So, how many criminal convictions did Williams v Pennsylvania actually invalidate? Looks like ALL of them - especially all of those involving violations of probation

While I practiced criminal law for years in state courts (New York), I never practiced criminal law in federal court, so the discovery I made today - unexpectedly - about federal criminal "justice" system, while doing something completely unrelated to that "justice" system, was completely stunning to me.   

I was preparing today my administrative appeal of the 2nd Circuit's denial of my FOIA request about records of the so-called New York State-Federal Judicial Council - a shadow organization with secret membership (unless members self-report) where members (state and federal judges) and their advisors (private attorneys appearing in front of those judges) are appointed by the Chief Judge of the New York State Court of Appeals on the State side and by the Chief Judge of the U.S. Court of Appeals for the 2nd Circuit on the federal side, an organization whose goals are, if we quote the Council's less secretive brother from California:

Once again, the goal of a secret membership organization of state and federal judges is to provide a vehicle for direct and personal communication between judges of the California state and federal courts concerning matters of mutual interest and concern.

So, given that state judges are defendants in civil rights actions in federal courts, what can be the "matters of mutual interest and concern" between state judges (potential defendants in civil rights actions in federal courts) and federal judges (who are supposed to be neutral adjudicators of those cases and have no ex parte contact with the defendants)?

According to the  California State-Federal Judicial Council, those "matters of mutual interest and concern" are:

(a) elimination of actual or potential conflicts between the two judicial systems (and what is more of a conflict than when a state judge is sued and has to appear and ordered that his actions are unconstitutional by a federal judge?);

(b) development of methods to improve the operation of the two systems;

why the two systems together?  Imagine if a defendant in state court works with the presiding judge (behind closed doors) to "improve operations" of defendant's agency and the judge's court.  Sweet.

(c) improving the quality of representation and ethics of attorneys practicing in the two systems;
 
            quality of representation is totally improved through ex parte communications - for one side, for sure, and during such ex parte communications attorney ethics simply soar, and that is especially true that attorneys "appointed" (by whom, when, how, on what grounds) to "advise" judges of both state and federal court (possibly, their own clients, or judges in whose courts they appear and practice) is completely and totally ethical

(d) exploring and developing methods to utilize scarce judicial assets so as to benefit the two systems and the citizens of the state;

            please, note that first and foremost, state and federal judges
            and private attorneys advising them and appearing in front
            of both state and federal judges and in front of
            federal judges while representing state judges, "explore and
            develop methods" how to utilize "scarce judicial assets"
            (or, rather, the taxpayers' scarce resources), so as to benefit
            "the two systems" first - and "citizens of the state"
             as an afterthought and a lip service.

            Of course, secret case-fixing benefit citizens of the state - at least, some of them.

(e) sharing materials and information that may have application or impact on the two systems;

This one is extremely interesting and may indicate that "materials and information"

shared by this crew behind closed doors pertain to extrajudicial sources upon which

cases are decided in court.  So, don't get excited when you see a judicial decision

that goes contrary to everything in the record and the applicable law - it may be based

on "sharing materials nd information" through this "Council", to "benefit the two systems" and to use "scarce JUDICIAL asserts" (I wonder what those "assets" are, and, if "assets" means "resources", why not just say that judges of two court systems financed from two separate budgets meet behind closed doors to decide how to use those combined budgets for mutual benefit - when state judges, once again, are defendants in federal judges' courts).

(f) fostering closer cooperation on resolution of joint problems”,

This one is the best.  How closer can be the "cooperation" than a joint body WITH SECRET MEMBERSHIP (see that my FOIA request as to membership records was denied) between state judges (defendants in civil rights actions) and federal judges? 

But, there is more.

In fighting my FOIA request, the Chief Judge of the 2nd Circuit Court of Appeals Robert A. Katzman, a former and present professor of law

and the U.S. District Court (Northern District of New York) Judge Mae D'Agostino, an experienced attorney, judge and a lecturer in the Continued Legal Education courses,

relied on a case from the U.S. District Court for the Eastern District of New York, Chandler v United States, No. 06 CV 2481 NG LB, 2006 WL 2806383 (E.D.N.Y., Sept. 28, 2006), for the proposition that ANY records created by judges are judicial records exempt from disclosure under FOIA.

Even the New York State Court Administration known for its stalling of FOIL requests and bizarre reasons given for that stalling, confirms on its webpage that there are two classes of records retained by the court administration:

court records, records of court cases, not subject to Freedom of Information law, and

administrative records (including appointments of judges and records generated by judges that are not records of specific court cases) which are subject to Freedom of Information law:

And, state judges or private attorneys who are participating in a "blended body" with federal courts are not part of "federal judiciary" - or are they now?  Article III of the U.S. Constitution is silent on it - or did they change it while we all slept?  Appears that way based on denial of access to records of lists of membership containing state judges and private attorneys.

But - to rely on Chandler in support of the 2nd Circuit's and NDNY's claim that a secret-membership organization between state and federal judges which also includes private attorneys appearing in front of both state and federal judges while also advising them behind closed doors is somehow part of "federal judiciary" really required a law professor's mind.

If that law professor, Judge Katzman, before coming to the bench, sat in an ivory tower and had no clue about criminal law - while now deciding appeals from criminal cases.

Here is the Chandler case, in its entirety - it is just 2 pages.

The case was decided in 2006, by U.S. District Judge Nina Gershon, also a professor of law.

The case involved a plaintiff convicted, obviously, in Judge Gershon's court, because otherwise the case for denial of access to the plaintiff's federal probation records would not have been brought in that court.

So, Judge Gershon issues a decision, in answer to a Pro Se (without a lawyer) lawsuit for access to the plaintiff's own probation records, claiming that:

and Judges Mae D'Agostino (NDNY) and Robert Katzman (2nd Circuit) agree that the decision was correct and claim it in support of their own denial of access to their own records which has nothing to do with legitimate activities of federal judiciary, see my full administrative appeal of denial of access to records under FOIA here.

So, now according to three judges and law professors, probation is part of the judiciary.

Probation is actually listed as part of federal courts - make no mistake.

And this is how the U.S. probation services describe themselves - as part of federal courts:

Please, note that the U.S. Probation services' description of "who they are and what they do" does not CLEARLY describe their MAIN function: EXECUTING CRIMINAL SENTENCES OF PROBATION.

Probation, if ordered by the court, is part of a criminal sentence.

Violation of probation lands a convicted criminal back in front of the court.

If probation is part of the court, violations of probation then involves the court as a witness, the accuser, the prosecutor and the adjudicator - a situation prohibited by due process, see the recent case about it, Williams v Pennsylvania.

You can call anybody anything.

You can call probation as part of the judiciary, but the FUNCTION that it is carrying out is executive.

Prisons are not part of the judiciary - and they are ALSO executing criminal sentences.

Probation execute other portions of criminal sentences - which is the same, executive function, see that probation departments in New York State, for example, are part of the executive branch, the Criminal Justice Department, Division of Alternatives to Incarceration.

Probation does not become a judicial function if it executes an alternative-to-incarceration portion of a federal, rather than state, criminal sentence.

You can call a pile of manure a flower, but I doubt you will want to give it to your girlfriend.

Actually, in the same New York State, local probation departments are part of the executive branch of the local governments, not of courts, a definite executive branch of the government.

But anyway, if federal probation OFFICIALLY is part of federal judiciary, then all sentences involving violation of probation are officially unconstitutional, as decided by accuser-adjudicator courts in violation of due process (see Williams v Pennsylvania).

And I keep thinking - with the constitutional defect being so obvious and glaring, why is it still there?

This situation is very much similar to attorney disciplinary proceedings where investigators and prosecutors (disciplinary committee) are part of the adjudicators (the disciplinary court) - and federal court so far support that system as constitutional.

No wonder.  They have the same thing with probation as "part of courts".

So - where is the "leadership", "scholarship", and whatever else federal judges are discussing and deciding in Judicial Councils and Judicial Conferences if elementary stuff in how their own courts are composed and structured is blatantly and unapologetically unconstitutional?

Yet another People v Smith - New York State Appellate Division 1st Department strikes a plea-bargained conviction for violations of the right to counsel

I posted an article today about an awful decision, People v Smith, of the New York State Court of Appeals authored by New York Chief Judge Janet DiFiore.

Yet, as a ray of hope, another People v Smith case - literally, the same last name - surfaced from the 1st Department where the court did the right thing and vacated a plea of guilty because the court advocated for the prosecution and violated the defendant's right to counsel at a critical stage of litigation.

The case, by the way, involved not only judicial misconduct of the trial judge, not only prosecutorial misconduct of the Bronx County District Attorney's Office because its prosecutors took advantage of unrepresented defendant, but egregious misconduct by defense counsel Gilbert Parris who did this:

Note the sequence of events:

Attorney Parris appears before the court without his client present and asks the court to relieve him because the client cannot pay.

First, attorney Parris knows better than that.

Attorney Parris could be relieved from the case either by notarized consent of his client - which was not there, or by a motion on an Order to Show Cause to the court to relieve him, after service upon his client and after a HEARING on that motion - which also was not done.

Instead, the judge skipped all of those pesky formalities called the law and just went ahead and relieved attorney Parris from the case - after a "discussion off the record", imagine.

Ok, attorney Parris is relieved now from the case and IS NO LONGER ATTORNEY OF RECORD.

What does attorney Parris do next?

In the absence of a criminal defendant who is NO LONGER HIS CLIENT, attorney Parris waives that criminal defendant's right to be present for what? - apparently for discussion of the prosecution's application for a buccal swab, a search of the defendant's mouth while the defendant was in custody.

 Why was defense attorney Gilbert Parris relieved from the case of Dwight Smith? Because Dwight Smith could NO LONGER pay him - after he did pay him initially.

Happens all the time, but that's not a justification for attorney Parris not to follow the law as to how to withdraw from a case (by the way, non-payment is not usually considered as a legal ground for withdrawal from a criminal case), and certainly not a justification to appear without his client, argue off record about withdrawing from the case, without a written motion or notice to his client, and, after obtaining that withdrawal illegally - even more illegally waiving his now FORMER client's right to be present at the argument about the buccal swab before an EX PARTE order for such a swab was signed.

Apparently, the court advised the defendant, who asked for an adjournment to get a new counsel to oppose the prosecution's belated application for a mouth (buccal) swab, that "all motions are finished" - confirming that Gilbert Parris, after being relieved from representation of the defendant, actually waived his right to oppose that motion.

In fact, the court, confirmed waiver of defendant's right to oppose the buccal swab by his no-longer-attorney Gilbert Parris in so many words:

Here is the "hero" in this case, attorney Gilbert Parris.

I wonder if attorney Parris will be disciplined for misconduct in this case - he richly deserves it.

One thing the 1st Department said though is not a correct statement of the law.

Further in People v Smith, the 1st Department stated that the right to counsel in New York criminal proceedings attaches at arraignment.

That is not correct.

In New York, state constitutional right to counsel attaches BEFORE criminal charges are filed if an uncharged individual asks for counsel,

and when criminal charges are FILED, before arrest or arraignment of the defendant.

That's why the police tries to talk to the defendant and obtain a confession BEFORE the charges are filed, and to persuade the defendant that he really does not need to ask for an attorney, but "just talk" to the police "amicably" - because once the defendant asks for an attorney, or once the charges are filed, the defendant cannot make a waiver of the right to remain silent without a lawyer present.


The above is Criminal Procedure 101 in New York, a 23-year-old New York State Court of Appeals case People v West.

The prosecutor, the judge, and the FORMER just-relieved defense attorney knew it, or should have known that case - that's elementary competence in the field you are practicing.

All participants knew that the defendant's right to counsel INDELIBLY attached under the New York State Constitution when the charges were filed, and that, once the court relieved one defense attorney, it had to either appoint another or wait until the defendant hires another attorney.

The court could not clandestinely proceed on the prosecution's motion "conveniently" using the just-relieved defense attorney to voice a waiver on behalf of his now-former client.

Yet, the court proceeded as a ton of bricks - and an advocate for the prosecution - pressured the defendant into a conviction on a plea, and sentenced him for 18 (!!) years in state prison.

So - the court struck the conviction on a plea, vacated the plea and dismissed the indictment - without prejudice, which means it may be resubmitted to another grand jury, and the process re-started again (at taxpayer's expense, of course, even though it was butchered by three taxpayer-paid employees: three judges and a prosecutor, and a private defense attorney).

The dismissal is a drastic measure for a violation of a constitutional right - and I absolutely salute the court for taking a hard stand against prosecutorial and judicial (and defense attorney) misconduct that occurred in this case.

I also wholeheartedly hope that

• the two judges mentioned in this case,
• the prosecutors and
• the defense attorney Gilbert Parrish who sold out his client for inability to pay (the client was later appointed an assigned, 18-b, counsel), failed to oppose a motion and, after he was unlawfully relieved from representation without a proper motion or notice to his client, waived the defendant's right to be present at a hearing out for non-payment,

be disciplined most seriously.

Here are the other judges, the "heroes" in that conviction:

the Bronx County #JudgeStevenLBarrett who relieved attorney Parris and then issued the ex parte order for a buccal swab - a Harvard Law School graduate (!)

Judge Barrett has been a licensed attorney for 44 years.  I hope that the last statement in Judge Barrett's attorney registration, "no record of public discipline", should change soon - Judge Barrett should not be allowed to escape without discipline after the stunt in People v Smith.

The second judge who decided this case is John W. Carter:

That's another Ivy-League educated judge - who has been a licensed attorney for 33 years - who does not know elementary law applicable to his job.

There was even a dissent in this case.

By judge Barbara Kapnick, a graduate of private Boston University,

and a "Master" of American Inns of Court, a secret-membership organization where judges and attorneys regularly meet behind closed doors and where judges obtain tangible benefits (wining and dining at attorneys' expense), and have ample opportunities for ex parte communications - so, whenever a judge's membership in Inns of Court is mentioned (or, as here, publicly paraded on the court's website), I keep wondering whether the judge's decisions are very straightforwardly bought.

And, of course, Judge Kapnick was on the "Board of Advisory Committee for Judicial Ethics" - see one of my first blog posts on this blog about this committee and its composition.

Here is Judge Kapnick's opinion in favor of upholding the conviction reversed and remanded by the majority:

Justice Kapnick says, in plain English, this:

1) defense counsel Parris was properly served with the motion for the mouth swab before the court relieved counsel of his duties, on March 11, 2009;

2) defense counsel did not oppose the motion for 50 (!) days, and on the 50th day since being served, defense counsel appeared in court without his client (who was in jail since he had to be "produced", so the court did not issue the securing order to produce the defendant);

3) THEN, after not opposing the motion for the swab for 50 days, and instead of arguing on the motion, attorney Gilbert Parris instead asked the judge, orally, off the record and in the absence of  his client, to relieve him of representation - and Judge Steven L. Barrett, a licensed attorney with 44 years of experience, and a judge of 31 years, allowed it.

Then Judge Carter, a Columbia Law School graduate, an attorney with 33 years of experience and a former prosecutor of 13 years (1987 to 2000) and a judge of 14 years (from 2002 to present), pressured defendant into a plea bargain based on illegal actions of the previous judge.

And all of that is ok for Justice Barbara Kapnick.

Ok, let's go further with her decision.

That's very sweet.

After his paid attorney sold him out for not paying him - and did that AFTER he was relieved (unlawfully) from representation without notice to his client or formal written motion, as it was supposed to be, CPLR 321(b), - defendant was just sweetly "informed" that there is nothing he or his new counsel can do - so he should just as well go ahead and allow the illegal swab before the "18-b" (attorney for the indigent) counsel is appointed.

You were already raped, there is nothing you can do about it, so just go ahead and allow yourself to be raped further.  Good logic.

Let's go further.

In judge Kapnick's "salient" view, failure to produce the defendant at the motion hearing is ok, and refusal of the defense counsel to oppose the motion while time on the motion lapses, without substitution of counsel, is also ok.

A very "salient" view for a judge, I must say.

That's another one of those "you've already been raped, so why do you stir" arguments.  The court already violated your rights, so your absence at the motion hearing, and your absence at the hearing where your attorney was allowed to withdraw, and where no adjournment was given for the motion to be properly opposed was not that important for you to attend.

Sidebar conferences at trial are important to attend - but a hearing regarding leaving you without counsel because your counsel did not want to oppose a critical motion without being paid is not important.

Ok, let's go further.

It's not the failure to adjourn the decision on the motion for the swab, or vacatur of that decision if that was made before relieving the attorney who DID NOTHING BECAUSE HE WAS NOT PAID that was the focus of Judge Kapnick mild motherly criticism of the judge's action - it was "imprudent" (but not unconstitutional) only to adjourn the actual illegal swab without the new attorney's presence, but then - it was not that important anyway.

Maybe, defense counsel presence at lineups will also be deemed by Justice Kapnick as not necessary either.  Why do we need defense counsel at all, please, remind me.

Justice Kapnick then lashes out against the majority for not simply suppressing evidence and remanding the case back, but dismissing the indictment completely, because of prosecutorial and judicial misconduct:

But, whether Justice Kapnick likes it or not, her opinion is a dissent only and does not have the force of law.

In People v Smith a criminal felony indictment was dismissed for violation of the criminal defendant's state constitutional and federal constitutional right to counsel - and that is a GREAT victory for criminal defendants in New York.

A great - and rare - case on judicial and prosecutorial misconduct that provides such a nearly complete (without sanctions against prosecutors and the sellout defense attorney) vindication for the criminal defendant.

Thumbs up to the 1st Department.

The New York State Appellate Division Third Department changed the wording - but not the essence - of attorney regulation after my husband's lawsuit

I was doing research for another blog and - as it often happens - bumped in yet another story of "interesting actions" of New York State Appellate Division Third Department trying to obscure the illegal nature of attorney disciplinary proceedings in that court.

In 2013, my husband Frederick J. Neroni brought a lawsuit against the clerk of that court Robert D. Mayberger, because of description of Clerk Mayberger's duties posted on the court's website.

The complaint is just 6 pages.

Mr. Neroni stated indisputable facts:

 

It's a classic accuser-judge conflict.

If the court "oversees" - not adjudicates, but "oversees" attorney discipline, that dubious word may reasonablmeans "handles prosecution".

And because of that, the court became an advocate for the prosecution, which Mr. Neroni expressed this way:

Quite a logical conclusion, isn't it?

And,

And - what did Mr. Neroni ask?  Money damages?

No.

Just to rule as a matter of law (for a declaratory judgment) and to stop enforcement of his order of disbarment created on the basis of such a conflict of interest.

On June 11, 2014, on an ex parte application of the defendant in this action, the Professional Conduct Committee of the 3rd Department (COPS), and without notice to Mr. Neroni, Mr. Neroni's case was transferred to the 4th Department.

The order was signed by the same Clerk Mayberger:

The "pending inquiries and/or complaints" would include a request by Mr. Neroni that the federal court would enjoin enforcement of his order of disbarment by the 3rd Department Committee, right?

Because the 3rd Department Committee recused from handling any disciplinary cases dealing with Mr. Neroni on June 11, 2014 - as signed by Clerk Mayberger, overseer of the Committee, who nevertheless signed a court order on behalf of the court.

The recusal was not only of the Professional Conduct Committee, but also by the court.

By the way, while recusing from Mr. Neroni's and my own disciplinary case, the court did not recuse from other cases where we were parties, and without fail ruled against us in several cases after the recusal.

Yet, even though it was not COPS, but the 4th Department Committee that had to be substituted into the action as of June 11, 2014, changing issues in the case, the recused COPS and the recused court continued to prosecute its motion to dismiss in Neroni v Mayberger after recusal.

Here are portions of the docket in Neroni v Mayberger:

So, on April 30, 2014 Mr. Neroni files his "irrelevant response" to the motion.

On May 6, 2014, COPS/3rd Department Court/Mayberger file a Reply to Response, continuing to assert their motion to dismiss Mr. Neroni's lawsuit:

Then, on June 11, 2014, Mayberger signs this order:

but does notify the federal court that COPS are no longer handling Mr. Neroni's cases.

At that point, all three Defendants voluntarily - and secretly - because the application for this order was never served upon Mr. Neroni - removed themselves from authority to do anything on Mr. Neroni's disciplinary case.

So, as of June 11, 2014 all three defendants were no longer parties in that federal lawsuit.

Moreover, the court was no longer the right court, because the 4th Department, where Mr. Neroni's case was transferred, was in the Western District of New York, and not in the Northern District.

Yet, the defendants did not notify the court, the now-illegal motion to dismiss in the now incorrect court proceeded, and in March of 2015 the wrong court, the U.S. District Court for the Northern District of New York, issued a dismissal of the action, about a year after ceasing to be a party in that action.

But wait - the saga is not over yet.

After the dismissal of the case as lacking merit, the court CHANGED the wording describing the job duties of its Clerk Robert D. Mayberger:

Here is the description of those duties in 2013:

The job description of the court clerk - which triggered a lawsuit of Mr. Neroni - claims that "As Clerk, [Robert D. Mayberger] oversees the daily operations of the Court and its auxiliary agencies, including the admission of attorneys and attorney discipline.  He is responsible for supervising and managing all Court functions including motions, appeals, budget preparation, personnel, finance, security, and all other areas of the Court's administration".

So, Mayberger "oversees the daily operations of the Court" including "admission of attorneys" - as daily operation of the court and "attorney discipline" - also as daily operation of the court.

Mayberger, as clerk, signs orders of suspension and disbarment - and at the same time oversees personnel of the prosecuting agency.

Sweet, isn't it?

A lawsuit targeting that language was dismissed as - of course, coming from a Neroni - without merit.

And look what the court NOW posts as Clerk Mayberger's duties.   Let's put those descriptions side by side.

So - that Mayberger supervises "attorney admissions" and "attorney discipline" as "daily operations of the court" is now missing from his official court biography and description of his duties.

The section describing who he worked for, is expanded and specified.

And, as a very relevant information to litigants in that court, it was added that Mr. Mayberger obtained awards, in 2011 and 2012 (missing from his above 2013 description) - as a photographer of horse racing.

The question is - does Clerk Mayberger NOT HAVE those duties that were announced in his job description in 2013, overseeing attorney discipline and attorney admissions, or are those duties simply removed from sight, because of that "meritless" lawsuit of that bad person Mr. Neroni?

By the way, in June of 2016, through the case Williams v Pennsylvania, the U.S. Supreme Court agreed with Mr. Neroni's "meritless" position in Neroni v Mayberger and struck, exactly on due process grounds, a judicial decision where the judge was both the accuser (only part of the prosecuting office, not the actual prosecutor) and the adjudicator, holding that:

But wait - wasn't it what Mr. Neroni said in his lawsuit against Clerk Mayberger?

So, let's see if anything will be happening in this case now that it is revived by the U.S. Supreme Court's decision in Williams v Pennsylvania.

I will follow this case with great interest, and will continue to report on it.

Stay tuned.