"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, March 28, 2019

Points of Jeffrey Deskovic, supporter of the just-signed into law amendments to the law regarding New York State Commission for Prosecutorial Conduct in answer to criticism of amendments

As promised, I am publishing answers to my criticism of the amendments to the bill for the New York State Commission for Prosecutorial Conduct (just signed into law by NYS Governor Cuomo) by Jeffrey Deskovic, a famous New York exoneree who has served 16 years in prison for rape and murder he did not commit, then was released because of a happy (for him) circumstance of DNA of the true perpetrator becoming available, sued Westchester County and recovered in trial 40 million dollars, later reduced to 10 million.

Interesting factual background of the case Deskovic v City of Peerskill is contained in the 2012 opinion of the federal court in this case that can be read here.  The decision is a denial of summary judgment to the defendants in the case, after which the case went to the jury trial.

Deskovic is now 

finishing an expensive private law school, Pace Law School,

is preparing for the bar exam and licensing by the judiciary that already favors him, giving him a right to lecture at Continued Legal Education (mandatory for attorneys to maintain their law licenses), is given left and right awards by different law-related individuals and organizations, lectures (for compensation) at Continued Legal Education courses certified by the New York State Court system, and, as he said to me, worked for 6 long years to put into being the Commission for Prosecutorial Conduct - supposedly to prevent further wrongful convictions.

Deskovic's conflict of interest, as I have stated before, in deriving income from being favored by the very same government that causes wrongful convictions in New York - the judiciary and prosecutors - as Deskovic is supposedly fighting against (for public image and future career) is apparent.

The initial bill for the Commission was enacted in the summer of last year, to go into effect in January of this year, but was shelved by the Governor who refused to make appointments to the Commission - which refusal, as Deskovic, who now rubs shoulders with people on the top of New  York corrupt government and is proud of it, was pre-arranged at the time the law was initially passed in the summer of 2018, before Cuomo's re-election, but the public was not told about that.

I wrote about the lawsuit of the New York State District Attorney's Association in 9 articles here:

And, here are my articles dedicated to the prosecutors' lawsuit challenging the initial bill creating the Commission for Prosecutorial Conduct in New York - and to events and individuals surrounding that bill.

Part I can be read here.  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.

Part II - here.  New York prosecutors' lawsuit challenging the new Commission for Prosecutorial Conduct, Part II. The dance on landmines by people in blindfolds

Part III - here.  Voters and the wrongfully convicted in the State of New York, you have been duped - prosecutors' lawsuit challenging the New York State Commission for Prosecutorial Conduct was fixed before it was filed, the Commission was never planned to start its work on January 1, 2019, and many people knew it

Part IV - here.  Prosecutors' pre-fixed lawsuit challenging constitutionality of the New York State Commission for Prosecutorial Conduct, Part IV. The Legislature and the Governor inadvertently nixed prosecutorial immunity for the Attorney General and his Assistants and to special counsel assigned to prosecute criminal cases.

Part V - here.  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

Part VI - here.  New York prosecutors' lawsuit's main point - DO NOT protect whistleblowers of prosecutorial misconduct. On the right of the Governor and the Legislature to stall the law already on the books

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

The sham of Prosecutoricla Conduct Commission in New York, Part 8, one more "good violation" of the "bedrock principle" of separation of powers

Part IX is here.The New York prosecutor's lawsuit - a selective approach to infringments upon prosecutorial discretion. 

I wrote about Deskovic's call for public support for the amendments and of my criticism of the amendments before they were passed - here, and about additional information regarding DA Soares leading the opposition to the amendments, and Deskovic, leading the support for the amendments, here.

Deskovic ran away from public discussion with me regarding the critical points about the amendments claiming that he has more important things to do, but what he already disclosed speaks volumes about not only 
  • how the bill came about, but about 

  • the value system of Deskovic himself, and 

  • the two-class system in the U.S.,  attorneys and non-attorneys, that exists in the U.S. for a century, which now has gone as far as

  • considering non-attorneys a second class of citizens not eligible for public office - even when the public office in question is to review the mess that the attorney class created towards non-attorneys (the predominant victims of wrongful convictions), and

  • how this system is embedded into the heads of law students and attorneys - Deskovic is just one example of it.

Here are Deskovic's points in answer to my criticism of the amendments for the Commission for Prosecutorial Conduct that Governor Andrew Cuomo has just signed into law - but the DA Association still claim has constitutional defects and claim they will continue their lawsuit to challenge those defects.


Jeffrey Deskovic’s introduction and points to me.  I did some formatting of his text posted on social media to make it more readable – broke it into paragraphs.

You are working against the first Commission On Prosecutor Conduct in the country that took us 6 years to pass. Why? Some context:

The Commission was signed into law with the agreement that the Gov. was only doing so because chapter amendments were already agreed to between legislature and him. In the rough and tumble of the process, a memo from the NY Attorney General’s office which was leaked to the media questioned the Constitutionality of the Commission.

While I don’t believe that position was correct, the net impact is that if amendments addressing those areas in the memo are not addressed, the Commission will be more vulnerable in the pending lawsuit- which could end with the Commission being struck down.

Thus, not working for the passage of the amendments is a move against the commission.

Also, there is a reason why we are trying to get public support for the Gov. to sign the chapter amendments.

I know that it may not matter to you if the end result is that the Commission is ultimately scrapped/killed, because you never liked the idea anyway. But for those of us who worked for 6 years to pass the bill, we don’t want our work to go up in smoke.

1.     NOT ONE of the members of the new commission (as well as the old commission) is a person independent of the ties with the legal profession and the judiciary, the sources of wrongful convictions.

ANSWER: it is clear that a law degree would be very helpful in assessing whether misconduct occurred - findings are grounded in the law. 
Beyond that, I agree that it would have been desirable to have a lay person in there, preferably someone personally affected who was either exonerated or otherwise vindicated.  But that was not inserted in the original bill language nor the amendments, and so that is not an option at this stage. That is a change that anybody could work towards in the future; if you wish to put together a coalition group to spearhead this change, I will support you at key times: I am not willing to play a central role like I did in passing the Commission in the first place.

2.     The Court of Appeals, the authority removing judges, is removed from the bill and Appellate Divisions (that currently have a policy of non-prosecution against bad prosecutors) are inserted instead. That is a recipe for disaster, everything will remain the same.

ANSWER: that change was necessary in order to avoid a conflict in that in the case of a removal recommendation, the Court of Appeals may end up having to review the recommendation.

Obviously, they cannot review what they themselves have ordered in the first place: due process dictates that there is a review mechanism for such determinations, just like others have a place to appeal to. 

That is a cosmetic change, not substantive.

Plus, the Court of Appeals did not want that function - that could have caused an issue also.

3.     The number changes - the Governor is given in the new bill twice as many appointments as before, while the majority leaders of both houses now have twice less appointees. The power shifts to the Governor, big time, and we know what kind of Governor New York has and how he has been using his power so far.

ANSWER: as a general matter, changes to laws are not done specifically with a particular person or entity in mind.

Secondly, that was a deal they made, not one we necessarily endorsed or wanted.

I personally am not crazy about it. But we were not asked, and I don’t believe that everything must be perfect in order to support something. The issue is that at this point, we need the amendments passed to put the Commission in the strongest possible position .

This change therefore is not a reason not to support the passage of the amendments. if you wish to put together a coalition group to spearhead this change, I will support you at key times: I am not willing to play a central role like I did in passing the Commission in the first place .

4.     There is a discrepancy in requirements to appointees. For prosecutors, they can be former or retired prosecutors, but for criminal defense attorneys - they must be present-time defense attorneys, it is a discrimination.

ANSWER: it is not a discrimination: it was done because  the DA Association was threatening to jam the Commission from functioning  by telling it’s members not to serve which would therefore prevent a quorum from being achieved .

That was done quickly, not with the idea of excluding. Is it 100% symmetrical? No.

But again, that is not worth putting the Commission in a little bit more of an at risk position than not. 

If you want to assemble a coalition to fight for that change down the line, you are welcome to do so. I will support you. But I do not want to spearhead such an effort - I will be a supporting cast member, not a centralized figure.

5.     both criminal defense attorneys and prosecutors must be attorneys "in good standing", thus excluding from the process former criminal defense attorneys who were wrongfully suspended or disbarred for doing too good of a job for their clients, being licensed or not licensed must have no bearing on the experience and ability to hold that public office.

ANSWER: good standing is a common standard that is used as an eligibility requirement for other things when it comes to the law. There are attorneys who are disbarred/not in good standing for good reason: it is obvious that we cannot have those people serving on the Commission for obvious reasons. But in terms of those who are wrongfully disbarred, it would be impractical to suddenly bring up for review all those who have lost their license to determine if it was rightful or not all for the purpose of determining whether they should be allowed to serve on the commission or not.

6.     The Chief Judge now may appoint only a professor or dean from an "accredited" (by the ABA, an Illinois corporation with foreign secret membership) law schools - an unreasonable requirement giving improper power for the ABA over review of wrongful convictions.  And, the time when the Commission may start reviewing a case has changed dramatically: it cannot start its review of the case before criminal charges are filed or before the case has been investigated for under a year. That gives prosecutors a year to "properly" fabricate a case and make a wrongful conviction a given.

ANSWER: I cannot believe you are calling into question the validity of a school being accredited or not and therefore the purpose of requiring candidates to have graduated from such a school rather than a non-accredited school.  There is a such thing as standards, quality control of education, etc.  Someone receiving an inferior education from a school that does not meet accreditation standards should not be able to serve because they do not have the proper background for that.  They wouldn’t be able to practice law: how can they be able to sit on a commission that reviews conduct of those who have went through the process of graduating from an accredited school, sat for bar exams etc.- all through an accredited/approved process.  If you have an objection to those things, that is a separate fight than something related to the commission. Addressing them indirectly through the discussion on the bill is a roundabout way of challenging accreditation.

7.     Amendments castrating the bill were made to appease prosecutors who have filed a lawsuit.  When else did you see legislation changed because public officials whose misconduct the legislation is trying to address are upset about its effectiveness?

ANSWER: The changes were not made to appease the prosecutors, they were made to strengthen the bill.  

As I previously said, changes were made because the Gov. only agreed to sign the bill with the agreement that chapter amendments were made which were agreed to.

The DA’s were going to file suit no matter what; their lawsuit will go forward and a decision upholding the commission on the merits will have to be won. Interesting that you take the position that the changes will castrate the bill: when it was first passed you were already saying that it would not work, even prior to these changes.

9. 4 appointees from Cuomo and 3 from his friend-in-crime (literally) DiFiore, a former prosecutor = an absolute majority on the Commission of 11.

Imagine how those 7 will rule.

It is a stillborn, and shameful, concession, a waste of public money and a dangerous illusion that wrongful convictions are now going to be addressed. 

ANSWER: it is not stillborn.

Before the Commission has even began to work, you already declared it will not work.  You have not even given it a chance.

And by the way, feel free to form a statewide coalition in NJ (sic) to work for changes there ; give updates regularly; and let’s see something-anything-passed.

10. You, yourself a wrongfully convicted person, suggest to support THAT?

ANSWER: Yes, because since the Commission has not yet started to work and proven a record of not working, I am not going to say it will not work.


I will publish separately my comments to Deskovic's answers, and an article about interesting financial happenings in the Jeffrey Deskovic's Foundation which may shed more lights as to why Deskovic supports unsupportable bills for public bodies from which the public is blocked and that are designed to work contrary to their declared purposes.

All of that said, the Governor signed this "pre-agreed deal" into law.  The DA's Association has pledged to continue its lawsuit designed to kill the law castrated to appease them anyway.

Let's see how this shameful performance will unfold in the future.

For my comments/ responses to Deskovic's shameful answers and for the news about how the DA's lawsuit unfolds and how it continues to influence the creation and operation of the public body that was supposed to address the record number of wrongful convictions in New York - 

Stay tuned.

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