"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

The tricks of New York prosecutors to financially drain the family of criminal defendants on unnecessary pre-trial appearances and reviews to leave them without funds for lawyer to do the trial and get an easy plea

I have been working for a criminal defense attorney as a paralegal for a number of years, and then myself was a criminal defense attorney in New York for several years, so I know as a practical matter the tricks of prosecutors and judges who are in bed with prosecutors aimed at coercing plea bargain by draining family resources on private criminal defense attorney before trial.

Trick # 2.  Pre-trial "conferences"

There is no such beast at all in the Criminal Procedure Law governing criminal proceedings in the State of New York.

Yet, in all criminal cases the attorney I worked for and then in my own cases at felony level judges (who usually are former prosecutor from the same office as the current prosecutor of the case) mandate a "pre-trial conference" - even though you tell the judge and the prosecutor loud and clear that your client wants a trial and does not want any plea discussions.

I have described previously how pre-trial conferences are conducted and for what purpose, in civil and in criminal cases.

Appearance to each of such conference is mandatory, so the attorney (before the pandemic, at least), had to come to court, so it is travel to and from court, waiting time in court and time at the useless conference - all necessarily billed to the client.  The attorney has no power to cancel the conference other than arguing against it in writing to the judge - most likely, to no avail, the judge will just ignore it and order the conference anyway.

Several such conferences - and the family budget is several thousand dollars lighter for the criminal defense attorney, so by the time of the trial the family may end up with no funds paying the attorney for the labor-intensive trial (several days of morning-to-night work in court plus preparation prior to trial).

The judge knows what he is doing.

The prosecutor knows what the judge is doing when the prosecutor asks the judge (his former colleague) for such a conference.

It is a tool to drain the family's resources for private counsel.

When the money is so drained, and the defendant faces the option of either reverting back to the mostly useless public defender or going to trial without an attorney, the defendant is more likely to enter a guilty plea, even if he/she is not guilty.

Trick #2 (used on my client by the current Chief Judge of the State of New York Janet DiFiore when she was a Westchester County DA) - "the prosecution is not yet ready"

There is such a thing as "professional courtesy" - which is often pushed upon defense attorneys to waive on their client's behalf their client's statutory or constitutional rights (to a felony hearing, to speedy trial etc.).  

Such "professional courtesy" rules do not, apparently, apply to prosecution who habitually hides evidence that is mandated for disclosure to the defense (exculpatory or mitigating guilt of the defendant).

I had an A felony case of a client, prosecuted by then-DA Janet DiFiore of Westchester County where DiFiore had me every single week dragging my feet from Delhi, NY to Westchester County by 9 00 AM (a 4-hour drive) for a certain hearing on the evidence I requested, so I would arrive there (an 8 hour turnaround trip billed to the client at an hourly rate), sit there for 3 hours (I had to come by 9 am, but the judge deliberately would call my case, without fail, only by noon, so 3 hours more of useless waiting in court billed to my client each time) - and each time when the case was called the prosecution would tell the judge that "they are not yet ready to produce the evidence" and the judge would say - ok, adjourned until next week, no reprimand to the prosecution that they could not tell the judge and the defense counsel, out of professional courtesy, that they are not ready, so that the defense counsel could decided what to do at this time - save the client's money for a yet another appearance.

Ended up with me making a motion to recuse the Harrison Town Court judge (year 2014) for being so deeply in DiFiore's pocket that he was not able to adjourn WIHOUT DRAGGING ME THERE, since the prosecutor knew ahead of time that "they are not yet ready", but never notified me of that, necessitating the trip.

The judge, in open court, threatened to put me in jail for contempt of court for making that motion to recuse.

Nevertheless, DiFiore's office finally acknowledged that they have NO EVIDENCE to have charged my client with an A felony (the judge often yelled at me in open court trying to impress upon me, a woman with a foreign accent which for many means that I must be stupid and not understand the English language, much less the New York state law - "DO YOU UNDERSTNAD, MRS NERONI, WHAT AN A FELONY IS?)

I understood it pretty well - that is why I demanded a felony hearing and had my client released without bail when the prosecution refused to conduct it, that is why the prosecution eventually reduced the charges to a misdemeanor - and I have made demands to produce supporting evidence which the prosecution did not have, and that's why the case was finally knocked down further to a violation.

The prosecution also understood that I understood pretty well what a felony charge is - that is why my client was pressured in jail (with hints that otherwise he will be raped) into waiving a grand jury indictment and proceed by "Superior Court Information" (his assigned counsel participated in the pressure), and the jail blocked the client's father from delivering to the client the form for consent to change counsel I have drafted, to prevent me from stepping into the case faster.

This is the reality of criminal proceedings in New York.

Trick # 3 - prosecution provides to defense light years of pages of unnecessary discovery for review 

A defense attorney must, in due diligence, review all discovery materials provided by the prosecution to prepare effective defense of his client.

Well, the prosecution often uses it by (while withholding exculpatory evidence) showering the defense with tons of useless documents, thousands upon thousands of pages, review of which takes time and effort of the defense attorney - and is necessarily billed to the defendant's family.

The result often is the same - the family is drained of funds before trial, and then the private counsel either says - oops, I need more funds for trial or can't proceed, or "advises" that it is "better" for the defendant to agree to a guilty plea - and the private counsel then keeps the money without doing the work at trial.

These tricks exist, are well-known by defense attorneys, but rarely would a defense attorney ask to recuse a judge or disqualify a prosecutor for engaging in such misconduct.

Just know that such tricks exist. 

Knowledge is power.

Nothing that a motion to recuse the judge and disqualify the prosecutor for misconduct would not cure.

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