"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.

Thursday, December 6, 2018

Prosecutors' challenge to the New York State Commission for prosecutorial conduct: shooting themselves, and the attorney regulation, in the foot - in more ways than one. Part I.

I am starting to review the challenge by the New York State District Attorney Association to the recently enacted law creating a Commission on Prosecutorial Conduct - which was created because of overwhelming public pressure and concern over a record number of exonerations/wrongful convictions in the State of New York, many of them due to prosecutorial misconduct, and because of the apparent lack of accountability of prosecutors who have caused, and continue to cause, wrongful convictions in New York State.

The Commission for Prosecutorial Conduct was supposed to start working on January 1, 2019.

I did express my initial opinion regarding the prospects of this new body for delivering justice and accountability against prosecutors who have caused wrongful convictions in the past and to prevent wrongful convictions in the present and the future.

Nonetheless, the DA's State Association got upset even with the toothless tiger which the Commission appears to be - based on the fact that it was copied from the Commission for Judicial Conduct which, as anybody who has sent complaints to that commission, together with evidence of judicial misconduct, knows - is only a glorified shredder, ridden with irreconcilable conflicts of interest, lacking the necessary budget to do its work properly and refusing to even conduct investigations of the vast majority of complaints, even if complaints are based on irrefutable documentary evidence.

When people get upset, they often make mistakes and reveal what they do not really want to reveal about their work.

In this respect, the New York State DA Association's lawsuit (verified complaint), available, in full, here, is a dead giveaway of what is the system of accountability of judges, prosecutors and attorneys in general - while pointing out certain flaws of law governing creation and operation of the Commission, the DA Associations attorneys, James Walden and Jacob Gardener, of Walden, Mach & Haran LLP, did their clients a huge disservice, practically shooting them in the foot with their "constitutional" arguments.

Note that the DA's Association is currently headed by the Albany County DA David Soares, one of just three prosecutors disciplined by the judiciary over the last 40 years in the State of New York, the other two are women (even though the majority of DAs are men), two out of three are punished for criticizing the regulator (the judiciary) and the last one was disciplined when the legislation regarding creation of the Commission against Prosecutorial Conduct was well under way - a sort of a PR-move by courts indicating that no, they do perform their "duties" in disciplining prosecutors, so a separate Commission for Prosecutorial Conduct is not necessary, even though New York has a record number of wrongful convictions and exonerations (while the judiciary is in no hurry to conduct investigations into prosecutors who prosecuted cases that resulted in wrongful convictions).

The lawsuit of the New York State District Attorneys' Association is a 28-page document packed with inconsistencies so bad and so damning for the system of attorney regulation as a whole that I will have to go step by step and publish my analysis in portions, addressing the document issue-by-issue.

This portion is going to be dedicated to attorneys who represent the New York State DA's Association in its lawsuit against the State of New York and its Legislature.

As I mentioned above, the lawsuit is signed by two people - the first namesake partner of Walden, Macht & Haran LLP, a supposedly 100-year-old law firm from New York City boasting experience in the following areas of litigation:

Note that among the areas of law where the law firm boasts experience it does not list the following areas:

  • constitutional law;
  • civil rights;
  • occupational regulation/licensing;
  • attorney regulation/licensing.
That is a significant flaw, since the entire complaint signed by two lawyers from this law firm is dedicated exclusively to these 4 areas of law.

So, here is the team of two attorneys, young and old, associate and the namesake partner of the firm, representing the prosecutors' association of the State of New York attempting to prevent formation and operation of the Commission for Prosecutorial Conduct authorized, through bipartisan and popular support, by the New York State Legislature, both chambers, and signed into law by the New York State Governor.

I will start with the young one, who appears to have, among other things, a significant conflict of interest in representing prosecutors in this particular case.

 The attorney advertisement on his professional webpage announces that ""[h]e has also worked with the New York State Justice Task Force to prevent wrongful convictions and has assisted with the filing of a civil rights class action on behalf of indigent criminal defendants deprived of their right to counsel."

The Commission on Prosecutorial Conduct was created BECUASE there were so many wrongful convictions in New York, specifically, to investigate what were the causes of those wrongful convictions.

As part of that Task Force, he may have been privy, as an INVESTIGATOR, to information regarding members of the DA's New York State Association, their role in causing wrongful convictions.

Here is what the Task Force in which Jacob Gardener participated stated on its official webpage as its mission:

So - here is the first "hero", attorney Jacob Gardener representing the DA's Association of the State of New York in its lawsuit seeking to enjoin the State of New York from establishing the Commission for Prosecutorial Conduct, after having worked for the New York State Task Force having a mission to "identify recurring patterns and practicing" leading to wrongful convictions.

Of course, the Task Force is led by Chief Judge DiFiore, who, upon my personal knowledge, was diligently drumming up wrongful convictions by employing certain very much identifiable "patterns and practices" of which I have written before and testified (in writing, since oral testimony was not allowed) to the New York State Legislature, trying to prevent her appointment as the Chief Judge of the State.

So, the Task Force, headed by one of the causes of wrongful convictions in New York, is a stillborn venture.

By the way, DiFiore is given certain authorities in discipline and/or removal of prosecutors and Jacob Gardener is now trying to prevent DiFiore from having, a nice tangle, isn't it?

It gets nicer though.

But - here is the smiley face of Jacob Gardener.

Associate 212 335 2965

I repeated his self-advertising in a bigger font, for the
readers' convenience.


Jake is an experienced litigator who represents corporations and 
individuals in criminal, civil, and regulatory matters.  He has 
extensive experience managing internal and government 
investigations, complex commercial disputes, and appeals. 
He has helped lead internal investigations into high-stakes 
matters involving alleged violations of the FCPA and securities 
laws.  Jake has also successfully handled numerous civil cases I
n a variety of areas, including commercial contract disputes, 
mortgage-backed securities litigation, shareholder derivative actions, bankruptcy, and employment law.  He has significant in-court experience, including briefing and
 arguing several criminal and civil appeals.

Jake maintains an active pro bono practice.  He has represented 
on appeal and retrial indigent defendants convicted of murder, 
helping to secure the release of one client who had been wrongfully 
sentenced to death.  He has also worked with the New York State 
Justice Task Force to prevent wrongful convictions and has assisted 
with the filing of a civil rights class action on behalf of indigent 
criminal defendants deprived of their right to counsel.

Before joining Walden Macht & Haran, Jake practiced law at a 
preeminent global law firm.  He also clerked for 
the Hon. Dennis Jacobs of the U.S. Court of Appeals for the Second 
Circuit and the Hon. Naomi Reice Buchwald of the U.S. District 
Court for the Southern District of New York.  In addition, 
Jake served for several years as a New York City firefighter, 
assigned to Ladder 43 in East Harlem.
Jake’s academic scholarship has been published in the Journal of 
Criminal Law and Criminology and the Boston University 
Journal of Science and Technology Law.
Jake graduated from Yale Law School, where he was a 
senior editor of the Yale Law and Policy Review.  He earned 
a B.A. in Political Science from Stanford University, 
where he graduated with honors and distinction and was 
elected to Phi Beta Kappa.

Yale Law School, J.D. (2011)
Stanford University, B.A. (2003)
Bar Admissions
New York

Partner 212 335 2031

Here is what James Walden tells you about himself in his self-advertising:


A veteran litigator, Jim has served clients in high-profile and complex matters throughout his private-practice career, establishing an enviable record of success. In criminal, civil, and regulatory matters, Jim has consistently developed thoughtful, multi-tiered strategies to advance his clients’ goals.
Jim has led more than 20 complex internal investigations, including high-stakes international matters involving allegations of cartel activity or bribery. Jim’s cross-border internal investigations include work in Brazil, China, England, France, Germany, Italy, Japan, Mexico, Poland, South Africa, and South Korea. Jim has conducted investigations for global financial services firms, broker-dealers, retail banks, credit card companies, big box retailers, technology companies, one of the world’s largest car companies, and several industrial manufacturers. Time and again, based on his comprehensive fact-development work and advocacy, Jim has helped companies avoid or mitigate financial penalties and address compliance failures.
Jim has also represented many corporate executives and other individuals in federal, state, and local criminal matters. To date, almost every one of Jim’s clients has avoided jail, and many have avoided indictment altogether. Jim’s extensive client list has included CEOs, CFOs, COOs, and General Counsels, as well as celebrities, sports figures and other high-net-worth individuals. He has had equal success representing law enforcement officers, civil servants, brokers, traders, and managers. Whether a client is from Wall Street or Main Street, Jim has used his creativity and boundless enthusiasm to protect his clients against unfair and unfounded allegations.
Jim has also served as lead counsel in many important civil cases. Because of his tough litigation style and a track record of resolving even hotly contested and complex matters, Jim has been called upon in a wide range of matters, including civil-fraud cases, land-use and zoning matters, 1983 actions, contract disputes, whistleblower cases, employment litigation, historic preservation matters, and disputes over joint-ventures, partnerships, and other investment structures.
Jim also regularly represents clients in civil matters against governmental agencies. Most recently, for example, Jim represented a publicly traded technology company in a highly publicized dispute with the City of New York over its work on the 911 system, ultimately resolving the dispute on favorable terms for his client. Jim also filed a civil suit in state court after a city agency launched a demonstrably overreaching investigation against one of his technology clients, resulting in a state court decision quashing the investigation. Even when governmental agencies sue one another, one side often turns to Jim. After Jim successfully sued the Department of Homeless Services on behalf of the New York City Comptroller for illegal contracting practices, the Comptroller hired Jim to defend a prevailing wage determination in a fight with a local union, and Jim and his team again prevailed.
Prior to entering private practice in 2002, Jim served as an Assistant U.S. Attorney in the Eastern District of New York for almost nine years, where he successfully tried many felony cases, including complex racketeering trials, and won various commendations, including the “Director’s Award for Superior Performance as an Assistant U.S. Attorney” and the Federal Law Enforcement Foundation’s “Prosecutor of the Year.” Among his many multi-agency initiatives, Jim’s work lead to the first effective assault against the Bonanno Crime Family in twenty years, which continues to stir interest in the mainstream media.
Jim previously served as a law clerk for the Honorable Anthony J. Scirica, U.S. Judge, Court of Appeals, Third Circuit. He is a magna cum laude graduate of Temple University School of Law, where he served as a law review editor and received the Israel Packel Memorial Award for the highest GPA in his graduating class. He graduated, cum laude, from Hamilton College, with a major in History and a minor in Computer Science.
Temple University School of Law, J.D. (1991)
Hamilton College, B.A. (1988)
Bar Admissions
New York


James Walden is positioning himself as the ultimate problem solver, fixer.

And, lo and behold, it is possible that James Walden or his powerful clients are, indeed, pulling some strings behind the scenes - since the presiding judge in this case, the Acting Supreme Court Justice of Albany County David Weinstein, recently "urged" the parties to delay litigation in order to allow the Legislature to think how to amend (gut?) the statute regarding creation of the Commission.

And, such a stipulation (agreement) is possible.

If that stipulation happens, those who ardently hoped for the creation of the Commission and for the Commission to start its operation next month will be deceived in their hopes and will receive a slap in the face.

Those in power will always come to a "deal", and those wronged by those in power can always expect to be wronged some more.

Wrongful convictions can just as well accumulate in New York - prosecutorial lobby is just too strong and has too many "ears" for any solution, no matter how toothless in its inception, to be allowed to exist.

So, as ProPublica wrote in 2013, nobody is willing in New York to prosecute prosecutors.  Most likely, this state of events will continue.

The expected stipulation is supposed to be reached holding litigation as a threat, even though the lawsuit is glaringly frivolous and must be dismissed with sanctions and attorney fees AGAINST the DA's Association, so it is no threat at all, and the Commission must proceed.

The lawsuit is especially interesting to me as researcher of occupational licensing and attorney licensing/regulation in particular that, in order to defend their own status quo - being immune from civil liability on condition of attorney discipline, and being not subject to attorney discipline as a matter of state policy in New York, so not being accountable for misconduct leading to wrongful convictions in any shape or form - when threatened, prosecutors' attorneys raised arguments that are, practically, arguing unconstitutionality of attorney regulation, the way it exists in New York, in its entirety.

As I promised, I will analyze this lovely lawsuit shortly, issue by issue, in separate articles.

Stay tuned.

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