A case of prosecutorial misconduct (out of Louisiana) is heading to the U.S. Supreme Court

Louisiana courts, reportedly, have an "abysmal record of consistently misapplying and misinterpreting the Brady doctrine" (that's a constitutional doctrine requiring criminal prosecutors to turn over to the defense, upon a request and without any requests, any evidence pertaining to lack or lessening of defendant's guilt, or as to impeachment evidence of the government's witnesses and benefits offered to witnesses in exchange for testimony). 

Yet, federal courts UNfaithfully apply in civil rights lawsuits the doctrine of Younger and Rooker-Feldman, precluding civil rights lawsuits when a criminal proceeding is already pending, and after it has been resolved against criminal defendants - with the court applying the Brady rule in an abysmal way.

Louisiana courts are not unique in their "abysmal record" of misapplying and misinterpreting of ANY constitutional rights of criminal defendants - other states are no better.

Plus, prosecutors "enjoy" (very much) the gift of absolute prosecutorial immunity that the courts, consisting predominantly of former prosecutors, gave prosecutors on a pretext that discipline against prosecutors is avaialble. Of course, everybody knows that disciplinary committees only seek to punish competitors of members of disciplinary committees, as well as critics of the judiciary, and independent criminal defendants and civil rights attorneys - but NEVER prosecutors.

So, when preventive medicine is not available, the body can fester and rot up to gangrene - and that's what happened in Louisiana with prosecutorial misconduct, and is happening across the country, where close to 98% of criminal cases are "resolved" by plea bargains - simply because defendants and their attorneys know that the chances of winning in biased courts in front of former prosecutors are very slim.

A case regarding prosecutorial misconduct is heading towards the U.S. Supreme Court. Will the court review it is a question - review by the U.S. Supreme Court is discretionary, not mandatory.

And, if it does - what will it say? Some dismissive mumbo-jumbo or, finally, a systemic resolution of a systemic problem that the court itself created with the gift of prosecutorial immunity for malicious and corrupt acts?

Sua sponte court sanctions outlawed by Williams v Pennsylvania?

On June 9, 2016 the U.S. Supreme Court decided a case Williams v Pennsylvania, where, in its holding (not dicta) the court ruled that there is a constitutionally intolerable possibility of judicial bias where a judge is also acting as an accuser.

Williams v Pennsylvania is a majority decision, and thus considered in the American jurisprudence to be a binding precedent on lower courts.

State and federal courts in the U.S. routinely commence proceedings for: 

• sanctions for "frivolous conduct", 
• attorney discipline and/or 
• contempt of court - civil and criminal -  "sua sponte", which means "on the court's own motion".

Yet, when a court commences a proceeding "sua sponte", the court acts as an accuser and prosecutor, and, under Williams v Pennsylvania, as of June 9, 2016, may not remain on the case as an adjudicator.

So, we can see Williams v Pennsylvania as a MAJOR decision undermining judicial power to retaliate for criticism.

Conflating Terrance Williams's death penalty case with Donald Trump as a way to mislead the public as to how to assert their right to impartial judicial review

Some commentators are quick to reduce the rules of judicial disqualifications to the judge not being a prosecutor in the same case, and are even trying to deduce from the U.S. Supreme Court the ulterior motive of addressing Donald Trump's statements regarding appearances of judicial bias through an unrelated death penalty case out of Pennsylvania.

First, I doubt that the commentator read Williams v Pennsylvania thoroughly - because the court addresses there ONLY the problem of a judge acting as an advocate for the state in the same case, but also says that the rules of constitutional appearance of judicial bias are not fixed in stone and delineated (other than in the two incidents -

• massive financial donations to judicial campaigns, Caperton v A.T. Massey Coal Inc., 2009 and
• the judge acting as a prosecutor in the same case, Williams v Pennsylvania, 2016).

That means that the court has left the door open to raise other issues for constitutionally intolerable bias to be raised on a case-by-case basis.

I read Williams v Pennsylvania most thoroughly, as I am using it in my research for various purposes, and I am an expert on the issues of judicial qualification, having researched and litigated the issue for years.

Second, I doubt that the commentator did a thorough research of the background of ‪#‎JudgeGonzaloCuriel‬ before continuing to thump Trump regarding his comments about the judge.

Because, both Trump and his attorneys actually left out several major reasons why #JudgeGonzaloCuriel should not have been presiding over Trump University court case.

The commentator hints at "anybody with a wireless signal", and, in fact, a lot of information can be obtained by a thorough researcher of Judge Curiel's background using just two resources - time and the Internet. So, the commentator did not use her own wireless signal diligently - and that's a shame. On her as a journalist.

I am preparing a series of blogs (thorough research take time, so, please, bear with me) showing that - indeed - Judge Curiel not only should not have been on Trump University case, but should be (but - realistically - never will be) investigated regarding outcomes of ALL cases he decided, as a state judge, and as a federal judge, because he appears to be appointed just-in-time to fix court cases for his buddies from secret-membership organizations that he is a member of, and I do not mean La Raza or La Raza-associated organizations, and against those who he has a personal (or "life-story") grudge against.

But, of course, such a topic is just too incendiary for the "mainstream" commentators and talking heads to raise - it affects the livelihoods of too many "establishment" attorneys, their "connected" clients - and case-fixing judges at all levels.

And, as the last note - to use a case where the victim of sexual abuse Terrance Williams who killed his longtime abuser (from 13 years old to 18 years old) and was cheated out of his life by the fraud and criminal misconduct of the decorated "amputee" Vietnam veteran prosecutor-turned-judge who still remains a licensed attorney despite his CRIMINAL misconduct (because he is a decorated and disabled Vietnam veteran?) - and to do that simply to join a political campaign to undermine a presidential bid because of statements of the presidential candidate that have NOTHING to do with that case is beyond low, and to do that without doing thorough research on the subject, is low.

The prosecutor-turned-judge, together with his office, committed the following fraud in Terrance Williams' case:

1) did not disclose to the exceptionally inefficient defense attorney who did not see his client until 1 day before the DEATH PENALTY case trial that the victim in the case was his young client's abuser since Terrance Williams was 13 - and, naturally, when Terrance Williams asked the court to replace that defense attorney, and the court refused, there was no trust between the young man and the defense counsel required for effective representation in a death penalty case;

2) the prosecutor's office (Ronald Castille was the DA, so, even though he did not personally try the case, but signed the death penalty application, he was responsible for all actions of the trial prosecutor) struck 14 out 16 black jurors in the jury pool - a Batson v Kentucky violation;

3) the prosecutor's office non-disclosure to the defense that Terrance Williams was a victim of sexual abuse was strategic - because it was the second killing by Terrance Williams of his abusers, and in the first, prior, murder trial, the jury refused to find him guilty of 1st degree murder after hearing he was a child victim of sexual abuse at the hands of the middle-aged man who he killed when he turned 17.

And, there is an entire campaign going on with doctors, mental health professionals, sex abuse victim advocates fighting for Terrance Williams' life now.

The sentiments regarding victims of sexual abuse and sexual predators against children were no different at the time of the murder trial of Terrance Williams, as his 1st murder trial indicated, and the jury was willing to give leniency to the young man who killed his long-time abusers.

I am NOT expressing my personal view and I do NOT support vigilante justice, all I am saying is that the 1st jury gave Terrance Williams leniency because of his status as a sex abuse victim, and because he killed a pedophile, his own abuser.
  
And that is exactly why, in the 2nd trial, the prosecutor lied to the jury by concealing as a motive that the young man killed the perpetrator of egregious crimes against him since he was 13, and instead claimed that Terrance Williams killed "a good man because he offered him a ride in a car".

4) The prosecutor elicited perjury from Terrance Williams' co-defendant (who plead guilty and escaped death sentence) to say that the motive for the killing was not sexual abuse by the victim of Terrance Williams, but robbery.

5) The prosecutor elicited perjury from the co-defendant to say in his testimony that he received no benefit from prosecution in return for his testimony - while the prosecution promised him to write a letter to his parole board.  That was revealed only in 2012, nearly 30 years after the conviction in 1984 that was based on that fraudulent testimony.

6) The DA's office did not disclose the exculpatory/guilt-diminishing/impeachment evidence called "Brady" material (as described above) to the defense.

All that time Terrance Williams sat on death row.

The prosecution - the very office that obtained a conviction and death sentence by fraud - aggressively sought Terrance Williams' death.

Several death warrants were issued over the years.

Several appeals, habeas corpus petitions and applications for stays of execution were issued over the years.

Judge Castille got elected through his statement to the voters of being "tough on crime", including a statement that he aggressively pursued the death penalty and put 45 people - including Terrance Williams - on death row.

So, Judge Castille used the fraudulently obtained conviction and death sentence for his personal (and financial) benefit.

And then, Judge Castille presided over FOUR habeas corpus petitions of Terrance Williams, rejecting them.

In the last one, Judge Castille not only participated in a decision that reinstated the death penalty of Terrance Williams, but also wrote a separate concurring opinion where he blasted everybody who stood in the way of the death penalty in a case he obtained by fraud:

1) the habeas corpus judge who ordered an evidentiary hearing when the co-defendant confessed to fraud by DA Castille's office, ordered testimony of the trial prosecutor, subordinate of Castille, and ordered the DA's office to turn over the case file for the judge's review;

2) the federal public defenders who fought for Terrance Williams' life, accusing them of having an "anti-death penalty agenda" and of engaging in scurrilous and frivolous litigation.

The State of Pennsylvania fought for its right to kill Terrance Williams, even after it was established that the verdict in a 1st degree murder case and the death penalty was obtained by fraud - and the only thing that so far saved Terrance Williams' life is a moratorium on death penalty imposed by governor Wolfe - and the State of Pennsylvania even took the right of the governor to impose such a moratorium to court, and, fortunately, lost - but the moratorium is only "temporary".

In Williams v Pennsylvania, the state of Pennsylvania shamelessly claimed that DA (turned judge in the future) Castille's signing off on request to the court to seek death penalty of Terrance Williams required no more thought and time than "reading a half page", and that it was "simply an adminsitrative decision" that did not truly involve DA Castille as a prosecutor in that case:

"According to Pennsylvania, [DA Castille's] approval of the trial prosecutor’s request to pursue capital punishment in Williams’s case amounted to a brief administrative act limited to “the time

it takes to read a one-and-a-half-page memo.” 

The court stated to that:

"In this Court’s view, that characterization cannot be credited.

The Court will not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part.

Chief Justice Castille’s own comments while running for judicial office refute the Commonwealth’s claim that he played a mere ministerial role in capital sentencing decisions.

During the chief justice’s election campaign, multiple news outlets reported his statement that he “sent 45 people to death rows” as district attorney." 

The mere fact that the government attorneys even asserted in court papers that a decision whether to seek the death penalty is for the elected public official, a District Attorney, no more than an administrative act requiring only time to read the application memo is a condemnation enough of how the death penalty is handled in this country.

But, Judge Castille's singular determination to have Terrance Williams' killed off, even by presiding as a judge over his 4 habeas corpus petitions - and to blast anybody who tries to prevent that from happening - combined with the fact that Judge Castille presided of the court that for years and decades handled attorney regulation and access to court for the litigants in the State of Pennsylvania - and suspended and revoked licenses of multiple criminal defense and civil rights attorneys while remaining a CRIMINAL who should have been DISBARRED and CRIMINALLY PROSECUTED for multiple FELONIES (and who still wasn't, and was not even adequately criticized in Williams v Pennsylvania by the U.S. Supreme Court) - is a condemnation to the attorney regulation system as it exists today. 

Everything to kill a human being, even when the conviction and death penalty was obtained by fraud.

Imagine if the case of Terrance Williams was to be retried today.

Imagine the evidence of sexual abuse of Terrance Williams be presented to the jury today.

I doubt that Terrance Williams would have been convicted of any crime other than manslaughter - and will, probably, be sentenced to the time served and let out a free man.

How can a "legal commentator" and a journalist, with a straight face, use this case as an illustration that Donald Trump is wrong in raising appearance of impropriety of Judge Curiel presiding over a civil case of fraud against Trump University, is beyond me.

Yet, let's remember:

1) appearance of impropriety is a statutory and a constitutional threshold for judicial disqualification which is NOT set in stone and is decided on a case by case basis.

2) The statute providing a basis to seek such a disqualification is 28 U.S.C. 455(a), where it only states that a judge should disqualify himself if there is an appearance of impropriety for presiding.

It is for the party to bring up the facts, and cases are being decided on a case-by-case basis.

Which is, in my view, an unconstitutionally vague statute because it allows the courts to, basically, write the statutory law on a case-by-case basis, which is not allowed by the U.S. Constitution, Article III and I.

So, the statute needs to be re-written to provide a better guidance to the courts.

3) What constitutes a constitutionally intolerable appearance of impropriety or bias, is not set in stone.

Only in two U.S. Supreme Court decisions have so far carved out more or less definite rules of constitutional judicial disqualification:

Caperton v A.T. Massey Coal, Inc. (2009) - regarding major financial donations of a party's attorney to the presiding judge's election campaign; and

Williams v Pennsylvania (2016) where the presiding judge was also a prosecutor in the same case - the three dissenting judges (Chief Judge Roberts, Justices Alito and Thomas) actually tried to oppose even that issue claiming that it was not the same case since habeas corpus is technically a different, "civil" proceeding, and a collateral attack on the criminal proceeding - even though it reinstated the death penalty in the criminal case.

Neither Caperton v A.T. Massey Coal, nor Williams v Pennsylvania set a barrier for other bases of constitutionally intolerable judicial disqualification to be brought up.

By conflating the absolutely egregious death penalty case of Terrance Williams with the issues in Donald Trump's criticism of Judge Curiel and the backlash in the mainstream media against Donald Trump for such criticism (without proper investigation of Judge Curiel's background), the attempt is being made to impress upon the American public that judicial disqualification cannot be sought in majority of cases, and can be sought only when cases are absolutely egregious, such as a prosecutor turning a judge and seeking, as a judge, the death penalty that he first - and fraudulently -  sought as a prosecutor.

That is not so.

Such an argument does a disservice to the Terrance Williams' case, as well as to the right of the public to publicly criticize the government, including judges - and to the right of litigants to raise issues of judicial misconduct and impropriety in and out of court.

Judicial misconduct is not reduced to death penalty cases.

You do not have to be on death row, fraudulently put there by a prosecutor-turned-judge - to be able to raise the issue of appearance of impropriety.

It is already a dangerous task to seek disqualification of a judge.

Attorneys are being sanctioned in this country left and right for challenging improper behavior of judges by jail time, contempt proceedings, handcuffing, financial sanctions and suspension of their law licenses.   I am one of attorneys suspended for making a motion to recuse on appearance of impropriety basis for a pro bono client in a family court case. 

It has been reported to me when I was still practicing, and it is reported to me now as the author of this blog by my readers, that it is practically impossible to find an attorney who would be willing to make a motion to recuse now, not because there is no merit for such a motion, but simply out of fear and self-preservation of attorneys who refuse to do that.

Law professors are telling law students, before they even become attorneys, that challenging a judge for misconduct is a "career suicide", so new attorneys are entering the profession, burdened with enormous debt, while knowing that if they fight for their clients and challenge a judge, they can be left blacklisted, and without a job or prospect of a good job - for life.

A good incentive not to make such motions.

It also "helps" instill the fear not to seek judicial disqualification because courts increasingly use their contempt power in criminal cases to exclusively punish defense attorneys and not prosecutors (because judges are predominantly former prosecutors).

And it "helps" to instill such fears because courts legislated across the country and established "court rules" allowing the to punish attorneys for "frivolous conduct" - for raising issues of appearance of impropriety or judicial misconduct.

So, where a criminal defense attorney is at least somewhat protected from such rules and can "only" be punished through a contempt proceeding (which nevertheless still happens), an attorney in a civil case, such as that of Trump University, runs the risk of being sanctioned by the challenged judge, and having to pay thousands of dollars of the opponent's legal fees if the challenged judge considers the challenge "frivolous".

Understanding that, the reluctance of Trump's attorneys to make a motion to recuse Judge Curiel is a matter of self-preservation and not of merits of the issue.

And, trying to portray Judge Curiel in a press as an angel with a halo who is attacked by a demented bully - while the judge appears from my research, I will post blogs about it separately, to be a relentless case-fixer for those who wine and dine him - is a disservice to the public.

Donald Trump - clumsily, as he does many things - introduced the issue of judicial disqualification in a presidential campaign.

THAT is what the legal establishment is afraid of.

THAT is why it has become the main topic for several days of media frenzy.

THAT is why the public needs to be brainwashed, so that it should lose even the idea of daring to file a motion to disqualify a judge on an appearance of impropriety basis.

The illustration as to how scared - or misinformed - the public is as to the issue of judicial disqualification and rights of litigants and citizens to raise that issue in and out of court is right on this blog.

This blog is DEDICATED to the issues of judicial misconduct and disqualification.

There is a definite public interest to those issues, as my blog has 1 to 4 thousand views per day on this blog.

In Russia, blogs with such number of views are required to be registered as "official", or mainstream, media sources.

Yet, I have very few public comments on the blog, and most of the comments I have are from anonymous commentators.

People are afraid to have their views on the subject known, under their own names.

People are writing to me, as my readers, and are complaining about certain actions of certain judges, and of their inability to find an attorney who would represent them.

I cannot represent them - I am suspended.

Yet, I can publish their stories.

Most people, when I ask them to send court documents to publish their stories, refuse to do that despite their complaints to me.

I honor their wishes for me not to disclose their identities, if they disclose their identities to me, but do not want to be known.

But, once again, this demonstrates the level of fear pertaining to the issue of raising to a journalist the issue of judicial disqualification.  People are afraid to make that issue public.

Moreover, I have a petition as a featured post in the upper right corner of this blog, about opposition to judicial retaliation.

The petition did not even reach 100 votes yet, even though it has been around for 3 weeks.

Why?

Because people are either afraid to put their name on it,or are conditioned by the media frenzy to think that the majority of judges are proper and honest, or that they can only seek judicial disqualification in cases like Caperton v Massey or Williams v Pennsylvania, and all other people who are seeking to disqualify a judge are wrong.

People DO HAVE a right to raise appearance of impropriety of a judge - as THEY UNDERSTAND IT, RIGHT OR WRONG - PUBLICLY and in court.

That right is constitutional.

It is protected by the 1st Amendment and the due process to a fair trial and fair adjudication by a neutral and impartial judge.

Judges are public SERVANTS.

People in the U.S. are part of the popular sovereign - "We the People".

We, as taxpayers and part of the popular sovereign surely have a right to raise an issue if our sovereign is misbehaving - as WE understand it.

Every bad thing has a silver lining though.

The commentator who linked the case of Williams v Pennsylvania to Donald Trumps' allegedly improper criticism of Judge Curiel made a point against herself:

"Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias."

Watch the language.

The U.S. Supreme Court "waded into the murky discussion over judicial bias".

1)  Not very respectful of the U.S. Supreme Court, is it?  So, why Judge Curiel deserves presumptive respect and the U.S. Supreme Court justices don't?  Because they discuss the issue of judicial bias in a cut-and-dried case of judicial bias?

2) Why "waded" into a "murky discussion"?

The only thing murky that the U.S. Supreme Court did was that it did not call a spade a spade and did not brand DA/Judge Ronald Castille - or his subordinate trial prosecutor, or the Pennsylvania state court that allowed participation of Judge Castille in the case, for years - for misconduct.

Otherwise, the analysis is strict and straightforward, and cleanly states that a prosecutor may not be a judge in the case pertaining to prosecutor's (or his office's) own decisions.

3) The commentator implicitly ascribes to the U.S. Supreme Court an ulterior motive - deciding a case not on its merits, but, by its timing, in order to influence public out-of-court debate that has become part of a presidential campaign.

And, the commentator claims that anybody "with a wireless connection" can discern that ulterior motive of the court.

Duh?

Is that the same commentator who claims that Donald Trump may not discern any ulterior motive from the actions of a judge whose parents were Mexican immigrants, and who is repeatedly deciding the case against Trump University, after Trump made offensive statements about Mexicans and Mexican immigrants?

Somehow, "nobody with a wireless connection" MAY discern an ulterior motive from actions from that judge - and Trump should be rolled into asphalt for raising the very issue that the U.S. Supreme Court justice raised 15 years ago claiming that a "wise Latina woman" can decide cases differently than a "white man".

But, at the same time, "nobody with a wireless connection" can MISS the ulterior motive in U.S. Supreme Court justices to connect a death penalty case to Donald Trump's statements in his presidential campaign?

How come "anybody with a wireless connection" are expected to do diametrically opposite things - discern ulterior motives in judges deciding a case for political reasons, where the case has NO connection with Donald Trump or his statements against Judge Curiel, but at the same time thrashing Trump for raising an appearance of an ulterior motive a judge based on his background?

And, this delightful lack of logic only reveals the ulterior motive of this entire JudgeCurielAnnointing/TrumpThumping campaign - to DIMINISH the importance of the CONSTITUTIONAL RIGHT of criticizing a judge, in and out of court, based on the party's PERCEPTION of APPEARANCE of impropriety.

PERCEPTION of APPEARANCE of impropriety is the basis of making a motion to recuse, and the barrier for constitutionally protected out-of-court speech is even lower.

Don't let your right to criticize the government to be eradicated by those who will judge how the modern-day "cattle", "anybody with a wireless signal" MUST perceive judicial decisions.

People must use their own brain, and not the brain-washing by the bought-up talking heads, to see what is proper and what is not proper for the government, including judges, to do.

If "nobody with a wireless signal" can miss the ulterior motive of the U.S. Supreme Court in attempting to exert influence over the outcome of a presidential campaign - why nobody yet filed for impeachment of those judges?

Isn't that a valid question to the commentator of the Slate's article?

Georgia defense attorneys filed a lawsuit seeking records of ex parte communications between a judge and a prosecutor

A lawsuit has been filed by criminal defense attorneys in Georgia, Cobb County, seeking full access to video and audio recordings of court proceedings in criminal cases before Judge Reuben Green.

The reason for the lawsuit is that Judge Green, according to court security videos, engaged in ex parte communications with prosecutors in the absence of defense attorneys and defendants.

When a defense attorney filed a Freedom of Information request and obtained copies of video and audio recordings from the Sheriff's Department (that handled court security and was the custodian of court security tapes), the judge called the County Attorney and yelled at her for releasing the damaging videos and audios without a "consultation" with him.

Then, reportedly, the policy of access to records was changed, allowing access, on demand, to video recordings, but requiring inquirers to sign a "confidentiality agreement" as to audio recordings of criminal proceedings that were supposed to be open to the public.

In the already-released audio recordings the judge allegedly tells prosecutors, without presence of defendant or defense counsel, that he hopes that the jury will "do the right thing".

 "A few weeks later" - after the "do the right thing" ex parte conversation with prosecutors, the judge, a former career prosecutor, "when talking to prosecutors about defendant Borja Francisco Escobar, who faced drug-related charges, Green began referring to Escobar as “Pablo,” apparently in reference to the notorious Colombian drug lord. Green then indicated he would give Escobar a 25-year sentence, even though Escobar had yet to stand trial."

Apparently, the judge made up his mind as to the defendant's guilt before the trial.

Moreover, several motions to vacate criminal convictions were reportedly filed.

One of them asserts that a former juror came forward and stated that, when a criminal jury was deadlocked and a mistrial declaration was required, Judge Green came to jury deliberation room and, without presence of prosecution or defense, told the jury that he will not accept a deadlocked (mistrial) decision, sent them home, and they convicted the defendant the next day after 45 minutes of coerced deliberation.

Apparently, it was easier for the holdout juror to convict the defendant than to disobey the judge who said he will not accept a mistrial.

The case shows how CRITICALLY important are court surveillance cameras with audio and video recording, and how CRITICALLY important it is to have such recordings preserved for a substantial time, so that the defense and the public can review such recordings months and even years after a criminal conviction.

Georgia is a death penalty state, by the way, and having a judge who is nothing more than a behind-the-scenes aide to the prosecutor is not only illegal - it is absolutely disgusting.

Andrew Cuomo's suggestions to improve business climate in New York - do not touch corruption, expand occupational regulation instead of deregulation, distract and rule

On June 3, 2016, New York Governor Cuomo announced "recommendation to improve business climate" in New York.

That is the same business climate that is based on rampant corruption of the New York State government - including Cuomo himself.  I wrote about Cuomo's shenannigans about buying judges - he bought, only on my knowledge, three judges of the Court of Appeals so far (and that's only judging from records available to me, there may be more), Leslie Stein, Eugene Fahey and Chief Judge Janet DiFiore.

Naturally, the "recommendations" did not include the most sensible approach:

1) clean up the government by enhancing efforts to fight corruption;
2) enact new laws stripping corrupt officials of immunity and allowing private lawsuits against them - which will be an easy and financially efficient way to find corrupt public officials and then prosecute them criminally; the public will do the preliminary work through investigation and discovery through court at the litigants' own expense;
3) fight price monopolies for heating oil and gasoline - it makes no sense that in New York State where gas is needed in larger quantities, prices for it are higher than down South when gas is not needed in the same quantities for heating;
4) reduce property taxes and prohibit foreclosure on properties for inability to pay taxes.

Those measures were, of course, not recommended.

Instead, the recommendations to improve business climate in new York included:

1. "Evaluating and repealing or modifying the weekly pay mandate in Labor Law as it relates to employers with less than 1,000 state employees.
2. Encouraging localities to delay implementing or enforcing local laws on the use of Microbeads (any solid plastic particle that is less than 5 millimeters that is used for the purpose of exfoliating or cleansing; often found in cosmetic products) so as to comply with recently implemented Federal law.
3. Achieving uniformity in regulations regarding the use of plastic bags at retail stores.
4. Authorizing minority non-Certified Public Accountants to have ownership of Certified Public Accounting firms.
5. Achieving uniformity in regulations regarding the use of chemicals in children’s toys.
6. Modifying NYS Department of Labor regulations to update housing and other allowances for farm employees to be more reflective of current costs.
7. Moving farm tax assessment functions from the NYS Department of Taxation and Finance to the NYS Department of Agriculture and Markets to acheve greater efficiencies.
8. Speeding up phase-in time for exemption thresholds for the estate tax.
9. Providing increased funding for the Farmworker Housing Program through the NYS Department of Housing and Community Renewal.
10. Expediting the approval of wireless facility upgrades at existing locations throughout the state.
11. Adopting a statewide standard for small scale, residential solar installations.
12. Reforming the NYS “Excelsior” jobs program to help increase economic activity.
13. Repealing NYS DMV rules relating to commercial truck inspections, enforcements, and penalty provisions in order to provide relief to employers for minor violations.
14. 14.Clarifying NYS Industrial Development Agencies’ (“IDA’s”) authority to provide financial assistance in the form of loans and grants.
15. Updating Business Corporation Law regulations with respect to items such as veilpiercing provisions, notice requirements for LLCs, age requirements for incorporators and rules for naming a corporation.
16. Updating Abandoned Property Laws as they relate to Gift Cards and escheat laws."

Those were short-term recommendations - to improve New York business climate.

Long term recommendations are these:

1. "Clarifying the standard for a sales tax nexus based on the presence of purchasing agents in New York State.
2. Updating and streamlining New York’s State Environmental Quality Review Act (“SEQRA”) and other land use/project review processes. SEQR requires all state and local government agencies to consider environmental impacts together with social and economic factors during discretionary decision-making.
3. Evaluating and adjusting the “Tax Base Growth Factor” under the real property tax cap to potentially include economic growth for various projects.
4. Updating and modernizing “reportable quantities” as they relate to various hazardous substances.
5. Instituting Court reforms to add additional commercial court judges.
6. Allowing not-for-profits to issue student stipends in Career and Technical Education programs.
7. Increasing and expanding use of Career and Technical Education (“CTE”) certifications.
8. Investigating legislative solutions to address scheduling practices such as “on-call shifts” and “predictive scheduling.”
9. Modifying regulations regarding the establishing Life Insurance Capital Reserves.
10. Removing small business restrictions with respect to Minority and Woman owned business enterprises (“MWBE”)."

It is clear that, for Cuomo, the only court reform that New York state needs is to add some commercial judges - not to clean up the judiciary of the rampant corruption where practically every judge in New York state considers it not beyond him-/herself to engage in neglectful, abusive and/or unethical behavior (ex parte communications as just a relatively minor example) - knowing that no discipline will ever reach them.

Also, the long-term recommendations of Cuomo's commission as to CTE's  are contrary to economic trends.

While President Obama issued a report in July of 2015 indicating that over 30% of the country's labor force is subject to occupational licensing and occupational licensing may be stifling the economy of the entire country, New York, under Cuomo's "governance", plans to "increase and expand" occupational regulations through "career and technical education certifications" - instead of planning to deregulate and letting people work and earn a living without control of the government.

Here are "recommendations that require further discussion and review" (obviously which the hastily assembled special interests group could not fix in the 2 months of its work - why should a task group reviewing such an important issue as changing business climate to help the economy of a huge state had an extremely short 2-months' deadline, nobody knows):

1. "Implementing additional Workers’ Compensation Reform, including, but not limited to, improving municipal employer and county plan member access to public selfinsured pools, and finalizing durational caps on Permanent Partial Disabilities (“PPD”).
2. Implementing Insurance Reforms.
3. Expanding access to natural gas for manufacturing facilities.
4. Adopting measures to provide price protection to large energy consumers from Public Service Commissions (“PSCs”) imposed energy assessments and regulatory costs under Reforming the Energy Vision (“REV”) clean energy standards.
5. Undertaking a review of environmental regulations which exceed or differ from underlying federal requirements to identify unnecessary, non-beneficial compliance requirements.
6. Supporting legislation that would remove the Unemployment Insurance requirement for agricultural employees working under an H2A visa.
7. Restoring five Unemployment Insurance tax table rungs applicable to low experience-rated employers.
8. Reviewing and amending unnecessary restrictions on physical and operational improvements and capital investments that improve efficiency and competitiveness and/or reduce energy emissions and use.
9. Discussing the creation of a State Insurance Advisory Board.
10. Changing legislation to allow for the application of the False Claims Act to tax matters.
11. Setting time-limits for the Department of Financial Services to conduct audits and examinations.

I do not believe, though, that bleeding of population into other states will stop unless New York would start to 

1. clean up the act of its corrupt government, including and especially its corrupt judiciary, as well as 
2. reduce taxes, 
3. deregulate a large number of currently regulated professions where government regulation does not help the consumer, but instead hurts the consumer and the provider alike and
4. fight price monopolies in the oil industry.

Since all of the above 4 necessary changes to the New York economy are not going to happen, Cuomo will not be able to stop the bleed of population from New York.

And without enough population, and population able to actually buy products and services, businesses will improve their "climate" right into extinction.

Of course, for each recommendation, with Cuomo's propensity for corruption, we will need to look for financial "sponsors" of any such recommendation and for tricks and "fine-print" benefits for such sponsors.

And I will be diligently researching the recommendations, its potential sponsors, and especially the highlighted recommendations, and will be reporting my findings on this blog.

Stay tuned.

What is judicial misconduct in Mississippi is business as usual in New York

In Mississippi, a judge was just reprimanded for, among other things, enrolling criminal defendants in drug court who did not volunteer (because such enrollment presupposes a plea to the criminal offense, and waiver of multiple constitutional rights).

In New York, Judge Mulvey who ORDERED a judge (Madison County Judge Biaggio DiStefano) to do just that, enroll defendants into drug court while they did not volunteer - was promoted to the Appellate Division instead of being disciplined, and the judge who insisted on following the law, Judge Biaggio DiStefano, was first demoted by Judge Mulvey and then forced into early retirement, see my blog about that here.

So - what is judicial misconduct in Mississippi, is apparently, not only business as usual, but a basis for rewards to the corrupt judge.

No wonder people are running from New York.