To give a free attorney with one hand, and to take him away with the other - now in death penatly cases, too

I wrote on this blog that caps on attorney fees for assigned appellate attorneys for the poor, practiced by New York appellate courts, is unconstitutional.

Often, at the $75 an hour rate and the $4400 cap, and a case with an extensive records - pretrial motions, transcripts of pretrial hearings, transcripts of the trial - an attorney exhausts the allowed limit of compensation after $58.66 hours of work, which is just 8 full working days for an attorney, while work on an appeal can take MONTHS, see, voucher forms from the New York State Appellate Division 3rd Judicial Department for compensation of assigned attorneys in criminal defense and Family Court cases.

Here is a voucher form for criminal cases:

The voucher form has a "note" that "The limit of compensation without showing an extraordinary circumstances is $4,400.  Claims for payment above the statutory cap must be accompanied by an affidavit in support of the excess fee claim".  I supplied once such an affidavit, showing an extraordinarily long record I was supposed to read, and, since the record was so large, an extraordinary fee I paid out of my own pocket for the required number of copies to reproduce it - the court only compensated 1/5 of what I paid out of pocket.  So, next time an attorney who would be so burned, would not opt for a "full record" option, but would go with an "Appendix" option which allows the court to skip its review by reviewing only a certain pages from the record, but not the entire record.

Judges of this court are not dummies, and they do realize when creating such a cap that any criminal case that made it to the appellate level will have a record that requires more than 8 days of work for an attorney to create a proper appeal, so with this voucher form and policy this court incentivizes (1) dishonesty in attorneys - since an attorney must claim he or she has read the full record to base the appeal on it, which is, if not paid, most often assigned attorneys simply do not do, and (2) poor work on behalf of the poor.

It goes without saying that this amount does not even come close to compensating an attorney's time for WestLaw research, which can cost up to $3400 an hour (!), and I do not mean that the attorney will charge that fee, but it will be an out-of-pocket expense of the attorney to pay in order to do proper research for a client in an assigned case, with a hope of compensation from the court in the future, when the appeal goes through and is decided, which will usually take months.

Not only the court system forces attorneys to finance the court system by not paying attorneys interest on fees generated, but not paid for for months, but attorneys are supposed to pay out of pocket, and provide diligent representation, where such diligent representation REQUIRES costly research - which the attorney knows will never be compensated.


So, assigned appellate attorneys are vigorously encouraged in New York to provide substandard representation for the poor, where, in a private appeal, an attorney will have full and often advance compensation from a client (through a retainer and advances as the work proceeds) for all necessary expenses AND attorney's own work.

Discriminatory compensation rules are no different in assigned cases in Family Court than in criminal court.


Here is a voucher form for civil cases:

The same "note" at the bottom.

As I said above, an attorney may exhaust the compensation cap by just be reading the record, noting the issues and before he even begins researching them, or through just a couple of hours of research, which is inadequate for a serious criminal or Family Court appeal, almost always fraught with multiple complex constitutional issues. 

As a result, there arises a huge conflict of interest for attorneys - to do their job properly, and then lose time (and opportunity to earn money in other cases, while having their own bills to pay and their own families to support) and do unpaid work for their clients, because the case requires more than the cap pays for - or to pretend you did your job, knowing that it is unlikely the higher appellate court will reverse on ineffective assistance of counsel issue if an appellate attorney will put in just some appellate brief, whether properly articulating all necessary issues the record raises or not.

Apparently, this problem has been brewing not only in New York State.

Recently, an appellate attorney in Utah asked to allow him to withdraw from a DEATH PENALTY case, because the appellate court capped compensation in that death penalty case.

In other words, like in New York, much of the work required by the death penalty case in question would have been unpaid work, and the attorney could not afford it, since he had to support his own family, naturally.

Of course, the press disrespectfully claimed "lamenting" the legitimate claim of the attorney that a huge conflict of interest arises when an attorney must pick whether he can properly represent his client, but then go unpaid - in a case where he is supposed to be FULLY paid by the government for his work as a constitutionally required counsel for his condemned client.

We are not talking about a greedy attorney not wanting to do his job.

We are talking about, potentially, hours, days, weeks, possibly, months of unpaid work.

Nobody should be required to do that.

13th Amendment prohibits slavery in this country, and that equally applies to attorneys.

And, if counsel is constitutionally required in certain cases, they must be FULLY paid for their jobs.

Anything else, any situation where a financial incentive is created for an attorney for the poor to do less to avoid being forced to work for free, is unconstitutional deprivation of counsel of the poor.

Which is happening all over the country for decades as we speak, and I do not see any demonstrations in the streets about it.

Of course, demonstrating to fell a statute that was not a bother for over a hundred years is more fun and will gain more political capital than protecting constitutional rights of the poor. 

New York to parents: prepare for your children's education to be screwed. New York cancels a reading test for teachers and by dropping certification scores. A question from a taxpayer and a parent: why do we need teacher certification at all?

New York State continues to "excel".

It is the state

• stifling property owners and taxpayers with taxes,
• vouching for sanctuary cities for illegal immigrants whose children those same property owners must educate at their own expense against their will (because public schools in New York State are financed by property taxes), 
• having the most expensive public education in the country while not providing the best public education.

It is also the state from where people run to other states - run from rampant government corruption and run from those same stifling taxes, "voting with their feet".

And, with all the claims of innovation in New York, the state has reportedly fallen behind a number of other states in creation of new millionaires (people who contribute heavily to the state's economy through taxes, creating jobs and spending), meaning that there are not so many opportunities (other than corruption, which does not produce public wealth) to earn big money in the state.

This state that, this year, canceled a reading test for teachers - for real, this is not a joke!  Because subjecting teachers who are supposed not only to KNOW how to read, but to TEACH it to our children, is supposedly "discriminatory to minorities" who want to become teachers.

Now, New York went even further than that.

It is dramatically cutting passing standards on teacher certification exam, in order to be able to hire the 180,000 teachers to cover the current shortage in New York public schools.

That is happening also at the background that New York vigorously pursues, and even sues, to preserve its supposed "right" to not report illegal immigrants to authorities. 

As recently as yesterday, NYS Governor signed an executive order barring New York State police and state agencies from even asking about people's immigration status.

At the very same time, Cuomo created a special police force to fight "Central American gangs" in public schools in New York City where teachers are intimidated by such gangs.

Of course, there are a lot of comments on social media that Cuomo was not right to do that, that he should not be "policing our youth", but should instead be "speaking to the immigrant community" and trying to fight gangs in schools through pleas.

So, teachers who parents are going to be getting (and paying for as taxpayers), as a result:

• will not be properly tested even in how they READ - not to offend their tender sensibilities;
• will not be required to pass as rigorous a testing as those who taught the previous generations of New York children - in order to cover a teacher shortage (I guess, if there is a shortage, you hire whoever, in order to cover it, and the quality be damned);
• and will not be allowed to report illegal aliens in their schools,
• will continue to be intimidated by gangs that now require already a separate police force to be addressed - so tell me, who in their right mind will go teach in such schools.

And, a federal judge just decreed that we, the federal taxpayers, MUST finance this beautiful arrangement through federal money, wherever in the U.S. we are.

So, parents in New York, rejoice, a large flock of low quality teachers are coming into the public school in your area - who may not be able to read, may not be able to pass the certification exam that the previous teachers were passing, and is so desperate to get any job that he/she does not mind teaching in a war zone where gangs run amok.

And a judge just ruled that you, the parents and taxpayers, and we, the federal taxpayers, are stuck with paying for it.

The mercenary tell-all of Judge Posner and the silence of the "legal experts" about Posner's decades of misconduct, to the detriment of thousands of appellate litigants

Recently, a famous federal appellate #JudgeRichardPosner - famous for his proliferant writing and appearances outside the court for a number of decades - have published a book.

Of course, the question is, how a 78-old judge with a large caseload had the time to put together yet another book (he has published many while "serving" as a judge, begging the same question - where did he get the time?).

Writing a book is not a walk in the park, it is a full-time job.  Judge Posner somehow had many books published.  I already discussed on this blog the BIG public issue of where judges who publish books, teach outside the courtroom and make trips all over the country during business time of the court, get time to do that.

There is no question that such behavior takes away from their work as judges, the quality of opinions which they produce.

As to judges of federal appellate courts, which all developed a "policy" of reviewing only a small number of cases with full opinions, and to issue only summary orders for nearly 100% of pro se litigants, with no proper review, analysis and resolution of issues, BECAUSE the court is very busy and cannot use its precious time equally for all appellants, it becomes even a bigger issue.

Judge Posner was a federal appellate judge for 36 years, since December 1, 1981.

As Judge Posner confirms in his new book, he had authored plenty of article, "blog posts", and full-blown books while working as a judge:

"...my intellectual activity was never limited to the court; in my lifetime I have authored or coauthored not only many books but also countless articles and blog postings; and though many of the books and articles and blogs preceded my becoming a judge, a large number of them have been written and published since my appointment."

Posner, Richard. Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Kindle Locations 186-188). Kindle Edition.

And that is an understatement of the century.

Books published by Judge Posner are listed on Amazon on 12 pages - only lists of books.

Now, I do not doubt that Judge Posner is a very talented lecturer, teacher and scholar.

But, what I as a taxpayer and member of the public, am appalled about is that Judge Posner considered it possible to take enough time out of his full-time job as a judge to write that 12 pages of lists of books, to teach in all those schools (brilliantly, I do not doubt), to travel across the country, to make those interviews to the press and the media.

He had a full-time job as a judge on a court reviewing death penalty cases, and cases of constitutional violations by the government, his court, as other federal courts, repeatedly claimed to the U.S. Congress and the American public being overloaded and understaffed.

Yet, at the very same time,

• he found enough time to write books, lecture, travel the country during his court's business time, and
• his court unlawfully reduced appellate review of practically all pro se civil rights appeals, to summary orders -

when Posner was a judge of that court, and when Posner was the Chief Judge of that court, setting up the court's policies.

If judges do not have enough time to treat equally all of appellants who pay equal filing fees and have an equal right to a full review of their appeals, not a negligent fly-over-the-roof review, if any at all, through a summary order, like described in this law review article,

where do the same judges find time (for their own entertainment and financial gain), like Judge Posner did, to write books, teach for a fee, participate in various societies,

speak for a fee or travel to speak for free, but have his/her expenses paid + entertainment and lavish wining and dining?

It does not look like a little bit of corruption, it is corruption.

And Judge Posner was part of that corrupt setup for a very long time, doing NOTHING to change it.

So, why would now the 78-old judge who was appointed for life, would retire instead of (like practically all federal judges do) "assume senior status" and pretend he authors opinion when his law clerks do that for him, until he drops dead or until the court can no longer conceal that a certain judge has completely lost his mind to dementia?

Why would Judge Posner only now become this revolutionary and rubble-rouser and claim that the U.S. Court of Appeals for the 7th Circuit discriminates against pro se litigants and "does not give them a fair shake"?

Like, he did not know it before?

Like, he did not PARTICIPATE in the discrimination before, and did not create, enforce and perpetuate this discrimination?

Oh, no.

Apparently, first, Judge Posner had a piss-off battle, some kind of a grudge with his colleagues on the court, and at 78, apparently decided that a federal pension + book royalties and speech engagements/teaching fees will be enough for him in his "sunset years".

Second, Judge Posner retired with a door-slam for a distinct financial reason - to sell his new book.  I bet it will be selling well now.

Of course, it is too little too late for Judge Posner to persuade the public that he truly cares about that same discrimination - because, if he does, and he knew about it for years while being on that court, he should have gone public about it while still there, while still being able to make a difference about it through court decisions, while voicing dissent about tossing appeals of pro se litigants through summary orders.

There is no question that there is a silver lining in Judge Posner's self-serving door-bang retirement jest:

• he is a public figure of a caliber and renown who cannot be easily smeared by the court system for his criticism of the system's flaws;  
• the discrimination against pro se litigants in state and federal courts, and in federal appellate court specifically, does exist, and public attention was drawn to it by Judge Posner, no matter how late and for what self-serving reasons.

But, let me ask a question - a rhetorical question.

What would Judge Posner do if, when he is still on the bench, an attorney practicing in "his" court would publicly raise the question of "his" court's discrimination against pro se litigants, and listing Judge Posner as one of the judges who are practicing that discrimination (which would be correct)?

I have no doubt in my mind that such an attorney would be severely disciplined and would likely lose his/her law license and livelihood.

As it is happening from time to time, with increasing frequency, around the country.

Because in our day and age only a well-renowned judge, and only on the doorstep of his retirement, can tell the truth about discrimination in our courts.

And only to sell a book.

That are my thoughts on the timing of Judge Posner's "revolutionary" retirement.

As to the contents of the book, I will publish a full review of the book later.

Stay tuned.

And actually, the best accuser against Judge Posner here is - Judge Posner:

So, for 35 years, this judge created, promoted, perpetuated and financially gained from the discrimination against pro se litigants as a matter of policy, including in a position of Chief Judge of his court who could do away with that discrimination, as a matter of policy and rule of court, in one pen strike.

And 6 months ago he somehow "awoke from a slumber of 35 years" and "wanted to do something about it".

Like - sell a book, for $11.99 in paperback, or for whatever dribbles in royalties from KindleUnlimited sales.

So, for the public, and for the "legal experts" who are salivating over the supposed brilliancy of Judge Posner while having no courage to address his screaming misconduct over the years - this judge deserves only one "badge":  shameless.

Is it proper for a judge to decide an appeal from his own decision? And - is it misconduct for an attorney to concede points that would derail appeal of her own client, in order not to hurt feelings of a law school classmate-judge before whom she is practicing?

I wrote on this blog previously about #judgeRobertMulvey who first assigned judges to my husband's case in the court below, claimed in federal court, in order to obtain judicial immunity, that he acted when assigning such judges in his judicial capacity, and then was conveniently promoted to the Appellate Division right after my husband has filed the appeal from that decision, and dismissed that appeal as an appellate judge on fabricated grounds.

To me, that was no question that it was unlawful for a judge to decide on appeal a case where he acted in his judicial capacity in the court below.

Apparently, Judge Mulvey is not alone in doing what he did.

A case has been argued on September 6, 2017 in the highest court of the State of New York - New York State Court of Appeals, whether it was a violation of due process for a judge not to recuse himself from reviewing an appeal from a judgment of criminal conviction that the same judge made as a trial judge.

In other words, the same judge was the trial judge in a non-jury trial in a criminal case, and the appellate judge from his own decision at the trial level.

Here is the digest of the case published by the New York State Court of Appeals.

The appellate defense #attorneyDanielleNeroniReilly argued that failure of the trial judge to recuse from reviewing the appeal from his own decision is a violation of due process.

She referred to a federal statute, 28 U.S.C. 47, enacted by the US Congress in 1948, nearly 70 years ago, which says:

"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

Apparently, the U.S. Congress enacted that statute based on due process concerns involved when a judge would review criticism of his own decision at the trial level.

The U.S. Congress, 70 years ago, considered that the possibility of bias in such a situation is impermissible.

Yet, in New York there are no such prohibitions by statute - even there should be, as a matter of federal constitutional due process of law, which is what is argued in People v Novak.

The case was already orally argued, and a decision is pending.

It is a great victory for the defense attorney that she even got the case before the Court of Appeals that casually rejects cases with "insubstantial constitutional questions", even though the New York State Constitution and a specific New York State statute mandates acceptance of all constitutional question cases for review.

A close-to-retirement (and now retired) judge of the court actually argued, in a vigorous dissent, that what the court is doing in rejecting constitutional question cases is not proper or legal.

==

NEW YORK COURT OF APPEALS

2010 NY Int. 24

---

This opinion is uncorrected and subject to revision before publication in the Official Reports.

---

2010 NY Slip Op 01349

Decided on February 16, 2010

SSD 4

In the Matter of Alan Kachalsky, Appellant,

v

Susan Cacace, & c., Respondent.

Decided February 16, 2010:

Appeal dismissed without costs, by the Court sua sponte,

upon the ground that no substantial

constitutional question is directly

involved. Chief Judge Lippman and

Judges Ciparick, Graffeo, Read,

Pigott and Jones concur. Judge

Smith dissents and votes to retain

jurisdiction in an opinion.

SMITH, J. (dissenting):

I dissent because I think the dismissal of this appeal exemplifies an amorphous definition of "substantial constitutional question" that is at odds with CPLR 5601 (b) (1) and the New York Constitution.

Article 6, § 3 (b) (1) of the New York Constitution says that appeals to this Court may be taken in civil cases and proceedings:

"As of right, from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding wherein is directly involved the construction of the constitution of the state or of the United States .

. . ."

CPLR 5601 (b) tracks the constitution:

"Constitutional grounds. An appeal may be taken to the court of appeals as of right:

"1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States . . . ."

Neither the constitution nor the statute says that the constitutional question involved must be "substantial," but we have interpreted them to mean that. And the interpretation makes sense, if "substantial" is taken literally. The authors of the constitution and the statute surely did not intend to burden our Court with appeals as of right based on questions that are without substance, i.e., frivolous. As Karger points out, the substantiality requirement "is an obviously necessary safeguard against abuse of the right to appeal on constitutional questions, for otherwise the right to appeal would turn on the ingenuity of counsel in advancing arguments on constitutional issues, howsoever fanciful they might be" (Karger, Powers of the New York Court of Appeals § 7:5, at 226 [3d ed rev]).

But we have at times followed the practice — one in which, I confess, I have joined — of giving "substantial" a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602. I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it.

This case illustrates the point. Petitioner's argument, rejected by the courts below, is that Penal Law § 400.00 (2) (f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment . I make no comment on the merits of either issue, except to say that neither is insubstantial. The first is of such great substance, and current importance, that the Supreme Court has granted certiorari to consider it (McDonald v City of Chicago, __US__, 130 S Ct 48 [2009]). The second issue, in light of District of Columbia v Heller (__US__, 128 S Ct 2783 [2008]), unquestionably presents fair ground for litigation. On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful.

There is, I recognize, a perfectly reasonable argument that, if we had discretion about whether to take up these issues now, we should choose not to do so; it might make sense to wait to see how the Supreme Court decides McDonald.

I would not quarrel with that exercise of discretion, if I thought the discretion existed. I think, however, that petitioner has a constitutional right to have us hear this appeal, and that's all there is to it.

==

The mere fact that the New York State Court of Appeals, the court that rejects nearly all constitutional question as of right appeals, and especially those pertaining to recusal of judges, as a matter of their own (illegal) policy, even took this case, means that the court did accept that there is at least a POTENTIAL constitutional question in the case.

Yet, at least from what I can see reported in New York State Journal, judges of the New York State Court of Appeals tried to water down the importance of the federal constitutional question by confronting the appellate attorney with a question which the attorney - judging by her answer - perceived as threatening to herself and started to hedge, which, in my opinion, hurt her position.

As New York State Law Journal reports, 

"Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias."

The question, while not illegitimate, was threatening, if you take into consideration that that particular attorney's father and stepmother's law licenses were revoked for criticism of judges in court - whatever the official reasons were given in the actual orders of disbarment of her father and suspension of her stepmother. 

And, it is a matter of public record that the same Judge Jenny Rivera participated in twice-rejecting the constitutional question appeal of the stepmother as to: whether it was a 1st Amendment and due process violation for a judge to be allowed to punish an attorney for the contents of a motion to recuse, and for the disciplinary authorities to allow to pull the attorney's law license without a hearing because of such a vengeful sanction.

So, it is the law in New York that your law license may be pulled because you legitimately make a motion to recuse a judge, the judge will then sanctions you in revenge, and that's it, no further hearings, your law license will be pulled just like that.

And, presumably knowing the law of attorney discipline as to criticism of judges, attorney Reilly, a mother of young children, answered that question, a question of intimidation to any attorney in New York.

A non-intimidated attorney would answer this question - BOTH.

BOTH appearance of impropriety AND the potential for actual bias are a concern when a trial judge reviews his own trial decision on appeal - because the litigant cannot get into the head of the judge who would be deciding an appeal (and thus criticism) of his own decision in the court below, but, knowing "human frailties", may legitimately suspect that the judge would not like criticism of his own decision and will affirm his own decision simply because he is partial to himself.

Yet, by giving such an honest answer, an attorney can subject herself to the potential ostracism in court by the same supposedly "fair" judge, before whom she, no doubt, continues to practice - so an attorney under such circumstances may have a personal reason to hedge.

Accusing a judge of actual bias in New York, even on good record and with good grounds, has become a suspension offense, and the attorney knew it, based on what happened to two of her own family members.

So, she hedged and answered this:

"Appearance of impropriety."

Now that would have been enough of an answer to that question.

But, the attorney who has young children to support, was apparently intimidated by the question and did not want to part with her career by even having a shadow of a doubt that she may accuse a judge of actual bias or even imply it, so she went on.

"Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case," Reilly said. "But that's not what I'm asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law."
Now, why an attorney would say "Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case" while contending that appellate review by that same Judge Sypniewski amounted to now appellate review at all - specifically because of a potential of bias in such a case?

And why should an attorney, while putting in a question of LEGAL THEORY, whether a judge MAY, as a matter of due process of law, be allowed to review an appeal from his own decision, consider it necessary to shoot her own argument in the foot (to the detriment of her client) by claiming that:

1. she actually knows that particular judge; and
2. that she actually knows that particular judge to be "fair through and through".

If the judge is fair through and through, there is no point bringing an appeal, because there would be no potential for bias, and the client should simply accept his fate.

An attorney is the official voice in court of his client, so it was not Danielle Neroni Reilly, but it was Brian Novak who told the court that HE accepts that Judge Sypniewski is "fair through and through".  Nothing like selling your client out, to save yourself.

And, the question is whether the client allowed attorney Reilly to concede these significant points on the appeal, that the judge whose decision to (1) decide an appeal from his own judgment; and (2) decide it (surprise, surprise!) by affirming his own judgment against the defendant had no indication of actual bias, and that the judge was "fair through and through".

I highly doubt that any client would knowingly shoot his own appeal that he paid for in the foot this way.

Yet, that statement of Novak's attorney renders his appeal, in my opinion, frivolous - since he is appealing a decision of an admittedly fair judge who was admittedly fair to him in that particular case.  Let's see whether the Court of Appeals would use that sellout admission against Brian Novak - I am sure they will.

My question on reading the article about this oral argument was - why?

Why take this case if you do not have the courage to argue it the way it has to be argued?

Why not anticipate this question and hedge when it was asked?

After having the courage of bringing this case all the way through to the Court of Appeals, why hanker down and defeat your own argument - that a situation where a judge decides an appeal from his own judgment is fraught with  a great, impermissibly dangerous potential of ACTUAL BIAS?

Anyway, the case is in, it has been argued, and we are now waiting for the decision of the New York State Court of Appeals.

It is time for New York to emerge out of the cave and admit that a person must not "sit in judgment of himself" and to evaluate propriety of his own decisions.

The U.S. Congress has decided the same thing, as attorney Reilly correctly mentioned in her argument, in 28 U.S.C. 47, and that statute has been enacted long time ago.

And, while the New York State Court of Appeals may still continue to wiggle (as Judge Jenny Rivera did with her intimidating question) around the constitutional question and claim that it is "merely" a question whether there was an "appearance of impropriety" -

especially since the defendant conceded through his attorney that the judge was "fair through and through", and, even more so, that "there is no indication that [the judge] had actual bias in this case" -

other that the judge taking his own decision and affirming it, that is 

- the question remains, and is actually broader than posed in this particular case: may judges, as a matter of due process, be allowed to review and make decisions on criticisms of themselves, decisions involving people's lives and livelihoods - whether the criticism was in a motion to recuse, or in an appeal from the judge's own decision.

This question must be rhetorical.

Yet, unfortunately, it is not in New York.

One more question that the prosecution in this case raised - and decision of which has important consequences for litigants in New York in both civil and criminal cases - may a judge review motions to vacate the judge's own decisions.

In my case, I was sanctioned by the judge for making a motion both to vacate his prior decision and to recuse from consideration of such a motion because of the judge's bias and prior misconduct in that same case.

Here is what prosecution in People v Novak argued, according to the New York State Court of Appeals' digest of the case:

Of course, it is disingenuous for the prosecution to argue that

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

First of all, "goes uncontested" is an unjustified generalization which is not true in every case, such motions may still be made.

Second, if such "common practice" does go uncontested, the prosecution must know what the law in New York is in making motions to recuse a judge - even in criminal cases, considering the fate of criminal defense attorney John Aretakis who was

• suspended for making a motion to recuse a judge in a criminal case,
• where the disciplining court (which was also an appellate court in a criminal case) actually taught the judge at the trial level how to sanction him correctly so that the sanction would stick:

"In 2005, Christian F. Hummel, Acting County Judge of Rensselaer County, sanctioned respondent for his frivolous conduct in making a recusal motion in a criminal matter.

Judge Hummel found that respondent had made reckless and unsubstantiated charges that the Judge had participated in a criminal conspiracy to predetermine cases, had committed federal mail fraud, had regularly engaged in impermissible ex parte communications, and had engaged in a conspiracy to tamper with court files.

On appeal, this Court found that any such sanctions should have been imposed under Judiciary Law §§ 750 and 751 rather than 22 NYCRR 130-1.1 (People v Allen, 34 AD3d 1044 [2006]).

Upon remittal, Judge Hummel held a hearing, found respondent in contempt of court pursuant to Judiciary Law § 750 and imposed the maximum allowable fine (see Judiciary Law § 751 [1])."

So, here is the timeline of John Aretakis case:

1. The attorney makes a motion to recuse a judge from a criminal case, on the following grounds:
1. criminal conspiracy to predetermine cases;
2. committing federal mail fraud;
3. regularly engaging in impermissible ex parte communications;
4. engaging in a conspiracy to tamper with court files
2. The judge who was accused of all those illegal activities, sat in judgment of the motion to recuse, refused to recuse, and sanctioned the attorney who dared to confront the judge with such a criticism, for "frivolous conduct". 
3. Of course, the rules of criminal conduct do not apply in criminal proceedings, so the sanction was illegitimate.  But, the Appellate Division (which is also the one-stop no-appeal disciplinary court for attorneys in that jurisdiction) did not restrict itself to ruling on appeal - that the Appellant was correct, that the judge was incorrect, and that sanctions were reversed.  No.  The Appellate Division went outside of its limited authority on appeal and actually TAUGHT the judge in question that, if he wants to sanction the attorney, he needs to do it under Judiciary Law 750 and 751 and, instead of reversing and dismissing the sanctions and calling it a day, returned the case to the court after they taught the judge who was offended by a motion to recuse how to act as a judge, jury, prosecutor and unsworn witness in the same case in sanctioning the attorney "properly" for making that motion to recuse.  The "heroes" who decided that case were:  judges Crew III, Mugglin, Lahtinen and Kane.  Judges in New York, by New York State Constitution, are prohibited to practice law.  Giving legal advice to a judge on an issue that is irrelevant to an appeal whether it was legitimate to sanction attorney Aretakis for frivolous conduct, was illegal for judges Crew III, Mugglin, Lahtinen and Kane.  But, judges Rose, Lahtinen, Kane, Kavanagh and Stein did not consider it a constitutional problem for his disciplinary case, and accepted the illegal sanctions as legitimate, and as not entitling attorney Aretakis to even a hearing before his law license and livelihood was suspended.  Of course, judges Lahtinen and Kane would not criticize judges Lahtinen and Kane for their own illegal activities - same as judge #MatthewSypniewski in People v Novak would change his mind as to validity of his own verdict of conviction (and you need to have a lobotomy to believe that actual bias was not involved here).  Note that part of the panel unlawfully yanking the license of criminal defense attorney John Aretakis for making a motion to recuse a judge was Judge Leslie Stein whose ascension to the New York State Court of Appeals was a quid pro quo by the corrupt NYS Governor Andrew Cuomo for her decision on an important case in favor of Cuomo's subordinate DEC Commissioner as a response to Cuomo's nomination of Leslie Stein to the Court of Appeals, will be one of the panel of judges in deciding People v Novak as to propriety of a judge to be allowed to punish a litigant who dared to appeal the judge's decision.  Judge Stein is apparently the best expert on the particular topic of punishing litigants for criticism of judges, so we should not hold our collective breaths as to what her decision is going to be in People v Novak.  And, attorney Reilly was arguing in front of Judge Stein, who took away livelihood of attorney Aretakis because he dared to claim actual bias and misconduct of a criminal trial judge - thus, apparently, attorney Reilly hedged and, instead of recognizing that actual bias may have been involved, shot her client's case in the foot and conceded on behalf of her client that (1) the judge was "fair through and through" in general, and (2) there is no indication of the judge being biased in this particular case.

Once again, the prosecution was making the point that  

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

To me, that is the same, no offense, as claiming that the victim of rape did not fight back because she was afraid that the rapist will kill her if she does.

Unfortunately, the rapist in this case is the court system.

And, by the way, the supposed personal knowledge by the attorney of #JudgeMatthewSypniewski,

that he is supposedly "fair through and through", was unsworn testimony of the defense attorney outside of the record - which should have been stricken off the record, but, I am sure, will never be, and will be used against the client.

Attorney Reilly does, in fact, know Judge Sypniewski, and knows him very well.

Judge Sypniewski was likely Attorney Reilly's law school classmate - they went to the same law school and were admitted to practice law in the same year, 2002.

And, Judge Sypniewski was a prosecutor in Schenectady County while Danielle Neroni Reilly was a prosecutor in Rensellaer County, and, attorney Reilly likely knew and possibly interacted with prosecutor Sypniewski in their mutual professional capacities as prosecutors.

So, of course, attorney Reilly would not want to overturn her own apple cart by criticizing, for even potential of actual bias, her former law school classmate and colleague, now a judge of a powerful criminal County Court who can make or break her career as a criminal defense attorney - and as an attorney of any kind.

Which brings me to the question - why did attorney Reilly even take the case at all if she was not prepared to argue the POTENTIAL of ACTUAL BIAS, as the legal argument in a case invoking as a parallel 28 U.S.C. 47 required?  If she knew she is not prepared , likely for multiple personal reasons, to hurt the feelings of her former law school classmate and former prosecutorial colleague, was not prepared to fully raise the issue of the constitutionally impermissibly dangerous possibility of actual bias when a trial judge reviews his own decision in a criminal case on appeal?

Why?

Was it just the money?

As to the supposed "fairness" of any judge to review an appeal from his own decision.  

Imagine that your trial attorney does an appeal from your conviction.

What will be the incentive of a trial attorney to shoot himself in the foot and raise the issue of his own ineffective assistance of counsel that has led to your conviction.

Similarly, if a judge whose career advancement and/or reelection and additional perks to his judicial career (speaking offers, teaching offers, overseas travel offers) depend on his squeaky clean reputation, where the less reversals are the better, how likely it will be that the judge will shoot himself in the foot, calmly and dispassionately review arguments against himself - possibly, raising issues of judicial bias and misconduct - and reverses himself?

There was such a chance to make a difference in a lot of people's lives by presenting and handling this case properly.

Regrettably, that chance was blown.

Shall we overcome this nonsense?

The first time I have heard the song "We Shall Overcome" was when I was 16 and was invited to a concert of students in the Moscow Linguistic University in Moscow, Russia.  

Then, in mid-70s and in the USSR, that song was already known as the unofficial anthem of the civil rights movement in the U.S.

Yet, nowadays, that anthem has become the focus of a lawsuit against a corporation claiming a copyright for that song, according to the lawsuit, stifling its public performances.

Here are the relevant portions of the complaint filed on April 12, 2016 in the U.S. District Court for the Southern District of New York, the case is called: 

We Shall Overcome Foundation et al v. The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-02725.

In November of 2016, Judge Denise Cote dismissed state claims on preemption grounds - since the majority of state claims hinge upon the main issue, whether the Defendants own a copyright to this "song".

On September 8, 2017, while allowing the case to proceed to trial, Judge Cote decided for the Plaintiffs, and removed from the trial by a partial summary judgment, this issue:

Here are the differences that were claimed to be protected by copyright:

This is the first case when I felt really, really sorry for the judge who has to go through all this nonsense about copyright of a song which has been in the public domain for more than half of a century - and her meticulous work in her dismissal decision and her partial summary judgment decision is commendable.

Look at what she had to deal with:

So, the what is "copyrighted" is subtle changes to the melody that can be made by a specific singer of the song and not an author, and which do not add anything to the originality of the work - and especially of a "song" which has been in the public domain for over 70 years.

I am not saying that to file this lawsuit was silly, no. 

It was, unfortunately, necessary if the supposed "owners" of the "copyright" to the civil rights anthem claim royalties for performing this song and stifle performance of what has long ago become a civil rights anthem.

In other words, each time anybody sings this song publicly as a means of political expression, he or she, or they must pay the "owners" a fee, or be in violation of federal copyright law (which can be enforced as a federal crime, too).

The lawsuit brings up important issues - as to the status of songs that people like so much that they become the banner of a large political movement.

This case still goes to trial on all issues other than whether the Defendants own copyright for the melody and first verse of the "song".  They don't, according to the court's decision.

Other issues in the lawsuit

- read the full decision here - are fair game at trial.

It will be, of course, a good and decent thing to do for people to just cede their supposed "copyright claim" to the public domain and settle the lawsuit.  But, it did not happen since April 12, 2016 when the lawsuit was filed, and our public funds are continued to be spent on the long fight which appears (on behalf of Defendants) to be nonsensical and bizarre.

It is interesting to mention - and the Plaintiffs in this case mentioned it - that the Defendants never pursued anybody for copyright violations in court, probably, understanding that they do not have much ground to stand on.

What will the jury say as to the remaining issues, now that the judge threw a wrench into the litigation by declaring that the Defendants do not own copyright as to the music and words of the first verse?  

I will continue to follow and report on this case.

Stay tuned.

Texas Supreme Court's "generous" permission for out-of-state lawyers - and an interesting revelation regarding the true reason for attorney regulation in the U.S.

The Texas Supreme Court magnanimously allowed out-of-state lawyers to provide services to Harvey victims - but only on a pro bono basis, and 

The Texas Supreme Court did not make a ruling for the in-state attorneys though restricting their ability to provide their services to the same Harvey victims to only pro bono.

Why is it so?

A prominent legal blog "Above the Law" explains it this way:

So, "I get the economics of out-of-state restrictions"?

"This State's bar can't have That State's lawyers flying in and scooping up all the legal work"?

So, the legal profession, in the face of a HUGE NATURAL DISASTER, that affected millions of people, is still insisting on their right to keep out outsiders who will simply charge less and provide better services - only allowing those who can afford the personal expense (travel, accommodation, being away from work and paying clients) of coming in and offering their services for free?

But, isn't occupational regulation of any profession in general, and attorney regulation in particular, imposed upon the American public (including in the State of Texas) as a way to PROTECT THE PUBLIC, not in order to protect in-state lawyers from out-of-state competition?

Yet, the disaster of Harvey and the spectacularly protective decision of the Texas Supreme Court, even in the face of this disaster, where ANYBODY will legal knowledge, with or without a license, willing to provide legal services, would be welcome, especially taking into account the amount of illiterate and poor people who would need legal help in the aftermath of the hurricane - reveals the true nature of attorney regulation.

Texas lawyers should be ashamed of its State Supreme Court, and should request to allow not only out-of-state lawyers, but non-lawyers, too, law students, people with law degrees, but without licenses, to be able to help in the aftermath of Harvey - for a minimal pay or without pay. 

And, if Harvey victims should be helped pro bono (which I am totally ok with), the Texas Supreme Court should allow help through the Internet to such people from anywhere in the world, from people with knowledge of the English language and legal knowledge, and should impose the pro bono requirement on such help universally, to every person serving such victims - without regard whether the person is a licensed attorney or not, an in-state attorney or not.

That would serve the purpose of serving the victims of the hurricane, and protecting the public from those who would want to gouge on people's misfortune - wouldn't it?

The 11th Circuit's decision re district courts' obligation to serve complaints of poor pro se litigants - too little to overcome the widespread practice of discrimination against the poor by federal courts.

The U.S. Court of Appeals for the 11th Circuit has issued a very important ruling regarding civil rights cases of indigent people:  that federal courts must themselves serve complaints of people who are given the so-called IFP status.

Yet, as important as this ruling is, it does not cancel the statute - and a very wide-spread practice - where federal trial courts dismiss pro se lawsuits of indigent people before serving them upon the opponents - as the 11th Circuit say they must do, pretending that they are "frivolous", and thus acting as advocates for the defendants.

Abolishing the statute is more in order, as this very rare case can be easily circumvented by dismissing the pro se IFP complaint and designating the appeal as "frivolous", as trial courts are allowed to do by statute, thus blocking appeals from their own decisions.

28 U.S.C. 1915(h) should be abolished as a disgusting statute allowing and encouraging discrimination against victims of civil rights violations by the government simply because they are poor.