Public comment on New York's proposed standing order of discovery in criminal cases - Part III. Composition of the Task Force that proposed the standing discovery order in criminal proceedings supposedly meant to prevent wrongful convictions

In Part I of my public comment to New York Justice Task Force's proposal of standing discovery orders in criminal proceedings I pointed out the first problem affecting legitimacy of the Task Force itself and of its suggestions and proposals - lack of transparency in

• appointments to the Task Force,
• work of the Task Force, and
• non-compliance by the Task Force with New York State Open Meetings Law requiring notice to the public and opportunity for the public to be heard on issues of public concern to be proposed or decided by public bodies.

Part II addressed the issue that the Task Force is trying to usurp the Legislative authority for important policy-making in criminal proceedings, in violation of state constitutional requirement for separation of powers, and to do it in a clandestine manner, without public hearings, in an extremely short period of time, so that to push through certain ideas that are not in the public interest, but in the interest of certain "stake-holders".

The next big problem, discussed here in Part III of my public comment is that the Task Force consists of people with self-interest to prevent proper investigation of wrongful convictions and their reasons, and to continue with the existing status quo that creates wrongful convictions in the first place, and thus it is futile to expect it to create anything but a roadway to suit their personal, financial, career and reputational need while creating roadblocks or favorable climate for intimidation and persecution of critics of governmental misconduct leading to wrongful convictions.

Here are the list of members of the Task Force that proposed the "standing order of discovery" that is supposedly needed to prevent wrongful convictions, but in reality will serve the opposite purposes:

• to preserve the environment that creates such wrongful convictions,
• protect the actors who create such wrongful convictions and
• intimidate or eliminate those who criticize such environment and such actors

First of all, let's point out who is eloquently absent from the Task Force that is supposedly convened to prevent wrongful convictions:

• exonerees from wrongful convictions and members of their families;
• consumers of legal services;
• members of the public independent of the court system, criminal justice system, legal services industry, and not interested in preventing reversals of criminal convictions.
• independent defense attorneys;
• representatives of New York State Trial Lawyers Association, or of the New York State Defenders Association - even as "ex officio members";
• civil rights attorneys who addressed issues of wrongful convictions or sued for wrongful convictions;

In other words, absent from the Task Force are those who have the vital interest that the Task Force is supposedly protecting:

• consumers of legal services (including of criminal defense attorneys);
• those who have suffered from wrongful convictions and members of their families who also suffered;
• members of the public who would look into and investigate the real reasons for wrongful convictions.

Instead, the Task Force is composed predominantly from those people who usually cause wrongful convictions, or have an interest in preventing reversals of criminal convictions, from reputational, personal, career or financial point of view.

Let's start looking through the member list name by name.

The chair of the Task Force is New York's Chief Judge Janet DiFiore, a former career prosecutor - I recently wrote about her shenanigans as the District Attorney and judge, her apparent corruption and misconduct.  I also started to publish civil rights lawsuits against her further showing her corruption and misconduct, and I still have several of her lawsuits to publish.

You can also read here the written opposition and request to testify in opposition to confirmation of Janet DiFiore by exoneree Jeffrey Deskovic, 

who was not allowed to testify against DiFiore, and, after DiFiore was confirmed and took her seat as the Chief Judge of the New York State Court of Appeals and as the Chair of this Task Force, DiFiore somehow did not appointed Jeffrey Deskovic to the Task Force, I wonder, why.

DiFiore is the chief regulator of the legal profession in the State of New York.

One of the co-chairs is a former New York State Court of Appeals judge - and now a private attorney - Carmen Ciparick who advertises her "public service" on the Task Force as part of her attorney advertisement, to drum more business for her law firm.

Ciparick is one of the former regulators of the legal profession in New York, as part of the Court of Appeals that sets the rules of attorney regulation.

What kind of involvement Ciparick can have in the "Task Force", you can see by the number of her memberships - it is not humanly possible for a busy appellate attorney, and especially the one past mandatory retirement age of 70 (Ciparick is 75), to be on so many boards, associations and task forces and have meaningful involvement in every one of them.

By the way, as part of Board of Trustees "Historical Society" of the courts of the State of New York, Ciparick is responsible for publishing and keeping published, the article about the felon former Chief Judge Sol Wacthler presented to the worldwide readers as a "luminary" (see my blog about that "luminary" article here) and praised for, de facto, defrauding the federal court by:

• claiming he had no mental issues for purposes of plea bargain;
• then, turning around and claiming, in a published book, he had mental health issues.

The article published by the Historical Society where Ciparick is on the Board of Trustees praises Sol Wachtler for, literally, saving the New York State Court system from a flood of motions to vacate, which would be motions to vacate wrongful convictions, because a mentally unstable Chief Judge decided cases.

By the way, the website of the Historical Society, as of today, still did not take Judge Sheila Abdas-Salaam off the list of living and sitting Court of Appeals judges, more than a month after her death - Ciparick had no time, as a trustee of the Historical Society, to address the issue:

You can expect a lot of good things, as a Chair of a Task Force convened ostensibly to fight wrongful convictions, from a licensed attorney and former judge of the court regulating attorneys who officially endorses, as a trustee of a publishing organization, the praise of a convicted felon for defrauding a federal court, in order to "save" New York court system - from motions to vacate wrongful convictions.

Makes a lot of sense.

Another co-chair is a sitting judge of criminal court Michael Dwyer.

Judge Dwyer himself is dealing with criminal cases, and with some wrongful conviction cases.  Therefore, when he at the same time co-chairs production of a 20-page document which is aimed mainly at censuring courts, attorneys, the press and the public not to use words "prosecutorial misconduct" "too broadly" (see that "issue" as No. 1 addressed in the document designed, supposedly, to prevent further wrongful convictions),

added to the fact that Judge Dwyer is a former career prosecutor, same as DiFiore,

that smacks of BAD pro-prosecutorial bias, which should require removal of Judge Mark Dwyer from all criminal cases immediately.

And, here are the "permanent members" of the "Task Force" - remember, the Task Force to prevent, not create, wrongful convictions.

Robert A. Adamo, Director, Division of Forensic Sciences, Westchester County Department of Laboratories and Research

This wonderful gentleman was in charge of that "forensic" lab for a long time, apparently helping DA DiFiore (now the Chair of this same "force") to obtain convictions.  In a criminal case that I personally handled against DiFiore's office, DiFiore's office desperately tried to obtain a wrongful conviction of my client while any supposed or alleged evidence was lost or destroyed - which they refused to tell me until I filed a motion to compel and for sanctions.  After that, DiFiore became a judge and retaliated by refusing to hear my constitutional appeal as of right in the disciplinary action punishing me for properly representing my indigent clients and making motions to recuse a biased judge, very logical.

I wonder if "evidence" - or, lack thereof, from the case I handled as an attorney, went through the hands of this lab Director, but very obviously, he is the last person to be a "permanent member" in a "task force" seeking to prevent wrongful convictions, as his lab is obviously joined at the hip with the DA DiFiore's office.

Mr. Adamo's reputation, as an expert and administrator, is at stake each time a conviction is reversed, so he is the last person to be on a task force that is supposedly investigating the causes of wrongful convictions and making suggestions how to prevent wrongful convictions.

The next wonderful member of the task force is James O'Neill, Commissioner of New York City Police Department.

Apparently, since Mr. O'Neill's police officers are collecting and presenting evidence in criminal trials, Mr. O'Neill's personal reputation, and reputation of his personnel, are at stake whenever a conviction is reversed.  Same as with Mr. Adamo, Mr. O'Neill is an interested person and should not be on the Task Force.  He may be deposed as a witness by the task force, but, as a "stakeholder" in the issue, he has a conflict of interest to be a member of such a task force.

The next "permanent member" of the "Task Force" is Zachary W. Carter, New York City Corporation Counsel - the attorney who, as a matter of duty, would OPPOSE in court, any civil rights lawsuits against NYPD for wrongful convictions.

The irreconcilable, disqualifying conflict of interest here is quite apparent, and, I believe, it is an ethical violation for attorney Carter to even be on this "Task Force", much less produce the document it produced for "public comment" - which is adamantly pro-prosecution.

The next "permanent member" of the Task Force is a Supreme Court Justice of Nassau County, obviously presiding over criminal cases, Judge William C. Donnino, who reached the mandatory age of retirement, 70, 6 years ago and at that point, left his position as a "supervising judge" of the Nassau County Supreme Court.

So, the 76-year-old busy Supreme Court judge, former career prosecutor and criminal court judge Donnino is trying to MAKE the law and MAKE the policy decisions INSTEAD of the Legislature, and do that in a way protecting prosecutors' reputation from being exposed and their careers and chances to become judges affected by making a proposal for, factually, censure of public opinion, attorneys and courts against "too broad" a definition of prosecutorial misconduct.

Other members are:

Professor Emeritus of Brooklyn Law School William E. Hellerstein, a constitutional law scholar thrown in for show, since his decision, even if against the chorus of police, "victims' advocates", prosecutors and judges/former prosecutors, can never outweigh the pro-prosecution supermajority of the group.

It is a wonder how such a busy man can also handle such a busy job on top of his professorship obligations.

The next "permanent member" of the Task Force is Seymour James, Attorney-in-Charge of the Legal Aid Society who is overseeing, reportedly, an organization of 1,100 lawyers.  Once again, one must wonder how such a busy man can put a task that must be an exhaustive job in itself - digging through thousands of documents to get to the bottom of causes of wrongful convictions in New York.  He either doesn't do his job as the Attorney-in-Charge of the Legal Aid Society properly, or his job of the permanent member of the Task Force properly, or both.

Moreover, one must wonder how such two supposedly pro-criminal defense people as professor Hellerstein and attorney James, who both have decades and decades of experience in New York state criminal justice system and know more than anybody how corrupt and rife with prosecutorial misconduct it is, could produce such a shameful document as the "proposal" that tries hard to censure public opinion from trying to define prosecutorial misconduct more broadly than pro-prosecution judges will do it in their orders.

The next "permanent member" is a former judge of 25 years, and now a director of a victim's advocates' organization Judy Harris Kluger, a former career prosecutor of domestic violence. 

Victims' advocates, and prosecutors, often start assuming that the person is guilty at the time when s/he is still only charged with a crime and is presumed innocent by law. 

Of course, Kluger's position as a director of a victim's advocates' organization creates an irreconcilable conflict of interest against having her on the task force to investigate causes of such convictions, as she obviously lacks neutrality needed for such an investigation. 

The next "permanent member" of the Task Force is judge Richard B. Lowe, III, another former career prosecutor:

It is obvious that the public did not elect Judge Lowe to legislate as to policies of discovery in criminal proceedings, and that he cannot be, constitutionally, at the same time, a legislator and an adjudicator in the same courtroom.  Yet, not just one, but 7 judges (1/2) are "permanent members" or chairs and co-chairs of the 14-member task force.

The next "permanent member" is the pre-eminent Chief Judge of the Appellate Division 3rd Department Judge Karen Peters, a corruptioner I wrote about here, a former career prosecutor and a judge regulating attorneys in 1/4 of the territory of the State of New York.

I have raised many times the issue that appellate courts in New York may not be at the same time legislators and adjudicators in attorney disciplinary proceedings, as well as "one" with disciplinary prosecutors, as both judges and prosecutors claim to be when sued in federal court and when Freedom of Information Requests against disciplinary prosecutors are filed. 

Peters CREATED the mess when independent criminal defense attorneys are intimidated into silence and not making motions to recuse, which surely contributes to wrongful convictions. 

Peters' court suspended in 2008 a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding (John Aretakis), disbarred in 2011 a criminal defense attorney (Frederick J. Neroni) who dared to file an assigned-counsel appeal raising the issue of judicial corruption, which led to threats by ADA John Hubbard that he is "burning his bridges" (undisclosed former law partner of the presiding trial judge).

Peters, as co-member of the Commission for Judicial Conduct, protected judges from discipline and, as the judge of the regulating Appellate Division, suspended and disbarred attorneys who complained about such judges.

Peters is the court whose "part", attorney grievance committees, have a policy of non-prosecution against criminal prosecutors.

Peters is the court that, as appellate court of criminal appeals, "defers" (exhibits bias) to decisions of trial judges because they did, and the appellate court didn't, see "demeanor of witnesses", while at the same time the only thing that prevents the appellate court from seeing that demeanor of witnesses is prohibition on videotaping court proceedings.

We do not see Peters on any task forces promoting cameras in the courtroom in the hands of the public.

And, Peters knows that investigations of attorney discipline are covered by Judiciary Law 90(10) and that only the Chief Judge of the Appellate Division (herself included), on motion, can disclose issues pertaining to attorney discipline, or through waiver of privacy from the attorney.


So, Peters knows better than to propose what she is proposing in her 20-page document: to MAKE prosecutors (against whom no disciplinary investigations are usually conducted as a matter of unspoken policy, no matter how bad their misconduct is), and, peculiarly, public defenders (defense attorneys, who are usually the target of disciplinary persecutions anyway) MUST somehow report to their supervisors that a disciplinary investigation has been started against them.

So, Peters as a "permanent member" of the task force trumped her own authority as Chief Judge of Appellate Division to EXCLUSIVELY decide whether to give access to such information.

And, Peters as a "permanent member" of the task force decided to MAKE attorneys waive their privacy under the guise of a court rule, in violation of Judiciary Law 90(10). 

That's a position of "my law" - I own it, I make it, I break it.

Not a good position for a judge (1) regulating attorney licenses in 1/4 of the State of New York, and (2) trying to persuade the public that she is fighting wrongful convictions.

Moreover, when Judge Peters created a document where she tries to muzzle courts, attorneys, the press and the public against having their own opinion as to what prosecutorial misconduct is, she disqualified herself and her court from hearing criminal cases and hearing attorney disciplinary cases - as she is very obviously pro-prosecution.

The remaining "permanent members" of the Task Force are:

Cyrus Vance, the District Attorney for New York County - an interested person disqualified from being an investigator or decision-maker on the issue of wrongful convictions, and

Susan Xenarios - another director of a victims' advocates group.

There are also 8 "ex officio" members of the Task Force, also chosen by the Chief Judge of the New York State Court of Appeals.

Composition of that list is no better - they are all pro-prosecution stakeholders.

Somehow, Senator DeFrancisco, sponsor of the bill to establish Commission of Prosecutorial Misconduct, did not make the list of "ex officio" members of the Task Force.

Instead, on the list are:

1.  Eric T. Schneiderman, NYS Attorney General, a career prosecutor and official statutory counsel, under Public Officers Law 17, for all State judges, including all judges-members of the Task Force, in lawsuits against them for civil rights violations, including corruption or misconduct that may have led to wrongful convictions, look at the history of litigation by Schneiderman AGAINST civil rights lawsuits.  

Schneiderman recently argued in a civil rights case against a state judge (where Schneiderman represented the state judge) that a motion to recuse (which was granted) is good evidence in support of the judge's actions to then forcibly eject a Jewish litigant out of the courthouse after the motion was granted, with the help of an armed court attendant who was a known Nazi supporter. 

Eric Schneiderman also argued in federal court, and won on his argument, that members of the public have no say as to whether meritorious complaints of judicial misconduct and of attorney misconduct (including prosecutorial misconduct) are or are not dismissed - see Bracci v Becker (members of the public have no say in dismissal of meritorious complaints of judicial misconduct) and Neroni v Zayas (members of the public have no say in dismissal of meritorious complaints of attorney misconduct).

Moreover, Eric Schneiderman, while being an "ex officio" member of the Task Force against wrongful convictions, appeared as an attorney in litigation where he opposed benefits for a wrongfully convicted exoneree.

Based on the above, Eric Schneiderman is definitely disqualified from being anywhere near this Task Force that investigates and is supposedly tasked to verify how to prevent or reduced possibility for wrongful convictions.

2.  State Senator Michael Nozzolio, who is also currently a Commander in New York Naval militia (a really good candidate to investigate causes of wrongful convictions where misconduct of prosecutors and law enforcement are front and center causes) - the one who voted for a bill making unauthorized practice of law a felony while continuing to practice law and being "an officer of the court" while being a State Senator, thus violating constitutional separation of powers and ethical rules against self-interested legislative activity by Senators;

3.  State Assemblyman Joseph R. Lentol, a former career prosecutor - Chair of the Commission on the Committee of Codes (so, the Task Force, while usurping the power of both the Assembly and the Senate, tried to appease the State Legislature by including one Assemblyman and one Senator as "ex officio" members, which did not make legislating by the Task Force any more legitimate);

4.  Michael C. Green - Executive Deputy Commissioner, New York State Division of Criminal Justice Services, who would really be a good candidate to investigate and advise as to how to punish those who feed him, law enforcement and prosecutors;

5.  Claire P. Gutekunst - President, New York State Bar Association which issued a 187-page report on wrongful convictions in 2009, after having its own Task Force on Wrongful Convictions chaired by a recently disgraced judge Barry Kamins who resigned in 2014 when facing removal, amid a scandal in the media that he has engaged in campaign advice to District Attorney Charles Hynes who was accused in participation in wrongful convictions.

Judge Kamins also was involved, according to the report, in ex parte communications with DA Charles Hynes about criminal cases DA Hynes "actively pursued" in Judge Kamins' court

- which may be another significant part of wrongful convictions, only a Task Force consisting of judges and prosecutors who are doing it, would not notice such a cause, and would not investigate or fight it, would they?

Yet, here is what NYSBA report said in 2009 about wrongful convictions, among other things:

The report points out that prosecutorial misconduct may contribute to a conviction that may not be reversed, but where there are still significant violations of the law and prosecutorial misconduct, such as:

1) Rosario violations - failure by the prosecutors to give to the defense prior statements of testifying witnesses of the prosecution - by the way, the 20-page document concocted by pro-prosecution judges, prosecutors, chiefs of police and victims' advocates, does not include Rosario violations as prosecutorial misconduct;

2) Brady violations - failure by the prosecution to give to the defense any information in the possession of prosecution OR law enforcement pertaining to guilt or innocence, mitigation of guilt and impeachment of a prosecution's witness.

Here is also NYSBA's report on discovery in criminal proceedings from 2015, mentioning prosecutorial misconduct many times and indicating that there is no record of disciplinary proceedings in New York appellate divisions against prosecutors for Brady violations:

Yet, NYSBA report was timid, and did not mention

• ex parte communications between prosecutors and judges;
• judicial bias - the word "bias" is mentioned in the report only as witness bias; or
• corruption - the word "corruption" is used in the 147-report only once, in the physical sense of spoliation of physical evidence.

Possibly, NYSBA was included as the "ex officio" member of the Task Force because it is a convenient expert whose credentials the Task Force can tout in its support, while they know that NYSBA will tread the required line and will never accuse prosecutors or judges of misconduct, bias, collusion or corruption, and thus, such causes of wrongful convictions may be conveniently excluded.

6. Thomas P. Zugibe - President of the State District Attorney's Association, the organization that, according to testimony of Mr. Bastuk, Chair of an anti-wrongful conviction organization called "It Can Happen To You" (somehow not a member of this Task Force) in front of the New York State Commission for Attorney Discipline, descended as paratroopers upon New York Senate to lobby against introduction of a Commission solely dedicated to deal with prosecutorial misconduct, because the current attorney grievance committees have an unspoken policy not to prosecute prosecutors, a stakeholder disqualified by interest of its members to participate in decisionmaking about laws regarding investigations and sanctions for prosecutorial misconduct.

Thomas Zugibe published an article opposing legislative creation of the Commission on Prosecutorial Misconduct, where he writes that:

a) the claim of too many wrongful convictions and prosecutorial misconduct as the cause of such wrongful convictions are overblown, because the "task force" of New York State Bar association found "only" 53 wrongful convictions from 1964 to 2009; of course, Mr. Zugibe self-servingly omits to mention that only COURT REVERSALS (which are very hard to obtain when misconduct is not properly addressed by an incompetent or intimidated attorney at trial or on appeal, or when the conviction is a result of overcharging and intimidation by BOTH police and prosecutors resulting in a false confession and a guilty plea, see also an opinion, one of many, deeming any conviction on a guilty plea unconstitutional), and the rarity of the court reversals are evidence not of the scarcity of wrongful convictions, but of the predominance of judges who are former prosecutors presiding over criminal cases and ruling "for their own":

b) Mr. Zugibe pretends he, a licensed attorney of many years, somehow does not know that there are no specific requirement to complaints against ANY attorney, and claims the lack of sworn complaints contemplated against prosecutors as something especially horrific and discriminatory against prosecutors; and also pretends not to know that current attorney disciplinary committees already have the same "broad subpoena power" as the Commission on Prosecutorial Conduct is proposed to have, and already have the power to make attorneys testify against themselves - which I see as either dishonest or incompetent since Mr. Zugibe appears not to know current rules of attorney conduct regulating his own law license; 

 c) Mr. Zugibe claims that - imagine the horror! - attorney disciplinary proceedings may disrupt criminal cases because they may be conducted during the pendency of the court proceedings.

In that, Mr. Zugibe pretends to be in some kind of a surprise, while that same rule is CURRENTLY applicable to ALL attorney disciplinary proceedings - where ALL cases of disciplined attorneys' clients are disrupted.

Mr. Zugibe's lamentations only make it clear that Mr. Zugibe has no idea that what he complains about ALREADY EXISTS and IS APPLICABLE TO HIM - another proof that prosecutors are not usually prosecuted or even investigated, so they do not even bother familiarizing themselves with rules regarding their own conduct - probably, even more reason to establish a separate commission to deal with prosecutors separately, so that they would know that they are not above the law:

Somehow Mr. Zugibe did not consider it improper to make public comments and take a position on something that his Task Force is yet to come up with proposals about - which surely should have disqualified him from this body.

But, what can we expect from a prosecutor who has, for his entire career, "enjoyed" lack of discipline as a matter of policy of the grievance committees dominated by appointees of judges/former prosecutors, and absolute immunity for malicious and corrupt acts given to him as an illegal gift by the U.S. Supreme Court under the guise that attorney discipline is actually available.

7.  David Zack - President of New York State Association of the Chiefs of Police, and an obvious disqualified stakeholder with an interest, too.

8.  Jacqueline P. Flue - President, New York State Women's Bar Association.

Again, two general attorney association, 7 stakeholders connected with or representing law enforcement or prosecutors, and NO independent defense attorneys or defense attorney associations.

So, as public opinion pols push for creation of a commission to discipline prosecutors separately, to have some kind of control over the rampant prosecutorial misconduct in criminal proceedings, and, lobbying through the no-less-conflicted "Statewide Commission on Attorney discipline" offering a "compromise" of referring cases against prosecutors to existing attorney grievance committees (which was supposed to be happening anyway, but is not happening, which is the whole reason for the bill to create the Commission for Prosecutorial Misconduct) may not be working as well as the law enforcement - the bill has passed Assembly so far

prosecutors and pro-prosecution judges would want it to work, a pseudo-public clandestine "task force" has been created to try to stall creation of the Commission on Prosecutorial misconduct, under the "honorable" guise, of course, of fighting wrongful convictions.

Of course, when the initial material - composition of the Task Force - is as tainted by self-serving interests as this one, we can hardly expect a good product coming from it, but we can fully expect this "Task Force" to try to dupe the public into believing that they are acting in the public interest.

Of course, if that was true, the Task Force should have been transparent, not usurp the Legislative authority of NYS Assembly and Senate, not appoint stakeholders and not prevent the public and exonerees, victims of wrongful convictions from participating in its work.

I will continue to analyze motivations of the Task Force and how they are reflected in their proposal for standing orders on discovery in criminal proceedings in my next public comment articles.

Stay tuned.

Public comment on New York's proposed standing order of discovery in criminal cases - Part II. The proposal is trying to usurp the functions of New York Legislature.

This is a continuation of public comment on the proposal of New York Task Force as to "standing orders of discovery" in criminal proceedings.

I already addressed the lack of transparency in appointment and work of the Task Force, here.

The next problem is that the "standing order" is trying to:

• usurp the powers of the State Legislature as to important policy issues in criminal proceedings; and
• forestall or prevent, by providing a surrogate of a "standing order of discovery", the necessary legislative reforms of the state criminal justice system.

The proposal for a "standing order" affecting discovery in criminal proceedings is affecting several important policy issues which are the authority and job of the State Legislature and elected people's representatives to address, and not secretly appointed people who are not accountable to voters.

Policy issues that the 20-page proposal is attempting to resolve that are for the Legislature only to resolve are, and the list is not exhaustive:

• FIRST - the need for reform of discovery in criminal proceedings and putting discovery in criminal proceedings at least on equal grounds with the already existing discovery rights in civil court proceedings, and providing funding for such discovery;
• SECOND - the need for equal funding for investigators and experts for the defense on par with prosecution;
• THIRD - the need to address  the role of prosecutorial misconduct in wrongful convictions as a STATE CONSTITUTIONAL ISSUE, as the U.S. Supreme Court expressly protected prosecutors from liability even for lack of training of their subordinates as to concealment violations, and thus not only refused to address the issue of wrongful convictions in the country as a federal constitutional issue, but also allowed wrongful convictions to continue to multiply;
• FOURTH - the lack of adequate funding for indigent criminal defense - the legislation that has gained bipartisan support and passed both the State House and Senate was recently vetoed by the "fighter of human rights" Governor Cuomo, but, since the issue was not resolved and the state continues to violate the 6th Amendment right to counsel for indigent criminal defendant, and thus the federal court order in a settlement of a recent class civil rights case, the issue is still to be resolved by the State Legislature; 
• FIFTH - the need to ensure competence and integrity of assigned defense counsel whose continuous assignment usually depends on pleasing a judge (who is usually a former prosecutor) in not "making waves", not making discovery requests, motions to compel discovery, or motions to disqualify prosecutors or the judge for bias, conflicts of interest or misconduct - three independent criminal defense attorneys, my husband Frederick J. Neroni, myself and David Roosa (all of these attorneys lost their licenses, all of them due to complaints of the same judge who was helping the prosecution),

were raising issues of assignment of criminal cases as a matter of judicial whim only to those who agree to please the judge and not "make waves" by providing effective assistance to indigent defendants ;

• SIXTH - the need to allow, as right to counsel, for the criminal defendants, including indigent criminal defendants, to have counsel of their choice, who they truly choose and trust, possibly through a system of:
• vouchers, and
• deregulation of the criminal bar, allowing criminal defendants to choose to represent them any person, not necessarily a person approved (through licensing) by the same government that is pursuing the defendant in criminal proceedings, which is an irreconcilable conflict of interest;
• SEVENTH - eliminate prosecutors from their positions of "advisors" of grand juries, undermining adversarial process of the criminal justice.
• EIGHTH- the need to eliminate the plea bargaining system which drums up convictions without regard to evidence, for purposes that have nothing to do with fighting crime:
• cutting "court congestion" in criminal cases and
• providing free labor to the for-profit prison industry, and
• providing work to unionized prison workers;
• NINTH - address the issue of non-discipline of criminal prosecutors for misconduct in criminal proceedings (which New York Legislature is attempting to address at this time, against vigorous opposition by the State District Attorneys' Association, through the legislative creation of the Commission on Prosecutorial misconduct);
• TENTH - eliminate prosecutorial immunity in lawsuits for misconduct to provide a meaningful remedy to the victims of wrongful convictions and to deter further wrongful convictions;
• ELEVENTH - to seriously address, with true participation of the public, true and effective accountability for prosecutorial misconduct as the cause of wrongful convictions.

These are all important policy decisions, and these decisions need to be addressed by People's representatives elected for that purpose - the Legislature, not by some clandestine "task force" appointed in a clandestine manner, meeting in a clandestine manner for clandestine purposes, not allowing public participation.

The notice for "public comment" right now is just a fake to solicit comments from the public, toss them and approve what they want to promote anyway - and what they want to promote is:

• further protection of the prosecution as the breeding pool of judges (just read official biographies of New York state or federal judges to see that the overwhelming majority of judges came from prosecutors);
• further intimidation of the defense bar, and
• making wrongful convictions irreversible -

as I will show in my further analysis of the proposal in separate articles.

The whole point for giving exclusive legislative power to People's elected representatives in the Legislature and not any other branches or bodies of the government, and to have those Legislative representatives elected for short terms is:

1. transparency;
2. availability for the public of a right to:
1. contact their legislative representative;
2. come and talk to that representative;
3. send legislative proposals to that representative;
4. testify in the Legislature as to those proposals
5. put those proposals out for public referendums.

Here, the public:

1. did not elect any of the members of the Task Force AS LEGISLATORS - they did not even run as legislators, they were appointed by New York Chief Judge Lippman in 2009;
2. these Task Force members have no accountability to the public, no duty to meet with them, and no incentive of being recalled from office, impeached or not elected for the next term to speak to members of the public;
3. there is no possibility of a LENGTHY legislative process discussing all possibilities, all public needs, all conflicting public interests and conflicts of interests and weighing all options before introducing a legislature on important policy considerations - here, the proposal was made, through an announcement on New York State Court system's website, on April 6, 2017, and public comment, through written e-mails only to some unelected lawyer in the New York State Court system, will be closed within 2 months of that time, on June 5, 2017, without any public hearings.

What was the composition and background of this clandestine group, and how the proposal tries to subvert the need for real reforms in the criminal justice system, read on in my next public comment articles.

Public comment on New York's proposed standing order of discovery in criminal cases - Part I. Lack of transparency.

The public has until June 5, 2017 to send public comments to New York State permanent Justice Commission regarding its new proposal of a standing court order in criminal proceedings regarding obligations of the prosecutor and defense counsel in discovery.

The proposal is long, 20 pages, and a lot of traps and inconsistencies are hidden in it.

I am starting a series of articles analyzing this proposal, and will forward all of them as my public comment to this proposal.

Even if I do not live in New York State anymore, I continue to pay property taxes in that state which feed the work of prosecutors and police, so I do have a say in the matter, as a taxpayer.

Moreover, New York does not restrict public comment only to residents of New York state.

The very first problem that jumps to mind is the lack of transparency in:

• how the body that proposed this rule - the permanent New York Justice Task Force - was formed, without any input from the public, taxpayers, voters and consumers of legal services;

• how it convened - without following the Public Meetings Law, without notice to the public or opportunity to be heard, behind closed doors;
• how it formed its committees and subcommittees;
• how and from whom the Task Force solicited "recommendations".

If this task force was truly to address the urgent, glaring issue of wrongful convictions, and would truly be interested in trying to address that issue and prevent innocent people from being charged and convicted of crimes they did not commit, it would have been, at the very least, transparent and honest with the public as to what it is that the "Task Force" is doing, how and why.

That the public was given:

• no say in the composition of the Task Force;
• no say in the work of the Task Force;
• no notice as to meetings of the Task Force;
• no opportunity to be present at those meetings or provide their own input to the work of the Task Force -

already speaks volumes about both legitimacy of the Task Force itself and legitimacy and potential conflicts of interests and motivations of the Task Force.

But that's only one problem of many in how and why this proposal has come about.

I will continue to analyze the proposal.

Stay tuned.

That disruptive consumer of legal services...

An interesting article was published about "4 impending disruptions" that "legal professionals can't afford to ignore" - giving away the store as to what is what in attorney regulation.

If you remember, regulation of all occupations by the government, and that includes attorney licensing, is done under the pretext of protecting the consumer of legal services. That's why we have attorney monopoly in this country.

That's why you have to pay through your nose not for a service provider of your choice, but to a service provider approved for you by the licensing government if you need a will, a deed, a court representative - or go without that will, that deed, or that court representation.

Approval of your court representative, through attorney licensing, by the very government that sues you in civil or criminal cases, or who you yourself are suing in civil rights cases is especially precious.

So, here are the 4 "disruptions" that a legal professional cannot afford to ignore, in the opinion of innovator Michael McQueen:

1. The Age of Automation;
2. Empowered Consumers;
3. Unconventional Competition; and
4. Emerging Generations.

All of these potential "disruptions" speak volumes about why attorney regulation was (or, rather, was not) needed in the first place.

Automation

If artificial intelligence is to replace everything in the legal profession - from research to advice to resolving disputes, as it is increasingly happening, why is it so important to regulate the market of legal services, and what exactly is the government regulating that is so important - if machines can easily do the same task that a licensed human is performing.

That question is not asked or answered in the article, automation is simply pointed out as a potential point of "disruption" of a legal professional's monopolistic paradise.

But, what is the most hilarious giveaway is pointing out at "empowered consumers" as a major source of "disruption" of the legal profession.

Once again - attorney licensing exists under the pretense that it PROTECTS CONSUMERS.

At the same time, consumers are not allowed anywhere near that same regulation that is supposedly protecting them:

1. laws about attorney regulation are "sponsored" and promoted by lawyer senators, many of them practicing licensed attorneys, guess who they are going to benefit - consumers or themselves?
2. lawyer-legislators put lawyer-judges in charge of lawyer-regulation;
3. lawyer-judges make rules so that only super-majority of lawyers "regulate" other lawyers, eliminating any source of dissent and any possibility of having, among providers of legal services, any lawyers who are out of step with the monopolistic legal establishment;
4. lawyers issue ethical opinions for themselves and judges, who are also lawyers;
5. lawyers overpower Commissions for Judicial Conduct -

in other words, consumers of legal services are not allowed anywhere near any meaningful participation in regulation of profession that secures their own access to court, regulation that exists, as it is officially declared, to protect the interests of those same consumers.

So, now what is the "disruption" of the legal profession exactly?

An "empowered consumer".

Consumers are raising their heads and, not exactly challenging the absurdity of attorney regulation for their "benefit" that results in majority of consumers not being able to afford a lawyer, or where consumer input or meaningful participation in decision-making, for their own benefits, is not allowed by the regulated profession.

What consumers are doing, according to the article, which is such a bad disruption, is this:

Imagine the gall of these pesky consumers!

Consumers:

1. are more knowledgeable about the law, and can meaningfully participate in the choice of provider by considering not just the presence of a license, but the actual performance track of the provider;
2. consumers demand the provider to explain to them what the hell he is doing after he's got their retainer money - not allowing attorneys to operate "under a cone of silence".

Well, wasn't it how it is supposed to be in any market, at any time?

So, consumers making informed decision about hiring, retaining and monitoring performance of providers of legal services is a major source of DISRUPTION?

The next two "disruptions" are no less hilarious.

Disruption No. 3 is "unconventional competitors", whatever that means.

While making references to other industries and their "unconventional competitors", the author of the article remains cryptic about who or what may be such "unconventional competitors" in the legal market.

The concept of an "unconventional competitor" in the market of legal services is sticky, and that's very possibly why the "innovator" Michael McQueen prefers not to get into that quicksand completely.

With states, at the same time,

• refusing to fund indigent defense services;
• refusing to define what the hell they are regulating as "practice of law", but at the same time
• prosecuting those who engage in "practice of law" without a state approval/ license as a crime;
• yanking law licenses of those who do their jobs in the under-served areas of the law well, and refusing to reinstate those licenses on contrived grounds, expanding the meaning of UPL for such attorneys, as compared to never-licensed public; and
• throwing the public a bone of uneducated surrogates to "bridge the justice gap", and
• fighting lawsuits of consumers trying to assert their right to pick their own providers of legal services with psychiatric evaluations,

one can only wonder who or what those mysterious "unconventional competitors" can be.

Are those law libraries?

Are those information portals like LegalZoom?

Are those published texts of the law?

Published texts of cases that people can read online for free and do their own legal research?

What is it that Michael McQueen is really telling lawyers about "unconventional competitors"? 

How to drown them? 

How to attack them in court? 

How to harass them, pursue them in criminal UPL prosecutions - ostensibly, to "protect the consumers", but in reality, to protect lawyers' own exclusive turf and captive-consumer markets?

That's why the author resorts to the most general warnings, without identifying those "unconventional competitors" of the legal industry that are one of the 4 major "disruptors"?

What is hilarious is that more and more the legal profession shows considerable shark teeth from underneath their rabbit suit pretending that provision of legal services is not a "business", and UPL laws exist only to protect the consumers.

Why are we talking of "unconventional competitors" as one of the most significant disruptors of the legal professional's market?

And the crown of it all - "emerging generations".

While it is just common sense for any service provider to know his consumer and cater for his needs, advice here goes farther than that.

It is to "engage" the "new generation" by learning how they think, to make them clients or "teammates".

In other words, how to brainwash young potential consumers of legal services better that they buy into the "milking the job" (oops, "billable hours") formula and the paternalistic idea that they are not mature enough to choose their own provider without government approval through licensing - even in the area where the exact same knowledge (legal knowledge) may be obtained by sitting a couple of hours in front of a computer and doing research on the Internet.

So, one thing is clear - the legal profession is afraid, very afraid.

Of its own consumers.

Of changes.

Of having to actually change with times, use their brains, work and depend, like anybody working in the market should, upon market fluctuations and market prices, and to deliver value for consumer's money.

Which is a very good reason for consumers to demand from their legislative representatives to yank the laws on regulation of the legal market or change that regulation in ways to allow consumers to have the decisive vote as to how that market is regulated, and how their own interests are protected, and by whom.

That would be a real disruption of that little captive paradise, which is long overdue.

Time to go to Europe for education and elsewhere for professional jobs, for communism has arrived to the U.S. - colleges are now free. If you are an illegal alien.

These meme has been traveling around Facebook for a while:

The crisis of student loans in this country is undeniable.

Yet, at the very same time another crisis - the crisis of discrimination against students who are in the U.S. legally in favor of those who have crossed the border and remain in the U.S. illegally, continues.

At first - do you still remember that? - some portion of the U.S. population was euphoric, that was very obvious from social media comments, about President Trump's immigration orders snubbed by federal courts.

It was illegal, as the President was in his own right to enforce federal immigration laws enacted by federal legislature, the people's representatives, but that did not matter much for federal courts who have long usurped the power in this country to MAKE the law on their whim.

States suing the President (in his official capacity, so they are suing every American taxpayer when they are suing the President of the U.S.) were arguing to the federal courts that denying or even slowing down the process of issuing visas to foreign students is the equivalent of denial to the states of an important source of revenue, as foreign students who are coming on legal visas, are usually pay higher tuition than Americans.

At that background, it appears completely bizarre and counter-intuitive when the same states who claim, in one set of lawsuits against President Trump's immigration-related Executive Order, that LEGAL immigrants are important sources of revenues for states - and thus had courts stop the Executive Order, even though financial harm is not a constitutional injury (again, federal courts do not care what the law is, only what will gain them the most publicity, the most free national and international trips from sponsors of anti-Trump campaigns and promotion with the possible next, Democratic - they hope - President), give illegal immigrants a free ride in the same state universities that fleece legal immigrants for higher tuition rates.

See, for example, Duke University's "policy" of "meeting 100% of demonstrated financial need" for "undocumented immigrants" (the legal term: "illegal aliens"). 

Of course, when you are in the country illegally, you most likely have no money because of at least some businesses following the law and refusing to hire you, so you will have "a demonstrated need".

And, with that "demonstrated need", you will be entitled for you know how much, to go to Duke University?  How about $70,092, more than an average American working family gets.

That creates a unique incentive for immigrants to simply go to Mexico, walk across the border and get free medical care, free public education for their children, and now free college education - something that American citizens and legal residents, are not entitled to.

I wonder whether college graduates and current students who are in the country legally will jump up and down with joy on hearing that their tuition and tuition increases, burdening them until old age, making them live at home with their parents to save money and preventing them from marrying, having a house and starting a family is to be used to pay for a free ride of illegal aliens.

In other words, communism has arrived to America, albeit for just one "social group" - illegal aliens.

What Bernie Sanders promised to all Americans, Americans are now forced to pay through taxes, without their consent, for education of illegal alien which they themselves



cannot afford.

Oh, and look at this wonderful vignette:  Duke is warning illegal aliens in its financial aid policy that if their immigration status changes, "components of the student's award may also change", too,

the apparent translation into the normal people's English: if you become legal, you will lose money and will have to pay for your education on your own.

The same happened in Emory College, a private university that also just announced a policy of free tuition to illegal alien students, of course, paid for by tuition of students who are American citizens or who have a legal immigration status.

Emory's tuition is currently:

• $50,000 to legal American students;
• $70,000 to legal student visa holders; and
• $0 to illegal aliens.

So, what is an American to do?

1) Pretend that s/he is an "undocumented immigrant" in order to get free tuition? Will that be some kind of fraud - figure, pretending that you are an illegal in order to get a financial break from the government that you cannot get as a "legal"?

2) Go to Europe where university tuition is free for all, you only need to pay your living expenses, and waitress your way to a Sorbonne degree?

But, definitely, it is foolish to continue to pay through your nose, through loans that will burden you for life, tuition not only for yourself, but also for illegal aliens who are getting  a free ride at your expense.

It is better to vote with your feet and pay for a college education in another country, not swept yet in this "politically correct" - or, rather, cheap labor advocate craziness.

One thing I can easily predict - a flood of anti-discrimination lawsuits against American colleges and universities for fleecing citizens, legal residents and student visa holders in order to provide a free ride to illegal aliens.

I wonder whether student pussy-hatters who were jumping in the streets protesting BOTH to bring in more legal immigrants to be fleeced for higher-rate college tuition, AND against illegal immigration stings AND against stopping federal aid for illegal aliens, would realize at least now, when they are made, personally, to pay for the free ride of illegal alien students, that they were duped by very adult, very rich, very greedy and cunning people into providing a "mass protest" base for something that is hurting and will themselves and all aspects of their lives, possibly for a lifetime to come.  Badly.

And, "legal" students should also consider that the illegal alien students who obtained college, including an elite college, education for free, will continue to successfully compete with Americans for jobs, unburdened with loans, as "legal" students are, and thus more mobile - and, since they are illegal and may agree to work for lower pay, guess who will start winning all professional jobs in this country, and especially that states started to give out professional licenses to aliens who do not even have permission to work?

Next time before you go out into the street protesting against the "pussy grabber" President (that's the main argument of many protesters), think that the result you are advocating for is stripping yourself of money, property, job and life opportunities.

Congratulations, communism has just arrived to America.

At your expense.