Common sense and 1st Amendment prevails in an attorney disciplinary case in Ohio

An appeals court in Ohio vacated sanctions against an attorney for giving the media public information about an upcoming lawsuit, correctly indicating that the lawyer had protected 1st Amendment rights to talk to the media.

Common sense in attorney discipline?

Something new.

Self-serving grandstanding by timid law professors. Disgusting.

I always cringed at various anti-discrimination stances taken by law professors when it was apparent that such stances were self-serving.

Unfortunately, my own constitutional law professor Stephen Clark put himself into this position recently, when he selectively chose for his anti-discrimination complaint the "Women's only" viewing of a movie "Wonder Woman" at a theatre in Texas, of all states( Stephen Clark teaches in Albany Law School, New York) - while refusing to fight discrimination instilled by the community that he belongs to, the LGBT community.

Professor Clark, who is an openly gay man, as he advertised in his complaint and subsequent interviews to the press, considered it a violation of men's equal protection rights that a theatre would hold a "women's only" movie viewing - and made a big thing out of it.

Yet, the timing of the complaint is interesting.

The complaint came at a time when colleges across the country, colleges that receive public funds and are prohibited to discriminate on the basis of race, gender or sexual orientation, are holding separate LGBT graduations - but the good constitutional law professor Stephen Clark is not seen anywhere close to fight that type of discrimination.  Is it because he belongs to the LGBT community himself, and one does not foul one's own nest, even if the criticism is fair and necessary?

Is the requirement by black students that white people are absent from college campuses for one day (even though they either have to report to work there, or paid money for their tuition there, or simply want to come to the campus, funded by tax money, as any person has a right o do) not discriminatory?  Is it not unlawful?

Wouldn't it be close to home for a white male college professor Stephen Clark?

Why does not professor Clark fight discrimination on campus - discrimination becoming adamant in:

• separate LGBT and black student and faculty-only graduations;
• "Days of Absence";
• infringement on freedom of academic speech?

Why doesn't professor Clark offer public support to professor Weinstein who opposed the "Days of Absence" on campus, as discriminatory and illegal, and became the target of complaints to fire him?

Why doesn't professor Clark criticize Harvard for holding separate graduations for black students - instead complaining against a "women's only" viewing of a movie? 

This country has a long history of discrimination against women - and against women in the law, too, and it still continues (even in the U.S. Supreme Court, against female justices), so the theatre could also, same as colleges do, hold separate movie viewings for women, "celebrating their accomplishments", same as colleges do when holding separate graduations for black and LGBT students?

Wouldn't it be on the same grounds that such conduct would be deemed or not deemed illegal discrimination on the basis of gender, race and/or sexual orientation?

Why not fight discrimination against women in your own profession, Professor Clark instead of fighting supposed discrimination against men in a remote movie theatre?  To do that would be too close to home?  You will lose your job over that?  Fighting it in a movie theatre in the remote Texas is safer?

Professor Clark clearly shows that his complaint was not a little bit self-serving and attention seeking when he puts on the pedestal gay bars that, according to him, are an example of tolerance and acceptance of all genders and sexual orientations, even to their own detriment.

Once again, Professor Clark would not see that LGBT community, to which he belongs, is becoming quite aggressive in now not just fighting against discrimination against its members, but insisting on discriminating against everybody else - by arranging for separate graduations for public money, by insisting that toddlers must now be taught about "LGBT issues", for taxpayers' money, which is a direct infringement on parents' constitutional rights to care and control of their kids education.

If you are a parent and teach your child about sex - you may be dragged all the way to court for child abuse by social services, and then be fired from your job, if you work with children or people with disabilities, and blackballed for life.

Yet, if you are teaching those children, for public money, against the wishes of their parents, about "LGBT issues", you are a hero now?

Professor Clark is not the first law professor who is apparently selling his soul to the devil, so to say, endorsing political agenda of the social group he belongs to under the guise of protecting the law and fighting against discrimination.  And not the first Albany Law School professor either.

Albany Law professor Ray Brescia's

(who was also my professor, of "legal ethics", a fantastical topic, as I found out later) "advice" to Uber to engage in the "kind of regulation" to avoid the "real regulation" - just as lawyers do, as Professor Brescia advises Uber - was clearly meant to not only advise to Uber, but also to support the ruse of attorney regulation that is presented as protecting consumers, while in fact is keeping the "real" regulation for protection of consumers off bay.

Albany Law professor Timothy Lytton (my professor in Torts),

who is Jewish, extensively writing on sex abuse by Catholic priests as an "institutional failure", while completely ignoring the identical problem of sex abuse in Hasidic schools, or the targeting of the person who exposed such sex abuse in Brooklyn (same as New York lawyer John Aretakis, who was the first lawyer to sue Catholic priests for sex abuse, was suspended, illegally, for the contents of his motion to recuse a judge - and law professor and the advocate anti-sexual abuse by Catholic priests did not publicly take a stand in his defense).

It is disheartening to lose respect to people who were your own former law professors - good professors, as I thought at the time I was going to law school. 

It is disheartening to realize that a Constitutional Law professors succumb to the hype of safe self-advertisement to advance a political agenda while cowardly refusing to address issues of discrimination under their own noses, in their own profession and in social groups to which they belong, through their own religion or sexual orientation.

Law professor who are preparing new generations of advocates for the people should not be self-serving cowards.

My public comment has been sent to New York court system, and I encourage my readers to do the same

I have e-mailed my public comment to proposed standing court order of discovery in criminal cases to the representative of New York court system listed in the public notice,

and I encourage my readers to do the same.

The deadline is tomorrow.

New York court system acknowledged receipt of my public comment:

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.