#IStandWithBennettBaur. New Mexico Public Defender punished for refusing to provide substandard representation to indigent criminal defendants.

I wrote previously on this blog about a problem in Louisiana where the public defender's office invited federal lawsuits against itself, literally, asked for such lawsuits, because it could not provide effective representation of counsel to the indigents due to lack of funds.

There was no similar problem, by the way, with Louisiana prosecutors - they have enough funds for prosecutions, even if such prosecutions result in wrongful convictions and fabrication of evidence.

At the same time, I wrote about the problem with indigent defense in New York where there are caps on appellate indigent representation and a nearly complete bar for indigent defendants to have funds for experts and investigators, and where indigent defendants have to beg the court to allow such funding, with a restriction of $1,000 that makes it impossible to have effective help from experts and investigators at trial in New York - while, again, prosecutors have an unlimited budget for experts and investigators, and do not have to ask the court for funds.

After New York was sued in a class lawsuit for failure to provide constitutionally required counsel for criminal defendants at the arraignment stage, New York recently did two things:

1. introduced legislation allowing arraignments in centralized locations, so that "conveyor" arraignment counsel are available for criminal defendants at that stage - which is, of course, only a lip service to satisfying the indigent defendant's constitutional right to counsel, which would have better been fulfilled by a deregulation of the legal profession or a voucher system (suggested recently by a legal scholar) where criminal defendants can choose their own assigned counsel, based on that person's knowledge, and on the defendant's trust in that person, and thus, only good defense attorneys who actually do their work will survive;
2. introduced a legislative bill, still in the works, that would require reimbursement by the state to the Counties of the full cost of indigent defense, and thus shift financing of indigent defense from the Counties to the State (where County taxes are levied on people's houses, and where people, in a weak economy, may, and do lose their homes in order to fund County taxes, including indigent defense - which may soon result in revolts).

Recently, New Mexico added itself to the disturbing news about the abysmal state of indigent criminal defense.

Chief Public Defender Ben Baur, of Santa Fe, reportedly refused to have his office accept new felony cases in one county, Lea County, claiming lack of attorneys and lack of funding.

Attorney Ben Baur was absolutely right to do what he did.

On the one hand, there is Gideon v Wainright, the U.S. Supreme Court case requiring states to provide attorneys for indigent criminal defendants.  And, there is a New Mexico Statute requiring creation of a Public Defender's office in order to fulfil that constitutional duty.  The NM Public Defender's office claims, this year, to have a $44.5 million operating budget.

$44.5 million - seems like a lot.

But it does not seem like a lot if you consider that the office of the Public Defender reportedly handles 70,000 cases per year.

Simple math indicates that the Public Defender's office has $635.71 to expend per case - and that is, from arraignment to trial to appeals to travel to rent to legal research database to electricity bills.

Yet, here is what the American Bar Association reports as hourly rates of attorneys - and that was 3 years ago:

So, the operating budget of the New Mexico Public Defenders - including investigators, cleaners, utility bills and all - per case, covers only 1.5 hours of work, hardly, per case.

In reality, that amount is much less.

New Mexico Public Defenders office reports that it has 221 staff attorneys and 160 private (assigned) attorneys working on indigent cases - those same 70,000 cases per year.

Again, simple math shows that each attorney must handle 183 cases per year.  That means that an attorney must complete a criminal case every second day of the year.   Considering that there are labor laws and mandated public holidays, and people must have some sick days and vacations, an attorney realistically must complete a criminal case every day or every day and a half.

This is completely unrealistic, first.  Second, the public defender's office must, obviously, without proper funding, wrap up cases and force their clients into pleas instead of properly litigating cases - because the Public Defender's office simply does not have funds to fully litigate cases, and provide effective assistance of counsel, as Gideon v Wainright required, not simply a warm body with a pulse and a law license.

The U.S. Supreme Court has ruled long time ago in Johnson v Avery: " In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

In other words, the U.S. Supreme Court has ruled, 47 years ago, that states cannot enforce lawyer monopoly on court representation if states cannot provide for a "reasonable alternative" to assist "illiterate and poorly educated" (not even indigent) individuals to file petitions for post-conviction relief.

Once again, Johnson v Avery was about "illiterate and poorly educated" - which is a far wider scope than "the indigent", who can very well be literate and educated, but lacking funds to hire a private attorney.

If the U.S. Supreme Court announced a ban on lawyer monopoly in the practice of law in civil (post-conviction petitions) cases for people who are not necessarily indigent, it goes without saying that such a ban must apply in the case of indigent criminal defense.

As an additional problem, attorney disciplinary rules require that any given attorney should not take on more cases than the attorney can handle - where the attorney can provide effective, quality representation.

New Mexico Public Defender's office has a caseload per attorney of 183 cases per year.

In Georgia, a federal lawsuit was recently litigated claiming that the State of Georgia does not provide effective legal representation to children who are subject of child neglect or abuse proceedings, because attorneys for children have caseloads of 400 to 500 children per attorney.  That is only 2 times more than in NM criminal proceedings.

The ABA reportedly recommends the following caseloads for attorneys:

Of course, first, such caseloads (150 felonies per attorney per year or 400 misdemeanors per attorney per year) are unrealistic and cannot ensure effective assistance of counsel in each of these cases.

Additionally, the ABA highlights the complexity of appellate work by equating work on 150 felonies or 400 misdemeanors at trial level with 25 appeals per attorney per year, and the New Mexico Public Defender's office handles, reportedly, 70,000 cases per year, without a breakdown as to how many attorneys handle how many appeals per year on top of their trial caseloads.

And, while the death penalty is abolished in New Mexico since 2009, it is not an inviting prospect to go to prison simply because your indigent defense lawyer did not have time for you, and because you had no money for a private attorney - while the "in-between" provision (required by Johnson v Avery) of a lay representative in court is unavailable.

It is interesting that, reportedly, New Mexico spends TWICE MORE on private prisons than it does on indigent defense ($85 million on its 5 private prisons versus $44.5 on its State Public Defender Office).

In  September of 2016, the NM Public Defender testifies in front of the state legislature, asking for emergency funds, citing chronic underfunding and inability to provide - same as in New York - counsel at arraignments, and at felony first appearances.

(By the way, in New York, initial felony hearings for detained indigents are routinely waived by assigned counsel - likely because if assigned counsel are too feisty and demand a felony hearing within 144 hour of detention, in order to either have the indigent client released without bail, or get information about the case at its freshest, before the prosecution had a good chance to coach witnesses, they will never be assigned again and will lose income).

And, the NM Public Defender indicated to the Legislature that he may have to start turning away cases for lack of ability to provide effective representation, if emergency funding is not given to him.

I wonder if the NM Public Defender pointed out the state's priority funding of private prisons over indigent defense...

An additional problem affecting effective representation is that the NM public defender also has a hard time "attracting" quality representation because of low reimbursement rates for assigned private attorneys - not to mention the high caseloads.

When no additional emergency funds were given to the Public Defender's office, the NM Public Defender did the only thing that an attorney can do as a matter of compliance with disciplinary rules - deny representation to those to whom he cannot possibly provide a quality representation, due to time and budget constraints. 

That's exactly what the Louisiana Public Defender did under the same circumstances, and at about the same time.

So, how did Louisiana - and New Mexico - react to the de facto strikes of Public Defenders due to lack of funding?

Louisiana offered a "way out" by drawing in for indigent criminal representation attorneys who know nothing about criminal law - which is, in itself, a denial of constitutionally required EFFECTIVE assistance of counsel.

In New Mexico, the court and the prosecution - who could not prosecute unrepresented defendants - became more creative.

Prosecution got into sheep's clothing and pretended to be a good Samaritan defending the rights of indigent criminal defendants - the very same that the prosecution was prosecuting.

The prosecution asked the court to FORCE the NM Public Defender's Office to accept new cases, no funding and no personnel and high caseloads and inability to provide effective assistance be damned.

The NM Public Defender's office insisted on its right not to provide any legal representation when it could not provide effective representation.

The NM court, a District Court Judge Gary Clingman, who unsuccessfully ran last year for the New Mexico Supreme Court, and a judge with, reportedly, 20 years of experience,

considered it possible to resolve this constitutional crisis by simply resorting to blunt force measures. 

Judge Clingman held the NM Public Defender in contempt of court and fining him $1,000 per each of the five cases where the Public Defender did not appear on behalf of indigent criminal defendants.

But, the NM court magnanimously allowed the NM Public Defender to "purge" his contempt by actually appearing in cases where he said he cannot appear for lack of funding, lack of personnel and inability to provide effective assistance of counsel.

In other words, Judge Clingman ordered NM Public Defender to provide representation, under the threat of contempt of court (and, possibly, losing his law license and livelihood), while such representation will be in violation of attorney disciplinary rules in the first place - because, according to the Public Defender, "We can't continue to spread our attorneys so thin that they don't have time to read police reports, to meet with a client, to do legal research if necessary," he said. "This is a systemic problem."

So, Judge Clingman ordered the Public Defender to choose between violation of attorney disciplinary rules by providing a substandard legal representation because of lack of funding and personnel, or suffering contempt of court and loss of law license and livelihood. 

But, as much as Judge Clingman is upset that the Public Defender cannot, as Jesus allegedly did, feed 5,000 people with one loaf of bread.

And, the State cannot threaten an attorney with sanctions, or impose sanctions upon an attorney, for adhering to disciplinary rules, and for trying to ensure their clients' rights to TRUE effective representation - not to a "body with a pulse and a bar card".

And, the State does not have authority to order an attorney to violate attorney disciplinary rules and provide a substandard representation to any clients.

In Louisiana, as far as I could find, no sanctions were imposed upon public defenders for refusing to represent indigent clients for lack of funding.

Yet, in Louisiana, public defender officers that went on strike, went on strike by county offices, and thus it was somewhat easier for Lousiana public defenders to go on strike and impress courts by numbers, where, in May of 2016, 33 of 45 public defender offices were reportedly refusing to take in new indigent cases.

Of course, both states, Louisiana and New Mexico, stubbornly continued to pay for pre-trial detention of people to whom the states could not provide proper legal representation, rather than simply release them on their own recognizance.

Moreover, in October of 2016, the NM Legislature approved REDUCTION of the already inadequate indigent defense budget by 3% - while, obviously, not reducing the budget for private prisons, or for prosecutors.

At the same time as reducing the budget for indigent defense for 3%, the NM State Legislators also:

• approved reinstatement of the death penalty,
• approved a three-strikes law that would send repeat felons to prison for life, and
• approved a bill increasing penalties in deadly cases of child abuse - all of which laws INCREASED THE NEED for indigent criminal defense.

So, while the solution of the problem is laying on the surface - using Johnson v Avery, to declare and emergency stay on regulation of the legal profession and the lawyer monopoly, and allow lay representation in at least cases where the state cannot provide funding for licensed attorneys - the states resort to:

1) Intimidation and sanctions - New Mexico;

2) Putting the unfunded mandate for indigent defense from one source (County) upon another (State) - New York; or

3) Ordering into service attorneys who have no clue about criminal defense - Louisiana,

while at the same time, overall in the country, the states widen the justice gap by targeting criminal defense, family court and  civil rights attorneys for sanctions, suspension and disbarment and removing the already scarce and disappearing resource for indigent criminal defendants.

That's exactly what I pointed out in my now pending petition for a writ of certiorari to the U.S. Supreme Court - if the justice gap became so bad that the U.S. Supreme Court Justice Sonya Sotomayor claims she would allow forced labor by attorneys in violation of their 13th Amendment protection, the government should at the very least not widen that justice gap by targeting attorneys for discipline, simply for doing their jobs for their indigent clients.

What can result from such a disparity, ladies and gentlemen, is revolts demanding justice for the indigent defendants, or release and stop prosecuting who the state cannot prosecute without a defense attorney on the other side, but cannot provide a defense attorney either.

I wonder whether, with the new president, this country will finally wake up and see that regulation of any profession - and especially the legal profession - leads to injustices, and to injustices not only to members of the regulated profession (regulated by powerful competitors), but mostly injustices to the consumers, to the public.

In the case of New Mexico - while #IStandWithBennettBaur, the NM Public Defender punished for asserting his adherence to attorney disciplinary rules to provide either a quality representation - or no representation at all - indigent criminal defendants continue to suffer.

And intimidating attorneys into providing substandard representation to the indigent is not a solution.  At least, it is not a good, fair, or even constitutional solution to the  problem.

So, is the appointment of Jeff Sessions by Donald Trump wrong, but of Robert Mulvey by New York Governor Cuomo right? On the fundamental right of a homosexual to marry a heterosexual

The press continues to raise questions about Donald Trump's picks for office.

For example, the press claimed that Jeff Sessions, Donald Trump's pick for U.S. Attorney General, tried to stop a meeting of homosexual community in 1996 on college campus.

Specifically, in 1996 Sessions reportedly "attempted to stop the Southeastern Lesbian, Gay, Bisexual College Conference from meeting at the University of Alabama under a state law passed in 1992 that made it illegal for public universities to fund in any way a group that promotes "actions prohibited by the sodomy and sexual misconduct laws."

Once again, it was in 1996.

Homosexual sex was de-criminalized by the U.S. Supreme Court through Lawrence v Texas only in 2003, 7 years after that date.

If, formally, homosexual sex was a crime at that time in Alabama, as it was in Texas and other parts of the country, formally, a state public official had not only a right, but also a duty to try and prevent a potential criminal activity from happening.

What I do not see the press doing though, is expressing concerns about appointment of an anti-gay judge, Robert C. Mulvey,

to "serve", first, as a Chief Administrative Judge of a huge 6th Judicial District in upstate New York, and then to be promoted to the Appellate Division 3rd Judicial Department.

Yet, Judge Mulvey did the same - or worse - than Jeff Sessions in regards to LGBT community, and I do not see New York State media screaming at Governor Cuomo's appointment of a radically anti-gay judge to the Appellate Division in March of this year.


In 2002, the New York State Assembly passed a legislation, Sexual Orientation Non-Discrimination Act (SONDA), prohibiting "discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights".  The legislation went into effect in January of 2003.

In June of 2003, the U.S. Supreme Court de-criminalized homosexual sex through Lawrence v Texas.

The right to marry is a well acknowledged, fundamental, civil right.

In 2005 in New York, there was a federal, U.S. Supreme Court, precedent decriminalizing homosexual sex, and a state legislation prohibiting civil rights discrimination against same sex couples.

Yet, in that same 2005, Mulvey has reportedly ruled against 25 same sex couples seeking to marry on the following grounds:

1. lack of standing - Mulvey claimed that city clerks lack standing to demand permission to register same sex marriages, as they have no personal stakes in the matter.  Yet, the example of Kim Davis out of Kentucky who was sued, and went to federal prison, for failing to issue same sex marriages, show personal stakes of public officials who refuse to do their duty;
2. New York Domestic Relations Law - Mulvey rejected the claim that the language New York Domestic Relations Law is gender-neutral, because "other sections" of New York law "clearly contemplate" a union between a man and a woman;
3. Equal protection under the New York State Constitution - Mulvey claimed that he is "bound by appellate precedent" from 1992 (without mentioning the later legislation, SONDA, introduced in 2003, which overruled that "precedent");  Mulvey ruled that "plaintiffs failed to meet their burden of showing “that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing.” At that same time, that same Legislature already passed SONDA, which Mulvey simply chose to ignore.
4. Due process under the New York State Constitution - Mulvey found that a state's denial of a right to marry to homosexual couples does not constitute a violation of their fundamental constitutional right to marry under either the state or the federal Constitution.

By the way, Judge Mulvey made the following claim in that case:

"Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.  The Court finds that civil marriage of same-sex couples is not a fundamental right under either the New York Constitution (Article 1, Section 6) or the United States Constitution (14th amendment). " 

So, in Judge Muvley's view, same-sex orientation is just a whim, so, individuals with homosexual orientation could just as well drop their nonsense, change their orientation, marry individuals of opposing sex, and we can all happily go home.

Of course, in 2006, the New York State Court of Appeals overruled an opposite decision, claiming that denying marriage licenses to same sex couples is unconstitutional under the State Constitution, and affirmed Judge Mulvey's anti-gay ruling by a New York City judge.

Mulvey concluded his reasoning in denying same-sex couples a right to marry this way:

"The decision to extend any or all of the benefits associated with marriage is a task for the Legislature, not the courts.   Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  Lawrence v. Texas, 539 U.S. 558, 603, 123 S.Ct. 2472, 156 L.Ed.2d 508, (Scalia, dissenting) (2003) If that day comes, it is within the province of the Legislature to so act."

Yet, by the time Mulvey ruled this way, "that day" already came - New York State Legislature has already passed an anti-discrimination statute, SONDA, 3 years prior.

Yet, Mulvey ducked the issue, never mentioned SONDA in the entire decision, and pretended that homosexuals could just as well change their orientation in order to marry people of the opposite sex ("Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.").

Thus, the only fundamental right to marry for a homosexual person that Mulvey found, in 2005, despite the existing anti-discrimination legislation on the books of the State of New York, was a fundamental right to marry an individual of the opposite sex.

And, that judge was repeatedly promoted, including, as of this year, by the New York State Governor Andrew Cuomo, who is trying to badmouth appointments by the new president-elect and wage "anti-hate" campaigns.

And, I did not and do not see any media frenzy against the appointment by Governor Cuomo to the intermediate appellate court, the court where most of appeals in the State of New York are decided, of a judge who preferred to defy the State anti-discrimination legislation protecting gay couples, in order to promote his own agenda, and to sermonize, through his court decision, that same sex couples do have a fundamental right to marry - somebody else, of opposing sex.

And that, ladies and gentlemen, is disgusting - both as to Mulvey's sermonizing, and to Cuomo's and the media's hypocrisy.

The problem of who will prosecute the prosecutor gets, well, spirit-ed? spirit-ual? You be the judge

The U.S. Supreme Court gave prosecutors absolute immunity for malicious and corrupt acts in office (which, I believe, led to the abundance of wrongful convictions in this country) on the assumption that an alternative remedy, attorney discipline, is available for prosecutors - an assumption that scholars believe, is wrong.

A well known public advocacy project, ProPublica, wrote about the problem of "who will prosecute the prosecutor" who commits misconduct in criminal cases - with an indication that, basically, nobody would.

In 2010, California tried to pay lip service to discipline of rogue prosecutors - by claiming it was reviewing files of 130 prosecutors to figure out whether to subject them to discipline.

Some of those prosecutors were actually prosecuted and one (!), reportedly, suspended.

In New York, the bill to create a Commission for Prosecutorial Misconduct was introduced in 2013, and was, and, I am sure, still is, the subject of aggressive hostile lobbying against the bill by the State District Attorneys' Association described in the transcript of a public hearing on attorney discipline in August of 2015, p. 25-27,

see also an article by the Rockland County District Attorney Thomas Zugibe.

Nevertheless, the bill so far has passed both chambers of the New York Legislature - the House and the Senate - and is close to approval by the New York State Governor Andrew Cuomo

- unless, of course, Cuomo's friend, the Chief Judge of the State of New York (a former lifetime career prosecutor) and her friends will not persuade him to veto the bill.

Prosecutorial misconduct occurs not only in criminal proceedings, but also in "civil" disciplinary actions against public employees and holders of occupational licenses.

And, many attorneys pointed out that disciplinary prosecutors should themselves be not immune from discipline - which, at this time, never happens, no matter what disciplinary prosecutors do.

That is one of the problems of occupational regulation - creating classes of nobility who are above the law, people connected to the government, or those who handle disciplinary prosecutions themselves.

An unusual case necessitating to prosecute the prosecutors was reported out of Texas.

In Texas, as in every other state, liquor sales are regulated by the states.

And in Texas, as in each state, there are enforcement and prosecuting authorities for violators of liquor regulations who sell liquor without a license.

And, when the Texas Alcoholic Beverage Commission hosted the National Convention of Liquor Administration, and wanted to serve alcohol to the "liquor administrators" for some unknown reason, the National Convention of Liquor Administration was supposed to follow the law its participants are enforcing - and obtain a liquor license.

And - reportedly, it didn't.

Now, the Commission is going to investigate and prosecute itself, with predictable results.

Like judges are investigating and prosecuting judges.

Like attorneys are investigating and prosecuting attorneys - eliminating those disciplinary attorneys do not like, and keeping their friends in business, no matter what the record and the law is.

Like social services investigating foster parents for child neglect (while being the agency that placed children with those foster parents and is responsible for that same child neglect).

There should be mechanisms provided for in every prosecutorial office for prosecutions of their own members - and, as of now, such mechanisms either do not exist, or do not work, judging by the number of conflicts of interest reported by the public, and dismissed by federal courts on prosecutorial immunity grounds.

The "do what I say, not what I do" principle of our law enforcement is simply not acceptable.

And yes, there must be stricter discipline for liquor authorities who violate their own laws than for everybody else, and stricter discipline for prosecutors who violate criminal laws than for everybody else - after all, prosecutors know exactly what they are doing.

Otherwise, the claim that this country is based on the "rule of law" will remain what it is now - a mockery.

Good news from the U.S. Supreme Court - my writ of certiorari has been docketed

I received good news today from the U.S. Supreme Court - my writ of certiorari in the disciplinary case has been docketed. 

The docket No. is 16-664. 

Filings in the case may be accessed here.

The text of the petition can be read here.

Coincidentally, at about the same time as my petition was docketed, the ABA has become interested in the issue of lawyers disciplined for criticizing judges - see an article about Louisiana attorney Christine Mire disciplined for making a motion to recuse based on painstaking diligent research that showed that the judge may have been involved in changing the audio file of a court proceeding in order to show that she did disclose her irreconcilable conflict of interest to the parties and attorneys - when, according to attorney Mire, who was present at the proceeding, the judge did not disclose the conflict of interest.

The article was written by David L. Hudson Jr., a First Amendment expert and a Vanderbuilt Law School professor who, reportedly, serves as a First Amendment Ombudsman for the Newseum Institute’s First Amendment Center.

Professor Hudson's article shows that the American Bar Associations cannot any longer ignore the issue of attorneys disciplined for criticizing judges.

In view of the interest of the American Bar Association to the issue of attorney discipline for criticism of judges - which is what my petition to the U.S. Supreme Court is about - I am wondering whether the U.S. Supreme Court may now actually take my case and review it.

If that happens, it may make a huge and long-awaited difference for the country, for both the party litigants and the bar, on the issue of independent and competent representation in court. 

If the U.S. Supreme Court strikes discipline of attorneys for criticism of judges as unconstitutional, and especially when such discipline is imposed without an evidentiary hearing, and based on sanctions imposed by the judge who was the subject of the motion to recuse, the legal profession in the U.S. may be then relieved of the fear it is seized with now, and will no longer be considering an untenable dilemma - whether to fight for their client's constitutional right to impartial judicial review, or whether to intentionally not fight for their clients on that issue, in order to preserve their own license and livelihood.

I will continue to cover the issue of attorney discipline for criticism of the judiciary.

Stay tuned.

A public impropriety/corruption complaint was filed against Delaware County Judges Gary Rosa and Richard Northrup for siding with a court-connected suspect in a criminal investigation

Today, I filed a complaint with the New York State Commission for Judicial Conduct against Delaware County judges Gary Rosa and Richard Northrup for publicly taking sides in criminal investigation and prosecution of Sharon O'Dell, the now-former Delaware County Clerk.

Here is the complaint in its entirety.

Let's see if the complaint-shredding NYS Commission for Judicial Conduct will find any impropriety in the judge's actions or will toss the complaint without investigation, as it usually does.

I will continue to cover this story.

Stay tuned.

A new criminal and disciplinary complaint was filed against judge Jonathan S. Follender, of Town of Denning Court, Ulster County

I wrote on this blog about a criminal complaint I filed against attorney (and judge) Jonathan S. Follender for filing a false public document, and against the Delaware County Clerk Sharon O'Dell and her personnel for knowingly filing that false public document.

I also wrote on this blog about Sharon O'Dell's instant "retirement", endorsement of that retirement by a local "women's bar association" infested with law clerks, judges and relatives and employees of judges, and about the lavish "retirement" party, complete with food and balloons thrown in Sharon O'Dell's "honor", with posting of "mock lockup" pictures of Sharon O'Dell fraternizing with the Sheriff who is supposedly investigating her.  

Now that Sharon O'Dell "retired", Debra A. Goodrich, her deputy, took over - and filed yet another false public document offered for filing by Jonathan Follender, during the criminal investigation of her boss, and of herself. 

On November 4, 2016, Debra A. Goodrich and Jonathan Follender filed a "partial satisfaction of judgment".

The criminal complaint against Jonathan Follender was for filing, on September 26, 2016, a $10,961.50 judgment, with 9% interest

based on a court order that allowed only for a $1,751.60 judgment  with costs allowed by the court, and after the $8,470.00 that I put in escrow during appeal was released to Follender prior to filing a judgment based on the money he just received, as if it is a new judgment, with a 9% interesting ongoing.

See what the Turnover order of July 18, 2016 said:

The Turnover Order clearly allows Follender to file only a judgment for $1,751.60 plus costs, and refers to a "previous judgment" (already entered) for $8,470.00  (which grew during the pendency of appeals to $8,501.05) which the court ordered to be satisfied, by turning over funds to Follender out of the court escrow:

Once again, the September 26, 2016 judgement filed by Follender was based only on the Turnover Order of July 18, 2016.

The Turnover Order of July 18, 2016 ordered satisfaction of a "previous judgment" of April 10, 2016 by releasing funds I put into escrow during the pendency of appeal.

Yet, Follender:

• took the money ordered to be released to satisfy the April 10, 2016 judgment; and
• illegally put the amount just received right back into a new judgment of $10,961.60, without court permission, and with an ongoing 9% annual interest.

Then, when I filed a criminal complaint against Follender, and he was caught red-handed, he filed yet another false public document, this "partial satisfaction of a judgment":

In the "partial satisfaction", Follender claimed that

the Judgment he filed on September 26, 2016 was based not on Turnover Order only (which is what the judgment says), but also on the judgment from an April 10, 2014 order (referenced by the judge as "the previous judgment", already existing);  

Follender did not even try to amend the judgment of September 26, 2016 as being based on two orders instead of one, as the text of that judgment says, before filing the "partial satisfaction" of a judgment of September 26, 2016 based on receipt of funds a week prior. 

Follender filed the "partial satisfaction" 10 days after the police received my criminal complaint against him and ONLY because I filed a criminal complaint against him, otherwise the triple judgment would have remained filed, with 9% interest accruing on $8,470 plus $10961.50 - instead of $1,751.60 with costs, total.

Follender also claimed that he has actually received "partial satisfaction" of a judgment filed on September 26, 2016 "on or about September 17, 2016", a full week before he filed a new judgment under the Turnover Order, with an ongoing 9% interest on the amount already received a week prior.

Follender authorized the Delaware County Clerk - who by that time resigned - "to cancel, satisfy and discharge the judgment" (the September 26, 2016 illegal judgment) to the extent of $8,301.00, while leaving the "previous judgment" mentioned by Judge Tormey unsatisfied.

Debra Goodrich, who was herself under criminal investigation because of filing of the previous fraudulent judgment of September 26, 2016, entered and filed the new fraudulent "partial satisfaction" of judgment that tried to represent the judgement of September 26, 2016 as a legitimate judgment, and tried to claim "partial satisfaction" by receiving satisfaction funds prior to entry of a judgment, for the 2nd time, in a full amount - which is abject fraud.

So, I turned Follender in again.

I filed one more criminal complaint against him, and one more complaint to the Judicial Conduct Commission, and one more complaint to the Attorney Grievance Committee.

Let's see if the law applies to Follender, or if he is immune.

So far Follender engaged in a frivolous proceeding against several people whose representation I undertook only after a default judgment was entered in 2009, to make motions to vacate and appeal - in M & C Brothers v Torum, Delaware County Index No. 2007-280, claiming breach of contract and fraud where his client did not satisfy conditions precedent of the contract.

Follender's client, the timbering company, was supposed to obtain a large (1 million dollars, as far as I remember) insurance policy before attempting to claim specific performance or breach of contract, and never obtained that policy, nor demonstrated that it had funds to obtain that policy to demonstrate to the court that the client was willing, able and ready to perform the contract.

Thus, the whole proceeding was frivolous in the first place - not that it deterred Follender from prosecuting it.

Then, Follender made in that proceeding an outrageously stupid (and frivolous) motion to substitute a client "nunc pro tunc" because of the client's death, while his client was a corporation (that never dies) - the motion for the "death of a corporation" was actually granted by a Harvard-educated judge, the now retired judge Eugene Peckham

Peckham did not see a problem with a motion made claiming the death of a corporation and granted the motion.

Peckham also did not see a problem that there was no affidavit of service of his Order to Show Cause to strike an answer and to enter a default judgment, a jurisdictional requirement to even review such a motion - and entered the default judgment anyway, and subsequently refused to grant a motion to vacate because of his own illegal actions, and stalled the appeal from the denial of the motion by refusing to settle the transcript, which was his obligation.

I was actually sanctioned and then suspended for withdrawing one of the two pending appeals - which I did only and exclusively because I could not file a settled transcript, since Peckham refused to settle it.  Yet, Peckham was protecting himself by preventing me from filing the settled transcript of the motion hearing - which shows that it is completely wrong to give to judges whose decisions are challenge on appeal control over that appeal by giving them authority to settle transcripts for the appellate record.
 
Peckham also did not see a problem with awarding the accrual of 9% interest on the judgment Follender's client did not deserve in the first place (because it never obtained the insurance policy as the contract required) covering the periods of adjournments of court proceedings which were not caused by the defendants.  Follender actually got 9% interest on damages for periods of adjournments that he himself requested, thus providing encouragement to connected attorneys like Follender to delay litigation in order to get more money in damages at the end.

Peckham also did not see a problem to join, as a partner, a firm that was litigating a case which he previously handled as a judge, without disclosure of the firm's disqualification. Nor did Peckham see a problem acting, without disclosure, as a "judicial hearing officer" (a retired judge with the same functions as an acting judge) in the same court which handled the case where his law firm appeared.

Peckham fought disqualification

even after I presented to his partner the law requiring his law firm's mandatory disqualification from the case:

Peckham and his law firm were disqualified from the Kilmer v Moseman case, but were never sanctioned.

This was one "stellar" judge on M & C Brothers v Torum case who ruled for a fellow judge Follender - not surprisingly, given the level of competence and integrity demonstrated by Judge Peckham.

The next judge who ruled in favor of Follender in two Torum cases - one where I was an attorney of record, AFTER the default judgment was entered, and one where I wasn't (a homestead petition against my former client's home) - was the legendary Judge Carl F. Becker who sanctioned me simply for breathing.

Becker first sanctioned me for (1) delaying satisfaction of the judgment - because the judgment was satisfied by one of my two clients, but I continued to litigate the motion to compel production of concealed deposition transcripts, or identity of the stenographer and Follender's client's expert.

As soon as Becker sanctioned me for allegedly delaying satisfaction of the judgment, Follender moved in the already dead homestead petition litigation where I never appeared, to sanction me for (1) abandonment of my alleged clients, and for (2) satisfying TOO SOON the judgment that I was just sanctioned for delaying the satisfaction of.

Same as Peckham did not consider a motion for the death of a corporation stupid, Becker did not consider stupid a motion for sanctions against a person who never appeared as an attorney of record, for "satisfying a judgment too soon", because the satisfaction of the money judgment led to the death of subject matter jurisdiction in the case where Follender was invoking that subject matter jurisdiction by asking for sanctions.

Really, with Follender even going through his frivolous reasoning gives you a headache, yet, judges endorse whatever he says or does - because he is one of them, also a judge.

After Becker's recusal from all of my cases, including the homestead petition where Becker believed I was attorney of record, even though I never appeared there, never filed notices of appearance, and where respondents filed pro se affidavits, Judge Kevin Dowd was assigned.

Follender made false claims to Judge Dowd that I filed appeal in the homestead case (first, I was never attorney of record, then, no appeals at all were filed in that case, and none by me).

Follender then made false claims to Judge Dowd that I disobey the court by announcing I will not appear at a conference in the homestead petition - where, again, I was not attorney of record, and where Follender complained I caused the death of subject matter jurisdiction by causing to satisfy a money judgment "too soon", while having been sanctioned for delaying satisfaction of that same judgment.

Just bear with me.

I sued.

I showed in my pleadings, and through documentary exhibits, that I never was an attorney of record in the homestead petition, never abandoned my clients, and that jurisdiction in that case was dead, Follender claimed it himself in his pleadings to Judge Becker, so no "litigation immunity" for defamation applied to Follender. 

But, the next "stellar" judge was assigned to the case - Judge Tormey, the woman-hater whom I sued before in federal court, and

who was sued by three women: a court attorney, a private attorney (me) and a court interpreter.

My lawsuit against Tormey was dismissed on judicial immunity grounds (forgiving, without review, any malicious or corrupt acts to the judge), my cases were assigned to Tormey, and Tormey, naturally, used his power to retaliate and sanction me and imposed the judgment I am talking about in this blog, $8,470 for trying to sue the defamer for defamation - for bringing a meritorious action against Follender, in which he defaulted, but Tormey forgave him the default, establishing a new law in the 3rd Department where all three other departments would have given victory in the same case to me, by default.

Tormey claimed that it is not easy to determine whether an attorney is or is not an attorney of record - and thus Follender, in Tormey's opinion, could not be sued for claiming I was the attorney of record because Follender wanted me to be an attorney of record in a new case, because he wanted to use the known bias of the presiding judge against me to his own advantage - but I did not appear in that case, and he was pissed, so he just claimed that I was the attorney of record.

Yet, being an attorney of record can only be proven by either filing a notice of appearance, appearing physically as an attorney for a party, or being assigned to the case.  None of the three was present in the homestead petition, so, contrary to what Judge Tormey dishonestly said in his ruling, it was very easy to determine whether I was an attorney of record in the homestead petition.  I wasn't.

Tormey completely avoided addressing the issue whether the homestead court, at the time defamatory statements were made, had or did not have subject matter jurisdiction over the case, a determinative factor in the case whether Follender could claim litigation-related immunity.  And still granted Follender, a private attorney sued as a private attorney, "absolute judicial immunity".

I immediately applied the concept to my husband's case by making a motion to dismiss proceedings against him for lack of jurisdiction - and the motion was denied.

Judge Dowd claimed Judge Tormey's grant of absolute judicial immunity as "dicta" only.

Yet, now that Judge Tormey's grant of absolute judicial immunity is affirmed on appeal by the 3rd Department, it is the law of the 3rd Department - a private attorney sued for fraud has absolute judicial immunity for malicious and corrupt acts during litigation.

So, Judge Tormey - and the 3rd Department - struck down Judiciary Law 487 completely.

But, I was, of course, not on notice of the "dicta", that Judiciary Law 487 is no longer in existence because private attorneys have absolute judicial immunity for acts of deception during litigation, as Judge Tormey said.

Yet, since Tormey sent his decision about my allegedly "frivolous" conduct to the 4th Department disciplinary proceedings against me, and the 4th Department suspended me based on a motion for a summary judgment containing Tormey's decision as an exhibit, the fact that Judiciary Law 487 no longer exists is also the law now in the 4th Department.

Because court precedents applies equally to everyone, not just to the Neronis - right?

Tormey also lumped the two cases - one where I was an attorney of record, after the default judgment was entered by Peckham, and the homestead petition handled by Becker where I never appeared as the attorney of record - as one case, treated the two cases, with two index numbers and different sets of parties, as one case, and refused to correct his mistake.

On two appeals, judges (3rd Department that recused from my then-pending disciplinary case) and the New York State Court of Appeals, the Chief Judge against whose confirmation I submitted a written testimony to the New York Senate asking to conduct a criminal investigation of her rather than endorse her as the Chief Judge of the State of New York - affirmed that the two cases are one case, no matter what court records say.

So, I stand sanctioned, and robbed by Tormey and Follender to the order of $8,470 and counting - for truthfully stating that Follender defamed me by claiming that I abandoned clients in a case where I never appeared as an attorney of record and by bringing a disciplinary proceedings against me in a case where I never appeared as an attorney of record based on that fraudulent claim.

I now regret putting the $8,470 in escrow, I wouldn't have done it now, but then I was living in New York, and I was afraid that Follender and Tormey will put me in jail for not paying - and that "something will happen" to me in jail.  Things do happen to people in U.S. jails when people criticize the government.

But, once a fraudster is always a fraudster.

Follender was not deterred by the court when he brought a frivolous claim (in an unrelated proceeding where I did not participate) for a non-existing cause of action of loss of companionship of a dog - because he was never sanctioned, being a brother-judge.

As a brother-judge, Follender was never sanctioned, and thus not deterred by court sanctions when he brought a frivolous case in M & C Brothers v Torum where

• he filed a breach of contract claim without showing satisfaction of condition precedent in the contract,
• made a motion for the "death of a corporation",
• obtained a default judgment without providing proof of service and claiming 9% interest on damages for periods of delay caused by his own client,
• concealed transcript of his expert's deposition, as well as identity of his expert and the stenographer who was taking the deposition;
• made fraudulent claims to the homestead judge that I "abandoned my clients" and "frivolously caused the loss of subject matter jurisdiction" by the court by causing to satisfy the money judgment too soon - after having me sanctioned for delaying satisfaction of that same money judgment; and
• Follender got attorney fees for opposing my defamation and fraud action against him, even though my lawsuit was based on irrefutable documentary evidence, and Follender defaulted (imagine having a judge "deeming" record evidence of 2 completely separate court cases as "one" - and sanctioning a party for asserting what is in court records, it is only possible where one attorney is also a judge, the judge is a woman-hater and the sanctioned attorney is the judge's critic).

Follender also obtained against me an anti-filing order (in Delaware County Supreme Court only) and a threat of criminal prosecution if I ever file a civil action against Follender without the state court's permission.

Based on all the above history, Follender thought he can do absolutely anything, commit any fraud, and I will not be able to do anything about it.

Well, there are other legal remedies outstanding though.

Pressing criminal charges for a crime is one of them.

And that's what I did.

Follender partially backtracked, by filing the "partial satisfaction" of the illegal judgment he filed against me - but, by filing it, he confirmed his fraud, and committed additional fraud.

Fraud that is actionable against Follender, and, whatever the outcome with the corrupt criminal investigations or corrupt criminal proceedings against Follender and his co-defendants (if any such proceedings will ever be brought against them due to their status and connections), I have 6 years to sue him for it.

I will continue to post updates on this story.

Stay tuned.

New York #JudgeJillKonviser refuses to allow a criminal defendant to have a new trial despite DNA evidence that somebody else may have committed the crime

In our day and age, many people are being released from prison based on new DNA evidence establishing their innocence.

A case that was just decided in New York, by judge Jill Konviser,

ruled the opposite - that despite presence of a new DNA on a T-shirt found in a building adjacent to a murder scene, and despite the People's failure to notify the defense of that third-party DNA before trial, the defendant allegedly suffered no prejudice, is not entitled to a new trial, and his 24 to life conviction will stand.

The defendant was convicted for murder entirely on circumstantial evidence of three witnesses.

One witness saw what he though was the murder, the act of shooting by two hooded individuals, who were hooded to such a degree that the witness was unable to positively establish even their race, but "thought" they were African American - which is not enough for conviction of the defendant for murder.

The other witness was a close friend of the murder victim, witnessed that the victim grabbed the defendant, and that a co-defendant has shot the victim - which is not enough for conviction of the defendant for murder.

There was testimony from the third witness that, instead, the defendant grabbed the victim, the co-defendant fired, and there were some other shots - which the witness did not see because at that point she ran away.  That testimony was also not enough for conviction of the defendant.

So, the evidence against the defendant in the entirety was circumstantial and did not establish, beyond the reasonable doubt as is required in criminal proceedings, that the defendant - and not the co-defendant - committed the crime of murder, because only the co-defendant was seen as shooting at the victim, and the testimony of two witnesses who saw a scuffle between the co-defendant and the victim before the shooting, contradict one another, one witness said that the victim grabbed the defendant, and the other witness said that the defendant grabbed the victim.  That is not enough for a "beyond the reasonable doubt" conviction for murder.

In her decision denying the new trial to the criminal defendant, Judge Jill Konviser(-Levine) tried to hint at ineffective representation of counsel by claiming that the People have actually turned to the defense documents mentioning the black T-shirt (without disclosure that third-party DNA was found on that T-shirt) "in advance of trial" as part of "Rosario" material.

Pointing at "Rosario" material as timely disclosure of a link to undisclosed Brady material blocking a criminal defendant from claiming prejudice in a criminal trial resulting in a murder conviction entirely upon circumstantial evidence was not an honest reasoning by judge Konviser.

Rosario material is disclosure about prior testimony of a witness testifying at trial that is given after the witness is already sworn in.

Judge Konviser's claim that the Rosario material was turned in by the People to the defense "in advance of trial" did not mention the length of that "advance".  It could be - which is what usually happens at criminal trials - that the People turned over the Rosario material on the day of, or shortly before the day of trial, which, in a murder trial case, is a completely inadequate time to diligently read all the Rosario evidence and request an adjournment of trial to submit the T-shirt to defense experts.

Moreover, the defendant was most likely represented by an assigned counsel, and, though indigent defendants theoretically have a right to funds for experts and investigators, obtaining such funds is an impossible dream, see, for example, a fairly recent case decided by the Appellate Division 3rd Department describing the hoops that the defendant must jump through to get funds - and inadequate funds, not matching the current market prices for experts investigators - to get those funds.

The court in the case of People v Clarke legislated from the bench in enhancing County Law 722-C under which the defendant applied for such expert funds:

The 3rd Department ruled added to County Law 722-C that:

1. granting funds for experts and investigators is a matter of the court's "discretion" (whim);
2. that the defendant must prove his "indigence" for purposes of the motion - in this particular case, which I know personally, the defendant first had an assigned counsel, and for that, he had to prove his indigence to the court prior to that motion, so the 3rd Department is dishonest in implying, without directly claiming, that the defendant did not prove his indigence;
3. that granting funds for experts and investigators to an indigent criminal defendant accused of a heinous crime - which crime is being proven against him by the People's use of investigators and experts funded by taxpayers without any restrictions and without any court permission whatsoever - can be allowed only in "extraordinary circumstances", and only when the defendant proves not just "necessity" (as the statute, County Law 722-C, says), but a "distinct necessity" for such funds, an illegal heightened standard imposed upon indigent criminal defendants by the appellate court.

An hour of review by such an expert several years ago ranged from $400.00 to a $1000.

Participation in a trial, pretrial DNA analysis, travel, waiting in the courthouse for the testimony and testimony itself may take days and months of work by an expert, not hours.

It is obvious that the allowed "statutory limit" of $1,000 for experts and investigators - and even that provided through the court's "discretion", and with proof of "extraordinary circumstances" and "distinct necessity" - is completely inadequate to present expert analysis to begin with.

That's why if People had an expert conduct DNA analysis, it was of paramount importance for the defense to get that analysis - because the defense itself would not have had the funds to conduct analysis of their own.

Since People have access to unlimited funds to investigators and experts to present their case, and indigent criminal defendants are restricted in New York by County Law 722-C to:

1. court's discretion and permission;
2. proof of indigence;
3. proof of necessity;
4. extraordinary circumstances dictating excess of funds for experts and investigators over $1,000 -

New York County Law 722-C is waiting for a federal constitutional challenge under the Equal Protection and Due Process Clause.

Moreover, County Law 722-C clearly indicates that funds for experts and investigators for indigent criminal defendants can be provided irrespective of whether the criminal defendant is represented by a court-assigned counsel.

Nevertheless, courts regularly deny County Law 722-C applications for funds for experts and investigators (if they are even filed, which happens very rarely) because the application is not made by an assigned counsel.

For example, when I represented indigent defendants (not as an assigned counsel, my fee was paid by the defendant's relatives or friends, which does not revoke the indigent status of such a defendant), a particular judge in Delaware County gave such defendants a "choice" -

• either he or she chooses a counsel assigned by the judge (and that would not be me), and then the counsel will be able to apply for money for experts and investigators (even though such motions are allowed to be made ex parte, without notification of the People, the judge, the now retired Delaware County Judge Carl F. Becker, held such discussions in the presence of the People in open court), or
• the defendant proceeds with me as his private counsel - and will lose his right to experts and investigators - even though such a ruling was contrary to the law, criminal convictions are rarely overturned on denial of funds for experts and investigators, so Judge Becker, and other judges who are denying such funds feel pretty cozy.

In the case that Judge Jill Konviser just decided, there was:

• circumstantial evidence from three witnesses - based on which the defendant could not be convicted;
• evidence of defendant himself upon which the defendant could not be convicted;
• evidence from TWO out of THREE People's experts:
• the autopsy expert testified - even though that expert could not establish that the defendant shot the victim;
• the gun expert testified - even though that expert also could not establish that the defendant shot the victim; but
• People did not call the DNA expert to testify - because then the reasonable doubt would have been screaming into the juror's faces.

So,  People put a pile of Rosario material on the defense "before trial" (possibly, on the day of trial) and hoped that the defense counsel, in the heat of the trial, will not be able to see the mentioning of a T-shirt that was sent for analysis, and to request an adjournment of the trial with an additional investigation and time and money for expert analysis by the defense experts, as well as for defense investigators to investigate the leads from the DNA evidence on the T-shirt.

People were supposed to reveal the finding of the T-shirt when it was found - in discovery, 20 days after the arraignment.

They did not.

People were supposed to reveal to the defense the finding of the DNA evidence as Brady material when they received the report of a third-party DNA, and turn over the DNA report.

Such a DNA report from the People would have satisfied both the "necessity" requirement under County Law 722-C for funds for experts and investigators for the defendant, and the "extraordinary circumstances" requirement.

That's exactly why the People did not give the report to the defense, and that's exactly why the mentioning of the black t-shirt was included not as Brady material, shortly after arraignment, but as Rosario material, in a pre-trial rush when a defense counsel receives a pile of documents from the prosecution on the day of trial or the day before trial.  If it is an assigned counsel, he or she lacks funds and physical ability to look through all the Rosario material, so such a "disclosure", especially an incomplete disclosure - of existence of a T-shirt with a biological material on it, but without disclosure of results of the DNA test - was prosecutorial misconduct designed to sway the jury towards conviction.

Yet, Judge Konviser chose not to see deliberate prosecutorial misconduct, and relied on a 1990 case People v Vilardi, 76 NY2d 67 (N.Y., 1990) in claiming that a criminal defendant who claims a Brady violation should also establish prejudice to be entitled to have his conviction vacated.

In Vilardi, though, the New York State Court of Appeals relied upon the U.S. Supreme Court case U.S. v Bagley, 437 U.S. 667 (1985) that provided that a conviction should be vacated if a Brady violation occurred and if, because of such Brady violation, there is a "reasonable probability" that the result of the trial would have been different.

Of course, what is a "reasonable probability" is a guessing game of the court.

And, in 2003, federal appellate judge Alex Kozinski, of the U.S. Court of Appeals for the 9th Circuit claimed that there is an "epidemic" of Brady violations in the country, and that only judges can stop it.

Well, judges do not stop Brady violations, but are, on the opposite, encouraging them, when they create "tests" where, even if a Brady violation occurs - as it happened in Bagley, Vilardi, and now, in Evans, the judge still looks further to engage in a speculation whether the jury would have reached a different result than it did had it been allowed to hear the evidence.

In this particular case, judge Konviser claimed that no relevance was established of the T-shirt, and the DNA on it, to the murder, because it was not found at the crime scene, but at a nearby building.

Yet, for some reason the police scouted the nearby buildings specifically for search of evidence that may help solve that same murder, themselves establishing the relevance of their findings.

Judge Konviser claimed that in New York City, a black shirt with a DNA evidence is not something extraordinary and relevant - a black shirt without a DNA evidence would be extraordinary.  Such a statement is actually advocacy for the prosecution and unsworn factual and expert witness testimony on behalf of prosecution - disqualifying the judge from hearing the motion.

Also, Judge Konviser was making a determination upon evidence that was not presented to the court.

Judge Konviser(-Levine) is not a novice as an attorney or on the bench.

She has 26 years of experience as an attorney,

and nearly 12 years of experience as a judge:

And, Jill Konviser worked for the government for 22 out of 26 years of her career as an attorney - including 5 years as an assistant district attorney.

Moreover, according to her biography on the website of the New York State Court Administration, her authority as a judge expired in 2015 - and thus she could not be appointed an Acting Supreme Court justice in 2016, and her decision may be void.

A judge may only be appointed as an "Acting Supreme Court Justice" if the judge is elected or appointed to another judicial position, and the underlying authority is still valid.

We are now in 2016.  Acting Supreme Court Justices may be appointed for a year, with further renewals.

The last time Judge Jill Konviser was appointed as an Acting Supreme Court justice, according to her official court biography, is in 2009, by Chief Administrative Judge Ann Pfau.

Judge Pfau resigned in 2011.

The next Chief Administrative Judge Gail Prudenti - who, in her own turn, resigned in the summer of 2015, did not reappoint Judge Konviser to be the Acting Supreme Court judge.

Judge Konviser tenure, by appointment, as New York Court of Claims judge, expired in 2015 - and there is no indication that she was reappointed.

Thus, she appears to have had no authority to author the decision in People v Evans as a Supreme Court Justice for Kings County, New York, on November 1, 2016.

Judge Jill Konviser-Levine is a political appointee to the bench.  She was reportedly the senior assistant counsel for Governor Pataki before being appointed to the bench of Manhattan criminal court.  Before Governor Pataki, Jill Konviser worked as an "Inspector General" for Attorney General Eliott Spitzer.

And, in order to advance a judicial career in New York, being friends with prosecutors is a more important than to be fair to criminal defendants, especially with the recently appointed new Chief Judge Janet DiFiore being a prosecutor herself.

In People v Evans, Judge Konviser ruled for the prosecution, for the government, obviously because she is part of the government and a career prosecutor herself.  Otherwise, no reasonable jurist would conclude that there was no reason for a jury to have ruled otherwise had they been presented the evidence that the police found some clothing with somebody's DNA on it in a building near the murder scene, had it tested for DNA and concealed the DNA report from the defense.  The concealment alone could have swayed the jury towards giving the defendant the reasonable doubt.

So, People v Evans is a clear case of prosecutorial misconduct - and of judicial misconduct in endorsing, and thus encouraging, a Brady violation.

This is not the first time when issues with appearance of impropriety were raised regarding Judge Konviser.

In 2007 she presided, without recusal, over a hate crime murder trial, while, reportedly, she has had a hand in drafting the then-recently introduced hate crime legislation under which the defendants were charged and prosecuted, an irreconcilable conflict of interest.

In 2014, she was accused by a defense attorney of failing to disclose ties to the Bronx Bombers, while presiding over the prosecution of the alleged stalkers of New York Yankees.

The judge's husband, William Levine, is reportedly New York City's top orthopedic physician, and the Yankees, consequently, were, at the time of the criminal prosecution, the Konviser-Levine family's likely present or potential source of income.

Dr. Levine publicly reveals in his official biography that he does supervise provision of surgical care to New York Yankees:

When Judge Konviser was challenged by defense attorney Lawrence LaBrew as to the appearance of impropriety of such an undisclosed tie of the judge's family with the alleged victims in a criminal prosecution, the judge reportedly snapped at the defense attorney and claimed that his conduct (in questioning her impartiality) is "bordering on contemptuous".

The State of New York did suspend a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding in 2008, and did suspend an attorney in 2015 for making a motion to recuse a judge in a case related to the criminal proceeding where the judge committed misconduct and engaged in a documented ex parte communication (an attorney who participated in that communication admitted to that on record), so Judge Konviser's "snap" at attorney LaBrew claiming his conduct in questioning her impartiality is "bordering on contemptuous" was a threat of suspension of his law license and livelihood - and a clear violation of his due process and 1st Amendment rights to say what needs to be said in order to secure his client's constitutional right to impartial judicial review.

Judge Konviser's "snap" and her open threat to go against the law license of an attorney who questioned her impartiality in a situation which involved a direct and irreconcilable financial conflict of interest for the judge, spells out the judge's readiness to abuse her power to protect her personal interests.

But, Judge Jill Konviser had all her bases covered where she could not be investigated or prosecuted for judicial misconduct because she was a member of the New York Commission for Judicial Conduct and herself meted out (or blocked) discipline to other judges, including herself.

Judge Konviser can rule - at times - in favor of the defense.  When it involves accusations against a police officer lying to the grand jury, then Judge Konviser can claim that the prosecution did not provide "enough guidance" to the grand jury and dismiss the indictment.

Otherwise - she is apparently a "hanging judge" for the prosecution, who lacks integrity to disclose her own and her families conflicts of interest in relation to cases, and who refuses to hold prosecutors accountable for Brady violations, in order to prevent vacatur of a conviction obtained by fraud.

This woman will go far in her career.  Are we looking at our next Chief Judge of New York Court of Appeals?

Or, maybe, the State's new Governor?  Or Attorney General?

She qualifies 100%.