The Brady rule, the Confrontation Clause, police misconduct and testi-lying and New York "blue wall of silence" statute

"Testilying" has become a set term in criminal defense community and describes deliberate lying of police officers under oath.

Happens all the time.

Wherever videotaping is available, such videotapes made it into the public domain and caused major publicity scandals.

New York is not one of those states.

Why not?

1)  New York has a criminal statute, Civil Rights Law 52, prohibiting "televising and broadcasting", as well as videotaping of PUBLIC court proceedings.  Makes no sense, doesn't it?  If it is a public proceeding, then any member of the public can see it, whether those who actually came to the proceedings, or those who did not come, but who can see those proceedings through a live-stream or videotaped testimony.

Such a prohibition prevents parties and their attorneys (those who actually do their duty to their clients instead of playing brown-nosing games with judges and prosecutors to advance their own financial well-being and political careers) from preserving the full record of behavior of witnesses, jurors, judges and prosecutors and interaction between them.

Witness testimony recorded on paper by a stenographer (and it will be a question whether the record was correctly taken, too) can be ignored by the court and the public.  You-tubed testimony reflecting body language of participants in court proceedings interacting with one another or reflecting attitude towards one another that is not reflected in the record, can change outcomes of court cases - and change people's lives, profoundly so.

Video-taping in the courtroom can also definitely change the way judges, prosecutors and politically connected attorneys operate in the courtroom.  If they start obeying the law and rules of civility at least out of fear of you-tube exposure, even that will be a good start as opposed to what is going on today in courtrooms across the U.S., and especially in New York where courtroom testimony is prohibited by a criminal statute.

2)  New York has a "civil rights statute", Civil Rights Law 50-a that allows a district attorney, a county attorney, a town attorney, even a "corporation counsel" access to personnel records of police officers - but does not allow the same access to defense attorneys in preparation for a criminal trial or during criminal trial.

In other words, the District Attorney who puts a police officer on the stand and hears him deny that he has ever committed misconduct or lied under oath to the court, has access to records that show that what the police officer says is perjury.  Yet, since it benefits the DA, and the criminal defense counsel does not have access to this information, the DA will never prosecute his own witnesses that helped the DA obtain wrongful convictions for perjury.

It is interesting to mention that, in New York, there is a presumption of disclosure of public records, see Public Officers Law 87 (also known as Freedom of Information Law, or FOIL) and its interpretations by New York courts.

Exceptions to FOIL are few, well enumerated, strictly construed, and there are "exceptions to exceptions":

There are exceptions-to-exceptions to FOIL, specifically:

1. Statistical and factual tabulations or data - that New York agencies may not refuse to disclose if they have it;
2. instructions to staff that affect the public - including, obviously, the "blue wall of silence" instructions if a police officer commits misconduct, injures or kills a member of the public or lies on the stand;
3. final agency policy or determinations - including determinations regarding employment of police officers who committed misconduct;
4. external audits, including but not limited to audits performed by the comptroller and the federal government.

Civil Rights Law 50-a obviously runs contrary to the exceptions-to-exceptions to FOIL and constitutes an exception-to-exception-to exception to FOIL that contradicts not only FOIL and its presumption of disclosure of public records, but also the requirement that the sovereign (the people) must know, in order to be able to govern properly, whether his servants (police officers) misbehaved.

Moreover, the 6th Amendment to the U.S. Constitution allows a criminal defendant to confront witnesses against him, and the right of confrontation does not mean much if the criminal defendant and his or her attorney will have no access to the information that the District Attorney has access to, specifically, to impeachment evidence against police officers.

On top of running contrary to FOIL (Public Officers Law 87) and the 6th Amendment to the U.S. Constitution, Civil Rights Law 50-a also runs contrary to criminal defendant's "Brady" rights - a right of a criminal defendant to have disclosed to him/her - with or without request to the DA, any information that diminishes or negates the criminal defendant's guilt, can provide leniency to him, and that includes impeachment evidence of DA's witnesses.

Once again, under the Brady rule (and that is federal constitutional law), the DA absolutely must disclose, with or without a request from a criminal defendant, the Brady material, including impeachment evidence about every and each one of police officers who participated in investigation and/or prosecution of a criminal case.

Civil Rights Law 50-a, on the contrary, prohibits disclosure of the very same records that federal law, the Brady rule, requires to disclose.

Under the so-called rule of pre-emption of federal law, Civil Rights Law 50-a is unconstitutional and should not be enforced.

The DA is a public official sworn to uphold the U.S. Constitution, its Supremacy Clause and the rule of pre-emption (voiding) of any state law that is inconsistent with federal law on point, especially with constitutional law.

All New York Judges are public officials sworn to uphold the U.S. Constitution, its Supremacy Clause and the rule of pre-emption.

Yet, Civil Rights Law 50-a exists since 1976 and, for 39 years so far is being used by New York prosecutors and judges to drum up wrongful convictions based on blocking criminal defense attorneys from impeachment evidence that they are absolutely entitled to have for purposes of preparation of their defense of a criminal case, as part of mandatory disclosure.

In December of 2014, New York State Committee asked the New York State Legislature to repeal the Civil Rights Law 50-a that is designed to impair cross-examination during criminal trials, in violation of two federal constitutional provisions (Due Process of the 14th Amendment and Confrontation Clause of the 6th Amendment).


New York State Legislature did not repeal that law so far, and it continues to fill New York prison's, at taxpayers' expense, with wrongfully convicted prisoners, while state prosecutors continue to advance their careers and ascend to judicial benches claiming such wrongful convictions as their big achievements in "protecting the public".

As recently as on October 22, 2015, NYS Appellate Division 3rd Department modified a dismissal of the entire Article 78 petition and remanded the part that the 3rd Department declared not covered by Civil Rights Law 50-a, specifically, records about misconduct of a former police officer after that officer resigned.

Yet, a right of a member of the public (the sovereign) to know about misconduct of police officer is one thing, and a criminal defendant whose liberty, reputation, family integrity and future right to earn a living depends on whether he has access to the right information at the right time (in the criminal case) is absolute, is secured by the Brady rule and his constitutional rights for effective cross-examination under the Confrontation Clause.

Moreover, the Equal Protection Clause of the 14th Amendment must protect criminal defendant's equal rights to information with the District Attorney and must prevent creation of a situation when the DA may knowingly put a lying witness on the stand while using a "Civil Rights Law" to impair civil rights of a criminal defendant to know such information to effectively defend himself.

Rights of prosecution and defense in access to information at the trial should be at the very least equal, given the stakes for the criminal defendant. 

Civil Rights Law 50-a should not be allowed to be used against a criminal defendant to undo the Brady rule, as it has been done in New York for 39 years.

In my time as a criminal defense attorney, I've made several motions challenging constitutionality of this particular law.  They were all rejected by courts, yet, as slow-but-steady progress in constitutional law shows, persistence is the key.

I am sure Civil Rights Law 50-a will soon finds its way to the garbage bin - where it belongs.

Today a federal appellate court has struck the prohibition of disparaging trademarks as content-based regulation of free speech under the 1st Amendment - will it afford the same protection to attorney criticism of judicial misconduct?

Today, a federal appellate court has made further progress into its general trend of outlawing content-based regulation of speech by the government on 1st Amendment grounds.

In a case In Re Tam, the D.C. Circuit court has struck today government's prohibition of "disparaging" trademarks.

Once again, that is commercial speech, and even commercial speech gets protection from federal courts under the 1st Amendment when it gets discriminated against and prohibited by the government based on its content.

That is the second case this year alone striking content-based government regulation of speech, see also Reed v Town of Gilbert decided by the U.S. Supreme Court on June 18, 2015.

I can only hope that the U.S. Supreme Court takes a similar view to protect me and people like me, whose law licenses were suspended or revoked because we did our duty by our clients and because we were making motions to recuse on their behalf or were criticizing judicial misconduct outside of court proceedings.

After all, speech on the subject of misconduct of public officials should be even more protected than mere commercial speech.

We will wait and see whether it is so.

The poor "forcibly" retired judge Lack, member of judicial pay-raise commission, advocate of elderly judges

Retired judge, and now simply a private attorney James Lack, according to seethroughny.org, retired as of 1/31/2011, and draws a "pauper's" pension of $99,078 per year, with benefits.

In 2015 James Lack was appointed to a panel deciding judicial pay raises - instead of elected legislators - which is unlawful per se.

As part of his "service" to that panel, James Lack engaged in the following lamentations about - guess what - age discrimination against poor New York State judges (by the way, until that "discrimination" concerned state judges, state judges happily applied judicially invented "tiers" of review where age discrimination is on the bottom, with a "rational basis" test).

Here is one of his lamentations at the December 7, 2015 "public hearing" before the Commission, you can read the full transcript of this hearing here, and transcripts of the other two hearings, of December 2, 2015 and December 14, 2015, respectively, here and here. 

Imagine the misery of "having" to retire from an "underpaid" position with a full pension of $99,000 a year or more, not counting benefits, and ability to work as a "judicial hearing office" and/or private attorney, coveted by any law firm with a do-nothing-just-be-there job paying $250 or more per hour!

And imagine the misery of having 20% of New York judiciary "having" to retire over the next 4 years because they reached the age of 70 or 75 years of age.

I understand, there is absolutely no young blood among the 400,000 licensed attorneys in New York, so that the same slow-paced seniors should handle the "fast-paced" New York courts in 20% of cases, that is every 5th case!

And, pouring in the young blood into the judiciary is now called - by one of the "forced retirees", of course - a 19th Century constitutional provision.

I agree that certain provisions pertaining to judiciary - like the concept of absolute judicial immunity for malicious and corrupt acts on the bench, or the concept of "service" for life, or for 10-year or 14-year terms, are very "19th century", and that judgeships should become a rotational duty of every citizen, paid on a cheap per diem basis without any benefits.

That would be 21st century to me as a taxpayer and litigant, and that will at least start to detract from the perceived omnipotence and impunity of judges, as well as will undermine the well-entrenched culture of judicial corruption, which the Commission is part of.

I also got a kicker out of how two private attorneys, Cozier and Lack, called each other "Judge Cozier and Judge Lack".  I guess, this omnipotence and impunity is so attractive that one cannot peel the "judgeship" off long after "forcible" retirement.

Or is it dementia?

Preet Bharara's fight with corruption and contrary exploits of his boss

For many New Yorkers, Preet Bharara is a hero.

After all, he brought and successfully prosecuted criminal charges against the two heads of New York State Senate - the Assembly Speaker Sheldon Silver and the Majority Leader Dean Skelos.

Yet, apparently, the same conflict of interest applies to Mr. Bharara's office as it does to NYS Attorney General's office - which is the ultimate reason as to why NYS Attorney General, as the legal advisor of the same Silver and Skelos did not prosecute his own clients for corruption.

I reviewed the opposition by the U.S. Attorney General, on behalf of Glenn Suddaby, Chief Judge of the U.S. District Court for the Northern District of New York, just out of interest - what kind of opposition can their be to completely unconstitutional and quite likely corrupt conduct of the previous judge Sharpe who imposed an anti-filing injunction upon my husband for contents of his correct constitutional civil rights arguments.

I learnt a lot.

The U.S. Attorney General and his "of counsel" attorneys acted as if they are not sworn government officials required to uphold the U.S. Constitution and the law, but mercenary privateers whose aim is only to win the case, at any and all costs.

The U.S. Attorney General's office, among other things, committed the following attorney misconduct in opposition to my husband's appeal of anti-filing injunction based on his civil rights actions:

• misrepresented the record, 
• misrepresented procedural history of cases, 
• implied that interlocutory appeals in the underlying cases are final appeals (makes a difference for a jurisdictional review),
•  tried to minimize or deny obvious misconduct of their client,
•  omitted to mention new mandatory authorities which were contrary to their position;
• claimed that meritorious constitutional arguments are not "worthy of response" and "meritless";
• argued that notice of grounds for anti-filing injunction provided backwards (a year after imposition of anti-filing injunction), including through secret policies of the court, is a proper notice and opportunity to be heard.

But, to crown it all, the U.S. Attorney General's office relied upon a case where the U.S. Court of Appeals for the 2nd Circuit claimed that an anti-filing injunction against a civil rights litigant is proper to prevent the litigant from gaining publicity of issues he is raising and because some reporters called the litigant "nuts", "weirdo" and a "menace to society" (based on hearsay statements of unknown reporters).

Very "professional" behavior, I must note, for a court to call a litigant names based on contents of his civil rights actions.

Thus, the U.S. Attorney General advanced a view, obviously shared with federal courts, that any civil rights plaintiffs is a potential "nut", based on the issues he is raising and based on the way he is presenting those constitutional issues to the court.

That is the ultimate unconstitutional content-based regulation, curtailing of protected speech and access to court based on the impact of its message upon society if it hits the press.

Bravo, the U.S. Attorney General.   

Making tiny steps in showy fighting of corruption through Mr. Bharara's office, while maintaining "business as usual" and protecting corrupt federal judges and their decisions that, in turn, protect corrupt New York State officials. 

I will later post my husband's Pro Se Reply Brief in opposition to U.S. Attorney General's frivolous arguments on behalf of Chief Judge Suddaby.

In his Reply Brief, Mr. Neroni described in detail discriminatory policies against civil rights defendants in the U.S. District Court for the Northern District of New York and the U.S Court of Appeals for the 2nd Circuit (including its policies of negligent review of civil rights appeals by near-octogenarian, restricted-authority judges).

It will be an interesting reading, I promise.

Stay tuned.

A hole in absolute judicial immunity defense in New York

New York mandatory judicial disqualification statute, Judiciary Law Section 14 provides:

I already wrote on this blog that Judiciary Law 14 thus

presupposes disclosure by judges of their family trees 

to the sixth degree of consanguinity or affinity, 

not that judges are going to do that, but that's what 

the law presupposes, again, because otherwise

this requirement is hollow and without any meaning. 

But, additionally Judiciary Law 14 provides

an interesting twist on the so-called "absolute judicial

immunity for malicious and corrupt acts" - a judicially

created concept, an unlawful restriction of 

jurisdiction of federal courts in civil rights cases 

that is not found anywhere in the text of 

the Civil Rights Act.

In its seminal case on absolute judicial immunity,

Stump v Sparkman, the U.S. Supreme Court claimed that

a judge is immune even if his or her actions are

"malicious and corrupt".

Enters Judiciary Law 14.

If a judge is "malicious", that means the judge's

intent in litigation is to cause injury to a litigant

or litigant's attorney - that is a personal interest

under Judiciary Law 14, stripping the judge of

jurisdiction, and judicial immunity does not apply

"in clear absence of all jurisdiction".

If the judge acts in a corrupt manner (was bribed,

with money or non-monetary benefits to the judge

or to whoever else the judge has a personal interest in),

it means that, under Judiciary Law 14, the judge

is "interested" in the outcome of the case and

"shall not sit", has no jurisdiction and is not 

subject to the judicial immunity defense.

As an added bonus, prohibition of Judiciary Law 14 

is jurisdictional, and makes decisions in violation 

of the statute not voidable,but void (when courts 

agree to actually apply the statute properly, 

which rarely happens, because judges in all courts 

are usually power-hungry and are very reluctant 

to obey the law imposing restrictions on their power).

Yet, the law is there, and it undermines the

concept of absolute judicial immunity for

civil rights state defendants in New York. 

A hole in the sovereign immunity defense in New York

New York State Defendants in civil rights cases regularly raise 11th Amendment and/or sovereign immunity defense.

Yet, the 11th Amendment does not contain a bar for citizens of a state to sue their own state,  see the text of the 11th Amendment 

 

and its discussion in Alden v Maine, 527 U.S. 706 (1999).

The 11th Amendment clearly bars only lawsuits commenced "by citizens of another state", not of the same state, and courts have no power to change the 11th Amendment by incorrectly reading it.

As to sovereign immunity that courts "found" in the Civil Rights Act, 42 U.S.C. 1983, while it is definitely not there, sovereign immunity was WAIVED by the State of New York in 1929 through a statutory enactment, the Court of Claims Act.

Thus, my humble opinion as a legal expert on civil rights law is that neither 11th Amendment, nor sovereign immunity applies on behalf of civil rights defendants in New York.

A follow up on Otsego County DA John Muehl: rehab, impeachment and/or disbarment?

I recently ran a blog about misconduct of Otsego County (NY) DA John Muehl and posed a question about obvious alcohol abuse by John Muehl that, in my view, jeopardizes constitutional rights of criminal defendants where Muehl is acting as a prosecutor.

After the blog was posted, a reader has sent to me an old archived article from 2003 about Muehl's leaving the scene of a personal injury accident in 1998 that Muehl has caused.

Here it is from the local newspaper The Daily Star, of Oneonta, NY:

 

 I will go column by column to enlarge the font and make it readable.

 Naturally, the trooper who stopped Muehl was "unavailable for comment".

Of course, telephones for the victims of the personal injury accident where Muehl was involved, were also not available for comment, their telephone was, allegedly, out of order, and the reporter could not wait with the publishing until he would talk to both the victims and the trooper who arrived at the scene and issued tickets.

Well, at least Muehl said it was his fault.

 Muehl was "thinking about fishing" when "driving along" and - voila! - hit a car in front of him and caused personal injuries to two people requiring transportation to a large hospital.

Apparently, Muehl (for some interesting reason) was not charged with driving without insurance, even though he did not have insurance card on him at the time of the accident.

Of course, the lawsuit by the victims of the personal injury accident was dismissed by judge Phillip Ramsey who, as far as I know, is yet another incompetent among our judges, at least judging by how he handled a divorce case reported to me, with records, by a person whom I did not represent in that case.

Muehl claimed he was "exonerated", yet, if the case was dismissed without reaching the merits, that does not mean Muehl was actually "exonerated", nor does it mean that Muehl, as a public official, should not have been investigated and prosecuted for lack of fitness for office - and especially so if he duped his voters by not disclosing the fact of his alcohol affliction during his election campaign.

It does not matter that "it's been a while".  Judging by Muehl's erratic behavior in court, his permanently glassy eyes and drunken face color, time only made his alcohol abuse worse, not better, which usually happens when you are in denial that the problem even exist, which is what happens when a person is cloaked with power and that power goes into that person's head, like it is in Muehl's case.

So, once again, shouldn't the accident reports be investigated once again to verify whether attorney Muehl was fit for office in the first place?

I also encourage members of the public to appear in court and witness Muehl's appearance and behavior, which speaks for itsef.

We have a staggering number of wrongful convictions in this country and in the State of New York.  Keeping prosecutors who think of fishing while driving a vehicle on windy mountain roads (likely, because Muehl was in his permanent happy or unhappy alcoholic stupor) will not improve that picture.