"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, December 13, 2021

On the underused way to get money for experts from the state for indigent criminal defendants in New York

I hear it from my readers, again and again, how retained private attorneys screw them out of the money for experts and investigators which defendants could have obtained FOR FREE as indigents/poor persons.

It is invariably done out of greed combined with laziness - often when a private attorney charges a huge "lump sum" for "everything" including the criminal trial, pressures the indigent defendant's family to pay for hiring the supposedly necessary forensic experts - and then does not hire the experts and pressures the defendant into a plea bargain, keeping the money for the experts and for the trial.

Yet, the law very clearly says in New York that a criminal defendant does not stop being an indigent just because a 3rd party (the adult defendant's extended family) hires a private counsel for him.

And, there is a statute, County Law 722-c allowing an indigent criminal defendant to hire experts and investigators for the trial at taxpayer's expense;

"722-c. Services other than counsel. Upon a finding in an ex parte

proceeding that investigative, expert or other services are necessary and that the defendant or other person described in section two hundred forty-nine or section two hundred sixty-two of the family court act, article six-C of the correction law or section four hundred seven of the surrogate's court procedure act, is financially unable to obtain them, the court shall authorize counsel, whether or not assigned in accordance with a plan, to obtain the services on behalf of the defendant or such other person. The court upon a finding that timely procurement of necessary services could not await prior authorization may authorize the services nunc pro tunc. The court shall determine reasonable compensation for the services and direct payment to the person who rendered them or to the person entitled to reimbursement. Only in extraordinary circumstances may the court provide for compensation in excess of one thousand dollars per investigative, expert or other service provider.

Each claim for compensation shall be supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source.

Moreover, a motion for expert fees under County Law 722-c is allowed to be made, argued and granted on an EX PARTE (without notice to prosecutors) basis.  When such a motion is made, the judge has absolutely no right to disclose to the prosecution that an expert is being sought at taxpayers' expense by the defense, and if he does, it is judicial misconduct entitling the defendant to make a motion to remove the judge from the case (recuse).

Even though the law restricts the amount to $1000 in the absence of "extraordinary circumstances", the statute does not restrict the defense counsel from claiming that the prosecution's use of an expert whose fee far exceeds $1000 does constitute extraordinary circumstances entitling the criminal defendant to an expert of the same quality (and with the same level of fees), as a matter of equal protection of laws guaranteed by the 14th Amendment of the U.S. Constitution.

Of course, such a motion may irritate the judge and the prosecution and certainly will not allow the defense attorney to sock away fees paid by the anxious family for experts, but retained for attorney's private use.

But - such a tool does exist in New York state law.

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