The 9th Circuit overturns a conviction for conspiracy to sell drugs - that's the same 9th Circuit that refused to reverse a murder conviction despite clear facts in favor of such reversal

Ok, so the 9th Circuit is now portrayed in a legal blog as a hero fighting wrongful convictions again.

It reversed a conviction for conspiracy to sell drugs because the defendant was not charged with the sale of drugs, was only charged with a conspiracy to sell and there was no conspiracy.

While meticulous factual analysis by the court of the overcharging efforts of prosecutors should be commended, it appears that the court makes political decisions - the same court disregards and even misrepresents facts from the record when it wants to sustain a murder conviction and a life sentence, no matter what the record says, and yet wants to present itself as a fighter of wrongful convictions when "just" drugs are involved.

So much for the court's independence and integrity.

Cuomo announces that New York "Stands with Israel" while New York Attorney General defends violent Anti-Semitic actions of judge Kevin Dowd in a civil rights lawsuit

New York governor Andrew Cuomo, with much fanfare, announced today his executive order divesting public funds from all campaigns that support Boycotts, Divestments or Sanctions against the State of Israel.

The press-conference about this Executive Order, held on a Sunday, was transmitted on Twitter and Facebook, among other social media sources.

First of all, I do not believe that the Executive Order of Governor Cuomo is legal - because it refers to national foreign policy, to the State of Israel being an "invaluable ally", and expressing a standpoint on a sensitive international policy issue.

Governor Cuomo, as a state Governor, has no right to make any decisions impacting foreign policy of the United States.

Moreover, if, as it was mentioned at the press-conference introducing this executive order, the order was meant to fight anti-semitism, Governor Cuomo should then start practicing what he preaches - and see that New York Attorney General's Office and the New York State Commission on Judicial Conduct do not receive public funds, since both of these entities openly support anti-semitism:

1) New York State Commission for Judicial Conduct - by refusing to prosecute anti-semitic conduct of Chenango County Supreme Court judge Kevin Dowd; and

2) New York State Attorney General - by representing Judge Dowd against a now-pro se appellant Moshe Schtrauch and claiming on behalf of Judge Dowd that Judge Dowd's violent unlawful anti-semitic behavior regarding Moshe Shtrauch was justified as "preventing disruptions of court proceedings" (Judge Dowd ordered a known anti-Semitic security officer, a Nazi sympathizer, who was armed, to forcibly eject Moshe Shtrauch, the citizen of the State of Israel, out of the Chenango County courthouse AFTER Judge Dowd recused from Moshe Shtrauch's divorce case - because Moshe Shtrauch had the audacity of bringing a motion to recuse Judge Dowd, which Judge Dowd granted).

The transcript of the conference after which Judge Dowd recused and ordered ejection of Moshe Shtrauch does not show any disrespectful statements by Moshe Shtrauch or any other signs of claimed "disruption" of the court proceedings, and no proof of such disruption was ever provided to the court since the case was dismissed before discovery on the grounds of "absolute judicial immunity" for malicious and corrupt acts.

And those malicious and corrupt acts include Anti-Semitic acts on the bench by New York judges.

NOW.

In view of today's Executive Order - has Judge Dowd just been stripped off services of the New York State Attorney General?

After all, the Executive Order prohibited the use of taxpayer money to support anti-semitism.

Right?

So, Judge Dowd should not be represented by New York State Attorney General any more in opposition of Moshe Shtrauch's pro se appeal in his civil rights case against Judge Dowd.

Right?

Or, is it just lip service by Cuomo to the "largest Jewish population out of the State of Israel" (in New York) while Cuomo is the target of a criminal investigation by the feds?

A cry for help to the wealthy Jewish community to apply some pressure upon U.S. Assistant Attorney Preet Bharara?

The investigation against Cuomo has gotten that bad?

What remains is - while New York Attorney General continues to assert violent Anti-Semitism of a judge against a citizen of the State of Israel (or anybody else), even after he recused from a case, as subject to "absolute judicial immunity" - the executive order is nothing other than hypocrisy, a distinguishing feature of Cuomo.

Delaware County (NY) illegally employs all of its police force

I already wrote on this blog about the controversy with residency problems of former Deputy Sheriff Derek Bowie, the beater of women.

Former Delaware County (NY) Deputy Sheriff Derek Bowie who is involved so far in two lawsuits that I know of involving two look-alike women who he assaulted while claiming to be acting as Delaware County Deputy Sheriff - was residing in Broome County and had no right to be employed as Delaware County Deputy Sheriff, where such hiring is a condition of employment.

I filed a FOIL request with the Delaware County on April 29, 2016, by e-mail, asking to provide records of residency for all Deputy Sheriffs employed by the County, as well as other information about such Deputy Sheriffs, such as police academy training, Criminal Justice Department certification, Taser certification and pistol license.

Here is what the Delaware County answered me on June 3, 2016 - that is, within 25 business days, and not 5 business days, as required by the Freedom of Information Law:

So, let's see.

No residency information for ALL Deputy Sheriffs currently employed by Delaware County, NY. 

That means that ALL Deputy Sheriffs are employed - and are paid by the County, at taxpayers' expense, illegally.

There is no information on file with the County that Deputy Sheriffs are hired out of the civil service registry - which is also extremely interesting because, for example, Derek Bowie testified at a deposition that he was hired without even a written application, by "invitation" - obviously, because his uncle Jeff Bowie worked as a longtime DA/DSS Investigator in the Delaware County District Attorney's Office.

Delaware County refused to provide to me any information whether police officers employed by the county have:

(1) Taser certification;
(2) Criminal Justice Division certification, and
(3) whether they graduated from the police academy BEFORE they were hired.

The basis for the denial was, as the response indicates, New York "Civil Service Law 50-a".

There is no such statute in New York.

There is a statute, Civil RIGHTS Law 50-a, but that controversial statute prohibits only the release of records that are needed towards "performance evaluation" "towards continued employment".  So much for County Attorney's competency - he doesn't even know the name of the statute used to deny access to records under FOIL.

I was talking about conditions of hiring the officers in the first place:

(1) education;
(2) Criminal Justice Division certification, and
(3) Taser certification.

The records precluded for disclosure under Civil Rights Law 50-a are disciplinary records of police officers, not records regarding their education, training and certification.

By the way, the Delaware County also responded to me that it does not have on file the employed Deputy Sheriff's pistol licenses either:

It is apparent that Delaware County Sheriff's Department is in deep trouble, and tries to cover it up.

It unleashes upon people untrained police force without verification of police officers:

1) residency;
2)education;
3) Criminal Justice Division certification.

It arms such officers with Tasers and pistols without verifying or having their Taser certification and without having on file their pistol permits.

Are you feeling safe from your own "protectors", the police force, residents of Delaware County?

I will continue to disclose the interesting revelations of Delaware County (NY) that I received through my recent FOIL request.

Stay tuned.

Criminal prosecutions and convictions in Delaware County NY under Acting DA Hubbard illegal as Acting DA Hubbard's residency is not verified

A District Attorney of any county in New York must reside in that county.

When DA Northrup was elected County Judge in 2015, and Acting DA Hubbard replaced DA Northrup as District Attorney, DA Hubbard now has to reside in Delaware County.

With that in mind, I made a Freedom of Information Request with Delaware County.

After a prolonged delay to answer my request, Delaware County finally answered - 

Since the county has no records verifying whether the Delaware County Acting District Attorney John Hubbard resides within Delaware County, there are the following two legal consequences of this statement:

(1) Delaware County has no right to pay John Hubbard his Acting DA salary;
(2) all investigations, prosecutions and convictions obtained by Acting DA John Hubbard are illegal - imposing liability on the County and all of its taxpayers for illegal convictions.

And that is especially so that a witness indicated to me that John Hubbard actually drives around with Schoharie County license plates.

John Hubbard is not the only one public official whose employment with the county depends on this residency within the county and whose residency, as a condition of employment, is not verified by the County for purposes of such employment.

I will continue disclosing contents of Delaware County's astonishing answers to my FOIL request in separate blogs.

Stay tuned.

A complaint was filed against the Tenessee judge Rachel Bell who delayed a hearing and kept a man in jail because she was in a hurry to speak to school students

Two weeks ago I wrote about a Tennessee judge who, reportedly,  is habitually coming late to criminal proceedings, and who kept people in jail beyond the allowed time in preliminary detention (while they are presumed innocent, before trial) because she did not have time to do her job - she had school students to meet and talk to.

It has been now reported that a complaint has been filed against Judge Bell because of her outrageous behavior.

We'll see if any discipline will be meted out at all - after all, judges in this country can do whatever they like on and off the bench, with rarely any discipline imposed upon them.

I will continue to cover the story.

Stay tuned.

When a death penalty jury is blocked from full information about applicable law, 2 judges of the U.S. Supreme Court find it appropriate

On May 31, 2016, the U.S. Supreme Court has reversed (with 2 dissenting votes) a death sentence (not conviction) out of Arisona death row inmate Shawn Patrick Lynch because the criminal defendant was not allowed to tell the jurors who were deciding between the two alternatives:

1) the death penalty and
2) life sentence without possibility of parole

that the "without possibility of parole" element of the 2nd option did not exist - that Mr. Lynch was ineligible to parole:

"Under Arizona law, 'parole is available only to individuals who committed a felony before January 1, 1994,' and Lynch committed his crimes in 2001."

In other words, the jurors were not told about the applicable LAW as applied to their deliberations.

It was clear that (1) the state court judge presiding over the death penalty phase violated his duty in not advising the jurors of the state law making the defendant ineligible for parole; and (2) the state prosecutor committed prosecutorial misconduct by pushing to withhold information about applicable law from the jurors, or objecting against the defense introducing that piece of information in any way, even at the final argument.

At stake was the person's life.

And that person had to be given every possibility to introduce at the very least the applicable law - and was denied even that.

As it appears from the texts of Mr. Lynch's court decisions, death penalty cases are decided in Arizona in three stages and decided by two separate juries - 

1. the stage of guilt, 
2. the stage of aggravation and 
3. the stage of the death penalty - stages # 2 and #3 are decided by a single separate jury from a jury that decides stage # 1

According to the state appellate case (which affirmed the conviction) "[t]he jury found him guilty on all counts, but did not reach a unanimous verdict on premeditated murder." 

That already had to give the prosecution pause not to seek the death penalty.

It didn't.

There was then a hung jury on the aggravation stage:

"[i]n the aggravation phase of the trial, the jury could not agree on whether the murder was committed in expectation of pecuniary gain. See A.R.S. § 13-751(F)(5) (2010). The jury made separate findings that the murder was both especially heinous and cruel, but could not decide whether the murder was also especially depraved. See A.R.S. § 13-751(F)(6). In the penalty phase, the jury could not reach a unanimous verdict."

It is obvious that, as a matter of fairness, the entire conviction under the circumstances had to be tossed and the entire case had to be re-tried.

It did not happen.

Instead, a second "aggravation/death penalty" jury was convened, precluded from knowing the applicable law as to the defendant's ineligibility to parole - and the defendant was condemned to death.

That is what the U.S. Supreme Court reversed - only the sentence of death, not the conviction.

Incredibly, there were 2 dissenters to the reversal: Justices Clarence Thomas and Samuel Alito.

While acknowledging that the U.S. Supreme Court reversed in reliance on its own precedent:

Simmons v. South Carolina, 512 U. S. 154 (1994) providing that "[w]here the State puts the defendant’s future dangerousness in
issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury—by either argument or instruction—that he is parole ineligible” - that precedent is allegedly wrong and should not be followed.

The state sentencing court obviously disregarded that set precedent.

The dissenting judges claimed that "it is the “sheer depravity of [the defendant’s] crimes, rather than any specific fear for the future, which induced the . . . jury to conclude that the death penalty
was justice,”  and that it was sufficient for the jury to know that, if they do not condemn the defendant to death, the court can then sentence him to life in prison with or without possibility of parole - whether the defendant was or was not eligible for parole.

In other words, the two judges claimed that the issue of parole was not relevant to the issue of life or death in sentencing and that the U.S. Supreme Court should not "micromanage state sentencing procedures".

It is interesting to mention that "Justice" Thomas cited two of his own dissenting opinions in favor of death penalty and one of "Justice" Scalia.

But, at least for now, it appears that the court becomes more convinced that,  before the death penalty is imposed,  at the very least, the death penalty jury should be given correct information about the law.

As to Justice Thomas and Alito - this dissent is the matter of their personal conscience, or rather, lack thereof. 

Basically, Thomas and Alito lamented that state courts were not allowed to disregard a U.S. Supreme Court precedent on point, Simmons v South Carolina, decided in 1994.

So, U.S. Supreme Court cases do not have precedential value, as argued by two justices of the same court?

Do justices Thomas and Alito need to consider retirement?

#JudgeAlexKozinski, "crusader" against wrongful convictions, misrepresents the record to uphold a wrongful conviction

In April of 2016, an article appeared on "Slate.com" portraying judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit as a "crusader" against prosecutorial misconduct and wrongful convictions.

Yet, on May 27, 2016, Alex Kozinski authored an eyebrow-raising decision that legitimized a conviction so wrong that a 1st year law student would see that it must be overturned.

AEDPA has been strongly criticized as gutting the federal writ of habeas corpus and blocking the way to release to individuals wrongfully convicted in violation of federal constitutional rights.

The statute has two most infamous provisions which help sustain wrongful convictions:

The language "shall not be granted" is jurisdictional, blocking a federal court's authority to grant a writ of federal habeas corpus, and a release of the prisoner - even if the prisoner is held in prison based on violations of his or her constitutional rights.

The provisions, both 28 U.S.C. 2254(d)(1) and (d)(2), are blatantly and facially unconstitutional, and any court has a right to sua sponte refuse to comply with them - because in this country the U.S. Constitution, with its Supremacy Clause, controls, and the U.S. Congress, also bound by the U.S. Constitution, may not give the U.S. Supreme Court power to determine what is the Supreme Law of the Land - as it was done in (d)(1).

Under (d)(1) it is easy to have an unconstitutionally held prisoner to remain locked up, because review of constitutional issues by the U.S. Supreme Court is discretionary, and the U.S. Supreme Court refuses to review the overwhelming majority of petitions raising civil rights issues.

It is one thing to absolve a public official of liability to a victim of his misconduct in a civil rights lawsuit (which is bad enough) based on the judicially created concept of "qualified immunity" which "requires" (courts invented it this way) to determine whether the federal constitutional right that the public official was sworn to uphold was "clearly established" - by courts, of course.

Such a "test" puts judicial determinations above the Supremacy Clause and above the text of the U.S. Constitution, which no-one - NO-ONE - in this country has a right to do.

Judicial decisions are, by the text of the Supremacy Clause, are not part of the Supreme Law of the Land.

The Supremacy Clause, Article 6 Section 2 of the U.S. Constitution, says the following:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Supremacy Clause makes it clear that only laws (statutes and regulations) made "in pursuance" of the U.S. Constitution are the Supreme Law of the Land, binding upon judges.

If a statute is made not in "pursuance" of the Constitution, in violation of the Constitution, it is not the Supreme Law of the Land, and is not binding upon judges.

Moreover, it is the separate and independent duty of each judge sworn to be obey, uphold and enforce the U.S. Constitution to refuse to obey any law that is contrary to the U.S. Constitution, according to the judge's OWN determination.

Section (d)(2) is even more tricky.

It requires (the mandate is that the writ of habeas corpus "shall be denied")

Any 1st year law student knows that the words "reasonable" or "unreasonable" in a statute are signals that that is an issue of fact to be tried before a jury.

Any seasoned lawyer who has practiced for some time in American courts, knows that it is futile to try to argue that to judges who decide what is "reasonable" or "unreasonable" without any jury - and sometimes completely contrary to common sense and the record.

For some reason, the celebrated crusader against wrongful convictions, Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, recently decided to misrepresent the clear record of a case in front of him to uphold a wrongful conviction under section (d)(2) - and while claiming that AEDPA "controls" and prevents him from doing what is fair - reversing the wrongful conviction.

In the case in question, Kozinski wrote the majority opinion, but the decision was by the full court, with just a SINGLE dissenter, a single honest judge. 

The issue in front of Kozinski's court  was exceedingly simple - even for a person without any legal training, and especially so for a longtime judge:

should a conviction for murder and a life sentence be vacated because it was obtained through the state court's dismissal of a holdout juror?

You do not have to have a law degree to know that criminal convictions in the United States in jury trials should be by a unanimous jury of 6 (for misdemeanors) or 12 (in felony cases).

A murder case is a felony case, so all 12 jurors must agree to convict.

If a single juror does not agree to convict - and jurors have an obligation only to deliberate in good faith, not to agree with fellow co-jurors - a mistrial must be declared.

That's criminal procedure 101.

The interesting part is that in 2011, the same 9th Circuit court, a panel with the same judge Alex Kozinski in it, reversed the same conviction of Tara Sheneva Witness claiming that it is was wrong for the state court to dismiss a "known holdout juror" and replace that juror with an alternate juror.

First of all, jury deliberation MUST be secret - as to the judge, too.

A judge has no right to know which juror holds which position, and in cases of a hung jury (with at least one holdout juror) the only thing that a judge can do when told that there is a holdout juror is to declare a mistrial.

The holdout juror in Tara Williams' case was expressing concern whether there was "sufficient evidence" to convict her - an issue of fact that is the authority of that juror to decide.

The judge actually questioned the juror as to his motivations in deliberations - which violates the secrecy of jury deliberations right then and there.

The juror did not display any biases and did not indicate that he is not going to follow the law.

The judge still dismissed, on request of the prosecutor, the holdout juror, but the state judge's determination as to why he is dismissing the holdout juror was, specifically, "not because he’s not
deliberating and not because he’s not following the law".

Yet, 5 years down the road, in deciding the very same issue, Judge Kozinski says the following:

Well, the 9th Circuit, Judge Kozinski argued the same as Williams did in 2011.

In 2016 Kozinski says that AEDPA "requires" him to rely on state appellate court's finding, made for the first time on appeal, and contradicting the lower court's finding of dismissal.

First of all, AEDPA "requires" no such thing, whatever the U.S. Supreme Court says, and no federal court has authority to amend a federal statute through interpretation.

Second, the state appellate court had NO AUTHORITY to decide that the judge correctly dismissed a holdout juror for NOT FOLLOWING THE LAW, when the judge clearly stated on record that he is NOT dismissing the holdout juror for not following the law.

A state court has no right to decide in retrospect what was the basis of the state judge's decision.

That's what the same Judge Kozinski said in 2011, didn't he?  In the same case?  Reversing the same conviction?

Actually, in 2011, Judge Kozinski and his court claimed that the appellate court did not rule that the holdout juror was not following the law, but quoted from the record of that court that the state Court of Appeal decided that the holdout juror was "biased" - a determination that only the trial judge could, and did not, make:

So what drove the "crusader" against wrongful convictions #JudgeAlexKozinski to rule contrary to his own prior ruling in 2011?  In the same case?  On the same issue?  Based on the same record and the same federal statute? Regarding a conviction for murder and a sentence for life?

For a detailed analysis of two decisions of Judge Kozinski, as well as other decisions in this mind-boggling case, as well as for the analysis of the strong dissent by judge Stephen Reinhardt, the only honest judge in this situation who lashed out against his colleagues stating that judges are not Humpty Dumpties, and should follow the record as it is written, not as they want to see it -

stay tuned.