"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.

Monday, March 25, 2019

Why I think that it is a VERY BAD idea to support amendments to the bill for the Commission on prosecutorial conduct in New York

If you remember, back in the summer of 2018 New York has passed, with much fanfare, the "first in the country" bill on creation of a Commission for Prosecutorial Conduct - to supposedly fight wrongful convictions which New York is a runner-up for in the country.

Of course, the whole idea of creating such a Commission posed a question - is that an admission, then, that the system of attorney discipline in the State of New York would not prosecute rogue prosecutors and that attorney discipline in the state is politically selective and politically motivated?

After the creation of the Commission - in January of 2019 - was created in the summer of 2018 by a legislative act, the Governor who has signed that bill into law has been re-elected.

After he has been re-elected, it was revealed to the public that the Commission, the way it was signed into law, was never meant to be, and the Governor did not sign appointments to it come January 2019.

Instead, in the fall of 2018 the state prosecutor's association - as was pre-agreed by players in this "process" of "creating" this Commission - filed a lawsuit challenging constitutionality of the initial bill.

I wrote about that lawsuit extensively 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. 

Now, the amendments to the bill have passed both chambers of the New York legislature and went to the Governor for signature.

And, sadly, now that the bill - a very bad bill, as I will show further - has hit Cuomo's desk, Jeffrey Deskovic, a 3rd-year Pace Law School student, a soon-to-be lawyer who has been exonerated and paid a large settlement after serving 16 years in prison for rape and murder that he did not commit, and is currently trying to build his future career as a lawyer by capitalizing on his exoneration from a wrongful conviction, while giving CLE lectures to judges, prosecutors and the police - those same people who drum up wrongful convictions, rubbing shoulders with top state public officials and running various shows - has recently posted an appeal to his supporters asking them to support amendments to the Commission for prosecutorial conduct.

The amendments have already passed the New York State Legislature, both the Senate and the Assembly,

and there is no way - not after the amendments gave Cuomo and his friend-in-crime Chief Judge DiFiore a supermajority of appointees on the Commission - that Cuomo will not sign those amendments, so it is just a matter of time, and I do not even understand why Deskovic asked his supporters to call the Governor's office and urge him to sign it.  He will anyway.

But, since Deskovic did issue such a call to his supporters to support these amendments, I actually read them - and am calling upon people to call the Governor and urge him NOT to sign the amendments, at least as a matter of principle - since we know that Cuomo will definitely sign the bill, as an assertion of power and one more act of self-aggrandizing that Cuomo loves so much.

They are very, very, very bad.

Here are several points that I have made to Jeffrey Deskovic - and he has actually answered them, so I will be posting my points, his answers and my responses to those answers, as his answers provide interesting revelations about how and for what real, not declarative, goals, were the amendments passed and the Commission put into being.

Here are my points - why these amendments SHOULD NOT be passed into law.


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. 

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. 

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. 

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. 

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, 

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, 

7. 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. 

All in all, the amendment castrates the bill, cutting out the only potential teeth it could possibly have - the bad bill that it was initially anyway, I wrote about it in my blog.


8. 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?


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.

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


I will publish in separate articles answers to these points by Jeffrey Deskovic and my responses to them.  Jeffrey Deskovic's answers reveal a lot about how this legislation came about, and for what real, different from declarative, reasons, it came about.

Stay tuned.

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