Pro-prosecution change of venue in Ken Paxton's trial - Part II: a media admonition for Ken Paxtonl: don't shop for a judge when he is an Inn of Court's puppet and is in the prosecution's pocket

In my previous blog I described an unprecedented decision by a judge to move the trial, over a defendant's objection, to another county on the eve of that trial, because allegedly the jury pool was tainted FOR THE PROSECUTION.


The issue of waiver of venue objections by the prosecution who has chosen the venue

And it was allegedly unfair to the prosecution to keep the trial in the venue where the prosecution BROUGHT it in the first place - and thus picked a venue and waived all objections to it.

The issue of waiver has not been picked up by the media, as far as I saw

Instead, the media is pounding on Ken Paxton for trying to remove the judge who is obviously in the prosecution's pocket.

Changes of venue are rare and disfavored by courts.

Changes of venue at the request of plaintiffs who have CHOSEN that venue in the first place are unheard of.

Even more unheard of are changes of venue by the prosecution in criminal cases who unilaterally investigated the case for a long time before bringing it before the grand jury of a certain county, and litigated it up to the point of a trial without raising the issue of donor lists available before the indictment - the donor lists of Texas AG Ken Paxton as a defendant.

Had there been an unbiased judge, he would have tossed such a prosecution's motion, likely with sanctions against the prosecution for trying to delay the trial and deprive the defendant of his right to a speedy trial by the jury of his own peers.

Since the plaintiff (the prosecution) has chosen venue, it could not be heard about change of venue.

U.S. Constitution specifically protects the fair trial for the defendant, not the prosecution

Moreover, the U.S. Constitution only provides for a right to a fair trial for the criminal defendant, not for the prosecution, so the judge put the law and the U.S. Constitution on its head by claiming that the jury pool is somehow "tainted" for the prosecution.

Of course, the prosecution has to have a fair shot at the case - but it actually does, the whole criminal procedure is skewed towards the prosecution, so the prosecution has nothing to complain about, after having served as a legal advisor for the decision-maker (the grand jury), in an ex parte manner, about bringing the indictment in the first place.

Not only that, but the prosecution had a powerful tool - voir dire, ,jury-picking - to strike those potential jurors who were donors to Ken Paxton, were connected to such donors or were swayed by any kind of publicity in favor of Ken Paxton.

Double-standard in upholding the prosecution's objection to County officials as donors of defendant somehow contaminating the prosecution's right to a fair trial

Prosecutors usually do not object to their own choice of venue if the County officials donated to their own election campaigns.  The same should be true for the defendant.

Moreover, even for the judiciary, who should set the standard of conduct for all other participants in court proceedings, donation by an attorney or party to the judge's election campaign is not, in itself, a basis for recusal - at least, judges do not consider it as such.

The same presiding judge would have vigorously fought (as all judges do) against any requests for recusal because HIS OWN DONORS would be  either the prosecutors, or witnesses, or serving as jurors.

Double-standard in upholding the prosecution's objection to pro-defense publicity as allegedly tainting the prosecution's right to a fair trial

I write on this blog, time and again, about pre-trial publicity done by the police (prosecution's witnesses) and by prosecution in practically all criminal cases that deprive defendants of their right to a fair trial, and that is especially so with the advent of social media.

The moment the person is arrested, charged with a crime, and the information gets into the so-called "police blotter", his or her reputation is done for, and he or she is already guilty in the court of public opinion.

Just read comments on Facebook about any criminal charge - the only thing that is discussed is how to punish the person (torture and killing in prison often comes up) and how to stop spending taxpayer money on allowing the defendant a right to appeal.

In this respect, Ken Paxton is no different.

His reputation has suffered a major hit when indictments were published and widely discussed in the media.

Yet, that is the normal course of business for the prosecution.  They have always been tainting jury pools and swaying public opinion against criminal defendants long before trial, and judges did not see any problems in that, the criminal defendant's constitutional right to a fair trial be d***ed.

What was not normal course of business is that somebody would publicly stand up in defense of a criminal defendant demonized by the press.

There were gag orders issued in the trial, which neither the defense, nor the prosecution violated - no such motions were made and no sanctions imposed.

Yet, after choosing their own venue and waiving all objections to such venue, the prosecution, on the eve of trial, filed a motion claiming that the defendant Ken Paxton is now "deified" by his "powerful allies".

So, demonizing the defendant before trial is good and never causes changes of venue, but "deifying" the defendant is bad.

And these arguments fly, apparently, in the secular court of a State of Texas.

Does it bear to mention that Judge George Gallagher, who undertook presiding over Ken Paxton case after the previous judge, who supervised the grand jury proceedings, recused, is a former career prosecutor himself?

Does it bear to mention that Judge George Gallagher is also a "master" of an "Inn of Court",  usually a secret-membership organization of judges and attorneys who meet to wine and dine judges (and pay for their own and their spouses' national and international trips) behind closed doors, of course, to promote "excellence" of the legal profession.

Judge Gallagher's particular Inn of Court published its membership directory, and its schedule of events, yet, the organization still has membership by "nominations" only, and the meetings and interactions of the organizations are, as far as I could see from the schedule of events, for members only.

See what Judge Gallagher's Inn of Court reported as to how its members get to use trial judges who are members of the Inn:

Imagine that an average Texan, as a member of the public, a part of a popular sovereign, who has actually HIRED state trial judges and pays their salaries out of taxes, approaches that judge and asks him to hold a luncheon in chambers, for the public and the press, to give information to the public and the press about "what goes on within the judge's court".

I bet any trial judge, including #JudgeGeorgeGallagher, would refuse to do that, quoting confidentiality of court deliberations.

Consider a group of pro se litigants in the trial judge's court asking for the same.

The judge will refuse, quoting judicial ethics and prohibition on ex parte communications.

Yet, no such prohibitions, apparently, were at work when "trial judges" of the "Mahon Inn", including Judge Gallagher, held luncheons in the state court chambers for members of a private fraternity they were members of.

For those members, likely attorneys appearing in front of those judges, including Judge Gallagher, trial judges provided lunches in chambers, with "personal, informative and encouraging" information about "what goes on within that judge's court".

Apparently, the Inn and its members, through sponsorship of judges, have an influence upon them to do what they would not do for the public, the press, for pro se litigants or attorneys who are not part of the Inn.

That much about judicial independence, and that much for the propriety in court proceedings.

Yet, since the resurrection of the English part-clerical, part-militarized, part-nobility legal guild of the Inns of Court was the idea of the Chief Judge of the U.S. Supreme Court Warren Burger in 1977, after a free trip to England with "other lawyers and judges", and since the Inns' English partners heavily sponsor SCOTUS judicial law clerks' travel to England, as well as monthly free lunches with wines for judges and their law clerks, the U.S. Supreme Court and other federal and state judges openly support the organization,

making its members impenetrable for criticism of accountability for impropriety.

As an example, my lawsuit to try to get data from this organization was dismissed before service by a federal court whose judges were members and officers of the Inn.

So, we don't know, do we, whether Judge Gallagher made his unprecedented and illegal decision to transfer venue in Ken Paxton's case, on request of prosecution, the party that has chosen that venue because he was told to do that by HIS Inn of Court donors.

I am sure Judge Gallagher will not be in a hurry to disclose that information.

But, the "brave" media is not too brave to delve into these sticky subjects.  Investigative journalism in this country, apparently, is long dead.  It only voices the opinions of the government, or, as it happens now, of the press's sponsors who want a certain outcome in certain elections.

It is safer at this time to bash Ken Paxton, for "judge-shopping" in a situation when the presiding judge in his own criminal trial is obviously in the pocket of the prosecution.

A sad irony, and a karma for Ken Paxton as a prosecutor, possibly - but also an illustration to the public that laws and the U.S. Constitution that are supposed to protect the rights of the accused in criminal proceedings do not work even for high and mighty when they support the wrong person - here, the President of the United States.

We already have an example from Pennsylvania where a crooked judge, presiding over a crooked criminal proceeding, obtained a crooked conviction against the State Attorney General Kathleen Kane, for going against judges and prosecutors.

Let's see what will be the course and the outcome of the Texas trial against the Texas AG who would very apparently not have been indictment but for the political struggle for his seat.

I bet the Inn of Court's puppet Judge Gallagher's "unusual" change of venue and his work as a practical advocate for the prosecution - allowing it to dump the entire jury pool from the venue they have themselves chosen, in order to help the prosecution win the case - will not be his last pro-prosecution trick in this trial, if he is not removed from the case.

I will continue to monitor the trial and outcome of Texas AG Ken Paxton.

Stay tuned.

Ken Paxton's pre-trial pro-prosecution change of venue: Part I - if we change venue lists for prosecution becuase of County officials donating to the defendant, should be change venues of all criminal cases where county officials donate to the District Attorney?

The media is all over the #TexasAttorneyGeneralKenPaxton who was criminally charged for alleged investment schemes that allegedly occurred before he became AG.

That an elected AG is being prosecuted for something he allegedly committed before he was elected is a very rare occurrence and clearly smacks of a political persecution.

That impression is even stronger from the way how the trial was handled - with a judge moving the venue, without consent of the defendant, to another county - and, just "coincidentally", after Ken Paxton took a stand in support of President Trump in his immigration executive orders.

As much as I dislike the stand of Ken Paxton on the death penalty and several other issues, Ken Paxton's brief regarding President Trump's immigration executive order was the correct expression of the law in an ocean of pro-Clinton's sponsored politics that the fight against President Trump's executive orders have become.

Paxton went to the appellate court to move the trial back to his own county and to remove the judge who granted the prosecution's "last minute" request to move the venue.

The media Paxton's claim to the appellate court that the venue was moved without his consent "unprecedented".

Well, first of all, what is so unprecedented to demand a right to trial by jury of his own peers?

Peers means cross-section of his own community, where he resides and works.

That's the law, isn't it?

The venue was moved because allegedly the defendant tainted the jury pool.

As proof, the prosecution used, among other things, an exhibit showing the list of donors of Paxton's AG election campaign in 2013 - which included a number of prominent Colin County officials (the county from which the venue was moved).

Now, since the judge relied on that exhibit in moving the venue, that is what I would call unprecedented.

In each criminal proceeding, the jury is picked (is supposed to be picked) from the cross-section of the community.

Of course, while the jury pool formation is supposed to be random, ask my husband who worked in Delaware County, NY, for 37 years as a criminal defense attorney, and ask me, a criminal defense attorney's wife who worked in his office as a legal assistant for years before working in that same county as a criminal defense attorney for nearly 7 years - how many times were we called for jury duty over all these years.

How about - NONE?  None at all.  Not in town court trials, not in village court (when it still existed) trials, not in county court trials, not in Supreme Court trials, not in federal court trials.

At the same time, our neighbors were called to jury duty regularly.

The same is happening, by the way, in South Carolina.  Our neighbors and new friends here report being called to jury duty several times a year, while we are left out.

Which creates a big question - how jury pools are formed?  Is the process random, or are people with defense attorney background deliberately excluded from jury pools, in order to help the prosecution ahead of time?

I do not see media coverage on this sticky issue at all.

But, supposedly, in Texas the jury pool formation is all according to the law, random and drawing from the cross-section of the community.

If that is true, what difference does it make for the jury who were donors of Ken Paxton's 2013 election campaign?

Isn't there voir dire (jury-picking process) for that?

Isn't there a tool of striking prospective jurors for cause if they are subordinates to Ken Paxton's donors?

And, will it not be completely different if it would be Ken Paxton who would be asking to move venue simply because the prosecutor was elected with support, including donor support, from the same County?

Because that's exactly the fact in many counties across the country, the County is usually a very large employer, and those employees have many relatives and friends, and yet no connection, even a close connection, to County officers, high-ranking employees, relatives or friends, will strike a prospective juror if he claims that he pledges to be impartial?

That process should work the same way for the prosecution.

It is interesting to see how Ken Paxton, a prosecutor himself, points out major issues with the judge catering for the prosecution in truly unprecedented ways - doing their job of picking the jury instead of them, while denying the defendant a trial by the jury of his own peers.

And, an elephant of a question arises that the media appears to conveniently ignore - if County officials were election donors for a party in litigation, and if the judge deems the list of County donors important enough to change venue, does the judge and the prosecution recognize by that move that jurors in a given County may ALWAYS be influenced, behind the scenes, by the high-ranking County officials influence a picked jury behind the scenes?

Now that is an interesting proposition.

Public comment on New York's proposed standing order of discovery in criminal cases - Part III. Composition of the Task Force that proposed the standing discovery order in criminal proceedings supposedly meant to prevent wrongful convictions

In Part I of my public comment to New York Justice Task Force's proposal of standing discovery orders in criminal proceedings I pointed out the first problem affecting legitimacy of the Task Force itself and of its suggestions and proposals - lack of transparency in

• appointments to the Task Force,
• work of the Task Force, and
• non-compliance by the Task Force with New York State Open Meetings Law requiring notice to the public and opportunity for the public to be heard on issues of public concern to be proposed or decided by public bodies.

Part II addressed the issue that the Task Force is trying to usurp the Legislative authority for important policy-making in criminal proceedings, in violation of state constitutional requirement for separation of powers, and to do it in a clandestine manner, without public hearings, in an extremely short period of time, so that to push through certain ideas that are not in the public interest, but in the interest of certain "stake-holders".

The next big problem, discussed here in Part III of my public comment is that the Task Force consists of people with self-interest to prevent proper investigation of wrongful convictions and their reasons, and to continue with the existing status quo that creates wrongful convictions in the first place, and thus it is futile to expect it to create anything but a roadway to suit their personal, financial, career and reputational need while creating roadblocks or favorable climate for intimidation and persecution of critics of governmental misconduct leading to wrongful convictions.

Here are the list of members of the Task Force that proposed the "standing order of discovery" that is supposedly needed to prevent wrongful convictions, but in reality will serve the opposite purposes:

• to preserve the environment that creates such wrongful convictions,
• protect the actors who create such wrongful convictions and
• intimidate or eliminate those who criticize such environment and such actors

First of all, let's point out who is eloquently absent from the Task Force that is supposedly convened to prevent wrongful convictions:

• exonerees from wrongful convictions and members of their families;
• consumers of legal services;
• members of the public independent of the court system, criminal justice system, legal services industry, and not interested in preventing reversals of criminal convictions.
• independent defense attorneys;
• representatives of New York State Trial Lawyers Association, or of the New York State Defenders Association - even as "ex officio members";
• civil rights attorneys who addressed issues of wrongful convictions or sued for wrongful convictions;

In other words, absent from the Task Force are those who have the vital interest that the Task Force is supposedly protecting:

• consumers of legal services (including of criminal defense attorneys);
• those who have suffered from wrongful convictions and members of their families who also suffered;
• members of the public who would look into and investigate the real reasons for wrongful convictions.

Instead, the Task Force is composed predominantly from those people who usually cause wrongful convictions, or have an interest in preventing reversals of criminal convictions, from reputational, personal, career or financial point of view.

Let's start looking through the member list name by name.

The chair of the Task Force is New York's Chief Judge Janet DiFiore, a former career prosecutor - I recently wrote about her shenanigans as the District Attorney and judge, her apparent corruption and misconduct.  I also started to publish civil rights lawsuits against her further showing her corruption and misconduct, and I still have several of her lawsuits to publish.

You can also read here the written opposition and request to testify in opposition to confirmation of Janet DiFiore by exoneree Jeffrey Deskovic, 

who was not allowed to testify against DiFiore, and, after DiFiore was confirmed and took her seat as the Chief Judge of the New York State Court of Appeals and as the Chair of this Task Force, DiFiore somehow did not appointed Jeffrey Deskovic to the Task Force, I wonder, why.

DiFiore is the chief regulator of the legal profession in the State of New York.

One of the co-chairs is a former New York State Court of Appeals judge - and now a private attorney - Carmen Ciparick who advertises her "public service" on the Task Force as part of her attorney advertisement, to drum more business for her law firm.

Ciparick is one of the former regulators of the legal profession in New York, as part of the Court of Appeals that sets the rules of attorney regulation.

What kind of involvement Ciparick can have in the "Task Force", you can see by the number of her memberships - it is not humanly possible for a busy appellate attorney, and especially the one past mandatory retirement age of 70 (Ciparick is 75), to be on so many boards, associations and task forces and have meaningful involvement in every one of them.

By the way, as part of Board of Trustees "Historical Society" of the courts of the State of New York, Ciparick is responsible for publishing and keeping published, the article about the felon former Chief Judge Sol Wacthler presented to the worldwide readers as a "luminary" (see my blog about that "luminary" article here) and praised for, de facto, defrauding the federal court by:

• claiming he had no mental issues for purposes of plea bargain;
• then, turning around and claiming, in a published book, he had mental health issues.

The article published by the Historical Society where Ciparick is on the Board of Trustees praises Sol Wachtler for, literally, saving the New York State Court system from a flood of motions to vacate, which would be motions to vacate wrongful convictions, because a mentally unstable Chief Judge decided cases.

By the way, the website of the Historical Society, as of today, still did not take Judge Sheila Abdas-Salaam off the list of living and sitting Court of Appeals judges, more than a month after her death - Ciparick had no time, as a trustee of the Historical Society, to address the issue:

You can expect a lot of good things, as a Chair of a Task Force convened ostensibly to fight wrongful convictions, from a licensed attorney and former judge of the court regulating attorneys who officially endorses, as a trustee of a publishing organization, the praise of a convicted felon for defrauding a federal court, in order to "save" New York court system - from motions to vacate wrongful convictions.

Makes a lot of sense.

Another co-chair is a sitting judge of criminal court Michael Dwyer.

Judge Dwyer himself is dealing with criminal cases, and with some wrongful conviction cases.  Therefore, when he at the same time co-chairs production of a 20-page document which is aimed mainly at censuring courts, attorneys, the press and the public not to use words "prosecutorial misconduct" "too broadly" (see that "issue" as No. 1 addressed in the document designed, supposedly, to prevent further wrongful convictions),

added to the fact that Judge Dwyer is a former career prosecutor, same as DiFiore,

that smacks of BAD pro-prosecutorial bias, which should require removal of Judge Mark Dwyer from all criminal cases immediately.

And, here are the "permanent members" of the "Task Force" - remember, the Task Force to prevent, not create, wrongful convictions.

Robert A. Adamo, Director, Division of Forensic Sciences, Westchester County Department of Laboratories and Research

This wonderful gentleman was in charge of that "forensic" lab for a long time, apparently helping DA DiFiore (now the Chair of this same "force") to obtain convictions.  In a criminal case that I personally handled against DiFiore's office, DiFiore's office desperately tried to obtain a wrongful conviction of my client while any supposed or alleged evidence was lost or destroyed - which they refused to tell me until I filed a motion to compel and for sanctions.  After that, DiFiore became a judge and retaliated by refusing to hear my constitutional appeal as of right in the disciplinary action punishing me for properly representing my indigent clients and making motions to recuse a biased judge, very logical.

I wonder if "evidence" - or, lack thereof, from the case I handled as an attorney, went through the hands of this lab Director, but very obviously, he is the last person to be a "permanent member" in a "task force" seeking to prevent wrongful convictions, as his lab is obviously joined at the hip with the DA DiFiore's office.

Mr. Adamo's reputation, as an expert and administrator, is at stake each time a conviction is reversed, so he is the last person to be on a task force that is supposedly investigating the causes of wrongful convictions and making suggestions how to prevent wrongful convictions.

The next wonderful member of the task force is James O'Neill, Commissioner of New York City Police Department.

Apparently, since Mr. O'Neill's police officers are collecting and presenting evidence in criminal trials, Mr. O'Neill's personal reputation, and reputation of his personnel, are at stake whenever a conviction is reversed.  Same as with Mr. Adamo, Mr. O'Neill is an interested person and should not be on the Task Force.  He may be deposed as a witness by the task force, but, as a "stakeholder" in the issue, he has a conflict of interest to be a member of such a task force.

The next "permanent member" of the "Task Force" is Zachary W. Carter, New York City Corporation Counsel - the attorney who, as a matter of duty, would OPPOSE in court, any civil rights lawsuits against NYPD for wrongful convictions.

The irreconcilable, disqualifying conflict of interest here is quite apparent, and, I believe, it is an ethical violation for attorney Carter to even be on this "Task Force", much less produce the document it produced for "public comment" - which is adamantly pro-prosecution.

The next "permanent member" of the Task Force is a Supreme Court Justice of Nassau County, obviously presiding over criminal cases, Judge William C. Donnino, who reached the mandatory age of retirement, 70, 6 years ago and at that point, left his position as a "supervising judge" of the Nassau County Supreme Court.

So, the 76-year-old busy Supreme Court judge, former career prosecutor and criminal court judge Donnino is trying to MAKE the law and MAKE the policy decisions INSTEAD of the Legislature, and do that in a way protecting prosecutors' reputation from being exposed and their careers and chances to become judges affected by making a proposal for, factually, censure of public opinion, attorneys and courts against "too broad" a definition of prosecutorial misconduct.

Other members are:

Professor Emeritus of Brooklyn Law School William E. Hellerstein, a constitutional law scholar thrown in for show, since his decision, even if against the chorus of police, "victims' advocates", prosecutors and judges/former prosecutors, can never outweigh the pro-prosecution supermajority of the group.

It is a wonder how such a busy man can also handle such a busy job on top of his professorship obligations.

The next "permanent member" of the Task Force is Seymour James, Attorney-in-Charge of the Legal Aid Society who is overseeing, reportedly, an organization of 1,100 lawyers.  Once again, one must wonder how such a busy man can put a task that must be an exhaustive job in itself - digging through thousands of documents to get to the bottom of causes of wrongful convictions in New York.  He either doesn't do his job as the Attorney-in-Charge of the Legal Aid Society properly, or his job of the permanent member of the Task Force properly, or both.

Moreover, one must wonder how such two supposedly pro-criminal defense people as professor Hellerstein and attorney James, who both have decades and decades of experience in New York state criminal justice system and know more than anybody how corrupt and rife with prosecutorial misconduct it is, could produce such a shameful document as the "proposal" that tries hard to censure public opinion from trying to define prosecutorial misconduct more broadly than pro-prosecution judges will do it in their orders.

The next "permanent member" is a former judge of 25 years, and now a director of a victim's advocates' organization Judy Harris Kluger, a former career prosecutor of domestic violence. 

Victims' advocates, and prosecutors, often start assuming that the person is guilty at the time when s/he is still only charged with a crime and is presumed innocent by law. 

Of course, Kluger's position as a director of a victim's advocates' organization creates an irreconcilable conflict of interest against having her on the task force to investigate causes of such convictions, as she obviously lacks neutrality needed for such an investigation. 

The next "permanent member" of the Task Force is judge Richard B. Lowe, III, another former career prosecutor:

It is obvious that the public did not elect Judge Lowe to legislate as to policies of discovery in criminal proceedings, and that he cannot be, constitutionally, at the same time, a legislator and an adjudicator in the same courtroom.  Yet, not just one, but 7 judges (1/2) are "permanent members" or chairs and co-chairs of the 14-member task force.

The next "permanent member" is the pre-eminent Chief Judge of the Appellate Division 3rd Department Judge Karen Peters, a corruptioner I wrote about here, a former career prosecutor and a judge regulating attorneys in 1/4 of the territory of the State of New York.

I have raised many times the issue that appellate courts in New York may not be at the same time legislators and adjudicators in attorney disciplinary proceedings, as well as "one" with disciplinary prosecutors, as both judges and prosecutors claim to be when sued in federal court and when Freedom of Information Requests against disciplinary prosecutors are filed. 

Peters CREATED the mess when independent criminal defense attorneys are intimidated into silence and not making motions to recuse, which surely contributes to wrongful convictions. 

Peters' court suspended in 2008 a criminal defense attorney for making a motion to recuse a judge in a criminal proceeding (John Aretakis), disbarred in 2011 a criminal defense attorney (Frederick J. Neroni) who dared to file an assigned-counsel appeal raising the issue of judicial corruption, which led to threats by ADA John Hubbard that he is "burning his bridges" (undisclosed former law partner of the presiding trial judge).

Peters, as co-member of the Commission for Judicial Conduct, protected judges from discipline and, as the judge of the regulating Appellate Division, suspended and disbarred attorneys who complained about such judges.

Peters is the court whose "part", attorney grievance committees, have a policy of non-prosecution against criminal prosecutors.

Peters is the court that, as appellate court of criminal appeals, "defers" (exhibits bias) to decisions of trial judges because they did, and the appellate court didn't, see "demeanor of witnesses", while at the same time the only thing that prevents the appellate court from seeing that demeanor of witnesses is prohibition on videotaping court proceedings.

We do not see Peters on any task forces promoting cameras in the courtroom in the hands of the public.

And, Peters knows that investigations of attorney discipline are covered by Judiciary Law 90(10) and that only the Chief Judge of the Appellate Division (herself included), on motion, can disclose issues pertaining to attorney discipline, or through waiver of privacy from the attorney.


So, Peters knows better than to propose what she is proposing in her 20-page document: to MAKE prosecutors (against whom no disciplinary investigations are usually conducted as a matter of unspoken policy, no matter how bad their misconduct is), and, peculiarly, public defenders (defense attorneys, who are usually the target of disciplinary persecutions anyway) MUST somehow report to their supervisors that a disciplinary investigation has been started against them.

So, Peters as a "permanent member" of the task force trumped her own authority as Chief Judge of Appellate Division to EXCLUSIVELY decide whether to give access to such information.

And, Peters as a "permanent member" of the task force decided to MAKE attorneys waive their privacy under the guise of a court rule, in violation of Judiciary Law 90(10). 

That's a position of "my law" - I own it, I make it, I break it.

Not a good position for a judge (1) regulating attorney licenses in 1/4 of the State of New York, and (2) trying to persuade the public that she is fighting wrongful convictions.

Moreover, when Judge Peters created a document where she tries to muzzle courts, attorneys, the press and the public against having their own opinion as to what prosecutorial misconduct is, she disqualified herself and her court from hearing criminal cases and hearing attorney disciplinary cases - as she is very obviously pro-prosecution.

The remaining "permanent members" of the Task Force are:

Cyrus Vance, the District Attorney for New York County - an interested person disqualified from being an investigator or decision-maker on the issue of wrongful convictions, and

Susan Xenarios - another director of a victims' advocates group.

There are also 8 "ex officio" members of the Task Force, also chosen by the Chief Judge of the New York State Court of Appeals.

Composition of that list is no better - they are all pro-prosecution stakeholders.

Somehow, Senator DeFrancisco, sponsor of the bill to establish Commission of Prosecutorial Misconduct, did not make the list of "ex officio" members of the Task Force.

Instead, on the list are:

1.  Eric T. Schneiderman, NYS Attorney General, a career prosecutor and official statutory counsel, under Public Officers Law 17, for all State judges, including all judges-members of the Task Force, in lawsuits against them for civil rights violations, including corruption or misconduct that may have led to wrongful convictions, look at the history of litigation by Schneiderman AGAINST civil rights lawsuits.  

Schneiderman recently argued in a civil rights case against a state judge (where Schneiderman represented the state judge) that a motion to recuse (which was granted) is good evidence in support of the judge's actions to then forcibly eject a Jewish litigant out of the courthouse after the motion was granted, with the help of an armed court attendant who was a known Nazi supporter. 

Eric Schneiderman also argued in federal court, and won on his argument, that members of the public have no say as to whether meritorious complaints of judicial misconduct and of attorney misconduct (including prosecutorial misconduct) are or are not dismissed - see Bracci v Becker (members of the public have no say in dismissal of meritorious complaints of judicial misconduct) and Neroni v Zayas (members of the public have no say in dismissal of meritorious complaints of attorney misconduct).

Moreover, Eric Schneiderman, while being an "ex officio" member of the Task Force against wrongful convictions, appeared as an attorney in litigation where he opposed benefits for a wrongfully convicted exoneree.

Based on the above, Eric Schneiderman is definitely disqualified from being anywhere near this Task Force that investigates and is supposedly tasked to verify how to prevent or reduced possibility for wrongful convictions.

2.  State Senator Michael Nozzolio, who is also currently a Commander in New York Naval militia (a really good candidate to investigate causes of wrongful convictions where misconduct of prosecutors and law enforcement are front and center causes) - the one who voted for a bill making unauthorized practice of law a felony while continuing to practice law and being "an officer of the court" while being a State Senator, thus violating constitutional separation of powers and ethical rules against self-interested legislative activity by Senators;

3.  State Assemblyman Joseph R. Lentol, a former career prosecutor - Chair of the Commission on the Committee of Codes (so, the Task Force, while usurping the power of both the Assembly and the Senate, tried to appease the State Legislature by including one Assemblyman and one Senator as "ex officio" members, which did not make legislating by the Task Force any more legitimate);

4.  Michael C. Green - Executive Deputy Commissioner, New York State Division of Criminal Justice Services, who would really be a good candidate to investigate and advise as to how to punish those who feed him, law enforcement and prosecutors;

5.  Claire P. Gutekunst - President, New York State Bar Association which issued a 187-page report on wrongful convictions in 2009, after having its own Task Force on Wrongful Convictions chaired by a recently disgraced judge Barry Kamins who resigned in 2014 when facing removal, amid a scandal in the media that he has engaged in campaign advice to District Attorney Charles Hynes who was accused in participation in wrongful convictions.

Judge Kamins also was involved, according to the report, in ex parte communications with DA Charles Hynes about criminal cases DA Hynes "actively pursued" in Judge Kamins' court

- which may be another significant part of wrongful convictions, only a Task Force consisting of judges and prosecutors who are doing it, would not notice such a cause, and would not investigate or fight it, would they?

Yet, here is what NYSBA report said in 2009 about wrongful convictions, among other things:

The report points out that prosecutorial misconduct may contribute to a conviction that may not be reversed, but where there are still significant violations of the law and prosecutorial misconduct, such as:

1) Rosario violations - failure by the prosecutors to give to the defense prior statements of testifying witnesses of the prosecution - by the way, the 20-page document concocted by pro-prosecution judges, prosecutors, chiefs of police and victims' advocates, does not include Rosario violations as prosecutorial misconduct;

2) Brady violations - failure by the prosecution to give to the defense any information in the possession of prosecution OR law enforcement pertaining to guilt or innocence, mitigation of guilt and impeachment of a prosecution's witness.

Here is also NYSBA's report on discovery in criminal proceedings from 2015, mentioning prosecutorial misconduct many times and indicating that there is no record of disciplinary proceedings in New York appellate divisions against prosecutors for Brady violations:

Yet, NYSBA report was timid, and did not mention

• ex parte communications between prosecutors and judges;
• judicial bias - the word "bias" is mentioned in the report only as witness bias; or
• corruption - the word "corruption" is used in the 147-report only once, in the physical sense of spoliation of physical evidence.

Possibly, NYSBA was included as the "ex officio" member of the Task Force because it is a convenient expert whose credentials the Task Force can tout in its support, while they know that NYSBA will tread the required line and will never accuse prosecutors or judges of misconduct, bias, collusion or corruption, and thus, such causes of wrongful convictions may be conveniently excluded.

6. Thomas P. Zugibe - President of the State District Attorney's Association, the organization that, according to testimony of Mr. Bastuk, Chair of an anti-wrongful conviction organization called "It Can Happen To You" (somehow not a member of this Task Force) in front of the New York State Commission for Attorney Discipline, descended as paratroopers upon New York Senate to lobby against introduction of a Commission solely dedicated to deal with prosecutorial misconduct, because the current attorney grievance committees have an unspoken policy not to prosecute prosecutors, a stakeholder disqualified by interest of its members to participate in decisionmaking about laws regarding investigations and sanctions for prosecutorial misconduct.

Thomas Zugibe published an article opposing legislative creation of the Commission on Prosecutorial Misconduct, where he writes that:

a) the claim of too many wrongful convictions and prosecutorial misconduct as the cause of such wrongful convictions are overblown, because the "task force" of New York State Bar association found "only" 53 wrongful convictions from 1964 to 2009; of course, Mr. Zugibe self-servingly omits to mention that only COURT REVERSALS (which are very hard to obtain when misconduct is not properly addressed by an incompetent or intimidated attorney at trial or on appeal, or when the conviction is a result of overcharging and intimidation by BOTH police and prosecutors resulting in a false confession and a guilty plea, see also an opinion, one of many, deeming any conviction on a guilty plea unconstitutional), and the rarity of the court reversals are evidence not of the scarcity of wrongful convictions, but of the predominance of judges who are former prosecutors presiding over criminal cases and ruling "for their own":

b) Mr. Zugibe pretends he, a licensed attorney of many years, somehow does not know that there are no specific requirement to complaints against ANY attorney, and claims the lack of sworn complaints contemplated against prosecutors as something especially horrific and discriminatory against prosecutors; and also pretends not to know that current attorney disciplinary committees already have the same "broad subpoena power" as the Commission on Prosecutorial Conduct is proposed to have, and already have the power to make attorneys testify against themselves - which I see as either dishonest or incompetent since Mr. Zugibe appears not to know current rules of attorney conduct regulating his own law license; 

 c) Mr. Zugibe claims that - imagine the horror! - attorney disciplinary proceedings may disrupt criminal cases because they may be conducted during the pendency of the court proceedings.

In that, Mr. Zugibe pretends to be in some kind of a surprise, while that same rule is CURRENTLY applicable to ALL attorney disciplinary proceedings - where ALL cases of disciplined attorneys' clients are disrupted.

Mr. Zugibe's lamentations only make it clear that Mr. Zugibe has no idea that what he complains about ALREADY EXISTS and IS APPLICABLE TO HIM - another proof that prosecutors are not usually prosecuted or even investigated, so they do not even bother familiarizing themselves with rules regarding their own conduct - probably, even more reason to establish a separate commission to deal with prosecutors separately, so that they would know that they are not above the law:

Somehow Mr. Zugibe did not consider it improper to make public comments and take a position on something that his Task Force is yet to come up with proposals about - which surely should have disqualified him from this body.

But, what can we expect from a prosecutor who has, for his entire career, "enjoyed" lack of discipline as a matter of policy of the grievance committees dominated by appointees of judges/former prosecutors, and absolute immunity for malicious and corrupt acts given to him as an illegal gift by the U.S. Supreme Court under the guise that attorney discipline is actually available.

7.  David Zack - President of New York State Association of the Chiefs of Police, and an obvious disqualified stakeholder with an interest, too.

8.  Jacqueline P. Flue - President, New York State Women's Bar Association.

Again, two general attorney association, 7 stakeholders connected with or representing law enforcement or prosecutors, and NO independent defense attorneys or defense attorney associations.

So, as public opinion pols push for creation of a commission to discipline prosecutors separately, to have some kind of control over the rampant prosecutorial misconduct in criminal proceedings, and, lobbying through the no-less-conflicted "Statewide Commission on Attorney discipline" offering a "compromise" of referring cases against prosecutors to existing attorney grievance committees (which was supposed to be happening anyway, but is not happening, which is the whole reason for the bill to create the Commission for Prosecutorial Misconduct) may not be working as well as the law enforcement - the bill has passed Assembly so far

prosecutors and pro-prosecution judges would want it to work, a pseudo-public clandestine "task force" has been created to try to stall creation of the Commission on Prosecutorial misconduct, under the "honorable" guise, of course, of fighting wrongful convictions.

Of course, when the initial material - composition of the Task Force - is as tainted by self-serving interests as this one, we can hardly expect a good product coming from it, but we can fully expect this "Task Force" to try to dupe the public into believing that they are acting in the public interest.

Of course, if that was true, the Task Force should have been transparent, not usurp the Legislative authority of NYS Assembly and Senate, not appoint stakeholders and not prevent the public and exonerees, victims of wrongful convictions from participating in its work.

I will continue to analyze motivations of the Task Force and how they are reflected in their proposal for standing orders on discovery in criminal proceedings in my next public comment articles.

Stay tuned.

Public comment on New York's proposed standing order of discovery in criminal cases - Part II. The proposal is trying to usurp the functions of New York Legislature.

This is a continuation of public comment on the proposal of New York Task Force as to "standing orders of discovery" in criminal proceedings.

I already addressed the lack of transparency in appointment and work of the Task Force, here.

The next problem is that the "standing order" is trying to:

• usurp the powers of the State Legislature as to important policy issues in criminal proceedings; and
• forestall or prevent, by providing a surrogate of a "standing order of discovery", the necessary legislative reforms of the state criminal justice system.

The proposal for a "standing order" affecting discovery in criminal proceedings is affecting several important policy issues which are the authority and job of the State Legislature and elected people's representatives to address, and not secretly appointed people who are not accountable to voters.

Policy issues that the 20-page proposal is attempting to resolve that are for the Legislature only to resolve are, and the list is not exhaustive:

• FIRST - the need for reform of discovery in criminal proceedings and putting discovery in criminal proceedings at least on equal grounds with the already existing discovery rights in civil court proceedings, and providing funding for such discovery;
• SECOND - the need for equal funding for investigators and experts for the defense on par with prosecution;
• THIRD - the need to address  the role of prosecutorial misconduct in wrongful convictions as a STATE CONSTITUTIONAL ISSUE, as the U.S. Supreme Court expressly protected prosecutors from liability even for lack of training of their subordinates as to concealment violations, and thus not only refused to address the issue of wrongful convictions in the country as a federal constitutional issue, but also allowed wrongful convictions to continue to multiply;
• FOURTH - the lack of adequate funding for indigent criminal defense - the legislation that has gained bipartisan support and passed both the State House and Senate was recently vetoed by the "fighter of human rights" Governor Cuomo, but, since the issue was not resolved and the state continues to violate the 6th Amendment right to counsel for indigent criminal defendant, and thus the federal court order in a settlement of a recent class civil rights case, the issue is still to be resolved by the State Legislature; 
• FIFTH - the need to ensure competence and integrity of assigned defense counsel whose continuous assignment usually depends on pleasing a judge (who is usually a former prosecutor) in not "making waves", not making discovery requests, motions to compel discovery, or motions to disqualify prosecutors or the judge for bias, conflicts of interest or misconduct - three independent criminal defense attorneys, my husband Frederick J. Neroni, myself and David Roosa (all of these attorneys lost their licenses, all of them due to complaints of the same judge who was helping the prosecution),

were raising issues of assignment of criminal cases as a matter of judicial whim only to those who agree to please the judge and not "make waves" by providing effective assistance to indigent defendants ;

• SIXTH - the need to allow, as right to counsel, for the criminal defendants, including indigent criminal defendants, to have counsel of their choice, who they truly choose and trust, possibly through a system of:
• vouchers, and
• deregulation of the criminal bar, allowing criminal defendants to choose to represent them any person, not necessarily a person approved (through licensing) by the same government that is pursuing the defendant in criminal proceedings, which is an irreconcilable conflict of interest;
• SEVENTH - eliminate prosecutors from their positions of "advisors" of grand juries, undermining adversarial process of the criminal justice.
• EIGHTH- the need to eliminate the plea bargaining system which drums up convictions without regard to evidence, for purposes that have nothing to do with fighting crime:
• cutting "court congestion" in criminal cases and
• providing free labor to the for-profit prison industry, and
• providing work to unionized prison workers;
• NINTH - address the issue of non-discipline of criminal prosecutors for misconduct in criminal proceedings (which New York Legislature is attempting to address at this time, against vigorous opposition by the State District Attorneys' Association, through the legislative creation of the Commission on Prosecutorial misconduct);
• TENTH - eliminate prosecutorial immunity in lawsuits for misconduct to provide a meaningful remedy to the victims of wrongful convictions and to deter further wrongful convictions;
• ELEVENTH - to seriously address, with true participation of the public, true and effective accountability for prosecutorial misconduct as the cause of wrongful convictions.

These are all important policy decisions, and these decisions need to be addressed by People's representatives elected for that purpose - the Legislature, not by some clandestine "task force" appointed in a clandestine manner, meeting in a clandestine manner for clandestine purposes, not allowing public participation.

The notice for "public comment" right now is just a fake to solicit comments from the public, toss them and approve what they want to promote anyway - and what they want to promote is:

• further protection of the prosecution as the breeding pool of judges (just read official biographies of New York state or federal judges to see that the overwhelming majority of judges came from prosecutors);
• further intimidation of the defense bar, and
• making wrongful convictions irreversible -

as I will show in my further analysis of the proposal in separate articles.

The whole point for giving exclusive legislative power to People's elected representatives in the Legislature and not any other branches or bodies of the government, and to have those Legislative representatives elected for short terms is:

1. transparency;
2. availability for the public of a right to:
1. contact their legislative representative;
2. come and talk to that representative;
3. send legislative proposals to that representative;
4. testify in the Legislature as to those proposals
5. put those proposals out for public referendums.

Here, the public:

1. did not elect any of the members of the Task Force AS LEGISLATORS - they did not even run as legislators, they were appointed by New York Chief Judge Lippman in 2009;
2. these Task Force members have no accountability to the public, no duty to meet with them, and no incentive of being recalled from office, impeached or not elected for the next term to speak to members of the public;
3. there is no possibility of a LENGTHY legislative process discussing all possibilities, all public needs, all conflicting public interests and conflicts of interests and weighing all options before introducing a legislature on important policy considerations - here, the proposal was made, through an announcement on New York State Court system's website, on April 6, 2017, and public comment, through written e-mails only to some unelected lawyer in the New York State Court system, will be closed within 2 months of that time, on June 5, 2017, without any public hearings.

What was the composition and background of this clandestine group, and how the proposal tries to subvert the need for real reforms in the criminal justice system, read on in my next public comment articles.