Public comment on New York proposed "standing discovery order" in criminal cases - Part VIII: the new proposed "standing order" is slanted towards prosecution, changes constitutional and statutory law without authority, and will drum up wrongful convictions through plea bargains

This is a continuation of my public comment about the proposed "standing order of discovery" in criminal cases by the New York Justice Task Force.

So far, I have published 7 parts of my public comment on this proposed rule:

Part I - lack of transparency in the composition or operation of the "Task Force";

Part II - that the proposal is trying to usurp the authority of the New York State Legislature;

Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;

Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and

Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.

Part VI - how the rule will protect prosecutors from allegations of misconduct instead of protecting the public from wrongful convictions, and

Part VII - on the "dearth" of information about prosecutorial misconduct created by members of the Task Force, and used by members of the Task Force not to do their jobs.

In this blog, Part VIII, I will analyze the actual proposed standing order of discovery, proposed by the Task Force to be made in every criminal case.

The screw-up starts from the very first paragraph about the order of discovery directed at the prosecutor:

So, first of all, the court order of discovery will be issued on the following conditions:

• if the prosecutor and "counsel for defendant" are present at the arraignment - so, that excludes issuing such an order if a criminal defendant wants to represent himself; and
• that the defense attorney must provide to the prosecution a demand for discovery under CPL 240.10(1) and CPL 240.20 - even though certain materials, such as the so-called Brady and Rosario materials (withholding of which may lead to wrongful convictions, must be provided by the prosecution without any demands from the defense, automatically).  I wonder whether this rule will be used by prosecutors by claiming that the defense never asked them for the Brady material,  so they "thought" they do not need to give it.

Yet, the proposed standing order of discovery aimed at the prosecution is EXCLUSIVELY aimed at Brady material - that is supposed to be provided by the prosecution to the defense WITHOUT ANY DEMAND FOR DISCOVERY and WITHOUT ANY COURT ORDER.

Nevertheless, the order indicates that it will only punish for withholding of the Brady material only if it is "willful" - and you know same as I do that no judge will EVER find withholding of Brady material by any prosecutor "willful".

And, look at how the proposed order gives the prosecution more time for disclosure than the statute does - thus unlawfully changing the criminal procedure statute.

According to New York Criminal Procedure Law (CPL) 255.20, all motions in a criminal case (including motions to compel disclosure) must be made 45 days from arraignment with counsel.

In a felony case, that deadline usually comes long before the trial.

That means that the demand for discovery must be made long before these 45 days expire, in order to be able to:

• serve the prosecution with the demand for discovery (demand to produce);
• give the prosecution 20 days to respond (plus 5 days for mailing), and
• if the prosecution refused to provide certain materials, to make additional demands to produce, in order ensure compliance of the prosecution.

All of that takes time.

By statute, and usually demands to produce are made at arraignment or close after that date (once again, prosecution MUST provide Brady material without a demand to produce, but a statutory demand to produce imposes upon the prosecution an ADDITIONAL obligation and CUTS its time to provide the documentation.

Remember that the prosecution was preparing the cases (especially a felony case), likely, for months, especially in case of an indictment by a grand jury that the prosecution was preparing, so, it must not be difficult for the prosecution to provide its file to the defense on time, and failure to do so must PRESUMPTIVELY constitute misconduct.

Under CPL 240.40 the court MUST order discovery of materials discoverable under CPL 240.20 (including the Brady material).

When such a court order directing disclosure is issued, the prosecutor comes under immediate contempt of court power and under immediate obligation of compliance and disclosure.

Yet, the newly proposed court rule concocted by a "Task Force" dominated by prosecutors and former prosecutors, suggests that, by order of court, disclosure will be "presumptively timely" if provided 30 days before trial in a felony case and 15 days before trial in a misdemeanor case.

So, if a defense counsel, within 45 days of arraignment, makes an omnibus motion that includes a motion to comply with the demand to produce, the court, under the new rule, will now be able to marinate the defense counsel for months, telling the prosecutor at the very outset of the case that he can delay disclosure of Brady material until 30 days before trial - likely putting additional expenses upon the defense counsel for rush investigation of materials he is ambushed with only 30 days before trial, while a criminal case may drag its feet through the court system for months.

And, such dilatory tactics by both the court and the prosecution, will be considered not misconduct, but "presumptively timely" disclosure.

As to disclosures "subject to a suppression hearing", such as a 710.30 notice (a statement or identification), such disclosure can be made under the new "standing order" no later than 15 days before a suppression HEARING.

Before a suppression HEARING, there must come a MOTION from the defense counsel for such a hearing, within 45 days of arraignment with counsel.

And, in order to make such a motion, the defense counsel must have materials on hand to make it a PART OF that motion.  A defense counsel cannot move to suppress what he does not know exists.

Thus, the order:

1) piles an impossible task of clairvoyance upon the defense counsel, obligating him or her to FORESEE what materials are withheld by the prosecution that may be subject to suppression, for purposes of making a motion;

2) dooms motions to suppress by allowing the prosecution not to disclose ANY information until "15 days before a suppression hearing", which will not happen without a proper motion, and, ultimately,

3) enables prosecutorial misconduct that it is claiming it is trying to prevent.

Note that at the very same time, the criminal defendant (who is entitled by the 5th Amendment to remain silent throughout the criminal proceeding) is required by New York Statutes to disclosure to the prosecution:

• an alibi defense; and
• whether the defendant is going to raise the affirmative defense of mental incapacity to form an intent -

and the defendant must, under New York's obviously unconstitutional statutes, make these disclosures, violating his 5th Amendment right to remain silent, within 8 days from the day of service of the prosecution's demand for such "notices".

Compare - the defense must make disclosures to the prosecution, despite the 5th Amendment protection, within 8 days after the criminal case starts, and the prosecution does not have to disclose anything to the defense, despite a constitutional obligation, until 30 (felony) or 15 days before trial or hearing.

And, obligations of defense counsel for disclosure of such unconstitutional "notices" are put into a court order, thus putting the defense counsel under the gun of disobeying the court order if he does not make his client speak to the court and the prosecution about the case, in violation of his or her 5th Amendment rights.

Moreover, the "standing court order" will impose upon the defense counsel an additional court-ordered obligation to comply with these unconstitutional demands to waive the e criminal defendant's 5th Amendment right to remain silent, as the statute requires, within 8 days of service of the demand, or suffer waiver of that particular defense (the prosecution does not suffer a dismissal of the case for non-compliance with discovery).

Thus, the "standing order of discovery" favors the prosecution by giving prosecution additional time in discovery and absolving them from sanctions for non-compliance with discovery demands and motions, and by putting upon defense counsel an additional contempt-of-court obligation to comply with prosecution's demands for discovery exactly within the very limited statutory time-frame (8 days after service of the demand).

Not too much of a bias in favor of prosecution, right?

But, a great big cherry on top of the cake given by the Task Force to prosecutors under the guise of providing protection to criminal defendants, is this, the "notice" that the court WILL NOT find a prosecutor subject to sanctions unless his non-disclosure of Brady material is "willful"  (deliberate delay of prosecution's compliance with statutory demands to produce until 30 days before trial are already claimed not to be willful, presumptively, without looking at the circumstances of the case):

Compare the warning by the court to the prosecutor that he will NOT be sanctioned for non-disclosure of constitutionally required material unless his nondisclosure was "willful and deliberate" with a notice that any parent gets in, as an example, New York Family Court - in a custody, visitation, or child support proceeding:

Note that the proposal for the "standing court order" in criminal cases is not even talking about jail or fines against prosecutors for contempt of court - as parents without any legal knowledge (as compared to prosecutors) are threatened with.

And note that the notice to parents greatly differ with notice to prosecutors where the prosecutors (who are fully aware of their federal constitutional duty of disclosure of Brady material) are babied in the court order and assured that they will NOT be sanctioned, unless their conduct is willful and deliberate, while a parent is told, in bold font, that he MAY BE fined, and jailed, or BOTH, if his behavior is willful.

The difference is not purely grammatical.

In the parents' case, New York courts, most of the times, find a parent in contempt of a child support order as a matter of POLICY - even when the parent shows evidence of indigence, by IMPUTING income upon a parent who is unemployed and cannot find a job.

In the prosecutors' case, on the opposite, courts presume good faith on behalf of a member of the government, who, like the presiding judge him/herself, is given absolute immunity for CORRUPT acts - thus incentivizing such behavior.

It does not make any sense, does it?

Presuming bad faith of a parent who has no immunity coverage, and presuming good faith of a government official who is immune for malicious and corrupt acts and who has an interest in committing those malicious and corrupt acts (fabricating criminal cases) to advance his career for more money and more power?

It is apparent that, the proposed order of discovery will make prosecutorial misconduct even easier and less prosecutable than it is in New York now.

After all, prosecutors, even if complained to the grievous committee, will point at a court refusing to impose sanctions upon them as the basis to dismiss the disciplinary complaint without an investigation or prosecution.

And, you know what will flourish because of this "standing order", if it is accepted as a court rule (and I have no doubt it will be so accepted, so, criminal defendants and counsel in New York, brace yourself)?

Wrongful convictions through guilty pleas.

Look at the timing of plea negotiations as opposed the deadlines of discovery in the proposed "standing order".

Prosecution MUST disclose Brady material with or without demand from the defense - that's the law that those proposing the "standing order" do not care about.

Yet, the standing order deems non-disclosure of Brady material (information that somebody else committed a crime, or that a prosecution's witness was bought or retracted his or her story) as not being subject to sanctions until 30 days (felony) or 15 days (misdemeanor) before trial.

Nearly 99% of criminal convictions across the United States, including in New York, are obtained through plea bargains.

And, criminal convictions are always brought up during election campaigns by prosecutors and prosecutors who are running to become judges - as career accomplishments.

So, what will be the easiest way for a prosecutor in New York to obtain these career accomplishments after this rule is promulgated by the New York court system?

Fabricate a criminal case, delay disclosure of Brady material until "30 days before trial" (conduct that is presumed by the proposed standing order as timely and in good faith) and, while withholding evidence that may help the defendant win a dismissal of the case, obtain a guilty plea and send the defendant to plea.

And, the prosecutor may then claim that he did nothing wrong, obtained a guilty plea with a court's double-blessing (through an order of discovery and a plea allocution).

This way, the prosecutor will not be subject to a lawsuit (absolute immunity) and will not be subject to attorney discipline (claiming he did not have to disclose Brady material until 30 days before trial - which was never scheduled because of a guilty plea).

Thus, by claiming that the prosecutor PRESUMPTIVELY did not do anything wrong unless he failed to disclose Brady material 30, or 15 days before trial (that usually happens only in 1% of criminal cases), the order practically endorses and encourages the prosecution to conduct plea negotiations without disclosure of Brady material, long before any trial is scheduled.

And, with this, the due process right to a fair prosecutor (do we even remember such a right exists any more?) goes out the door, with the court system's blessing - because, from the point of view of the Task Force that presumes validity of any criminal conviction unless it is vacated or reversed by a court, no matter by what misconduct it is obtained, withholding information about innocence or mitigation while trying to put an innocent person behind bars is not at all a sanctionable conduct for the prosecution, prosecutors need to be protected from the public opinion calling a spade a spade and branding prosecutorial misconduct, and the public and the press should be told what to think prosecutorial misconduct is - by the courts.

There is more than one way to ensure reduction of "wrongful convictions", right?

Just

• change the definition of what a wrongful conviction is, create some rules that will make a court finding of prosecutorial misconduct impossible,
• help prosecution obtain plea bargains by withholding evidence, all with waivers of the defendants right to appeal,
• keep information about failures to disclose under wraps, then
• claim the "dearth of information" that prosecutorial misconduct is responsible for wrongful conviction and
• chastise the public, the press and the defense counsel for using the words "prosecutorial misconduct" too much, and "incorrectly"  - and voila, the "problem" of wrongful convictions is solved.

Is it?

Public comment on New York's proposed standing order of discovery in criminal cases - Part VII. The way to reduce wrongful convictions is to block opportunities to reverse wrongful convictions. How New York Court System and court-appointed Task Force is playing with statistics and pulbic opinion to make black appear white-ish.

I continue public comment on the proposed rule of "mandatory order of discovery" in criminal case - proposed by New York "Justice Task Force" consisting mainly of police, prosecutors, judges who are former prosecutors and "victims' advocates" - but not of the actual victims of wrongful convictions and THEIR advocates (criminal defense and civil rights attorneys).

So far, I have published 6 parts of my public comment:

• Part I - lack of transparency in the composition or operation of the "Task Force";
• Part II - that the proposal is trying to usurp the authority of the New York State Legislature;
• Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;
• Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and
• Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.
• Part VI - how the rule will protect prosecutors from allegations of misconduct instead of protecting the public from wrongful convictions.

In this blog, part VII, I will discuss the bait-and-switch tactics used by the "Justice Task Force" in its "proposal" to manipulate public opinion in order to persuade them that:

• wrongful convictions in New York are not caused by prosecutorial misconduct, that
• there are not that many wrongful convictions in New York, and that
• prosecutors should not be accused of prosecutorial misconduct as much as they are nowadays, by the public and in the media.

WHAT IS A WRONGFUL CONVICTION?

First of all, while the declared mission of the New York Justice Task Force is to make sure that "the innocent are not convicted of crimes they did not commit"

their policy of what to deem a wrongful is quite narrow - the Task Force considers a conviction "wrongful" only if it was reversed or vacated by a court:

Note that in its "Appendix" to "Case Inquiries" the Task Force, while referring the public to TWO out-of-state advocacies for the wrongfully convicted, DOES NOT refer people to the in-state organization of exoneree Bill Bastuk "It Can Happen To You" that is insisting, through legislative efforts and testimony in front of New York Commission for Attorney Discipline, on institution of Commission on Prosecutorial misconduct.

The Task Force's policy creates a presumption of legality of any conviction that is not vacated or reversed.

In fact, it will not even TAKE a case for review if it is not reversed or vacated.

Yet, several major institutional factors prevent reversals and vacaturs of criminal convictions, of which the Task Force, being composed of those who bring about those convictions (the police, judges, prosecutors and "victims' advocates") are well aware:

• if you were coerced or intimidated into a false confession and a plea of guilty, the only avenue available to you is a motion to withdraw the plea, and such motions most often are denied - so 99% of criminal convictions in New York (which happen on plea bargains) the Task Force will simply ignore - by policy;
• if you had a bad representation by a private defense attorney or an assigned defense counsel, courts invented extremely low requirements for defense counsel to meet in order to affirm the conviction and find "effective representation".  All flaws of representation will be attributed to "counsel strategy" - and the Task Force will not take your case, no matter how bad the representation was in actuality;
• appellate courts invented a policy (not that they are allowed to make policy, that is a legislative prerogative, but they still do it all the time) of "finality" of criminal convictions - and affirm the majority of criminal appeal based on that policy, thus only a handful of appeal are reversed at all, and practically in no appeals prosecutorial misconduct is mentioned;
• appellate courts invented a "standard of review" (which is not contained in any statutes) that criminal appeals in New York are reviewed from the point of view "most favorable to the prosecution".  From that point of view, prosecutors never commit any misconduct, most criminal appeals are affirmed, and the Task Force will not take any cases for review or count them as "wrongful convictions";
• the Task Force has a split loyalty and personality - in fighting against "wrongful convictions" it asserts as its first and foremost task protection of reputation of prosecutors - with such goals, it will not see prosecutorial misconduct if it is screaming in its face.

The Task Force did not report any efforts to discover complaints about prosecutors to disciplinary authorities, and did not report any efforts to (as suggested by exoneree Bill Bastuk in his testimony to the New York Statewide Commission for Attorney Discipline) investigate allegations of attorney misconduct in civil rights cases, whether such cases were or were not dismissed for prosecutorial immunity.

Such allegations are filed under oath (as required for civil rights complaints), and provide enough grounds to start investigations into misconduct.

Yet, since members of the Task Force (and their friends and colleagues) may suffer reputational loss because of their investigation, they do not use resources provided by law and public records to do their job - investigate prosecutorial misconduct that may result in wrongful convictions.

Instead, they falsely claim "dearth" of information about prosecutorial misconduct

Yet, for members of the court system to report the "dearth" of incriminating statistics ABOUT THEMSELVES is - how can I put it politely - counter-intuitive is the "PC" word.

First - you are in charge of collecting those statistics, so why didn't you do that?

Second - how many of those prosecutors who were involved in wrongful convictions have became judges (including the Chief Judge of the State of New York) and were themselves sued and complained about for prosecutorial misconduct?  Pacer.gov has plenty of records of such lawsuits.  Is the self-purpose of preventing embarassment the reason why there is a "dearth" of statistics of prosecutorial misconduct as a factor in criminal convictions?  But, isn't it a due process problem that a man cannot "sit in judgment" of him/herself - and should not be allowed to investigate him/herself and "find solutions" to problems that he or she has created?

Third - have you made motions ALLOWED to be made under Judiciary Law 90(10) to all 4 grievance committees seeking discovery of complaints against prosecutors over a number of years?

The "dearth" of information is because of attorney privacy, but Judiciary Law 90(10) allows you to at least TRY and ask the court to disclose private complaints against attorneys? 

Did you make such an effort?

Have you talk to the complainants?

Why not?

Is it because you do not want to reveal that attorney grievance committees SHRED complaints against prosecutors and that there is no such archives?

We have learnt it through investigation in a lawsuit, Neroni v Zayas, and even then, a federal court claimed that not keeping an archive of attorney disciplinary files (even when claiming to various courts that (1) such a file exists and (2) relying, without producing the records, upon the contents of such alleged records) was all right?

By the way, as a result of that investigation, my own law license was suspended...

But, as to the alleged "dearth" of information,

• that is the result of the court system's own negligent (if not worse);
• that is the result of the Task Force's neglect of its duty to make motions under Judiciary Law 90(10) for disclosure of disciplinary complaints against prosecutors, and records of how those complaints were investigated and resolved;
• that is the result of the Task Force's unwillingness to obtain and analyze OPEN PUBLIC RECORDS, civil rights lawsuits against prosecutors on Pacer.gov.

Instead, the Task Force is "recognizing the work done" by attorney grievance committees "to collect data and statistics about attorney discipline generally" - including the shredding of their archives.

By the way, my husband and I were not the only people who alleged in a lawsuit (Neroni v Zayas) that an attorney grievance committee (of the 3rd department) shredded an attorney disciplinary file - in my husband's case, while claiming contents of the no-longer-existing file in court.

Disciplinary attorney Christine Anderson sued the 1st Department's (New York City) attorney grievance committee for firing her when she found out and opposed its white-washing operation when disciplinary complaints against certain politically connected attorneys were shredded, and other attorneys, not politically connected, were instead targeted with discipline. 

Yet, those same people who continue to "regulate" the legal profession as "Godfathers" operate a criminal syndicate (remember, the "regulators" of attorney licenses are part of the Task Force, too), seek to "prevent wrongful convictions" - by protecting prosecutors from "unwarranted" allegations of misconduct.

And that includes New York Chief Judge Janet DiFiore who was sued, multiple times, for retaliation and threats of retaliation against those who published information about her misconduct.

So, between the extremely narrow definition of what a "wrongful conviction" is, deliberate composition of the Task Force of those who CAUSE wrongful convictions and who have a reputational interest to prevent disclosure of information that certain convictions were wrongful, and various "policies" of appellate courts affirming most of criminal convictions, no matter what - victims of ACTUAL wrongful convictions in New York have no hope that this particular "Task Force" will get to the bottom of what causes those wrongful convictions, or make any honest changes to the system to make sure that no innocent is convicted of a crime in New York.

As to the interesting contents of the proposed "standing order of discovery", and its proposed enforcement, which is, interestingly, very much different from any other order of discovery in New York and from enforcement of other court orders, see my next blog.

 

Public comment on New York's proposed standing order of discovery in criminal cases - Part VI. The rule seeking to reduce wrongful convictions is seeking to protect prosecutors from discipline

I continue public comment on the New York "Wrongful Convictions" Task Force's proposed rule or mandatory discovery orders in criminal cases and policy of reporting of attorney discipline against prosecutors and criminal defense attorneys, as well as information exchange about such referrals.

Previously, I addressed aspects of the proposed rule in my public comment,

• Part I - lack of transparency in the composition or operation of the "Task Force";
• Part II - that the proposal is trying to usurp the authority of the New York State Legislature;
• Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;
• Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and
• Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.

This Part VI is showing that disciplinary prosecution of misconduct of criminal prosecutors is also a joke - and that the rule on "standing orders" of discovery in criminal cases will make disciplinary prosecutors even less amenable to discipline than they are now, and will increase wrongful convictions.

Prosecutorial misconduct is prominent in the "discovery order" proposal of the Task Force, as it is No. 1 reason why the proposal is even introduced - to instill into the public that, unless a court says a prosecutor committed misconduct, the public should not deem any conduct by prosecutors a misconduct.

Apparently, members of the public and the media cannot have their own mind as to what they observe and what they read about in court documents.

Yet, while the Task Force wants, very obviously, to suppress "wrongful perception" by the public and the media of what is or is not prosecutorial misconduct, it is interesting that in 2015 there was actual testimony in front of New York Commission for Attorney Discipline - where a person represented the wrongfully convicted (those who are not represented in the Task Force created supposedly to fight wrongful convictions), testified that

• defense attorneys are afraid to report prosecutorial misconduct, equating it with "burning bridges" for themselves,
• that disciplinary authorities do not prosecute prosecutors who are sued for civil rights violations, but given prosecutorial immunity (which is given ONLY because discipline is supposedly available - which it is not); and
• that prosecutors' organizations to prevent creation of the Commission for Prosecutorial Misconduct, and the failure of that organization to produce one case when prosecutors were actually disciplined, see testimony of the victim of a wrongful conviction Bill Bastuk, the co-founder of the organization "It Can Happen to You".

Well, there are actually two of such cases, where prosecutors were actually disciplined - but in both of them prosecutors were disciplined not for causing wrongful convictions, but for criticism of judges.
 

1) the Albany County District Attorney Paul David Soares

for criticism of a judge in a press-conference; and

2) Elizabeth Holtzman, a New York City prosecutor, for outing judge Irving W. Levine for demeaning the alleged rape victim in a criminal rape trial by reportedly ordering her, in chambers, to go on her all fours on the floor in front of him to re-enact the rape.

The judge in question was "cleared of allegations" in December of 1987, despite of an additional complaint by a female juror in a criminal trial indicating that Judge Irving W. Levine engaged in

• racist behavior towards black witnesses;
• sexually inappropriate remarks towards female witnesses

and

• was soundly asleep for 10 minutes during the trial.

That it was claimed later not "supported by the record" is not reassuring, since court transcripts in such cases are often altered by stenographers who want to keep their jobs, and attorneys who raise those issues are disciplined:

as it happened to me and as it happened recently to attorney Christine Mire in Louisiana.

Elizabeth Holtzman accused Judge Irving W. Levine in 1987, and he was "exonerated" by the investigation - or, much rather, the investigation did not consider the judge's behavior too bad for the judge to be removed.

Instead, prosecutor Holtzman was thrown under the bus.

Interestingly, even though her discipline was affirmed on appeal in 1991, her attorney registration does not show any discipline.

The bizarre part of it all is that Judge Irwing W. Levine WAS eventually removed from the bench - for favoring a friend in litigation, and he was ousted by the time discipline against prosecutor Holtzman for truthfully criticizing judge for misconduct, was affirmed on appeal.

But, back to our topic - the ONLY time when criminal prosecutors in New York are subjected to attorney discipline is when they criticize judges for misconduct.

Yet, the "standing discovery order" proposal has a purpose of instilling into the public mind that, unless a judge (himself, most likely, a former prosecutor, and likely the former boss of the prosecutor before him) rules that there is prosecutorial misconduct, there is no prosecutorial misconduct.

And, even though the proposal discusses "policies" of how a prosecutor may be referred for discipline by defense attorneys, and how prosecutors and defense attorneys can live in the "happily ever after" "sharing" "insights" about each other's misconduct

 such "policies" are clearly defied by the testimony of an actual wrongfully convicted person Bill Bastuk (who, despite his activism, same as another New York exoneree Jeffrey Deskovic, did not make it to the Task Force against Wrongful Convictions):

Moreover, the proposal contains a direct threat against ASSIGNED (institutional) defense attorneys who will, according to the proposed rule, will have to report complaints against them at the stage of investigation (when they are covered by statutory right to privacy, Judiciary Law 90(10)), to their employers.

Thus, prosecutors can get the upper hand over "too stubborn" public defender or assigned counsel - simply by reporting them to the grievance committee, which will start investigation of anything a prosecutor referred, but nothing of what a defense attorney referred  - and the defense attorney will immediately have to report the investigation to his employer and be fired, making it easier for prosecutors to continue to commit misconduct and ACHIEVE wrongful convictions.

So, the proposal will, thus, have the opposite effect to that (allegedly) sought - it will INCREASE wrongful convictions, and intimidate defense attorneys against fighting for their clients.

THE DEADLINE FOR PUBLIC COMMENT BY E-MAIL IS TODAY! Public comment on the proposal by the New York Justice Task Force regarding its proposal of "standing orders of discovery" in criminal cases - Part V, NYS courts and Task Force continues its hush-hush game

I wrote on this blog about the "standing order of discovery" proposal made by New York "Justice Task Force", and the lack of transparency as to how the "Justice Task Force" in question was formed and operated.

The deadline for public comment by e-mail about the proposed order of discovery is TOMORROW.



Information about this proposal, or about the tomorrow's deadline on a new court rule that will adversely affect ALL criminal defendant,, is not publicized by either the New York court system, nor by the Justice Task Force itself.

The New York State Unified Court System did not prominently include this proposal into its "What's New" notifications, see the scan I have obtained today from NYS Unified Court System website:

Nor did the Justice Task Force advertise the deadline or the proposal on its own website, see the scan I also obtained today:

So, when such an important rule is being proposed - and promoted - and both the court system which pushes the rule, and the "Task Force"  (consisting of those for whom more convictions mean career promotions), do not publicize it prominently, and do not clearly state for the public the deadline, I would assert that there is no public notice, and the rule is not legally valid.

With that, I encourage those who read my blog, to send their own comments as to this rule.

The deadline for public comment by e-mail is tomorrow.

The e-mail to submit your comments to is:

rulecomments@nycourts.gov

I am going to publish several more blogs today as to why I consider the rule as a bait-and-switch attempt of prosecutors and those who are backing them to promote a rule that will muzzle criminal defense, provide an iron-clad protection for prosecutors against discipline for misconduct and increase the number of wrongful convictions.

Stay tuned.

Irresponsible journalism by NBC: celebrating judicial misconduct as heroism

NBC has recently published an article about the concurring opinion of the 86-year-old federal appellate judge from the U.S. Court of Appeals for the 9th Circuit Stephen Reinhardt - where, after reporting that the judge has supposedly condemned "inhumanity" of a court decision (of the same court) supporting the government's decision to deport a farmer who has been in the country for 28 years.

The decision, according to NBC, clearly criticizes, by name, President Trump's administration's decision to deport the farmer.

And, of course, the focus of the article is the judge's condemnation of the decision and criticism of President Trump.

Only at the end of the article did NBC actually mention that judge Reinhardt "concurred" (agreed) with the court decision to AGREE with President Trump's administration to DEPORT the farmer and protested only as a "citizen".

Since Judge Reinhardt agreed with the rest of the court that the man should be deported, his opinion as a citizen not only does not matter, but it is judicial misconduct for a judge to even put his personal political opinion into his official judicial order.

Does Judge Reinhardt have a 1st Amendment right to express his opinions about the Trump administration and its immigration policy?

Sure, Judge Reinhardt, "as a citizen", has such a right.

But, "as a citizen", Judge Reinhardt is required to express his political opinions "as a citizen" in other forums - and not to use his judicial position to engage in personal political protests.

Because doing that is judicial misconduct subjecting Judge Reinhardt to impeachment.

But, to NBC, that conduct is somehow to be celebrated.

Because, had NBC started its article with the end phrase - that Judge Reinhardt actually AGREED to deport the man, while grumbling "as a citizen", it will be non-news.



Here is what Judge Reinhardt and Judge Nguyen said in their JOINT concurring opinion:

• Judge Reinhardt has joined Judge Nguyen in DENYING the emergency stay of deportation order pending appeal of the denial of stay of deportation order from the much celebrated U.S. District Court for the District of Hawaii, signed by judge Leslie E. Kobayashi, an Obama appointee - claiming that the court is without power to grant the emergency stay of deportation:

There were only TWO judges on the appellate panel where there usually are three judges, which is already an unusual and messy situation, INVITING the result that followed - because even if one of the judges would be for granting the emergency stay motion and the other is for denying it (if Reinhardt would be consistent in his opposition to deportation and voted against it), that would only have resulted in a "tie", and the decision of the lower court, denying the stay of deportation, would still be carried out.

But, Reinhardt did not do even that.

Instead, he AGREED to DENY the emergency stay of deportation - and only then grumbled, for publicity no less, about unfairness of HIS OWN decision.

Then go 5 pages of lamentations about the "good man" ripped out of the arms of his family and deported to Mexico after 28 years illegally spent within the U.S. (interspersed with a footnote regarding his DUI convictions, so the man WAS a jeopardy to the public).

Those who say he isn't should look in the eye of families of people who were killed by drunk drivers.

I cannot verify what Judge Reinhardt said that the lower court record does not support the idea that the deportation was based on the drunk driving record - because the federal court locked up information about that supposedly open case (without an indication that Dkt. 11, the memorandum of law by the government, was sealed).


Since it was not sealed, it should be open to the public, yet I get this message from Pacer.gov when I am trying to reach it:

So, Judge Reinhardt is engaged in just a little bit of playing with the public opinion here - where he asserts that something is incorrect while knowing that public access to court records to verify his words is - illegally - blocked.

Any opposition by the government - the memorandum of law and the letter of the Assistant U.S. Attorney General, are blocked from viewing on Pacer,

only the petition claiming "great abuse of discretion" by the U.S. Attorney's office is available.

It appears that, for whatever reason, age or not, Judge Reinhardt is losing his grip and is implying in his concurring opinion that, for some reason, even when a federal court does not have AUTHORITY (jurisdiction) to grant the relief requested, it still somehow has authority to "find" that the deportation that will lawfully follow will be unfair and unjust.

Well, if a court does not have AUTHORITY to render a decision, it must be clear to any 1st year law student that the court may not go any further to "find" anything after that.

Not so for Judge Reinhardt.

Yet, a judge is a public servant hired by taxpayers to apply the law, not to express his personal opinions as to that law "as a citizen".

"As a citizen" Judge Reinhardt can hit the street as a protestor, petition the government and talk to his legislative representative in Congress.

That's all he can do.

He has no right to impose his personal political opinions as official judicial decisions.

That's judicial misconduct, and Judge Reinhardt well knows it.

If NBC reporter Pete Williams who irresponsibly turned obvious judicial misconduct, "citizen" lamentation of a judge about deportation of a drunk driver (while agreeing with the deportation) into a cheap clickbait, does not know how to report on legal news, maybe, he should quit his job.

Of course, if NBC enjoys turning into yellow press - that's freedom of press. 

But, NBC took a stand recently on "fake news", didn't it?

NWIRP lawsuit highlights: how occupatinal licensing prohibits those with full stomachs from feeding the hungry and the literate from helping the illiterate

I am continuing to comment on the lawsuit of the so-called "airport lawyers" proclaimed by some media sources as heroes fighting the Trump administration - while their lawsuit has so far blocked a federal regulation that was established to fight fraud in immigration proceedings.

So far, I've published 4 blogs, commenting on:

• conflicts of interest in representation of NWIRP in that lawsuit;
• conflicts of interest within NWIRP Board of Directors and staff;
• the lack of merit of NWIRP's claim that attorneys have a constitutional right to ghost-write for pro se parties and to stretch the considerable resources of the non-profit to provide representation in a fraction of a case for 10,000 people rather than to fully represent 100 people; as well as
• the murky alleged "state interest" of the State of Washington in regulating federal practitioners appearing in front of federal agencies (while the State of Washington is not suing, but supporting NWIRP, its paid snitch and "partner" in eliminating its own competition, and a state-regulated non-profit that has two high-ranking officers of the State of Washington as its Board Members).

This article, Part V, is about the actual interest of immigrants in "services" in immigration proceedings and how those interests are thwarted by self-interested groups - including the State of Washington officials, and their pet non-profits, of course, under the guise of helping them.

There are plenty of articles on the web - not related to services by attorneys or by lay representatives in administrative proceedings - showing that occupational regulations often are used as an excuse for completely inhumane practices, such as:

• blocking teenagers from clearing sidewalks from snow for those who may not be able to do that on their own, protecting aged people and people with disabilities from slip-and-falls - because the teenagers did not pay $450 for a shoveling license while they would only stand to earn much less than that on their one-day snow-shoveling stints;
• blocking people, through criminal prosecutions, from selling umbrellas on a rainy day, or any other street vending without unreasonably high-priced and long-term street vendor licensing - and thus preventing the poor (and the immigrants) from earning an honest living and thus practically pushing them on the path to commit crimes;
• prohibiting people from feeding the hungry, and snatching and destroying the food meant for the hungry, right in front of them - claiming that it is for the benefit of those same hungry people whose food was destroyed in front of them.

It is the same, if not worse, than destroying the food in front of the hungry - to prohibit the literate to help the illiterate (including immigrants) to fill out a form, or to prohibit explaining to the illiterate what is the dictionary meaning of a certain word in that law.

Washington State AG who supported the lawsuit of immigration lawyers in the U.S. District Court for the Western District of Washington through an amicus brief, claimed that somehow, by regulating federal practitioners in federal immigration courts through federal regulation, the federal authorities interfere with the State of Washington's regulation of the practice of law.

Yet, the same regulation has produced a huge "justice gap" where, according to State of Washington's recent official report a very large number of State of Washington residents cannot afford an attorney - but are prohibited by the State to use an unlicensed representative of their own choice.

Moreover, there are more conceptual glitches in Washington State AG's enforcement efforts about "notario fraud" that the "mainstream" media, including mainstream "legal" media would not cover.

Presumption of knowledge of the law

The concept of presumption of knowledge of the law is, of course, an ancient legal fiction.  Nobody can actually know all laws, even attorneys, even attorneys specializing in that same law.  There are reference books for that, so that a person can consult those laws.

Yet, the concept of the "presumption of knowledge of the law" is indispensable for law enforcement, because otherwise people would always raise as a defense that they did not know that the law they are charged with violating existed.

Nevertheless, if the government uses presumption of knowledge of the law BY ALL for law enforcement purposes, the government should be estopped from pretending that people who are not licensed to "practice law" are suddenly presumed not to know that same law - and that refers to both providers of "legal" services and to consumers choosing such providers.

First, if knowledge of all laws by all people is presumed, there can be no such thing as "notario fraud", or as "unauthorized practice of law", and regulation of legal services is completely non-sensical - because such regulation seeks to protect consumers of legal services on the presumption that they DO NOT know the law.

The government may not at the same time assert two diametrically opposite concepts - that the same providers, or the same consumers, are PRESUMED to know the law, and are presumed NOT to know the law.

But, being consistent with the concept of presumption of knowledge of the law requires deregulation of the legal profession - a lucrative market controlled by a "chosen few" who regulate themselves and sieve out those they do not like. 

Law schools are expensive, lawyers, naturally, put the cost of their education and licensing into their fees - and, as a result, people cannot afford an attorney, but are prohibited by the government to hire anybody who is not licensed.

Due Process Notice of the law

At the same time as people are presumed to know the law, Due Process Clause of the 14th Amendment of the U.S. Constitution requires notice of the law - of statutory law.

Knowledge of a court rule, or a court opinion/precedent, does not normally constitute knowledge of the "law".

But, in any event, people can only get constitutional notice of the law and form knowledge of the law if the law is understandable to a person of reasonable intelligence and education, let's say, a person with a high school diploma.

If laws are constitutional (give constitutionally acceptable notice), they do not need extra knowledge to navigate or explain to others - making attorney regulation unnecessary from that point, too.

Moreover, in the State of Washington, "practice of law" is defined (with certain exceptions) as this:

"Giving advice" can be simply reciting the law that is:

1. enacted on behalf of the other person as a part of popular sovereign (we the People); and
2. that the person receiving "advice" is PRESUMED to know.

Yet, nowhere in the Rule 24 does it prohibit to:

• help out others in filling out forms, or
• help out others in "navigating" administrative proceedings - without representation, which can be simply giving information, not advice, and without any representation.

Yet, filling out forms and helping to "navigate" immigration proceedings is exactly what the Washington State AG is prosecuting - and celebrating his success in that prosecution.

And he is doing it at the same time as his paid informant against competition NWIRP is claiming to the court that if the court does not allow NWIRP to play fast and loose with their clients' right to representation in order to be able to stretch its budget across a larger number of people, even if at the sake of quality of representation of and outcomes for specific individuals, they will be left without ANY representation.

So, NWIRP first stamps out, for money, its own competitors who may be providing services for a low price in the field where there is an acute shortage of providers, and then claims that it cannot serve all potential clients, and thus disciplinary rules have to be relaxed for NWIRP's sake, so that it can stretch its budget for as many people as possible.

NWIRP also informs the court that immigrants suffer not only from lack of representation - where such lack of representation may be the direct result of BOTH federal AND state enforcement of practitioner/attorney regulation that CREATES the justice gap in immigration proceedings.  Immigrants suffer apparently from lack of translators, too.

Neither representatives, nor translators are provided to immigrants in such proceedings for free, and paid services are unaffordable to the majority of immigrants.

Yet, the voices of CONSUMERS - immigrants, especially those who are detained in the detention centers, are not heard.

Instead, non-profits such as NWIRP pretend that they fight for the interests of such immigrants - while NWIRP so far obtained a court ruling allowing them to NOT represent immigrants for whom they prepared pleadings, contrary to existing federal regulations.

Yet, had the actual consumers been asked - and they are not suing in NWIRP lawsuit, somehow, NWIRP did not come around to include any of its clients or potential clients as a plaintiff in their lawsuit, while claiming nevertheless that NWIRP's interests are the same as interests of NWIRP's potential clients' - they would likely give the following list of what they need in such proceedings:

1. representation by a representative of THEIR CHOICE - approved or not approved by the government;  it is actually counter-productive and conflict-ridden to have to choose your own person of trust, your own representative AGAINST the federal government in immigration proceedings, from a list of people approved BY that same government;
2. forms that are understandable for a person of reasonable intelligence, and which are easy to fill out;
3. forms in their own language - it does not cost much to translate those forms into the languages that at least the majority of immigrants speak, and have them available in a pdf-fillable format;
4. provide to immigrants subject to immigration proceedings, whether they are detained by the government or not, Internet access to pdf-fillable forms in their own language;
5. introduce e-filing for all applicants, and make it easy, using pdf-fillable forms;
6. have automatic translation service of forms filed in languages other than English, for the court - the quality of computer translation is enough to adequately translate what people put as answers to form questions.  Form questions do not need translation, as they must be the same in all languages;
7. translation services MUST be available for free in immigration proceedings - otherwise it is a basic human rights violation to adjudicate a case when there is no two-way understanding between the court and the respondent as to what the respondent is saying and what the court is saying, respectively.

None of those needs were litigated by NWIRP, and you know why?

Asserting those needs on behalf of their clients will spell out the end of their own lucrative life, their own fundraising, rubbing shoulders with those in power, lavishing self-praise and awards upon themselves.

If representation in court and in administrative proceedings is allowed for anybody just on the basis of trust, a power of attorney, how many attorneys with a pulse, a license and an empty head will no longer have business?

As to "notario fraud", fraud of any kind is prosecutable in court, there is such a cause of action - and that applies to all providers, whether attorneys or not.  If a provider took the consumer's money, but did not provide services - a lawsuit can be filed, and that protection is enough.

There is no need for further regulation - and especially when it creates, and widens the justice gap.

What the State of Washington AG is describing, with glee, as prosecution of "notario fraud", is a neighbor dropping in to another neighbor to translate for him and help fill out a form him, explaining the dictionary meaning of words used - a help from a LITERATE person (no more knowledge than a simple literacy must be required to read and understand the law) to an ILLITERATE person.

What the State of Washington, and other state governments (and the federal government) are doing in "regulating" attorneys and, in administrative proceedings, practitioners, is:

• depriving consumers of their own choice of representatives;
• reducing consumers' choice in proceedings litigated by the government to providers approved by that same government - an irreconcilable conflict of interest for the government; and
• making such services unaffordable, thus creating and widening the justice gap.

Prohibiting the literate from helping the illiterate where that help can make a real difference, simply because that literate person is not approved by the government, is as cruel as the government destroying food in front of the hungry and prohibiting people to feed the hungry.