The pretense show of being tough on prosecutorial misconduct begins across the country - and ends in Arizona by letting a prosecutor keep profits from his misconduct

California has made introduced new legislation to hold prosecutors criminally accountable - for a felony, a disbarring offense - if they withhold information from the defense, which they USUALLY do.

Of course, the teeth of any law is in its enforcement, and, where the law concerns criminal liability of prosecutors, I believe that the public and not other prosecutors, must be given the right to turn cases over to the grand juries - which California did not do.

So, theoretically, there is some progress made.

Practically - there is an appearance that the public is being appeased, but the law will change nothing, since prosecutors who habitually withhold Brady material will not charge their brothers and sisters for doing the same.

At the same time, in Arizona, a prosecutor who committed misconduct in several cases, over several years - and misconduct included even writing a book about a criminal case he prosecuted before the case was appealed (talking about personal interest of a prosecutor in the outcome of litigation), the prosecutor received a whopping discipline of an "admonition", and "probation".

The prosecutor announced in November of 2015 that he is "set to release" the book about the case where he prosecuted a person for murder, in 2016, before the appeal ran through, thus disqualifying himself from opposing the appeal since he acquired a pronounced financial interest in the outcome of litigation - and attorneys are prohibited by rules of professional conduct from acquiring a cause in their client's case, so what prosecutor Martinez was doing was attorney misconduct even had he not been a criminal prosecutor.

Moreover, a criminal prosecutor represents the People in a criminal case, and there may not be any "untold stories" sold by prosecutors to the public - because such information is either privileged under attorney-client privilege, or improperly withheld from the defense, and a criminal prosecutor in either event may not be allowed to profit from his own wrongdoing.

The book was, indeed, published on Amazon.com in February of 2016, and was on a pre-order before that:

It takes time to put together such a book.

The fact that it was so quickly published after the conviction indicates that prosecutor Martinez prosecuted the case not so much to do his job "so crimes are prosecuted vigorously, and so that justice be done", but in order to gather material to publish this book, and enrich himself.

The disciplinary proceedings, resulting in admonishment and probation, did not actually require prosecutor Martinez to stop selling the book, as he had no right to sell that story.

Martinez continues to sell the book as of today:

Here is how prosecutor Martinez describes himself and the book in order to drum up sales despite the fact that he had no right to sell the story, and selling the story was attorney misconduct and public fraud:

For his misconduct, Martinez was not disbarred, was not even suspended - while misconduct listed in the 27-page complaint was committed in 11 murder cases.

Martinez was not ordered to forfeit his ill-gained proceeds from the book either.

And, Martinez is no novice as a prosecutor - he advertises himself on Amazon as being a prosecutor for 27 years, so he knows full well he should not be doing what he is doing, but - easy money for a sensational book was too hard to pass by:

Moreover, as of today, the Amazon.com page of Juan Martinez's book also features an interview with Martinez - which makes no mention that he was admonished for publishing the book in the first place.

With a slap on the wrist, the happily smiling Mr. Martinez continues to sell the evidence of his misconduct, gaining glowing customer reviews and profiting by his misconduct.

Amazingly, a seasoned - retired - attorney with 37 years of experience, filed one of the glowing reviews, in full knowledge that publishing such a book was prosecutorial misconduct:

So, the Arizona bar, essentially, said - go ahead, Mr. Martinez, do more of the same - and maybe, it will be addressed with another admonition in some more years.

The question is - did Martinez share the proceeds from the book with the disciplinary prosecutors and judges to keep his loot?

The disciplinary decision in Arizona does not even cite the prosecutor's specific misconduct, so that it would be clear for the public whether the discipline was too light.

So, that is another curtsy to appease the public into believing that discipline of prosecutors is more than what it actually is, a closed-door rigging game.

At the very same time, in New York, prosecutors continue to be the Sky Dwellers who may never be touched by attorney discipline and can engage in any kind of misconduct they want.

Even though New York Senator DeFrancisco (himself an attorney) introduced a bill for creation of a separate Commission on Prosecutorial Misconduct which was heralded when it was introduced, in 2014, as "the first in the nation" - New York State Association of District Attorneys have so far lobbied the bill into non-existence, and the regular attorney disciplinary board continue to enforce their unspoken policy of not prosecuting prosecutors.

Here is how the lobbying by the Association of the District Attorneys against the bill was described in the testimony by Mr. Bastuk, a victim of prosecutorial misconduct who testified in front of New York Commission on Attorney Discipline in Buffalo in 2015:

But, as I said in my previous blog, the wheels of justice may be turning slowly, but they are, in fact, turning.

So, we see at least some changes in how prosecutorial misconduct is addressed, no doubt, brought about by public pressure and outrage.

And, public pressure and outrage should continue if we want any real progress be made against prosecutorial misconduct.

And - the public, the Arizona taxpayers should press the Arizona disciplinary authorities to revisit Martinez's disciplinary case and make him forfeit all profits from his ill-gained book and put the profits into the state budget.


Update as of October 4, 2016:  Martinez is appealing his discipline.

The bench is no longer a shelter for attorney misconduct - in Ohio and in North Carolina. In New York, the black robe protects attorneys from charges of misconduct

I recently wrote about a case in North Carolina where a judge was prosecuted for misconduct both as a judge and as an attorney.

The judge claimed that he could not be prosecuted as an attorney, because he was already prosecuted as a judge.  Yet, since maintaining a law license in good standing is a pre-requisite for a judge, and a judge adds rules of judicial conduct to rules of professional conduct of attorney when taking the bench, there is no law prohibiting to prosecute misconduct of judges both through judicial disciplinary authorities and through attorney disciplinary authorities.

A similar case is happening now in Ohio, where the Ohio disciplinary counsel is targeting with investigation a former judge for the judge's conduct on the bench.

Yet, in the blessed state of New York, attorney disciplinary committees usually refuse to prosecute judges as attorneys, claiming that they cannot prosecute a sitting judge, thus making the bench a sort of refuge for attorney misconduct of its occupants.

For example, I wrote on this blog about a complaint I filed in January of 2016 with the New York Commission for Judicial Discipline against judges that was nearly instantly dismissed without an investigation.  The complaint was against attorneys-turned-judges:

1) Christina Ryba, and
2) Richard Northrup

I complained about their actions before they came to the bench, actions of them as attorneys.

New York does not have a statute of limitations for attorney misconduct.

Christina Ryba engaged in misconduct so bad that he was fired from her position as counsel for the Chief Judge of the New York Supreme Court, Appellate Division 3rd Department for her unethical behavior and illegal and fraudulent use of the court system to rig her own judicial election.

Yet, the announcement of her being fired was not made in such a time to allow the rigging be known to the voters, and Christina Ryba was elected and took the bench, while her rigged election was paraded as "historic".

No attorney discipline followed against her, and the New York State Judicial Discipline Commission refused to prosecute her, even though she was fired for ethical violations - possibly, because a high-ranking judge known for his own misconduct, as well as for his preference for pretty-face female "special counsel", took her under his wing.

So, no criminal charges, no judicial disciplinary charges and no attorney disciplinary charges followed.

The same applied to judge Richard Northrup who rigged all criminal convictions in Delaware County from January of 2002 to July 31 of 2015 by failing to disclose that the Chief Assistant District Attorney he hired was the presiding judge's (Carl F. Becker's) law partner in private practice John Hubbard.

Now John Hubbard appears in front of Richard Northrup as an Acting District Attorney in front of a judge, even though these two have been now known of rigging cases for 13 years in the District Attorney's office.

Richard Northrup is also the one who refused to investigate attempted murder of a judicial critic Barbara O'Sullivan because the perpetrator was the nephew of Richard Northrup's long-time employee, and who instead filed rigged charges against the victim.

The New York State Commission for Judicial Conduct dismissed my complaint about both judges, without investigation, in April of 2016, within three months of filing at the end of January, 2016.

Yet, apparently, public pressure upon attorney disciplinary counsel and public outrage about rampant judicial corruption in the country has already resulted in changes in Ohio and North Carolina where attorney disciplinary authorities now dropped their unspoken and unwritten policy of not prosecuting judges for attorney misconduct and are doing it.

Not yet in New York, the stronghold of corruption, but - the wheels of justice are turning slow, but they are turning. 

We can all here the screeching sound.  It will happen.

The serious business of filming the police - the case of John Walker, Omavi Kushukuru, Maurice "Mo" Crawley, Adam Rupeka and Barbara O'Sullivan

I wrote on this blog about efforts of governments across this country undertake to block, intimidate or punish people who seek access to public records that may expose the government, see also here - where a black woman live-broadcasted her own murder by the police.  Of course, Facebook obliged the police request of blocking her live broadcast after a while.

But, videotaping and livestreaming police misconduct has proven useful in yet another case since then that I reported on.

The new bogus theory of the government for arresting a person for filming the police - in New York, that is - is that the person, Maurice "Mo" Crawley, was "stalking" the police officer, creating "a reasonable fear of injury" - by videotaping, apparently.

And, in Oklahoma, Missouri, a female white cop who killed an unarmed black man and was charged with manslaughter (not murder) despite a video of her execution-style killing, is raising yet another bogus theory - of "auditory exclusion", a theory that would have been laughed out of court for anybody but a defendant who is a police officer.  Of course, she should not have been allowed to be out on the streets with a gun if she had such "exclusions", but anyway, whatever saves her ass.

By the way, Apple has patented software to remotely disable video recorders on their phones back in 2012, and the timing is quite suspicious, since that was just the very beginning of the movement to film the police and expose police misconduct through citizen videos created by smart phones. 

The interesting part is that Apple does not disclose whether such video-stopping software is already embedded into iPhones. 

And, the even more interesting part is why Apple, a business, would patent such a thing.  Usually, businesses do not patent anything that is not promising profit.  And, if such software promised a profit to Apple, then who is paying?  And how much?  Did Apple receive government money to develop, patent and embed such software into its phones to prevent embarrassment of police and resulting unrests when people publish their videos from smartphones on the Internet?

Courts - while resisting public efforts to make court proceedings subject to public videotaping - have gone to extraordinary lengths to prevent introduction of videotapes of police misconduct in court.

For example, in 2011, in Texas, an appellate court has ruled that a motorist who was stopped by the police had no right of access to the potentially exculpatory police-created dash-cam video, which is required for disclosure under federal constitutional "Brady" rule.  By the way, the arresting officer made his own determination that the video "does not have any evidentiary value", did not put the existence of the video into his report, and the video was destroyed - which did not bother the court one bit.

Yet, when the police, on the one hand, has a self-activating dash-cam video recording equipment on patrol cars, but when destruction of such dash-cam video is ruled insignificant by courts, such a ruling is nothing other than encouragement to other police officers to do just the same.

Moreover, in order to prevent police embarrassment, state legislatures undertook steps to actually block public access to police-created (if they are created) dash-cam videos.

In July of 2016 such a legislation was passed in North Carolina.

After the legislation was passed, the police immediately took advantage of it by shooting what appeared to be an unarmed black man in Charlotte, NC, in September of 2016, and, following the new legislation, refused to release the police footage of the shooting.  Only the wife of the man shot by the police recorded the incident on her own cell phone and posted it.

Massive protests erupted in Charlotte, NC.

As a response to those violence protests, no doubt, Missouri authorities charged their white cop for killing an unarmed black man (the killing was at about the same time as the killing in North Carolina) with manslaughter - while releasing her back on the streets despite her being a danger to society.

In North Carolina, because of public pressure, the police footage of the killing, the police footage of killing of Keith Lamont Scott was released to the public in September of 2016 - but, since the blocking legislation goes into effect on October 1, 2016, this release is likely the last one of this kind.

The wonder is why it was released at all, and why the police did not simply wait until October 1, 2016 to deny release - apparently, that was done to appease the public protests.

The footage released by the police in North Carolina, reportedly, does not show whether Keith Scott did or did not have a gun - a very convenient video given the circumstances of protests.  The question is whether the footage was redacted before release.

The question is also whether a gun was planted by the police at the scene - and, obviously, that is also not shown in the videos and pictures released to the public.

And, the police footage released to the public does not show Keith Scott pointing a gun at the police.

It would be good to borrow from practices of other countries where lay witnesses must be present at the investigation of the crime scene and recovery of any material pieces of evidence, to prevent such planting.

What is a tragedy in Missouri and North Carolina, turned into a complete farce in Arkansas where, same as in the New York case I described above, a man was arrested for filming the police.

Only it was not just any man.

It was an Arkansas legislator who actually promoted a bill for filming the police.

And, legislator John Walker was, reportedly, filming the police to prevent them from killing the man they stopped in a traffic stop.

The police was stupid enough to put that statement of John Walker into their report - apparently, as a justification of an arrest.  A person should be arrested in Arkansas, apparently, for videotaping the government in order to make sure the government does not kill a citizen - which is what the government across the country is known of doing.

And, according to the same police report, Rep. John Walker refused to obey an officer's command to come to the officer (which command did not have any legal basis, obviously), and

I wonder what the "antagonistic and provocative manner" was for - was it because John Walker insisted that what he was doing is legal and that officer has no legal right to give him any commands because of it or stop him from videotaping them?

Of course, after a media frenzy, Arkansas authorities claimed that Rep. John Walker, D-Rock,

who was already arrested for filming the police, will not be charged with any crimes.

It could have been just a knee-jerk reaction - a black man is filming the police, let's arrest him.

As to Rep. John Walker, the "incident" was "resolved" (of course, John Walker can sue for the arrest) - because the authorities indicated that no charges will be filed against John Walker, and the local police chief even issued a letter of apology

- which John Walker reportedly rejected, as he had every right to do.

Charges were also dropped against John Walker's employee, 29-year-old attorney Omavi Kushukuru who was on the scene and assisted John Walker when he was filming the police, and when he was opposing unlawful demands of the police.

I must note that no letters of apology were sent to the similarly arrested 29-year-old lawyer Omavi Kushukuru, as was sent to the State legislator John Walker.

So, the only reason for dropping the charges, and an apology, is apparently, John Walker's status as a high-ranking member of the government.

Attorney Omavi Kushukuru, thankfully, escaped charges since it was embarrassing to not drop charges against him when identical charges were dropped against his boss.

But, arresting an attorney for assisting his client, on the scene, and giving him legal advice is even more outrageous than the arrest of John Walker.

And, no apologies were sent in New York to Maurice "Mo" Crawley, who is still being prosecuted for the same bogus charges that were dismissed against John Walker and Omavi Kushukuru in Arkansas - "obstruction of governmental administration".

For filming the police.

After all, recently, another activist in New York who had the audacity of filming the police, Adam Rupeka

• was charged with a sex crime by the same officers who were out to get him for suing them and causing their fellow officer to lose his job for pepper-spraying Rupeka when he "flipped the bird" at the police officer;
• had to flee to another country knowing that his life was in danger;
• was found dead in Mexico, and
• an extensive murder investigation into those who wanted him to come to harm miraculously did not occur.

And, another activist in New York for filming the police, Barbara O'Sullivan, was

• criminally prosecuted for 1.5 years for a felony (charges were dropped), then her dogs were killed under suspicious circumstances, then
• her house was burnt down, with nobody investigating it (the dirty prosecutor John Hubbard has recently, reportedly, confirmed to Barbara that "her is not aware" of an investigation of the house fire) - because one of the prime suspects is a cop, Derek Bowie, a nephew of the investigator Jeff Bowie employed for years by the Delaware County District Attorney's office, then
• her lawsuit against Derek Bowie who attempted to run her over in a patrol vehicle to smash the tablet in her hands with which she was videotaping his misconduct, was dismissed by Judge John F. Lambert for failure to comply with irrelevant discovery demands - the discovery seeking documents  which were irrelevant to Barbara's lawsuit, and which were destroyed by the fire.  By the way, Bowie was served with that lawsuit by the Delaware County Sheriff, his employer, defaulted, and then obtained from Judge Lambert a vacatur of default on a bogus claim that the Delaware County Sheriff (his employer) did not know about the lawsuit - while having served it.  Of course, the Sheriff's Department did not have to know about the lawsuit (even though it did, since it served it) because the Sheriff's Department was not sued, and Bowie was sued for an intentional act not subject to the Notice of Claim requirements.  And, the Sheriff's Department, its attorney Frank Miller and Judge John Lambert knew they were fixing the case by vacating the default on the basis of "lack of notice", because the lack of the Notice of Claim was never raised by Miller on behalf of Bowie, and without that, Miller had no right to even participate in the action because he was an insurance attorney for the Sheriff's Department, and in New York, insurance does not cover intentional misconduct.

I wonder what the Appellate Division will say about this bullshit from Judge Lambert.

But - as you see, filming the cops is becoming dangerous in this country.

With no caps on fees for prosecution, there should be no caps on indigent criminal defense

The cap in representation of the poor in New York appellate courts is, upon my information, $4,400, with an hourly rate of $75.00 per hour, irrespective of the case, unless there are "extraordinary circumstances" and a court's permission,

and with $350.00 cap for reimbursement of costs without additional permission of the court, whatever they actually are - for printing, reproduction of the record, mailing, copying.

Note that legal research through Westlaw or LexisNexis - available to state-paid prosecutors - is not available to assigned counsel.  Westlaw or LexisNexis packages can come at hundreds of dollars per hour, and enormous amounts per month.  Apparently, prosecutors are entitled to such an expense, but defense attorneys for the poor are not.

Of course, there are law libraries in courthouses, but, first, doing research through books is not very fast (and will quickly eat into those allowed 58 hours), resources of local courthouse law libraries may be limited, and - most importantly - attorneys may reside miles from those courthouses, and courthouses may have limited time for the law libraries to be open.

In other words, your assigned counsel will be at a severe disadvantage, as compared to an opponent with an online Westlaw account who can do research 24/7 and without caps on paid attorney time or expenses involved.

Moreover, note that the state makes assigned counsel FINANCE the defense - by paying them not in advance, but only in arrears, after the often multi-month representation is complete, and with no guarantee of deadlines for payment after the vouchers are submitted.

Of course, you should know that all applications for costs or fees in excess of the above amounts are, of course, "disfavored" by courts - which means, more often than not, you will get nothing over the capped limits, despite your actual expenses and despite your actual (and necessary) input of hours.

That means that on an assigned appeal in New York, the indigent client is entitled to 58.66 hours of paid representation, total.  You know that no assigned attorney will work when he or she is not being paid, so after your assigned attorney has worked his or her 58.66 total on an assigned case - you can expect... Well, nothing.  Cutting corners, that is.

58 hours, depending on the case, may not be enough even to READ the transcripts of the proceedings, much less to do proper research on issues that arise in such proceedings, while cases in Family and criminal courts can last for days, producing miles of trial transcripts - and believe my experience as an appellate attorney in New York in civil, civil rights, criminal and Family Court cases, many issues may arise requiring research, 58 hours of work is not nearly enough for any appeal.

Here are answers posted by attorneys from different states on AVVO as to how many hours an "average" appeal takes:

So, attorneys from across the country agree that it takes anywhere from 10 to several hundred hours to do an appellate brief, depending on many factors.

Only 58 of those necessary hours are compensated in New York.

Try asking your assigned appellate counsel before he or she starts working on your appeal, and during the appeal, as to what issues he or she is going to raise, how exactly - or whether - she does legal research, whether he or she is going to exceed the fees and/or expenses cap and whether he or she is going to apply for fees or expenses on top of the caps.

You have grounds for concern especially if the record is large - because of how much time goes into just reading it, spotting the issues in the record and researching the issues.

My readers report to me that, mostly, assigned appellate counsel duck such questions and, most often, do not even agree with their own clients to discuss issues they are raising on appeal, claiming that they have the record and don't need their clients' input.

Of course, no attorney will behave in this manner with a paying client, and no attorney should behave in this manner with any client.

In cases of criminal appeals, the issue amounts to a constitutional violation.

Under Gideon v Wainright the U.S. Supreme Court required representation at every meaningful stage of a criminal proceeding, and an appeal from a conviction is such a meaningful stage.

Capping such representation for the indigent based on budgetary concerns does not spell out compliance with this constitutional precedent.

New York caps on assigned representation on appeal are not the only such caps.

In federal criminal cases, compensation of assigned criminal defense attorneys is subject to guidelines.

Here are the federal maximums in compensation for criminal defense counsel as of January 1, 2016.

$10 thousand dollars for a criminal trial of a felony other than a capital (death penalty) case.

Is it a lot or not a lot?

It all depends on the number of hours required to be put into the case.

Here are the hourly rates:

So, for a felony, at the hourly rate of $129.00, an assigned criminal defense attorney is allowed a fee of $10,000 for a felony case, $2,900 for a misdemeanor case, and $7,200 for appeal from a conviction from either a felony or a misdemeanor.

Let's translate that into the number of hours an indigent criminal defendant will get out of assigned counsel in federal criminal cases.

In a felony case, a criminal defendant will get 77.51 hours of paid representation.

In a misdemeanor case - 22.48 hours.

On an appeal from either a felony or a misdemeanor - 55.81 hours, less than in New York.

An attorney, once assigned, cannot bow out of the case without court's permission, and will have to work as many hours as the case requires.

The attorney will have to be present at as many hearings as necessary, and at as many days of criminal trial as necessary.

Also, a whopping $500.00 is allowed for "computer-aided legal research" - that will be worth, probably, 3 (three, total) hours of research on Westlaw.  Otherwise, the assigned counsel will have to submit to the court a "statement of justification" of his work for the defendant

- which is an interference with effective representation of counsel and freedom of the defense counsel to decide how to build the defense.

Imagine that a criminal case is lasting for a year - usually, criminal cases run for more than a year, but let's say a year.

Over that year, the prosecution will earn an annual salary, with benefits.

Here is the rates of compensation of U.S. Attorneys, irrespectively to how many cases they handle per year:

Yet, a criminal defense attorneys who may work for the same year only and entirely on a labor-intensive case, will earn only $10,000 for a felony or $2,900 for a misdemeanor - that is lower than the current poverty levels in this country, with no benefits, by the way.

What kind of quality of criminal defense can we expect under the circumstances?

Criminal defense is notoriously "labor-intensive".  Moreover, criminal procedure laws give a criminal defendant and his counsel notoriously less time for discovery and motions than in a civil case, which makes work of a criminal defense counsel not only labor-intensive, but labor-intensive over certain periods of time.

Another big issue is that manipulating between "capped" (private) and "uncapped" (assigned) federal criminal defense attorneys may be done to influence the result of the criminal case.

I wrote on this blog about federal judges in Minnesota and Nevada who disqualified private criminal defense counsel for defendants on pretextual bases and instead assigned criminal defense attorneys to them.

In at least one of these cases, as I far as I remember the record, the defense claimed that they need to review thousands of pages provided by prosecution in discovery.

Let's see how even one thousand pages provided in discovery will impact ability the right of a federal criminal defendant to effective representation of counsel at trial.

Let's say that an attorney will need from 3 to 10 minutes to read one page, depending on density of the text and complexity of the issues raised there.  Remember that it is not just casual reading when you can skim through the text, but a reading seeking to see connections with other evidentiary facts, relevance to the case and how what you read may help your client.

With a thousand pages of discovery, the attorney will spend, then, from 3,000 to 10,000 minutes on reading 1,000 pages received in discovery.

There are 60 minutes in an hour.

Thus, an attorney will spend from 50 hours to 167 hours on just reading the discovery materials.

There are no restrictions as to how much in discovery materials is to be provided in any given criminal case - felony or misdemeanor.

In fact, the more a criminal defense counsel gets in discovery, the better - when his fees and expenses are "uncapped", of course.

Yet, under federal caps on criminal defense compensation, an assigned criminal defense counsel will only be paid for less than 23 hours of work in a misdemeanor case and for less than 78 hours of work in a non-capital felony case.

So, if an attorney needs 167 hours to just read materials he received in discovery, here goes your criminal defense in the entire case.

The attorney has no time, within the paid limits, to even READ the materials in discovery, much less, to come to talk to his client in jail, appear at court proceedings, hearings or a trial, do legal research or make motions.

When federal judges remove from the case private - "uncapped" - criminal defense attorneys and replace them with "capped" attorneys, while knowing that their "capped" compensation will not even cover reading the discovery in the case, that means only one thing - to force the "capped" attorney to either provide multiple hours of work for free (not many attorneys are capable or can be expected to engage in such sacrificial work at their own expense), or to provide the bare minimum of representation to avoid malpractice and discipline, or to steer the criminal defendant into a quick plea bargain.

This is how American prisons are filled with wrongful convictions, ladies and gentlemen.

And this is how prosecutorial, and then judicial, careers are made.

Just a little help from the judge, disqualification of an "uncapped" criminal defense counsel and assigning a "capped" counsel can make a difference between an acquittal at trial and a coerced plea bargain, another "won" case for the prosecutor, and a paved path to judgeship for that prosecutor.

Attorneys, unfortunately, do readily steer their clients into plea bargains to get the maximum payment out of a minimum hours worked, this is a very well-known scam used by many criminal defense attorneys unworthy of that name.

I received many, many, many stories from my readers, in addition of the stories I heard of the years of working in a criminal defense attorney's office and practicing, telling me how private attorneys, as well as assigned counsel, steered them to a plea bargain.

We had a lot of clients who would come and say - the previous attorney has taken all my money, can you, please, correct his mistakes for free, and the story of retainer fraud or assigned voucher fraud followed.

Criminal defendants with assigned counsel will be surprised if they FOIL the County where the prosecution was taking place for the voucher of their assigned counsel, to see how much was charged for the criminal representation.  There can be unpleasant discoveries made where, for the minimum time, the attorney would charge the maximum amount allowable - while doing nothing on the case.

So, caps on attorney fees of assigned counsel prevent indigent litigants to receive effective representation, steer them into plea bargains, and encourage voucher fraud and retainer fraud amongst attorneys.

Retainer fraud, which is a closely-related subject, is charging a large criminal retainer, doing nothing on the case, and then "arranging" for a plea bargain within a couple of months, keeping the entire retainer because of a "favorable outcome".

Similar to the retainer fraud, fee cap fraud is doing nothing (because an attorney knows that the necessary amount of hours is not going to be compensated), steering the client into a plea bargain, and then obtaining a maximum-amount voucher for no work done other than travel to court and phone calls.

What should be done?

Professor Ilya Somin offered an interesting solution - to give vouchers for assigned counsel directly to the clients.

That would cover:

(1) the choice of counsel - as an attorney that particular client has chosen and trusts, after all, an attorney-client relationship is a fiduciary relationship, and courts cannot command an indigent client who to trust, especially when trusting an obviously incompetent or dishonest attorney is unreasonable;

(2) elimination - through record of performance and client rapport - of those attorneys who do not do their work, only skim the government for moneys they did not earn;

(3) providing incentive to attorneys to work better - so that clients would choose them through the voucher system, rather than what is happening now, attorneys obtain assignments through brown-nosing assigning judges (with ties to the prosecution), usually, by doing nothing on the case.

Word of mouth coupled with social media will result in vouchers being given to only those attorneys who are known to actually work with their clients, spend time on discovery, motions and research, and make effort to win the case - not just steer the client into a quick plea and submit the voucher to get paid.

I would add to Professor Somin's choice-of-provider proposal for vouchers,

that assigned counsel should receive an advance for their work. 

It is unfair for the government to require criminal defense attorneys, but not prosecutors, to finance criminal defense - because, when assigned criminal defense counsel are finally compensated, the effective rate of compensation will be eaten by inflation.

The wrongful conviction movement is on the rise.

People's awareness of causes of wrongful convictions is also on the rise - and the "capped" assigned defense is a large contributing factor to wrongful convictions.

And, the "capped" criminal defense should be prohibited as unconstitutional - since there is no such thing as a "capped" prosecution.

On competence of criminal defense for the indigent

In Wisconsin, an assistant public defender was removed from a criminal case - a first degree murder case - for incompetence.

The trial was scheduled to begin on October 10, 2016, so all pretrial discovery and motions should have been done by this time.

At the pretrial hearing judge Ellen Bertz

grilled the privately hired defense attorney Sarah Clemment on elementary concepts of criminal law, and, reportedly, she could not give coherent answers.

The defendant Dennis Hassel is African American.

And indigent, since the case is now handled by the public defender's office.  The private attorney the judge disqualified as incompetent has been hired by the defendant using his sister's cashed-in retirement fund.

The disqualified defense attorney is, reportedly, a solo immigration attorney who complained that she did not get to see her clients because he was housed in prison far away from her.

Which, apparently, did not prevent Sarah Clemment from taking the retainer - a considerable retainer, I am sure, for representation in a 1st degree murder case.

Even though Wisconsin does not have the death penalty, a conviction for 1st degree murder carries a life sentence in the state, so the stakes are very high and require competence and diligence from a defense attorney.

Yet, while the private defense attorney was disqualified on the even of trial, and now the Public Defender's Office will have to assign a new attorney, the quality of that attorney is not guaranteed.  Whenever criminal defendants ask to assign a specific, competent, attorney, they usually are rebuffed by courts stating that their constitutional "right to counsel" under Gideon v Wainright does not include the right to choose that counsel - and a lawyer that is assigned may be no better than the one that was disqualified.

The State Public Defender's office may either provide an attorney working for the state, or, assign a private attorney, which reportedly happens in 40% of all criminal cases in Wisconsin.

Such an attorney is paid $40.00 per hour for work and $25.00 per hour for travel, the lowest reimbursement rate for criminal defense for the poor in the U.S.

For comparison, in the recent case of a temper tantrum by federal judge Nicholas Garaufis, who called it "insulting" when an associate and not partner was sent to a court conference, FIVE partners showed up to the "kiss-ass-and-make-up" conference, one of whom reportedly flew to New York City from California.  Those partners were reportedly charging at $3,000 per hour, each, at the total amount of $15,000 per hour.

That was a civil case, not a case with the stakes of a life prison sentence.

Moreover, while an assigned attorney is paid in Wisconsin $40.00 per hour of work and $25.00 per hour of travel, the cost of maintaining a private law office in the country back in 2008 (8 years ago) was already assessed at $160,000 per attorney per year, making existence of solo attorneys practically impossible.

Assigned criminal defense attorneys in Wisconsin are right in claiming that by accepting assignments of $40.00 per hour, they are subsidizing prosecution of their clients - with full funding of the prosecutor's office.

As a comparison, in non-capital federal cases, reimbursement of criminal defense attorneys for the poor is at $129 an hour, but even then, there are caps in reimbursement of assigned criminal defenders, while, naturally, there are no caps in reimbursement of salaried prosecutors, while a criminal case can last for years and require a lot more hours than the cap allows.  I will explain about caps in assigned cases in a separate blog.


With compensation rates in Wisconsin at $40.00 per hour for work and $25.00 per hour for travel, the highest-caliber criminal defense attorneys will not accept such payment rates, since such payment rates will not allow to maintain a law office or to survive, and one can imagine who represents the poor in criminal cases in Wisconsin.

Moreover, for a 1st degree murder case, and especially where the defendant is housed 134 miles from the courthouse:

housing a criminal defendant within 5 hours roundtrip from the courthouse - when the criminal defendant had a private attorney - is nothing short of deliberate.

While I will not question at this time whether private defense attorney Sarah Clemment was or was not incompetent - I have to go on the press report, and judging by the press report, she did not know answers to elementary questions of criminal defense, but I also know how such reports can be falsified - her claims that the defendant was too far away are legitimate.

I do not know how much the attorney was paid - but 5 hour roundtrips (and that's not counting the time of clearance through the prison security and time spent with the client) put a drain upon a private criminal defense attorney's time, and upon the defendant's retainer.

I wonder whether the criminal defendant was kept so far away from the courthouse to inconvenience his criminal defense counsel and make it difficult for her to present an effective defense.

After the allegedly incompetent criminal defense lawyer was disqualified by the judge on the eve of trial, I wonder who will be assigned in this case, and, if the assigned attorney is a privately assigned attorney, reimbursed at $40.00 per hour for work and $25.00 for travel, how much will it rectify the situation - or was all of this disqualification and assignment for show, so that the conviction would not be reversed for ineffective representation of counsel.

Salaries among attorneys employed directly by the Wisconsin Public Defender's office show a wide range of qualifications:

Defendant Dennis Hassel does not get to choose whether he will be represented by a $32K per year attorney or by a $98K per year attorney.

The situation has recently come to a head in the State of Louisiana where the State Public Defender's office announced the so-called "austerity plan", turning away cases because public defenders were overworked, underfunded and could not, under the circumstances, provide effective representation constitutionally required in criminal cases.

I will remind you, that is the same blessed State of Louisiana that could afford to spend money on disciplinary proceedings of two qualified family court and criminal defense attorneys, not even allowing them to work for the poor at a reduced rate - because they criticized Louisiana judges, which has nothing to do with the purpose of attorney regulation, to protect consumers of legal services.  I am talking about attorneys Nanine McCool and Christine Mire.

I must also note that there are no claims anywhere in the State of Louisiana - or elsewhere in this country - that a prosecutor's office is strapped for funds.  Prosecutors get what they need.

After the Louisiana Public Defenders' Office implemented its "austerity plan" and started to turn away cases of indigent criminal defendants, ACLU filed a federal lawsuit against the Public Defender's Office.  The lawsuit alleges that, because of lack of representation, charged criminal defendants must languish in jail indefinitely - at public expense, I must note, and losing their jobs because of absence - which is an additional constitutional violation.  Keeping people in jail because they do not have money for bail, cannot afford a lawyer and where the state cannot provide them with a lawyer, is despicable.

Because of the "austerity plan", courts in Louisiana started to FORCE assignments upon lawyers - thus causing lawyers to claim, correctly, that they are subjected to forced labor and taking their property (their time) without due process of law.

While some attorneys "grudgingly agree" to represent indigent criminal defendants at confiscatory rates of reimbursement that does not allow attorneys to cover the costs of running their offices, ($160,000 per attorney per year), and agree only not to cause trouble with judges, there are a lot of ways in criminal defense to cut corners - such as, not do proper investigations, discovery, motions, responses to motions, not to prepare properly for hearings and trials, not to visit clients in far-away correctional facilities and not answer their collect calls from jail - that will make such forced representation not only useless for the client, but of negative value, since the client will harbor an illusion of representation while the forced-labor attorney will do only enough to avoid a disciplinary prosecution.

By the way, in many states, a criminal defendant may not sue his criminal defense attorney for malpractice, even if such malpractice brought about the conviction - unless such conviction is overturned, and good luck with that, and discipline against criminal defense attorneys for not doing their jobs properly is notoriously low.  One can expect discipline against a criminal defense attorneys more if he does do his job and criticize a judge as part of that job.

Forced labor was never effective, and legal scholars agree that forcing attorneys into "pro bono" work - or work pro bono-like compensation rates - will not resolve the "justice gap" crisis, but may make it worse, for services provided under the forced labor mandate will be far from prime quality.

At present, in Louisiana the crisis of criminal defense for the indigent came to the point of the state - that regulates attorneys under the guise of protecting consumers from incompetent attorneys - orders incompetent representation in criminal cases against the indigent by assigning to criminal cases attorneys who know nothing about criminal defense, insurance or real estate attorneys.

Attorneys not qualified in criminal defense and who are forcibly assigned to criminal defense cases say that it is like "asking a dentist to do a heart surgery".

Yes, it is.

And, fast backward to the case at the beginning of this blog - Louisiana is doing exactly what Wisconsin just disqualified an attorney for, lack of specialized knowledge necessary to represent a client in a criminal defense case.

In Wisconsin it is a point of disqualification - even though there is no alternative.

In Louisiana it is a mandate of the time.

And, even though the U.S. Supreme Court has ruled long time ago, in 1969, that states have no right to enforce attorney regulation rules (and criminal unauthorized practice of law laws) in situations where states cannot provide adequate legal representation of the poor and the illiterate - attorney regulation in Wisconsin and Louisiana is alive and well, and the states of Wisconsin and Louisiana will prosecute criminally those who, without law licenses, attempt to HELP indigent criminal defendant who sit in jail awaiting a lawyer that the state claims it cannot pay for.

Now, I have a question.

We have just had three judges in three different states undergoing disciplinary proceedings for disobeying the same sex marriage precedent of the U.S. Supreme Court.

What about liability of the state to its citizens - and to criminal defendants - for disregarding TWO precedents of the U.S. Supreme Court:

Gideon v Wainright, requiring the states, since 1963, to provide a qualified "counsel" (not necessarily a licensed attorney) at every meaningful stage of criminal litigation, and

Johnson v Avery, barring the states, since 1969, from prohibiting lay individuals, not licensed attorneys, from providing legal services to the poor when the states do not have money to provide necessary services of licensed attorneys.

Will states claim "sovereign immunity" now? 

Where is the legal remedy for the massive deprivation of right to counsel in criminal proceedings across this country?

Consumers of legal services in New York and Ohio, rejoice: Ohio quickly reinstated a lawyer who was suspended for lying to the court and stealing/hiding evidence, while New York reinstated a lawyer who was disbarred after being convicted of securities fraud

On September 22, 2016, Ohio reinstated the law license of attorney Robert Paul Demarco who, according to his order of discipline of November 5, 2015, lied to the court and hid evidence given to him by opposing counsel.

So, in Ohio, an attorney can lie and steal/hide evidence, and be reinstated after less than a year, while criticism of corruption in Ohio courts leads to attorney disbarment.

Not to be outdone, on September 28, 2016 New York reinstated disbarred attorney Christopher K. Collotta who was permanently disbarred in 2008 after a criminal conviction for securities fraud in 2004.

The order of reinstatement does not explain any reasons other than that it was based "[u]pon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto".

So, apparently, an attorney who has been CRIMINALLY CONVICTED for felony FRAUD can practice law in New York - and is instantly accepted to work for a "workplace counseling" law firm Zabell & Associates, P.C.

Notably, attorney Collotta was reinstated even though he has been "delinquent" - which means he did not pay his registration fee.

Since attorney Collotta's next registration is in November of 2016, and attorneys in New York must re-register every two years, by the time of attorney Collotta's interesting no-reasons-given reinstatement he was delinquent for nearly 2 years - and even that did not prevent his reinstatement.

Consumers of legal services of attorneys and Christopher K. Collotta in New York - rejoice.

Christopher K. Collotta - who was given leniency in criminal proceedings in 2007 because he is reportedly a cancer survivor, has heart problems, was "at the bottom of the food chain" in a 13-defendant conspiracy, and "only modestly profited" from his crime - to the order of $9,000 - is back in service.

So, if he steals from you while representing you, it will be only modest - within single-digit thousands of dollars.

As I previously said on this blog, commission of a felony is regarded by New York courts, as a lesser offense than criticism of a judge.

And, no new rules of attorney discipline that came into effect today, and which are supposed to be "fairer" than the previous mess, can fix the main problem of attorney discipline in New York - corruption.