertised as such ("First in the Nation" etc.); and then
• after those whose re-election depended on this bait are re-elected, you stall that much-waited-for Commission, less than a month before it was supposed to start operating - in accordance with the law STILL ON THE BOOKS, explaining to the public that it is "because of the lawsuit".

This "bait-and-switch" plan has become known - only after it was fully put into fruition - because of the slip-of-the-tongue of an insider of this whole scheme, an exoneree Jeffrey Deskovic who has made his exoneration into business and the basis to build his career.  Of course, he is ALREADY exonerated. Those who wait to challenge prosecutorial misconduct, and wait to complain to the Commission about prosecutorial misconduct that has drummed up their wrongful convictions, can wait some more.

By the way, the text of the prosecutors token lawsuit that was used for the "bait-and-switch" is here.

As to other articles in the series, 

Part I can be read here.

Part II - here.

Part III - here.

Part IV - here.

Part V - here.

Part VI - here.

In the prosecutors' lawsuit, the central issue was the supposed violation - in the law creating the Commission - of the constitutional principle of separation of powers, you know, the principle underlying the "checks and balances" premise, that the 3 branches are checking upon one another (instead of colluding with one another - which is what the reality is, as the case with the Commission showed once again).

Now, any criminal defense attorney has a risk of die laughing when reading prosecutors' lawsuit.

Because that would be, I bet, the very first time that criminal defense attorney would see a prosecutor argue FOR constitutional rights.

The usual setting for a prosecutor to address constitutional rights is to laugh them into non-existence, in and out of court, which is what prosecutors do consistently and quite successfully - hence, the number of wrongful convictions and the number of people in prisons in the U.S.

Tell a prosecutor in court about constitutional rights of the accused - and you will see the reaction.

They will laugh, most likely.

Because anybody raising constitutional issues is a "bleeding heart liberal", or want to "get out of jail free".  That's it.  That's the range of "constitutional arguments" of an average prosecutor in New York (who, most likely, will then become a judge - the majority of New York, and American, judges are former prosecutors, with the respective mentality as to constitutional rights, and there is NO former criminal defense attorneys on SCOTUS, but several prosecutors).

So, when prosecutors start arguing constitutional rights, it sounds unusual, to say the least.

And, when they hire somebody to argue it who have no clue about civil rights litigation and constitutional rights - and who has to present them in such a way as not to disturb the unconstitutional schemes that benefit their clients - that becomes... well, not even funny.

I already wrote how lawyers for New York prosecutors in this lawsuit exposed a flaw in the law regarding the creation of the Commission for Prosecutorial Conduct that destroyed prosecutorial immunity for the most powerful prosecutors in the State of New York - the Attorney General and Assistant Attorneys General.

The argument regarding the supposed violation of separation of powers is much, much more entertaining.

Because, by trying to prove one thing, attorneys for New York prosecutors have proven another -

• that the EXISTING attorney regulation is completely unconstitutional, under the state and federal constitution; and
• that THAT unconstitutionality is OK for prosecutors - because it works in their favor, which says a lot about prosecutors' integrity.

First of all, the entire way how the Commission was stalled this month, was a violation of the principle of separation of powers.

The Governor de facto rescinded a statute on the books by refusing to do his duty and to populate the Commission, refused to make appointments to the Commission.  

The Governor has no right to do that, since he is the Chief Executive Officer of the state, and absolutely MUST execute the law on the books - and make those appointments to the Commission.

And, the Governor absolutely DOES NOT have the power to rescind a law on the books, that is only and exclusively the power of the Legislature.

And, the Legislature DID NOT rescind or amend that law yet, so that law is still operational and must be obeyed.

But - that was pre-arranged, and the Governor did it just as well, because of prosecutors' lawsuit - arguing, as their main point, that creation of the Commission violates the "fundamental constitutional principle" of separation of powers.

If Cuomo violates that same principle - in favor of prosecutors - that's good, even though it is a clear separation of power.

So, prosecutors argue to the court in their lawsuit that separation of powers is a fundamental constitutional principle.

THERE ARE STATUTES AND, THEN, STATUTES

"The New York State Constitution clearly sets forth the distinct roles and responsibilities of each branch of state government.  It is a bedrock principle of our democracy that no statute, no matter how noble its ostensible purpose, may violate that constitutional structure".

Read that?

In the very same lawsuit the prosecutors acknowledge constitutionality of the present scheme of attorney regulation.

Yet, in the current scheme of attorney regulation the court carries out the function of ALL THREE branches of the government - 

• it legislates the rules for attorneys;
• it appoints investigators and prosecutors and considers them "the arm of the court" (making court a party and the adjudicator of all attorney disciplinary proceedings); and
• it adjudicates such proceedings.

Prosecutors have no problem with such a scheme - because, over the last 50 years, only two prosecutors still in office were disciplined (both for criticism of the regulator, judges), and neither one was removed from office.

That unwritten policy was exactly why the public got enraged and wanted a separate body making prosecutors accountable.

That body - prosecutors say - cannot be put into being because it violates the "bedrock principle of our democracy", violation of the separation of power.

The present system of attorney regulation that violates that principle - can do just fine.

Prosecutors' attorneys in this lawsuit actually provided much more proof in their arguments - inadvertently so - that the current system of attorney regulation in the State of New York is unconstitutional.

Let's look how they managed to accomplish that noble feat.

REMOVAL OF A PROSECUTOR FROM OFFICE IS AN EXCLUSIVE EXECUTIVE FUNCTION

Let's single out the main points of the argument.

1. District Attorneys are elected executive officers.
2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".

After reading the draft of this pleading, prosecutors should have, probably, fired their attorneys - because they put their clients' collective feet into their collective mouths very-very far.

But, that did not happen.  And, the pleading was filed - and even portrayed to the public (as was pre-arranged, as I was later told, "gamed out") as THE lawsuit because of which both the Governor and the Legislature immediately stalled (without officially rescinding or amending) a statute on the books which they just voted in and signed into law.

Do you know of any other occasions when any other law was stalled by all three branches of the government because a lawsuit challenging its constitutionality was filed - while no judicial decision on it has been made?

I don't, and I was handling civil rights litigation, filing constitutional challenges to various New York statutes for several years, and now cover such filings in my blog for 4 years so far.

Now, let's go back to the argument of violation of "separation of powers principle".

1. District Attorneys are elected executive officers.
2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".

The question is - poor dears, but what do we have NOW that you embrace and call constitutional?

You claim that the Court of Appeals may not remove a prosecutor from office because removal of a prosecutor - by the State Constitution - is an EXECUTIVE FUNCTION, and thus, the exclusive power of the Governor.

But - you do not contest the fact that right now Appellate Divisions have that same power to remove prosecutors by suspension or disbarment?

And, you are even arguing, on behalf of Appellate Divisions (without standing, since Appellate Divisions are not suing - and for a DA's Association to argue on behalf of Appellate Divisions is a very interesting proposition, with interesting implications), that the Commission unlawfully encroaches upon the authority of the Appellate Division to do the very same thing that you contest in that very lawsuit - a judicial removal of an executive officer that only the Chief Executive officer has the power of, by the State Constitution?

Let's go back.

1. a prosecutor is an elected executive officer - argue prosecutors to the court;
2. removing a prosecutor is an exclusive executive function;
3. that executive function, removing of a prosecutor, can be done only and exclusively by the State Chief Executive Officer, the Governor - that is a requirement of the New York State Constitution;
4. The Commission's composition is unconstitutional - because most of its members are to be appointed not by the Executive, but by the Legislative branch, a violation of the "bedrock principle" of separation of powers;
5. It is unconstitutional, under the same principle of separation of powers, according to the prosecutors, to allow the Court of Appeals to remove prosecutors - because removal of prosecutors is an executive, not judicial power, BUT
6. judicial removal of prosecutors by the Appellate Division is proper; and
7. the Court of Appeals should not intrude and diminish the exclusive jurisdiction of the Appellate Division to remove prosecutors [discipline attorneys]; while
8. while the "exclusive jurisdiction" of the Appellate Division has sprung from delegation by that "exclusively executive power" by the Legislature to the court (Appellate Division) - which was in violation of the same constitutional principles of separation of powers, because, see above, only the Governor has the power to remove prosecutors, by the State Constitution, as a "bedrock principle of our democracy".

Huh?

Remember when I said that the idiots chosen by the DA's Association to represent the Association in the pre-fixed lawsuit did not advertise any knowledge in the three main areas of law, expertise in which was necessary to plead this lawsuit:

• constitutional law;
• occupational licensing;
• attorney regulation?

It tells, doesn't it?

This argument is COMPLETELY frivolous, because arguments here are MUTUALLY EXCLUSIVE.

If removal of a prosecutor is an exclusive executive function - by the State Constitution, no less - and can be done only by the State Governor, why the hell do you:

• attack the Legislature for unconstitutionally delegating executive power to one court, but 
• defend delegation of that same executive power by that same Legislature to another court?

And, didn't your idiot attorneys just prove that the Appellate Division exercises - unconstitutionally - EXECUTIVE functions when they regulate attorneys in general (which is confirmed by the fact that all other occupational licenses are issued and removed in New York by the executive branch of the government)?

But, if the Appellate Division exercises executive functions - isn't it unconstitutional, as your idiot attorneys argue in that same lawsuit?  As judges engaged in non-judicial functions, in violation of the State Constitution?

And, if that is unconstitutional, why the hell do you defend that on behalf of those same Appellate Divisions?

Or - did you just confirm what people of the State of New York guessed long time ago, and that's why they demanded a separate body to discipline prosecutors, from other attorneys - that while prosecutors tolerate that Appellate Divisions violate the "bedrock" constitutional principle of separation of powers by disciplining prosecutors (a constitutional exclusive executive function), they tolerate it only because there is an unwritten policy by which Appellate Divisions DO NOT REMOVE prosecutors from office (the exclusive constitutional function of the State Governor) by suspension or disbarment - no matter what they do?

But, if that is true - shouldn't prosecutors then be stripped of their judge-given absolute prosecutorial immunity in civil rights lawsuits - because it was given to them IN RETURN and ON A CONDITION of being subject to attorney discipline, and the risk of removal in that attorney discipline?

Oh, but while defending the "exclusive jurisdiction" of the Appellate Division to discipline and remove prosecutors - while at the same time arguing that it is an executive function belonging exclusively to the State Governor, by the State Constitution, and while attacking at the same time the decision of the Legislature to give that removal power to another court, the Court of Appeals, on separation of powers argument - didn't you also argue that the Court of Appeals should not engage in removal of prosecutors because it is unconstitutional FOR JUDGES on yet another principle - 

the State Constitution forbids judges to carry out non-judicial functions?

Ok.

So, reviewing complaints against prosecutors and removing prosecutors from office is an unconstitutional non-judicial function for one court, the Court of Appeals - and, then, must be the same way non-judicial unconstitutional function for another court, the Appellate Division.

The cost of hiring idiots to represent you in court, right?

So, the WHOLE ATTORNEY REGULATION scheme, where Appellate Divisions remove attorney licenses (including, potentially, may remove prosecutors from office by revoking their attorney licenses) are NOT JUDICIAL PROCEEDINGS, but are ADMINISTRATIVE, EXECUTIVE proceedings.

Just a logical extension of the same argument.

But then, wait - it then turns out that attorneys (including prosecutors) do not have ANY judicial review of ADMINISTRATIVE decisions to remove their licenses (as other licensed professionals in New York do - by Article 78 or by a civil rights lawsuit in federal court)?

• Because an Article 78 against the Appellate Division is not allowed by New York State law.
• Because judiciary is immune from lawsuit in federal court, and
• because, if disciplinary proceedings revoking occupational licenses of attorneys (as compared to doctors or taxi-drivers) are considered "judicial", then the judicially invented "Rooker-Feldman doctrine" bars such lawsuits in federal court.

So - did prosecutors JUST tell the public that Appellate Divisions, FOR DECADES, were acting in an unconstitutional fashion, engaging in "non-judicial functions", which are prohibited by State Constitution?

But - prosecutors did an even better trick than that.

They said that Appellate Divisions engaging in the same conduct that they called unconstitutional for the Court of Appeals - non-judicial functions prohibited by the State Constitution - claimed that Appellate Divisions are ok in doing that, because another section of the State Constitution supposedly allowed Appellate Divisions to engage in non-judicial functions while not allowing to do the same to the Court of Appeals.

Figure:

This argument - read in conjunction with the argument regarding the unconstitutional non-judicial functions of the Court of Appeals in investigating and removing prosecutors - reads like that:

• it is unconstitutional as a violation of our bedrock principle of democracy, separation of power, folks, BUT,
• if the Legislature allowed violation of the State Constitution, it is ok.

But then - if prosecutors are happy to allow the Legislature to violate the State Constitution in one way, why are they not happy that the Legislature is violating the separation of powers and the State Constitution in any other way?

But, we are not finished with idiotic and mutually exclusive arguments in prosecutors' lawsuit yet.

Here is yet another one.

The Commission on Prosecutorial Conduct and the Court of Appeals are not enumerated Civil Departments - as the State Constitution requires for discharge of executive functions - and thus mau not remove executive officers, prosecutors, from power

The Commission is unconstitutional because it is not included into the enumerated Civil Department Structure of the executive branch.

While Appellate Divisions - courts that do the exact same thing that the Commission is supposed to be doing, create rules of discipline for prosecutors, file complaints, investigate and discipline prosecutors - and while also not being included into the same enumerated Civil Department Structure - are doing just fine, according to prosecutors' lawsuit, and can continue to engage in the same "constitutional violation" that prosecutors are unhappy about with the Commission for Prosecutorial Conduct, with prosecutors' blessings.

While these idiotic arguments prove to the public the importance of carefully choosing your attorney and double-checking his levels of competence in certain areas of law not to look like complete idiots when lawsuits like that are filed, the lawsuit WAS filed.

And, folks - is it because of THESE super-frivolous and absolutely stupid arguments that judge David A. Weinstein assigned to the case (a former Governor's attorney and a former Assistant Attorney General) went outside of his role of a neutral arbiter and urged parties to "stipulate"?

And, it is because of THESE super-frivolous and absolutely stupid arguments that the newly re-elected New York State Governor Andrew Cuomo and the New York State newly-elected Legislature have stalled a statute on the books, entirely in violation of their duties?

They are laughing at you, folks.

They do not even try to make an effort in making their argument borderline plausible and legally valid.

Simply because this lawsuit (without telling the public) was fixed before it was filed, simply because it was pre-arranged that the Commission for Prosecutorial Conduct will not see the light of day, but was just an instrument to dupe voters into electing the same corrupt and incompetent idiots into office - the DA's Association has hired two idiots having no clue in the areas of law that they are required to know to handle such a lawsuit - to put together a hodgepodge of wording interspersed with citations to the State Constitution and court decisions (case law), but being completely, glaringly contradictory and mutually exclusive, because what was said there, did not really matter - the result was prearranged and gamed out.

  

Consider this: a victim of a wrongful conviction, a 3rd year law student of Pace Law School considers that "if it was illegal, it would not have made the news as being signed with chapter amendments agreed to.  Me and my colleagues GAMING THINGS OUT, IN CONSULTATION WITH PEOPLE ON THE INSIDE, does not constitute anything improper or illegal".

That's one way to put one's foot even further into one's mouth.

So, following this principle - if the news publicizes something that the government has done, that MUST be legal?

And, if somebody like Deskovic, drumming up his business of lecturing around the country to crocodile pits on the advantages of vegetarian diet, in order to bring donations to his non-profit and advance his future career as a lawyer, "GAMED OUT" the stillborn Commission, while ardently arguing to me at the time of that Commission signed into law that it was not stillborn - in order to dupe people not "on the inside" into voting the idiots who made the agreement into office again - that does not somehow constitute "doing something illegal or improper".

With such moral and ethical flexibility - Deskovic will be a good fit into the New York legal profession.

But, with his belief - near the end of his training at a prestigious law school - that the government publicizing something is proof of its legality - I would put the quality of teaching at his law school in question.

After all, all convictions that prove to be wrongful are fiercely publicized by the government as rightful - including, I am sure, how Deskovic's own conviction for rape and murder, from which he was exonerated after having spent 16 years in prison, was publicized.

So, ladies and gentlemen, there are good violations of the "bedrock doctrine" of separation of powers and bad ones.

Prosecutors want the bad ones gone, but the good ones to stay - in fact, they defend the good ones without even having standing to do that (on behalf of the Appellate Division - the exclusive counsel of the Appellate Division, by Public Officers Law Section 17, is the State Attorney General).

And this constitutional gerrymandering - I want a constitutional violation of a bedrock constitutional principle of our democracy if it benefits me - is the actual essence of government ethics - of prosecutors, the Governor, the Legislature, and the judicial branch - in the State of New York.

At least they honestly presented it to the public.