"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.

Sunday, December 12, 2021

On felony hearings and speedy trial in NY felony cases

It was always a giant test in restraint for me to be present as an attorney (waiting my clients' turn) at arraignments of criminal defendants in lower-level courts with assigned counsel.

Usually it worked this way: defendants (usually 60%+ percent non-white in a 4% non-white area) were already arrested and delivered to court from jail, in jail robes, handcuffs and leg manacles.

They are sitting on a side bench in the courtroom, and their assigned counsel - very rarely - approach them for a couple of words, and then sneak into the judge's study generously let for the use of the prosecutor, to negotiate plea bargains.

Then, the case is called by the judge, the plea of not guilty is entered and, usually the assigned attorney tells the judge that either a plea is ALREADY agreed upon with the prosecution, or that the attorney will continue to negotiate for the plea.

The case is adjourned, and the defendant is returned to jail.

What is wrong about this picture?  Everything is wrong about this picture.

First of all, one needs to know that in New York, felony cases can start from 2 different levels - from a justice court and from a County court level.

On the one hand, according to the U.S. Constitution, 5th Amendment, a felony may not be prosecuted without a charge by the grand jury.

New York easily skips this requirement and allows a felony case to start based on a charge not from the grand jury, but simply from the police, to be filed in the court which may neither conduct discovery or pretrial hearings, nor conduct the required jury trial on the case.

Very rarely the charge is filed directly by a "sealed" indictment with the County Court - where it may and is tried.

From the point of view of constitutional law, starting a felony case in the justice court violates the Federal Constitution - and should not be allowed.

In real life, it is "the law" in the State of New York (Criminal Procedure Law) and is happening all the time.

So, the judge who may not have jurisdiction of the case FOR ANY REASON based on the U.S. Constitution without the indictment of the grand jury, conducts the arraignment of the defendant, accepts his plea of not guilty and decides on whether to ROR (release on own recognizance) the defendant, to keep him in jail or to set bond.

What is momentously wrong with the arraignment situation I described in the very beginning is that the defendants are poor and have assigned counsel who the taxpayers pay to provide effective representation to his client.

An effective representation at the time of arraignment in the justice court on a felony charge involves TWO major elements - neither of them assigned counsel usually do:

1/ Demand a felony hearing within 144 hours in custody;

2/ Do not agree to any adjournments of that hearing and of any other proceedings.


Very easy.

When the defendant is charged (and usually overcharged) at the justice court level with a felony case that cannot be tried in that same court, the arrest and charge trigger the 6-month period of the statutory speedy trial.

It means that the prosecution has to not only declare that he/she is ready for trial within 6 months from filing the charges, but to actually be ready for trial and conduct trial within those 6 months.

If within 6 months from initially filing the charges the prosecution did not come around to getting a grand jury indictment and trying the case, the charges against the defendant can be dismissed, on a motion, WITH PREJUDICE - meaning, they can NEVER be brought back again.

As the preliminary/felony hearing, at the time of arrest (144 hours from arrest) the prosecution's case is usually very raw and unprepared, and the prosecution usually did not yet coach the witnesses how to "testily" (not my term).  This is the ideal time to obtain testimony from the still-unprepared prosecution's witnesses.

The law allows the prosecution to either 

  1. conduct the hearing, present its witnesses and evidence and prove to the judge that there is "reasonable cause" to believe that a felony has been committed (still unconstitutional since no proceedings can be held, according to the 5th Amendment, in a felony charge without a grand jury indictment), or

2. the court must RELEASE the defendant WITHOUT BAIL - unless the prosecution (a new clause introduced by the NY legislature) proves to the judge that there is a reason for their delay .

When the assigned (or retained) counsel waives (allows the court not to hold the prosecution strictly to the law) the felony hearing, it allows the prosecution to have more time to coach their witnesses how to lie - and foregoes creating a very important set of data for impeachment at trial.

If you have a felony hearing, and if you have motion hearings where prosecution witnesses testify (later on, in County Court), and, during the jury trial, you are entitled to see grand jury minutes with the same testimony (even though the prosecution is allowed to give it to you at the last minute) - you have an opportunity to compare testimony in all these testimonies and impeach the prosecution witnesses with any inconsistencies.

As to inconsistencies, the felony hearing transcript is the most valuable since - again - the prosecution witnesses are not yet coached by the prosecutor how to lie, and they testify long before the grand jury proceedings where all the witnesses are already well coached.

Therefore, no matter how you turn around, whether the prosecution allows the felony hearing to proceed - and the defense attorney gets to cross-examine the witnesses when they are not yet coached how to lie, and gets to have a transcript of that testimony for a very long time before trial, allowing him to prepare well for trial - OR

whether the prosecution decides to duck the hearing and then the defendant is RELEASED WITHOUT BAIL - the defendant wins from a felony hearing.

So, in my view, to forgo a felony hearing is GROSS NEGLIGENCE and MISCONDUCT by the defense attorney, whose client could be RELEASED WITHOUT BAIL OR CONDITIONS simply if the defense attorney demands a felony hearing.

Assigned counsel, instead, usually agree to delay or completely forgo (not even ask for) a felony hearing, letting their indigent/poor clients languish in jail for months (or years - heard about such cases, too) when they court be released for the asking.

As to the speedy trial statute - as I said above, there is a big difference between facing a possibility of conviction at trial after months or years in jail pre-trial, or facing "less", but still prison time on a plea bargain and having the case dismissed "on a technicality", they say, simply because the prosecution did not bring the case to trial within 6 months from the initial charges.

Now about "professional courtesy of attorneys".

When I was practicing criminal law in New York, I was often told that it is a matter of "professional courtesy amongst attorneys" (between prosecution and defense) for the defense to agree to all kinds of adjournments and to delay or forgo felony hearings, speedy trial constraints etc.

Prosecutors were very upset when facing motions to dismiss on speedy trial grounds (which judges - sometimes with indignation - had no way around, but to grant), because they forgot about the ticking 6-months clock (less so in misdemeanors).

My point here - it is not about courtesy to keep a person in jail, his/her life upset, fired from a job etc. and charged with a crime when that person may be free and with charges dismissed with prejudice.  It is not the defense attorney's job to work for the prosecution and to baby the prosecutor.

It is the defense attorney's job to work for his client and to get for his client EVERY  POSSIBLE benefit the law allows.

If the attorney does not do it, he/she did not do his/her job.

BUT - additionally I would like to let you know, my dear readers, that the beautiful State of New York has made an exception regarding attorney negligence and malpractice.

While you may sue your attorney for malpractice if, as a result of his/her negligence/misconduct in representing you you have lost custody of your child, money or real property, it is not the same with a criminal case.

If you got convicted for a crime because you attorney - as a matter of "professional courtesy" to the prosecution, no doubt, has waived (let go) any and all benefits you could have had as a defendant, you cannot sue your attorney for negligence and malpractice unless - TADA - you have won a reversal of your conviction on appeal, which is - due to the same negligence of the same attorney - often is impossible.

So.  Be very careful when choosing your criminal defense attorneys, learn the law on your own and make sure your attorney is doing right by you and delivers to you the time-sensitive benefits that the criminal law allows.

Otherwise you will be double-screwed - convicted when you could have had your charges dismissed, and not being able to sue your attorney for malpractice - because he obtains the shield from malpractice lawsuit through his own negligence/misconduct in your case.


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