Thursday, July 11, 2019

In view of New York's atrocious decision in the case People v Giuca - a proposal of discovery reform in criminal proceedings: why is it necessary to introduce attorney depositions, with witnesses subpoenaed by attorney subpoenas, in criminal proceedings

I have published a law review article today on Academia.edu, comparing criminal procedure in Russia and in the U.S., the state of New York, listing instances of legislative and judicial pro-prosecution bias in such proceedings.

The article also contains 
  • a table comparing discovery rights in civil and criminal proceedings in the U.S. (State of New York),
  • a description of how an attorney deposition works in quasi-criminal proceedings, 
  • description of government policies backing up the widest possible discovery proceeding, and 
  • a legislative initiative, a proposal to fairly apply that existing government policy in criminal cases and to transplant tools of discovery available to prosecution in criminal cases and to attorneys for both sides in civil cases, for defendants in criminal proceedings.

The article was inspired by the decision of the New York State Court of Appeals in People v Giuca, of June 11, 2019, where the NYS COA, its Chief Judge, former career prosecutor Janet DiFiore, stepped completely outside of her jurisdiction that does not allow her court to decide issues of fact - and reversed a reversal of a criminal conviction, reinstating it - while the reversal of the lower appellate court was based on atrocious misconduct of prosecution in the case.

A good description of what has happened in that case is contained here.

Not to mention that there are two "golden kids" involved (I will run, time permitting, a separate article on conflicts of interest in this case) as murder suspects, and not only they are not investigated or prosecuted by the Brooklyn DA's office, but 
  1. one of them is employed by that same DA's office as an Assistant District Attorney (after her father paid a big chunk of money into the election campaign of the DA), 
  2. the other got out scot-free after his mother, a vice-president of the local Republican Election Committee, provided a certain privilege to the DA in his election campaign, 
  3. that same DA office hired as an Assistant District Attorney the son of the presiding trial judge who refused to vacate the conviction despite obvious evidence of prosecutorial and juror misconduct,
  4. one of the judges involved in prosecutorial misconduct related to the case, but outside of the case, became an appellate judge who reviewed appeals from the case;
  5. one of the prosecutors involved in prosecutorial misconduct herself became a judge; and
  6. the main prosecutor who was involved in prosecutorial misconduct in the case is running a TV show now and made her TV career and ratings on her own misconduct in the case.

Were attorney depositions available from the very beginning of this criminal case (and of many others) to John Giuca's criminal defense attorney, they way such depositions work in quasi-criminal cases, as my law review article shows the prosecution would never have been able to dupe the defense and get a wrongful conviction of John Giuca.

There is no reason why such an instrument, already available in civil proceeding, should not be available to the criminal defense in criminal proceedings.


2 comments:

  1. These dirty tricks must come to an end.
    It’s sad that some ppl that are put in charge of enforcement of the law are the ones breaking the law. When a prosecutor hides evidence in order to win they are essentially violating the law, and to see the highest court start splitting hairs with speculation trying to figure out how the jury would maybe decide the case had the hidden information been disclosed 15 years earlier is beyond ridiculous. They put the burden onto the defendant to know exactly what was hidden from them and if it would’ve made a difference while the prosecutor that hid the evidence in the first place is laughing all the way to their next crooked trial. Beyond crazy

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  2. This has been an unfortunate case of opportunity Unfortunate for the victim, but sadly opportunistic for those who carried out a miscarriage of justice to benefit themselves while an innocent person remains in jail.

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