Hey, Google, why were you allowed to replace New York judges now? New York quietly passes judicial functions to private corporations and creates a new - HUGE - hearsay exception under the guise of "judicial notice"

By the end of its session and right before legislators' vacations start, the New York Legislature quietly passed a bill that many New Yorkers would not even make head or tail as to why it is important.

This one.

But it is - very important.

The new law amends the so-called Civil Practice Law and Rules Section 4511 that, as of today, reads like this:

Let's go through the original pre-admendment law and see what it means, why was it changed and what problems - if any - the new change has brought to New York litigants, especially those litigants who do not have enough money to afford an attorney, much less a court expert.

A "judicial notice" is a type of action of a court of law to recognize certain law or facts without a trial.


The concept of judicial notice of law is simple and of unquestionable constitutionality.  Judges, as a requirement of their professional competence - and CPLR 4511(a) have to know and apply without asking them to do that, laws applicable to the circumstances of a particular case (that are not violative of the U.S. or State Constitutions - such a condition is always implied, as it is in loyalty to the Constitutions that each judge is sworn). 

Here is the text of CPLR 4511(a):

"(a) When judicial notice shall be taken without request.  Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts."

Judicial notice of laws is mandatory for every judge - as reflected by the language of CPLR 4511(a) "every court shall".

Now, a judge may have a choice to take or not to take judicial notice as to some 

Here is the text of CPLR 4511(b):


"(b) When judicial notice may be taken without request;  when it shall be taken on request.  Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state;  ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States;  and the laws of foreign countries or their political subdivisions.  Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it.  Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice."

Ok, so if a party requests a court to take judicial notice of:

• private acts and resolution of the Congress of the United States;
• private acts and resolutions of the New York State Legislature;
• ordinances and regulations  of officers, agencies or governmental subdivisions of the State of New York or United States, and/or
• laws of foreign countries or their political subdivisions

then New York courts have an obligation to take judicial notice of these things as the party requests.

The remaining two subdivisions of the same statute govern how the court would take judicial notice of the law and charge - the law - to the jury:

"(c) Determination by court;  review as matter of law.  Whether a matter is judicially noticed or proof is taken, every matter specified in this section shall be determined by the judge or referee, and included in his findings or charged to the jury.  Such findings or charge shall be subject to review on appeal as a finding or charge on a matter of law.

(d) Evidence to be received on matter to be judicially noticed.  In considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research.  Whether or not judicial notice is taken, a printed copy of a statute or other written law or a proclamation, edict, decree or ordinance by an executive contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of such law and the unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction."

Let's note one unifying factor throughout CPLR 4511 - the judicial notice is being taken of the LAW, not the facts.

This is about to change if Governor Cuomo signs the law that has just passed, into law.

Both chambers of the New York Legislature has so far voted to amend CPLR 4511 to include judicial notice of FACTS, moreover, creating a presumption, before trial, before the case or controversy is even filed with the court, much less before it came for review in front of a jury, that facts reflected in a document created and in exclusive possession of a private corporation-monopolist (Google) are PRESUMED AUTHENTIC AND TRUE - with a nearly impossible to comply with and extremely costly procedure to rebut that presumed authenticity.

In the new bill, subsections (c) and (d) are changed (amended) to read this way:

So, now judicial notice is to be taken of:

• AN IMAGE, 
• MAP, 
• LOCATION, 
• DISTANCE, 
• CALCULATION, OR 
• OTHER INFORMATION TAKEN FROM A WEB MAPPING SERVICE, A GLOBAL SATELLITE IMAGING SITE, OR AN INTERNET MAPPING TOOL, 

in other words, matters of FACT.

So, those facts that require the party asserting them (usually, the Plaintiff) proof in front of a jury - by New York State Constitution - may now be PRESUMED, and presumed long before the jury trial.

What is also presumed, is:

• that the equipment used to map that information was designed to measure such information;
• that the equipment was properly calibrated;
• that the information was properly collected and properly digitized by qualified personnel in good faith.

ALL of these things - matters of fact that are usually hotly contested and require proof from the party introducing these contested facts, through sworn testimony of witnesses having first-hand knowledge of the fact (those who created the digital content), subject to cross-examination of the entire documentary chain of custody - from those who calibrated the equipment to those who collected the information to those who processed it, digitized that and created reports - are now simply PRESUMED, so a party introducing such supposed evidence can simply ask a judge, not a jury, to "take judicial notice" of FACTS - and the jury's hands will be bound, it will be LAW for them.

There is an even easier solution - since contested facts can now be presumed through judicial notice, trial by jury, a costly affair, is now rendered useless, and defendants will be forced in a settlement, or else threatened with a summary judgment, a court deciding all issues of fact, without any jury.

This is what the New York Constitution says about people's right in New York courts to trial by jury:

§2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.) 

Moreover, the newly proposed amendment to CPLR 4511 does not use - anywhere in the text of the statute - the word "hearsay", or that he new amendment constitutes a hearsay exception.

There are, unfortunately, hearsay exceptions - like this one, called a "business records exception" - and it is very difficult already to fight in court against turning the entire trial proceeding into a big application for a summary judgment, and that especially applies to Family Court and cases of child abuse and neglect with social services.  My second book in my book series about defense against social services in New York (my first book in this series is already published on Amazon and is available here, there is also a lot of information there about hearsay exceptions) will be dedicated entirely to evidence, burdens and standards of proof in such cases.

But, the newly amended (lacking only the Governor's signature to become law in New York) makes fight in court against hearsay at nearly impossibly hard level, especially for unrepresented litigants.   In the new CPLR 4511 the New York Legislature has put massive hearsay exceptions into a statute that is versed as a "judicial notice of the LAW" - by trick, taking away attention of the public, scholars, lawyers and litigants from the glaring problem with this statute:

1.  creating a presumption of admissibility AND authenticity of FACTS created by a powerful private entity, a monopolist in its field, without any basis for such a presumption;

2.  Eliminating the necessity for parties to prove admissibility of evidence;

3.  Eliminating the need to prove, by hiring experts - inviting them from the same Google - that information is genuine;

4. shifting the burden of proof from plaintiffs or other litigants offering such information to defendants or persons who need to rebut it;

5. turning the normal trial proceedings - presentation and authentication of evidence in front of a jury - into a pretrial determination of facts on their merits by the judge, under the guise that what is determined is not facts, but "law".

Look how that is done.

First, instead of proof, the plaintiff proposes a printout from the Internet - and under the new law there is now (if Governor Cuomo signs the bill into law)

" PRESUMPTION THAT SUCH IMAGE, MAP, LOCATION, DISTANCE, CALCULATION, OR OTHER INFORMATION FAIRLY AND ACCURATELY DEPICTS THE EVIDENCE PRESENTED.

The difference for litigants and outcome of court cases now is that, if such a printout introduced in court today, before Governor Cuomo signed the bill into law, the plaintiff can be laughed out of court, lose the case and incur sanctions and attorney fees for bringing a frivolous action that he could never prove.

After Governor Cuomo signs the bill, the plaintiff will win hands down, without any attempt at proving authenticity and fair representation in the image of the image itself, "map, location, distance, calculation, or other information".

The only cases that may still be protected - if criminal defense attorneys do their job before they are suspended or disbarred for doing their job, which happens in NY all too often (I will publish an overview of yet another such case shortly), and if such criminal defense attorneys remind the court of the Confrontation Clause of the 6th Amendment prohibiting criminal court's verdicts based on hearsay, and even then - not many judges will listen.

What is the remedy now left for a litigant in any civil court case - including, most importantly, Family Court cases where the judge is also the fact-finder and there is no jury trial?

Here is what kind of "remedy" is offered by the new amended statute:

"THE PRESUMPTION ESTABLISHED BY THIS SUBDIVISION SHALL BE REBUTTED BY CREDIBLE AND RELIABLE EVIDENCE THAT THE IMAGE, MAP, LOCATION, DISTANCE, CALCULATION, OR OTHER INFORMATION TAKEN FROM A WEB MAPPING SERVICE, A GLOBAL SATELLITE IMAGING SITE, OR AN INTERNET MAPPING TOOL DOES NOT FAIRLY AND ACCURATELY PORTRAY THAT WHICH IT IS BEING OFFERED TO PROVE."

So, admissibility, credibility and reliability of plaintiff's evidence is presumed before trial, and the burden shifts - also before trial - to defendant to rebut (offset) the offer of an Internet printout now with "credible and reliable evidence".

It is obvious that in such a situation the shifting of the burden of proof to the defendant is a violation of due process, and putting the plaintiff and the defendant on completely unequal grounds undermines fairness and adversarial nature of judicial process.

Note also who constrained the defendant will be now in time to rebut this "judicial notice":

"

A PARTY INTENDING TO OFFER SUCH IMAGE OR INFORMATION AT A TRIAL OR HEARING SHALL, AT LEAST THIRTY DAYS BEFORE THE TRIAL OR HEARING, GIVE NOTICE OF SUCH INTENT, PROVIDING A COPY OR SPECIFYING THE INTERNET ADDRESS AT WHICH SUCH IMAGE OR INFORMATION MAY BE INSPECTED."

So, now all time limitations as to discovery dictated by Article 31 of the CPLR are scrapped, all court orders of discovery similarly limiting time for discovery and ordering that no evidence may be introduced unless first provided for inspection to the requesting party, is scrapped, and is relegated to a NOTICE of an INTERNET ADDRESS 30 days before trial.

Now, clients do not need to bother paying attorneys to send out discovery demands, making motions for violation of discovery schedules, and insist on either providing for inspection originals of documents or certified copies.  All of those choices to prove authenticity of documents are taken away from New York litigants, and what remains is only presumptions that a giant monopolist, Google, or ANY OTHER "Internet mapping service" cannot make a mistake, cannot use wrong equipment, cannot use improperly calibrated equipment (think breathalyzers and speed radars), cannot use unqualified personnel and will always, always be honest and will never fabricate evidence for a person who would ask them to post an image cooked in a certain way at a certain Internet address.

So, yet another presumption is created - that the image at a certain Internet address will remain hosted there forever by an unknown party, and that any image found at that Internet address will be presumed true and accurate.

In fact, issues of fact and especially credibility issues are ALWAYS, ALWAYS for the jury to decide, and neither the legislature, nor the court/judge can usurp, take away from the jury, credibility determinations - what is "fair", accurate and credible.

The new statute does not require provision in discovery of access to either the original document or a properly certified copy.  The only thing that the new statute requires is to provide, at a maximum, a COPY of the document (a printout that is useless for an expert in determination of genuineness of how it was digitally created), or a weblink where the image is supposed to be hosted - without any guarantees that it is hosted there.

How can this new law be fought - other than by filing a civil rights lawsuit in federal court, of course.

The new law creates an extra necessity for paper discovery and interrogatories or live depositions, accompanied with subpoenas duces tecum and information subpoenas of documents.  

The main demand to an opponent in litigation would be, after introduction of the new CPLR 4511, to provide early access - within 21 days of service of the written "Notice to Produce", as required by CPLR Article 31 - to all documentary evidence that plaintiff plans to introduce at trial, through judicial notice under CPLR 4511 or otherwise, and to make an expert disclosure as required by CPLR 3101(a)(4)(d)(1).

And then, experts should be hired, subpoenas filed upon Google and depositions held as to process involved in creating and digitizing information by Google to prepare for the rebuttal.

Because the time frame provided by CPLR 4511 for rebuttal - 20 days between receiving of the notice and a COPY of a document or an Internet link to where the document is supposedly uploaded and provision to the court of a ready expert report rebutting the presumption of credibility and authenticity:

" NO LATER THAN TEN DAYS BEFORE THE TRIAL OR HEARING, A PARTY UPON WHOM SUCH NOTICE IS SERVED MAY OBJECT TO THE REQUEST FOR JUDICIAL NOTICE OF SUCH IMAGE OR INFORMATION, STATING THE GROUNDS FOR THE OBJECTION. UNLESS OBJECTION IS MADE PURSUANT TO THIS SUBDIVISION, OR IS MADE AT TRIAL BASED UPON EVIDENCE WHICH COULD NOT HAVE BEEN DISCOVERED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE TIME FOR OBJECTION OTHERWISE REQUIRED BY THIS SUBDIVISION, THE COURT SHALL TAKE JUDICIAL NOTICE OF SUCH IMAGE OR INFORMATION" -

is laughable, insane and heavily hints at some corruption going on in how this legislation supposedly to help cut the costs of litigation (for plaintiffs, certainly) was pushed through.

Any trial lawyer worth his salt will tell you that such discovery is expensive and very labor-consuming and time consuming.  

In the situation where the majority of New York litigants cannot afford a lawyer in civil cases, especially in foreclosures, consumer credit and other proceedings against powerful plaintiffs, such as banks, insurance companies or the government - this little bill that is snuck at the end of legislative session is a death blow to any due process in such cases for unrepresented New Yorkers.  If they are unable to pay for an attorney, they will not be able to hire an expert, especially to conduct a rush job, which is much more expensive, and will just settle or lose their cases.

Making litigation in New York much more "effective" and "speedy", and taking a lot of workload off judges.

After all, making a judge happy is what an officer of the court would do.

Such as the sponsor of the bill, Senator Michael Gianaris, 

an attorney-legislator, "officer of the court", with a very special interest to please judges regulator of his own law license and livelihood.

Since Senator-attorney Michael Gianaris is a Harvard Law School graduate, there is not a shred of possibility that he did not realize what a monster he is creating in his amendment of CPLR 4511.  Which means that Senator Gianaris meant the consequences of his actions.

The bottom line in this story is sad.

The ever-Democratic New York created, to save costs of litigation no less, a tool to make it impossible for unrepresented (pro se) litigants to find justice against powerful plaintiffs, while turning judging into sinecures.

Predictable, and very sad.

Commission on prosecutorial conduct in New York - a dangerous illusion about to be created by good intentions of wrongfully convicted together with special interest groups

I've written a lot about how the New York Commission for Judicial Conduct dumps the absolute majority of complaints about judges without investigation, no matter how well complaints are supported by documentary evidence, and how courts consider that the public have no say in it.

In this case, federal court said that members of the public (victims of misconduct) have absolutely no say (standing) to complain about non-prosecution of judicial misconduct.

And, the New York Commission for Judicial Conduct has permanent budget constraints, which ostensibly prevents it from properly handling the majority of complaints.  That is not true, of course - once I did talk to an investigator from the Commission when I did call them, and the person on the other end refused to send me documents by e-mail citing their "policy", the "policy" being that they are supposed to send out anything they send out only by fax.

Sending anything by fax in our day and time is not only technologically obsolete, but it also has the advantage - for the Commission - that such a transaction does not leave a record of what was sent, unless an e-mail.  Some policy.

Moreover, New York State Commission for Judicial Conduct is conflict-ridden.  Most members of the Commission are attorneys (whose licenses and livelihoods are regulated by judges) and judges.  The public is not allowed to have a say as to competence and integrity of judges, it is all decided behind closed doors by a "good ol' boys' club".

As a result, the majority of judges (double digits with 4-digit number of complaints filed each year) disciplined by the Commission are not licensed attorneys, they are justice court judges who wield much lesser power than those who the Commission allows to continue to sit on the bench, no matter what misconduct they engaged in.

Guess what, the NY Senate has just voted, and the NY Assembly is expected to vote this week on the law establishing a commission to deal with prosecutorial misconduct - fashioned after the useless New York State Commission for Judicial Conduct.

The sad part about this vote is that groups of wrongfully convicted New Yorkers support creation of this dangerous illusion.

Why it is a dangerous illusion?

Well, first of all, if it is fashioned after the Commission for Judicial Conduct, it will work the same way - only then it will be claimed that the mere fact that such a Commission exists is somehow giving the public a remedy against prosecutorial misconduct and the resulting wrongful conviction, which will not be true - as the case Bracci v Becker raising the issue of non-availability of appeals when complaints against judges are dismissed without investigation are filed by victims.

The supposed "remedy" is that there will be yet another group formed out of attorneys and judges, the cause of the problem, to deal with prosecutors behind closed doors, without the public being able to take part in the decisions or to contest it.

There are several problems that the Commission will be unable to meet.

The first is the identity of prosecutors who have caused wrongful convictions for people who have served years in jail.

It is an open secret that "serving" as a criminal prosecutor in the United States (and in the State of New York, too) is the stepping stone to become a judge.  The overwhelming majority of American judges are former prosecutors.

The number of convictions is used as the evidence for voters of "being tough on crime" in judicial elections of a prosecutor.

There is a very high probability, therefore, that prosecutors who have gained wrongful convictions are already judges at his time.  

If the general rule of attorney discipline is applied to prosecutorial misconduct, that there is no statute of limitations for attorney misconduct (including prosecutorial misconduct), but the prosecutor has become a judge, the following problems appear.

1.  judges are regulators of attorney licenses and livelihoods, they will not disbar their own for former prosecutorial misconduct;

2. there is already in place the system of attorney discipline in New York, hearings were held in 2015 before a special commission on attorney discipline, issues that attorney grievance committees refuse to deal with prosecutorial misconduct for political consideration were raised,  see testimony of Bill Bastuk before that commission (Bastuk was formerly counsel, coincidentally, for the Judicial Conduct Commission and one of the supporters of a separate commission for prosecutorial conduct fashioned after the useless and conflict-ridden Judicial Conduct Commission where Bastik once worked) and rejected by the commission.

If there is no statute of limitations on attorney misconduct, including prosecutorial misconduct, and attorney disciplinary bodies (under the guidance and as part of courts) have been working in New York for decades, why wasn't prosecutorial misconduct handled through these bodies?

Does it mean that attorney discipline in New York is handled as a selective, political process, and prosecutors are "spared" discipline - after being granted by the U.S. Supreme Court immunity for malicious and corrupt conduct in office specifically because discipline is (theoretically) available?

If that is true - and the Senate's vote to create an alternative Commission for prosecutorial conduct has already proven it - what does it say about the integrity of the judiciary, regulator of attorneys, and of the integrity of those commissions, "arms of the judiciary", consisting of attorneys, sworn "officers of the court"?

And why do we need "regulation" of attorneys - and, through attorneys, of access to courts - that is now admittedly selectively political in nature?  

It appears as if the public was duped first by the U.S. Supreme Court - that gave prosecutors immunity from lawsuits for civil rights violations (which are federal crimes, 18 USC 242), and then by state courts and their attorney disciplinary committees who refuse to apply discipline that was used as a pretext to give prosecutors that immunity.

Now, the public is about to be duped for the 3rd time - by expending money on creating and maintaining a "commission" that will block the public from dealing with the issue of prosecutorial misconduct directly.

There is still no remedy, the Commission is not creating a remedy, it is taking it away, and sucking up the much needed funds that could have been used otherwise.

And, there also exists an issue that the secretive Commission can, indeed, be used, but in the way opposite to the declarations of why it is created (same as with attorney discipline) - to disenfranchise the public and remove from office elected public prosecutors who actually do their jobs, but have stepped on toes of powerful public officials.

As attorney discipline was used against Pennsylvania elected public official, Attorney General Kathleen Kane.  Kathleen Kane had the misfortune of investigating the very people who suspended her license and caused her demise as an elected public official.

Yet another secretive body to deal with an elected public official, a prosecutor, is a very bad idea.

There is the procedure of impeachment.

As the recent recall of judge Aaron Persky in California showed, matters of misconduct of public officials causing grievous injuries to the public - and wrongful convictions are such injuries - must be subject to a recall of the prosecutor through a referendum.

And, if the same NY Senate put the same effort it did into creation of the useless secretive Commission for Prosecutorial Conduct, consisting predominantly of attorneys and judges and not of non-attorney members of the public:

into legislation abolition of prosecutorial immunity, prosecutorial misconduct would have disappeared overnight.

Only that would not happen - too many careers of too many powerful people depend on that.

So, urge your representatives in the Assembly to vote NO to the creation of the Commission of Prosecutorial Conduct.  

It is a dangerous illusion, a waste of much needed public funds, and a delay of the much needed reform in regulation of prosecutors, attorneys, judges and of access to justice in New York.

An important silver lining of the Senate's vote, as I mentioned above, is an admission by the NY Senate that attorney disciplinary committees, "arms of the court", are politically selective in regulation of prosecutors and do not do their jobs in attorney regulation of the only powerful people who have authority to put corrupt attorneys, corrupt prosecutors and corrupt judges (regulators of attorneys) in jail, through grant juries.

It is interesting how the current regulators of attorneys deal with attorney discipline:

1. favoritism of the judiciary, regulator of attorneys, specifically to prosecutors, as revealed by the supposed necessity to create a separate body to regulate prosecutors, speaks loud and clear - gifts (immunity and no discipline) to prosecutors in return for non-prosecution of judges (unless prosecutors commit the ultimate no-no and criticize judges - the only prosecutors discipline in New York since the 70s were two prosecutors, the Albany DA Paul David Soares, and the Manhattan DA Elizabeth Holtzmann, for criticizing judges, regulators of their licenses);
2. punishment for "regular attorneys" who do not have the power to assemble and advise a grand jury to indict, let's say, a corrupt judge - for speaking out against judicial corruption.

If we have a dishonest and political "regulator" of attorneys, dishonest and politically selective to the point of the public having to fund a separate commission to prosecute prosecutorial misconduct - why not get rid of that regulator and reform attorney regulation to make it not pollical and not handled by interest groups?

Is it such a difficult idea to fathom?

The public should now use the de facto admission by the NY Senate that the judiciary does and attorney grievance committees do not properly do their jobs as regulators of attorneys (and, through attorneys, of the public's access to justice), and to demand to deregulate the legal profession and allow the public to pick their own representative in court - without the in-between "protectors" of the public who protect only connected attorneys from discipline from commission of public crimes.  Or at least to remove interested parties (licensed attorneys, including judges) from regulation of the legal profession and of all parts of it - "just attorneys", judges and prosecutors.

And, the public should demand a legislation on recall of prosecutors (and judges), and a legislation on access to grand juries bypassing prosecutors with their grievances of crimes committed by public officials.

Foxes do not do a good job guarding chicken coops, attorneys (including judges and prosecutors) do not do a good job guarding consumer interests, consumers can do it well themselves.  

It is logical and reasonable, especially based on the necessity to create a separate commission to deal with prosecutorial misconduct, for consumers, voters to demand the NY Senate and Assembly to finally do their jobs and promote not legislation lobbied by yet another attorney-senator (as this particular bill's "sponsor" Senator John DeFrancisco is), not a legislation that will give power and jobs to yet another bunch of attorneys while blocking victims of prosecutorial conduct from having a remedy for wrongful convictions, but through an independent public review.

And that independent public review, the "sunrise review" of a packet of legislation to revamp the public's access to court and to criminal justice, should exclude SPECIAL INTEREST GROUPS at every single stage of it:

• market survey - by independent experts only, not connected to attorneys, prosecutors or judiciary;
• bill sponsoring - not by attorneys ("officers of the court") whose license and livelihood, theirs and their family members' (like John DeFrancisco's son with whom he co-owns a law firm) are in the hands of those same people who fail to regulate attorneys properly - which caused the Senator to veer the public away from the actual problems, prosecutorial immunity, lack of public access to grand juries, lack of recall procedures for public officials;
• composition of any publicly funded bodies, or bodies having power of investigation or prosecution.

No special interests should be allowed close to creating, promoting or handling the regulation of public access to justice, including criminal courts, and to regulation of any professionals who deliver that justice - attorneys, prosecutors and judges.

Then maybe the shameful prosecutorial misconduct that is rampant in New York State (as evidenced by the supposed necessity of a separate commission to deal with it) will start to go away.

New York Attorney General as a "cop on the beat"- a cop protecting the criminal and bashing the victim

Nothing reveals certain problems better than statements in election campaigns.

For example, after the disgraceful departure from the position of the New York State Attorney General of the holier-than-thou Eric Schneiderman, there is a new rising star on the horizon, a U.S. Representative Sean Patrick Maloney trying to get into the NYS AG seat.  

Along with announcing that he will seek a Democratic nomination to run for NYS AG, Maloney reportedly claimed the following:

First, Maloney does not even try to hide that the job he is seeking is the "best job" in New York "politics" - so, he is seeking it not for the people, but for his own career, likely to catapult himself later on to higher offices, like a federal judge, a U.S. Attorney, a NYS Governor (the usual path) and then the U.S. President.  Born in 1966, he still has time for that.

As to "doing so much good", I have been writing forever about the many hats that the NYS AG is wearing, which has nothing to do with "doing good".

For example, I wrote about the claims of NYS AG Schneiderman about himself as defender of civil rights.

With statistics showing that Eric Schneiderman is actually representing civil rights VIOLATORS, defending them against their victims - to the point of asking courts to punish victims of civil rights violations for bringing such lawsuits.

Here is my blog article further analyzing statistics of how exactly a NYS AG was "doing good" in quashing civil rights lawsuits, predominantly of the poor and underprivileged New Yorkers whose civil rights were violated by the powerful.

Yet, in the election campaign all New York Attorney General candidates NEVER even mention their role of quashing civil rights and defending civil rights violators.

I wonder, how so?

They know "the law" under which NYS AGs are representing public officials sued for civil rights violations by victims of such violations, right?

They know they are going to be doing it as soon as they are elected, right?

So, why not say it openly - I WILL BE FAITHFULLY BLOCKING VICTIMS OF CIVIL RIGHTS VIOLATIONS AND DEFENDING PERPETRATORS OF THESE VIOLATIONS.

I WILL BE FAITHFULL ASKING FOR SANCTIONS AGAINST THE VICTIMS FOR DARING TO ASK FOR A LEGAL REMEDY.

Because that's the truth, that's what NYS AGs are doing.

To tell people the truth in an election campaign is an intolerable concept in "New York politics"?

By the way, civil rights violations are federal crimes, 18 U.S.C. 242.

So, a NYS AG, in representing public officials sued for civil rights violations, is defending potential criminals - the ones he must prosecute.

But, that conflict of interest never occurred to the New York Legislature to change.

Possibly, because NYS AG represents - instead of investigating and prosecuting for civil rights violations - them, too.

On integrity of prosecutors and regulators of prosecutors, Pennsylvania-style. Time for voters to stop being disenfranchised in the choice of their prosecutors

Oh, the supremely honest Supreme Court of the State of Pennsylvania.

The court that kept NOT disciplining as an attorney the judge who was selling - for years - kids into kiddie prisons, until the feds locked him up for over 20 years.  And instead disciplining attorneys who reported judicial misconduct so viciously that attorneys preferred to let kid-selling continue rather than lose their licenses and livelihoods.

By the way, the kid-selling judge, when sued by his victims, was still declared immune, because of the "law" that judges invented for themselves - a gift of absolute judicial immunity barring victims of their misconduct and corruption from obtaining a legal remedy for their injuries in court.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. 

Oh, the court of supreme integrity, which repeatedly allowed a prosecutor who obtained a death penalty through prosecutorial misconduct, to preside over the same case as a judge, block the condemned TO DEATH prisoner from habeas corpus relief and even have the audacity in authority special opinions blasting the federal defenders who would not shut up defending the condemned-to-death-person against the judge (former prosecutor) own misconduct.

Which allowed a judge who was the target of an elected State Attorney General's investigation (and who had to later resign and pay a fine because of his misconduct that the State Attorney General was investigating) to yank the State Attorney General's law license in order to disenfranchise the State of Pennsylvania voters and remove the State Attorney General from her office.

And which refused to reinstate the law license because it was taken with the help of the target of the Attorney General's official investigation - Judge Michael Eakin, and in retaliation for that investigation.

And that repeatedly refuses to reinstate the law license of attorneys Andrew Ostrowski - who ran for the U.S. Congress on the platform of judicial reform and cleaning up judicial corruption, and of Don Bailey, the former State Auditor, who, using his skills as the former State Auditor, investigated judges and claimed judicial corruption - for which claim he was disbarred.

And that invented a "rule of law", contrary to a state statute, that lay representation of indigent (poor) unemployed before the Pennsylvania Unemployment Compensation Board is allowed by statute - but not if the lay representative is a suspended or disbarred attorney, for those buggers such a lay representation will mean "unauthorized practice of law".  Thus, the extremely honest Pennsylvania Supreme Court has changed a criminal statute to mean different things for different people - exactly what is prohibited in the U.S. Constitution, the Bill of Attainder clauses (2 of them, for the federal government and for the states), which every single judge of that honest court was sworn to uphold.  So that lawyers who were stripped of their livelihood for their big mouths - publicly raising the issue of corruption of their own regulator - will remain forever tarred-and-feathered and impoverished, without any possibility to earn a living with their skills, while the population desperately needs their skilled services.

THAT honest court now is investigating a prosecutor, for ex parte communications with a former judge.

Now, prosecutors routinely engage in ex parte communications with judges, and are never disciplined.

Why the extremely honest Pennsylvania Supreme Court turned its radar towards prosecutor Stacy Parks Miller?

Easy.

Publicity.

She has caused publicity.

Note that obligations to the public are not mentioned, what is mentioned is violations of a public prosecutor's supposed obligations "to the Board, court and the legal profession".

And those obligations supposedly trump a court-imposed gag order, since the public prosecutor was ordered in a disciplinary proceeding to disclose what a court, another court, prohibited her to do.

So, she had a Catch-22 - disclose it, and be sent to jail for contempt of court.  Do not disclose it, and be stripped of your law license and public office - same as Kathleen Kane was (aided by a fabricated criminal case).

What is wondrous with all of that happening is how people continue to tolerate those jerks ruling access of the public to court at their own personal whim.

A SECOND FEMALE public prosecutor, elected public official, is being yanked out of office through a closed-doors, no-public-allowed disciplinary process.

She may have done something wrong.  But then, the same standards should be applied evenly across the board, and for public officials there is only ONE way to go out of office - impeachment.

Without it, disciplinary process operated by the public officials' competitors or people who she investigate or may investigate in the near future, have no right of undermining her public status.

And, it is time for the Pennsylvania voters to change their state Constitution to remove requirement that any public official should be also an attorney and to actually prohibit such a thing - to prevent cancelling voters' decisions through backyard deals.

Is the US Supreme Court preparing to overturn Roe v Wade?

Looks like that - judging by how they decided the case of the formerly pregnant illegal alien teenager who sought, and received, with the help of ACLU, an abortion.

The reasoning in the extremely short decision was as follows:

1.  The petitioner was pregnant and sought certain relief from the courts based on her pregnancy.
2.  The petitioner terminated her pregnancy and thus mooted (terminated jurisdiction) for her own case.
3.  The petition cannot at the same time end her own case by having an abortion (mooting the case) and continue to claim relief.

Guess what, in Roe v. Wade the petitioner also obtained an abortion before the U.S. Supreme Court reviewed and ruled on the woman's case - human pregnancy is much shorter than the judicial process winding up through courts of different levels, the window for an abortion is even shorter.

In Roe v Wade, a 1973 case, 45 years ago, the same U.S. Supreme Court claimed, in providing a full review of the similarly "mooted" issues, that the situation in the case is prone for repetition, but, due to the time limits of pregnancy and abortion, will always evade review.

In 2018 suddenly the same issues, "prone for repetition, but evading review", are mooted.

Which begs the question - is the U.S. Supreme Court playing games while preparing to overturn Roe v Wade as incorrectly decided without jurisdiction because it was mooted.

Or, is the issue of providing abortions to young women who came to the U.S. illegally so wide-spread and promises such consequences for the government and taxpayers that our "non-political" court was afraid to provide a full review and opinion on the issues involved?

Time will show - likely, soon.

On SCOTUS, the "rule of law" and baking cakes

It is interesting how, in trying to put through a certain agenda, law professors sometimes lose track of what they are doing and reveal to the public something they normally wouldn't.

There is a separation of powers doctrine.

It is a constitutional doctrine.

Every public official in the United States - that is, including every judge - is sworn to uphold the U.S. Constitution, together with separation of powers built into it.

According to the U.S. Constitution, only the U.S. Congress is allowed to make the law.

Yet, here goes the speech by an Albany Law School professor Vincent Bonventre, the breeder of the future lawyers of America, who openly states that in the "baker's case" where the baker refused to create a cake for a same-sex wedding based on his religious beliefs, the decision of the U.S. Supreme Court is "narrow", and the U.S. Supreme Court did not create a broad "rule of law", as the court NORMALLY does.

So, a respected law professor openly admits that the U.S. Supreme Court routinely violates the U.S. Constitution it is sworn to uphold by making the law for the entire country INSTEAD of the U.S. Congress - and that it is now the new "norm".

Hilarious.

The attorney monopoly and the fight for the ultimate penny of the poor

The American Bar Association got concerned about the interesting issue - whether it is "ethical" for a lawyer to ghost-write for a client who is going to court pro se.

A year ago, a federal court has answered "yes" to a lawsuit of lawyers against the Trump administration as to whether they can ghost-write for clients in immigration courts.  I wrote about that lawsuit in detail, here, here, here, here and here.

I also wrote that federal courts are not that forgiving to lawyers who ghostwrite for appearances of pro se clients in their own courts - only in administrative immigration courts.

An article just published by the ABA confirms that the need for ghost-writing for pro se clients who cannot afford the full representation in the case did not go away - and that the ABA approves of the practice, in order to "help" pro se litigants get at least some legal advice and to "even out the playing ground" at least somewhat, if pro se litigants cannot afford the full representation by a representative of their own choice, with or without the ABA approval.

The "innovative" project that caused the ABA's approval (even though federal courts frown on the practice of ghost-writing by attorneys for pro se litigants) is the law firm of a Florida attorney Thomas Ice, The Ice Legal, which, for a fixed rate of $100 a month, ghost-writes pleadings for pro se litigants facing court proceedings, such as foreclosures.

What The Ice Legal does is, basically, is providing retainer/subscription/insurance services for clients for $100 a month - not a full ride, not a full representation, but at least some writing written according to the quagmire of court rules and precedents otherwise incomprehensible for an ordinary American pro se litigant.

That's what the Northwest Immigrant Rights Project has been asserting - the right for itself to ghostwrite while the same Project helps the state Attorney General to quash their competition, people who help their clients providing for them not a ghost-writing, behind the scene, bits-and-pieces representation, but a full representation, without an ABA-approved license (which representation in federal administrative immigration courts does not require).

That is what The Ice Legal is using - the justice gap CREATED by the absolute attorney monopoly and then USED by the absolute attorney monopoly in order to, under the guise of helping with access to justice, milk the "unrich" consumers who lose their homes to foreclosures for their very last penny, without providing a full representation in court.

This is happening in the blessed state of Florida where the highest state court currently fights tooth and claw against yet another legal innovation firm, the so-called TIKD firm, opposing its antitrust lawsuit where sanctions against TIKD is demanded.

You know why?

Because #TIKD helps in yet another area of law where the poor grossly suffer because of attorney monopoly and lack of funds to hire an ABA-approved (licensed) attorney.

What TIKD does is a no-no of "attorney ethics".

It guarantees its result in "no points on your license" - or your money back.

Such a guarantee is prohibited by "attorney ethics" rules - invented by attorneys-judges for attorneys in order to quash innovations just like TIKD.

And, TIKD hires attorneys and has them represent clients on a retainer - instead of an hourly rate directly from the clients, which makes such services cheaper for the client.

And, of course, that is a no-no for competing attorneys who try to run TIKD out of business and bury it in sanctions, as the record of TIKD federal lawsuit indicates.

Because, for TIKD's competitors (attorneys), the big bad issue with TIKD is that the owners of the company who arranged such a break for consumers are not attorneys.  

That was not an issue with the U.S. Department of Justice, though, that voiced their support for TIKD in court.

Yet, to protect their own monopoly of the market, TIKD's attorney-competitors engaged, according to TIKD's lawsuit, in a campaign of intimidation of attorneys who work for TIKD, which included collusion with the Florida Supreme Court and its "arm", the Florida State Bar, in order to make the intimidation effective - drop your work for TIKD or lose your license and livelihood.  So much for the care about consumers.

The interesting part though is that greed often blinds people to anything but their immediate need to protect their turf, their money, their income, their monopoly rent.

This is what happened in TIKD.

I should thank the greed of TIKD opponents for the gift to me as a researcher and to all the American public - highlighting a case that is never taught in law schools (for understandable reasons, it is very, very, very unsavory and shows the ABA in the true light - which the ABA does not want the young law students to see).

In their sanction pleadings against TIKD, the TIKD opponents quoted the case Turner v ABA, where several consumers sued the American Bar Association and courts for antitrust activities in collusion, and for their own rights to choose whoever they want to represent them in court, without ABA's or courts' approval.

Since the attorney monopoly is still here, as well as the justice gap that it had created, you know where Turner v ABA ended - the lawsuit was dismissed.  

The full analysis of how and why it was dismissed, and what place did this and other of the various "antimonopoly insurrection" lawsuits play in the development of both the absolute attorney monopoly and the justice gap in the U.S., will be available in the book that I am currently preparing for publication.

Yet, the essence of the lawsuit was that an indigent (poor) consumers asked several courts in several states (24 lawsuits all in all) to allow them to hire an unlicensed court representative to represent them in criminal proceedings in federal court - because the unlicensed representatives knew how to defend them in tax evasion proceedings and assigned licensed attorneys had no clue, and admitted to that.

The big problem for the ABA was that several courts actually granted that request, and thus the ABA's (and the court's) power as regulators of the legal profession, of access to justice by all Americans, could dwindle, and the "right" to monopoly rent, the right to charge excessive hourly rates would also disappear if consumers would turn to unlicensed individuals with lower rates.

24 lawsuits were rounded up and quashed - and the reasoning was as in a conversation through a brick wall where the court would not hear the pleadings of the litigants.

Where the litigants insisted on their right, as legally competent individuals, to choose their own representative in court, the judge - appointed by one of the defendants in the case (!) - asserted the judge's own interest not to allow "everybody from the street" to work in the courtroom.

Of course, power interests of judges - including the presiding judge - won.

Of course, the attorney monopoly stayed for another 43 (as of now) years and the ABA does not show any signs of relenting about its rule in causing the justice gap and loss of legal rights of poor litigants for over a century.

And, of course, the justice gap became wider and wider as a result, so that now attorneys start to exploit their own creation - the justice gap - in "innovative ways", by ghostwriting - The Ice Legal (Florida) and the Northwest Immigration Project (Washington), and my trying to quash TIKD - for being owned by non-lawyers, even though the actual services are still provided by lawyers.

The fight for the ultimate penny of the poor and for control over access to justice by the poor continues.

Yet, the position of the ABA that is now approving ghost-writing shows that the legal profession, with its monopoly, priced itself out of sight of the majority of Americans, runs out of clients who can pay for a full representation, and that an increasing number of lawyers can only survive by "innovatively" picking up bread-crumbs from clients instead of a full representation.  

Give me at least some business.

At least to ghost-write.

Just one pleading.

Please!

May pricing-itself-out of the full representation be yet another sign on the wall for attorney monopoly?