The race to sign - or not sign - into law the Commission on Prosecutorial Misconduct in New York. Either way, people will lose

A bill, approved by both chambers of the New York State Legislature, that seeks to create a Commission of Prosecutorial Misconduct, is sitting on the desk of the New York State Governor Andrew Cuomo, a former prosecutor.

Andrew Cuomo lingers with signing it, being under pressure from the District Attorney's association.

New York Attorney General, also a prosecutor, reportedly recently provided Andrew Cuomo with a memorandum - which was only spoken about, but not published - that supposedly argues that the bill is unconstitutional, according to the State Constitution, and the Attorney General, the person and office that actually DEFENDS violators of state and federal constitution in court against their victims, claiming that it is their duty to do that under New York Public Officers Law Section 17, is now concerned about constitutionality of a bill.

I've written about that bill, and that, even though my heart is on the side of the wrongfully convicted, and against prosecutorial misconduct that I have seen for years in New York courts when I practiced as a criminal defense attorney, and even before that, when I worked as a legal assistant for a criminal defense attorney - the Commission fashioned after a toothless tiger wrought with conflicts of interest, the New York State Commission for Judicial Conduct - is not the solution.

The decision against prosecutor Mary Rain was authored by a panel of 5 judges where at least three of them - Garry, Mulvey and Devine - were exposed for their own misconduct and multiple violations of people's civil rights (which is a federal crime in the United States), but remain on the bench, with their law licenses intact.

Prosecutor Mary Rain was suspended for pitching to the jury a negative inference from the defendant's failure to deny his guilt during a police interrogation until directly asked (something many, many prosecutors do without any discipline, and that prosecutor Mary Rain, based on that, probably, considered as not even a disciplinary offense for a prosecutor to do),

Critics of the bill - legitimately - questioned, why the bill was even necessary since it duplicates the system of attorney discipline already in place.  If that system does not work, or if it has a policy to selectively exclude prosecutors - why not try and reform that system?  And why not address the issue of selective policies like that - after all, numerous people reported selective policies of grievance committees, including insiders:

1. of whitewashing powerful attorneys - through a lawsuit of a grievance committee prosecutor fired for whistleblowing;

2. of targeting minority lawyers - that was revealed in a testimony before the New York State Commission on Attorney Discipline in 2015 - and disregarded;

3.  and now, in selective non-enforcement of attorney discipline against prosecutors.  Suspension of Mary Rain does not count, since it was done on June 27, 2018, after the bill for creating the Commission for Prosecutorial Misconduct was approved by the New York State Senate on June 14, 2018, and then by the New York State Assembly on June 19, 2018.

Let's watch the panel of judges who suspended Mary Rain - something that never happened in New York history, suspension of the law license of a public prosecutor for prosecutorial misconduct.

Let's remember their names:

Elizabeth Garry;
Robert Mulvey;
Michael Lynch;
Eugene Devine;
Sharon Aarons

These political animals will go far.  Watch out for their appointment to the New York State Court of Appeals, that is what usually happens when a judge of an intermediate appellate court makes a decision that is a favor to one of the political branches in the New York State government.  And these 5 judges gave a BIG favor to the opponents of the Commission on Prosecutorial Misconduct.

Before they are elevated to the Court of Appeals, watch out for their re-election campaigns, since they are all, technically, Supreme Court justices that MUST be re-elected.

Garry was elected in 2006 for 14 years - and thus must run for re-election in 2020.  Given that Garry was admitted to practice law in 1991, at the minimum age of 25 (18 - graduation from high school, 22 - from college, 25 - from law school), she is 54 now, 16 years from mandatory retirement at 70.

Mulvey was re-elected in 2014 for 14 years - his re-election campaign is not due until 2028.
Mulvey was admitted in 1981 at the minimum age of 25, he is at least 64 years now, 6 years from mandatory retirement in 2024, so he will retire before the need to get re-elected, so his job is the last sinecure to gain a better pension, not to mention to give political favors to some powerful people like a prosecutors' association (who knows when Mulvey's old sins would surface, one would never err to create powerful allies - to suspend one prosecutor in order to save all others from a more pointed commission dealing with prosecutorial misconduct).

Michael Lynch, a former prosecutor, was elected in 2005 - he will be up for re-election in 2019, watch out for this one, Cuomo might elevate him to the Court of Appeals to save him the need, and expense, of an election campaign.

Michael Lynch is 65, his mandatory retirement is within 5 years, so if he runs for re-election for another 14 years, that would be a major waste for taxpayers since he will only be able to fulfill 4 years of his 14 term.  This is the most likely candidate for promotion to the New York State Court of Appeals out of this crew.

Eugene Devine - former public defender and former counsel for social services (a great combination) - was elected in 2006, so he is up for re-election in 2020.

Eugene Devine was admitted in 1976 at the minimum age of 25, is at least 67, will have to retire within 3 years, in 2021.

His re-election in 2020, one year before mandatory retirement, is also a waste of time.  Of course, the Governor can prolong his stay by "certification" for 3 2-year spans, but not on the Appellate Division, in a lower court.  He is also one of the more likely candidates for promotion to the New York State Court of Appeals - to save him from the need and risk of a re-election campaign and to boost his salary for retirement purposes.

Sharon Aarons - the only dark-skinned judge on the court and the only immigrant judge on the court (she was born in Jamaica) - was elected in 2009, her term is until 2023.

Sharon Aarons was admitted in 1990 at the minimum age of 25, so she is 53 now, 17 years from mandatory retirement.  She may also be spared the need to run for re-election and promoted to the Court of Appeals, considering the big favor she has provided to prosecutors, as well as that the Governor is the former prosecutor and in debt to Chief Judge Janet DiFiore, also a former prosecutor, as I have testified to the New York Legislature at the time of her appointment by Cuomo.  Yet, she was never a prosecutor, so she may be passed by.  And, being of dark skin and being promoted to the Court of Appeals in New York may be a death sentence - given what happened to the only dark-skinned female judge of the New York State Court of Appeals Sheila Abdus-Salaam who was found dead in the Hudson river in April of 2017, although not prone to suicide by accounts of all who knew her, then the investigation quickly thwarted, closed in less than a month from her death, and a gay white man quickly appointed in her place, in June of 2017.  

Sharon Aarons, given the political and other circumstances, may have to run for re-election in 2023 to keep her place on the appellate court - if she is not promoted to the NY Court of Appeals.

I am not saying that prosecutor Mary Rain did not commit misconduct.  I am saying that it is routine in New York for prosecutors to do just the same, and never to get disciplined.  

Mary Rain was obviously singled out by a political crew of judges as a sacrificial lamb to undermine the bill for the Commission for Prosecutorial Misconduct - a Commission that these judges, who are also licensing judges and judges who appoint those attorney grievance committees that engage in selective non-enforcement of attorney disciplinary rules against prosecutors - see as undermining their power over all attorneys, including prosecutors, and as a move that highlights that regulation of attorneys in New York is political.

Nothing like a political move in order to prove that attorney disciplinary system is not political, but who expects logic, intelligence or, God forbid, integrity from people who try to assert their power and advance their career?

But - back to the flaws pointed out by critics of the bill, and by prosecutors fighting against introduction of the Commission.

1.  a system of attorney regulation and discipline already exists, prosecutors are part of it - so why duplicate it?

A valid point.

Of course, a public prosecutor should be removable from office only through impeachment, not through actions of committees of competitors appointed without input from the public - but, again, who looks for logic, or rights of the public, when the power of the self-chosen few is involved.

2.  8 out of 11 Commission members - a super-majority - are appointed by members of the government, while prosecutors are supposed to prosecute crimes committed by anybody, including and especially, the government.

A valid point.

But, right now prosecutors are disciplined by attorney grievance committees 100% appointed by the government, state intermediate appellate courts.  In the Commission of Prosecutorial Misconduct, at least 3, a minority are appointed not by the government.  So, validity of that point is undermined by the current system of attorney regulation.

At the same time, the editorial, published on June 21, 2018, 6 days before the first-in-New-York, PR-suspension of public prosecutor Mary Rain by the political crew of judges in the 3rd Department, pointed out that the government regulating prosecutors may do it for political reasons and not to protect the public from their misconduct - as was proven by Mary Rain's suspension.

3.  The Governor has a power to remove prosecutors for misconduct already.  Why duplicate that?

A valid point.

4.  Documents of the Commission will be condfidential.  Why should the public invest money into the Commission not knowing that it is doing its job - if it is fashioned on Commission for Judicial Conduct, it will be tossing the overwhelming majority of complaints without even an attempt at investigation, no matter how well-founded the complaint can be, and how many documents irrefutably pointing at misconduct would be provided in support of a complaint.

As to Commission for Judicial Conduct, a federal court sitting in NY already ruled - in answer to the lawsuit I brought on behalf of myself and my three clients - refusing to block attorneys "serving" in such Commission to practice under the circumstances of conflict of interest, or to derive advantage in litigation from their "service" on the Commission (of judicial conduct), refusing to declare that the lack of appellate review when complaints are tossed without an investigation is unconstitutional and refusing to declare that a full record of investigation on dismissal of a complaint against a judge should be provided to the complainant.

The court ruled as follows:

The court has declared that "a private citizen does not have standing to initiate or maintain a disciplinary proceeding against an attorney or a judge, or to appeal if the court or commission declines to discipline".

That's it.

That is the applicable precedent - to the new would-be Commission for Prosecutorial Misconduct, too.

The court blatantly told the victims of judicial misconduct whose complaints to the Commission for Judicial Conduct were tossed, without an investigation, by attorneys who practiced before the judge that was subject of the Commission's investigation, and who derived personal, financial, benefits from non-disciplining the judge - that the victims have no standing (no right) to complain if their complaints are tossed without investigation.

What kind of recourse is that?

Why does Commission of Judicial Conduct need to exist and suck public money?

Why does Commission of Prosecutorial Misconduct, fashioned after the Commission for Judicial Conduct, need to exist and also such public money - if the public HAS NO SAY in the actions of the Commission?

I understand, once again, that the wrongfully convicted groups want to do something - anything - to relieve the situation, but how will this money-sucker Commission will relieve the situation if it will be similarly permeated by conflicts of interest and where all proceedings will confidential and the public will similarly have no right to appeal tossing of meritorious complaints into the garbage without an explanation?

Do New York taxpayers have extra money to burn on more sinecures for those who will be "serving" the public by blocking the public from getting a remedy for great wrongs done to them by bad prosecutors?

That is my main objection to the creation of the Commission for Prosecutorial conduct, too.  It is a waste of money and creation of a dangerous illusion that something is being done to resolve the glaring problem that the supposedly democratic New York has the most number of wrongful convictions after the racist death penalty case, Texas.

I understand the urge of wrongfully convicted New Yorkers to have SOMETHING, ANYTHING done to resolve the problem - as they are calling upon Govenor Cuomo to sign the bill.

Yet, signing this particular bill and putting into being the Commission the way it is created by the Legislature, will do more harm than good.

There are a couple of other points that - reportedly - the AG's office advised to the Governor about in a non-published memo, but I will abstain from commenting on the memo until I see it first-hand.

It is an interesting race - whether Cuomo will sign the bill, since there is an almost certainty that it will be challenged on state constitutional grounds, and, given that the New York State Court of Appeals is headed by a former state prosecutor who was cheered at her swearing-in ceremony by the DA's association in 2016, we know what the verdict of the court may be.

Operation replacement - of the American population, that is

David Cole of Washington Post had an emotional meltdown, apparently, to the U.S. Supreme Court's decision on illegal immigration - and made a statement which is either a humongous misprint or a slip of the tongue, likely the latter.

In his article about the decision, Cole claimed that by temporarily limiting acceptance of immigrants from 5 enumerated countries, the U.S. blocked entry of 150 MILLION people.

According to the official information of the U.S. Government (Census Bureau), the U.S. entire population at this time is 328 million people.

If, by blocking entry of people just from the enumerated 5 countries, Trump blocked entry of 50% of the current population of the United States, he should be given a medal, not blasted in organized protests across the country.

Such an infusion of population would bankrupt social safety networks, and that is already happening.

But, people blasting Trump's immigration policy in the streets do not seem to care.

Are we witnessing an organized attempt to replace the American population that voted for the "wrong" president with a huge infusion of those who will vote for the "right" one?

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

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

This one.

But it is - very important.

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

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

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


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

Here is the text of CPLR 4511(a):

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

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

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

Here is the text of CPLR 4511(b):


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

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

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

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

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

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

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

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

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

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

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

So, now judicial notice is to be taken of:

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

in other words, matters of FACT.

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

What is also presumed, is:

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

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

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

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

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

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

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

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

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

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

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

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

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

Look how that is done.

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

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

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

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

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

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

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

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

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

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

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

"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bottom line in this story is sad.

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

Predictable, and very sad.

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

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

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

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

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

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

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

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

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

Why it is a dangerous illusion?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is the procedure of impeachment.

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

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

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

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

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

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

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

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

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

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

Is it such a difficult idea to fathom?

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

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

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

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

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

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

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

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