New York prosecutors' lawsuit challenging the new Commission for Prosecutorial Conduct, Part II. The dance on landmines by people in blindfolds

I have started to publish on this blog my analysis of the recent lawsuit that the New York State District Attorneys Association (prosecutors) filed in the State Supreme Court challenging state and federal constitutionality of the law that created a Commission for Prosecutorial Conduct, following a public outcry about the second highest number of wrongful convictions in the state.

Here is the 28-page lawsuit.

The prosecutors are currently, at the urge of the Acting Supreme Justice David A. Weinstein, assigned to the case (a New York Court of Claims judge) 

• former attorney for Governor Spitzer;
• former Assistant Attorney General.

In other words, the judge in the case is not a neutral judge, but an insider who acts not to neutrally judge, but to present his own "perspective" of the matter - from the point of view of the government branches the judge previously served.

It is proper for a judge to preside over settlement negotiations of parties, but not proper to URGE them.  Urging settlements makes a judge into an advocate of a certain issue and of a certain party or cause.

In this case, that the judge urges/encourages parties to enter into a stipulation/settlement, is openly, and without any criticism of the judge, admitted by the leading New York legal "scholarly" journal, the New York Law Journal:

But, while Judge David Weinstein is doing his partisan work, as he was supposed to do when he was picked for this case, and before we delve into the actual issues in the lawsuit, which I will start doing shortly, in my next blog article, let's look at one more "housekeeping" issue.

While the DA's Association, the plaintiff in the lawsuit challenging state and federal constitutionality of the Commission for Prosecutorial Conduct, hired two attorneys - one former prosecutor and another, a former (or current) member of the New York Task Force to prevent wrongful conviction, figure - they both advertised expertise in the areas of law that have nothing to do with the necessary areas of law that lawyers in such a lawsuit would have expertise in.

Neither one of the DA Association's attorneys have declared expertise in:

• constitutional law;
• the law of occupational licensing, or
• attorney regulation law.

Admittedly, it is difficult - while at all possible - to find specialists who would have working expertise in all 3 areas of the law.  Why?  Because mastering these three areas in relation to regulation of the legal profession or such powerful members of that profession as prosecutors and judges, and especially, mastering all three of these areas together, it an unadmitted taboo in the American academia.

Let's consider how these three areas of law are taught in American law schools.

CONSTITUTIONAL LAW

Constitutional law is a mandatory subject in all law schools and on the bar exam, yet, taught in such an exotic way that it produces, by design, lawyers with a mentality that considers certain unconstitutional status quo of things, long "established" by special interest groups, as a constitutional status quo of things.

The way Constitutional Law is taught in law schools is not to teach the TEXT of the Constitution and to discuss what STUDENTS think about the meaning of that text.

That would be reasonable - since the law, in order to be a proper law, should be clear on its face and not requiring additional interpretations for any reasonable person of average intelligence and education, and law students are at least supposed to be on the level above that.

No, the way constitutional "law" is taught in law schools - is through having law students discuss PREFERENCES of the U.S. Supreme Court "justices" (judges), their whims, the "tests" imposed by those judges upon the rest of the country's judiciary as to HOW to analyze the country's Constitution and what to see in it.

The U.S. Supreme Court precedents, which are NOT included into the Supremacy Clause of the U.S. Constitution, and are NOT part of the Supreme Law of the Land, are considered as such, and no questions are asked whether the de facto changing of the U.S. Constitution through interpretation, by the U.S. Supreme Court is a constitutional state of events.

So, when an American law student and, in the future, an American lawyer, is talking about the U.S. Constitution, what he means is not he text of that Constitution and not what it plainly means to an average person - because the law must be clear in order to be law - but a set of precedents of the U.S. Supreme Court, which, to an American lawyer, IS the Supreme Law of the Land, no matter what the U.S. Constitution says.

A judge, even a Chief judge of the State (of Alabama) Roy Moore, who recently questioned this status quo and pointed out that precedents of the U.S. Supreme Court should not be obeyed as the Supreme Law of the Land, because they are very simply not the Supreme Law of the Land - not being in the text of the Supremacy Clause of the U.S. Constitution - suffered removal from office, to the applause of the entire country, as the supposed prevailing of the "rule of law", while what prevailed was exactly the opposite.

Let's remember that lawyers - all lawyers - are dependent for their livelihood upon the WHIMS of the judiciary, those same people who replaced the rule of law, the law described in the Supremacy Clause of the U.S. Constitution, with the rule of their own "precedent", created at their own "discretion" (whim).

And, that, according to the current chief ethicist of the American Bar Association, professor Margaret Tarkington, who published a new book several months ago, presumptuously naming lawyers "The Voice of Justice" while they are anything but, under the circumstances, the judiciary considers lawyers criticizing the judiciary (the lawyers self-imposed regulators) as blasphemy and practically always punishes that criticism, the 1st Amendment notwithstanding, most severely, usually casting the "offenders" from the profession, and stripping lawyers of their lifelong investment into the education and training. 

As a result, consider talking to an American lawyer or a law professor about criticizing a judge - that's an issue protected by the 1st Amendment and often necessary to secure for a client the client's fundamental constitutional right to impartial judicial review.

Constitution (that all American lawyers are sworn to protect and uphold) takes the back seat, and the front seat is taken by FEAR.

The fear that you will see in their eyes when you ask a question.

That fear is the true essence of "constitutional law" in the U.S., and in the American legal profession.

That fear is why you will not get truly independent and honest constitutional scholars from amongst attorneys practicing in the U.S., or amongst professors employed by the American (ABA-regulated) law schools.

So much for the "rule of law", honesty, honor and integrity of the profession, and the Supreme Law of the Land.

REGULATION OF PROFESSIONS

The next subject that is necessary to know for people dealing with Commission on Prosecutorial Conduct is - occupational/professional regulation/licensing.

Because, such a Commission, willingly or not, has become part of such a regulation of the profession of prosecutors.

But, in this country, occupational regulation is NOT taught - at all, neither in law schools, nor in any other colleges or universities.

You will search in vain for such a course taught anywhere in the United States.

While, at the same time, by "conservative" estimates made in 2015 by the Obama administration, at least 30% of the U.S. workforce is regulated - to the point that it is now stifling the economy and created a thick "glass ceiling" for Americans to advance in life and pursue the so-called "American dream".

What the Obama report did not say though is what vacancy postings state very well - that, in order to engage in ANY more or less well-paid trade, business or job in the United States, one needs to have a certain type of approval from the government:

• a permit;
• a certificate;
• a license -

and for that, one needs to get certain hours of "required" education and/or training, whether needed to engage in the trade or not, and to pay the government a certain amount of money.

Occupational licensing in the U.S. reaches out to over 800 professions, including fortune tellers (imagine the quality standard and the ethical standard of work for a fortune teller), braid-weavers and coffin-makers.

Occupational licensing DOES touch upon many constitutional issues.

• First of all - it touches upon the right of competent adults to choose, for their own money and without any help from anybody else, including the government, as to who to choose to do a private job for them, for their own money;  that is the fundamental right to personal autonomy that EVERY regulation that does not allow a consumer opt-out (and 100% of professional regulations in the U.S. are like that) violates;
• Second of all - it touches upon people's right to earn a living, another fundamental right, conditions imposed to start earning a living cannot be unreasonable, and they nearly always are in American professional regulation;
• Third - when such regulation regulates a government official, it 
• subverts the government by having it influenced and manipulated by the secret "professional regulation" groups in a secret way, behind closed doors, and not allowing public participation in such influence and regulation (consider suspension of law license of PA Attorney General Kathleen Kane, elected in a landslide, and suspended by a judge who she investigated for misconduct), and 
• disenfranchises the People who appointed or elected that government official, and that is where occupational regulation touches upon issues of prosecutorial misconduct or "unethical behavior" - or that of a judge, or another appointed or elected official who is also an attorney or belongs to any other regulated profession; and
• Fourth - it often, if not always, violates federal civil and criminal antitrust laws, because it is ALWAYS imposed under the pretense of helping consumers, but is imposed at the request and for the benefit of the regulated professions, to 
• create professional monopolies, 
• restrict competition, 
• restrict entry into the profession, 
• block consumers from having a say in regulation of the profession, and 
• raise and keep raised, prices for those same consumers. 
• Fifth - federal antitrust laws, civil and criminal, are violated when professions are regulated in the United States, because the regulators of professions are usually professions themselves, and that prevents any possibility of neutral regulation for the benefit of consumers - the initial declared goal of the regulation.

So, there is a whole HOST of constitutional issues in occupational licensing, and it is pervasive in the United States - and yet, it is not taught anywhere in American universities how professional regulation should be done in order to not violate people's constitutional rights and federal antitrust laws.

Instead, professional monopolies control how it is done - in a universal fashion - the monopoly fashion that pretend to help consumers while helping themselves and hurting consumers and blocking them from challenging monopolies.

ATTORNEY REGULATION

And, finally, attorney regulation, a subspecies of occupational regulation.

Attorney regulation - as such - is also not taught in American schools, because, see above, it is an explosive, "sensitive" and thoroughly tabooed issue in the American academia.

What IS taught is "attorney ethics" and "professional conduct of attorneys".

So, American law students, the "future lawyers of America", as one of my law professors, the legendary professor Peter Priser, sarcastically called us, 

are NOT taught:

• why attorneys are regulated - civilly and criminally, through UPL (unauthorized practice of law) and contempt of court criminal laws - while the subject of regulation, what constitutes the "practice of law", an element of a crime that has to be proven beyond the reasonable doubt, not only is not clearly defined, but CANNOT be clearly defined, as many, many judicial decisions point out - and such unclear law, by all canons of "constitutional law", is unconstitutional; the entire regulation of what cannot be defined, the "practice of law", is unconstitutional;
• why all professions, but lawyers, are regulated by the executive branch, but lawyers are regulated by the judicial - why the difference, does it change the NATURE of such regulation from executive to judicial?
• why lawyers are not given ANY right of judicial review of revocation of their license as of right, since their licenses being revoked (an executive function for all other regulated profession, done by an executive branch) by a court - the right of judicial review being the right to SUE the government agency that revoked the license, as, again ALL OTHER regulated professions can do in the United States, but lawyers;
• why lawyers are prohibited to "falsely criticize" their regulator, judges, and even judicial candidates during election campaign - while the U.S. Supreme Court, in a 1st Amendment "precedent", allows false criticism - and 
• why "false criticism" of elected or appointed public officials, despite being allowed and protected by the 1st Amendment, is not allowed for attorneys only as to ONE type of public officials or candidates for public office - attorneys own, supposedly neutral, regulators, judges, and 
• why judges prefer to judge what constitutes "false criticism" of themselves not in open court defamation lawsuits against such supposedly defaming attorneys, in front of juries, as every other mere mortal is supposed to do in the United States if he feels defamed - but as regulators, behind closed doors, without giving attorneys any procedural rights of discovery, depositions, no jury trials and certainly no right for true judicial review, at trial or appellate level? 
• why, as part of regulation, lawyers' licensing fees can be used for political lobbying meant to improve personal work conditions or financial well-being of attorneys' regulators - judges (approved at the SCOTUS level);
• and why attorneys, in exchange for their right to earn a living which was theirs, by the U.S. Constitution, in the first place, and could only be restricted by the government for the benefit of the people and in a reasonable manner - have to operate as free PR-agents (missionaries) for their own regulators, judges, see here, and here, and to PRAISE judges to the public, to proselytize for judges and to make the public (voters) TRUST judges - even if they are not worthy of public trust? 
• Wouldn't a rule created by a supposedly neutral regulator, which creates:
• personal privileges for the regulator;
• punishments upon the regulated for criticism of the regulator; and
• a duty for the regulated to praise the regulator and to deceive the public/voters about the non-existent goodness of the regulator - DISQUALIFIES the regulator for:
• lack of neutrality;
• abuse of power; and
• use of its power for private gain of the regulator?
• why private members of a regulated profession are considered "officers" (neither elected nor appointed) of a branch of the government? "officers of the court"?
• why "officers of the court" are allowed to work in other branches of the government, executive and legislative - and, in fact, overwhelm both of those branches - and doesn't regulation of officers of the executive and legislative branches by members of the judicial branch and considering them members of two branches of the government at the same time a violation of the constitutional principles of separation of power?
• what is the legal basis to require access to court of all the American public to be regulated by those whose fitness may be challenged by those seeking access to court (judges)?
• what is the legal basis for judges to regulate their own licenses?
• what is the legal basis for the legal profession to restrict judges, prosecutors and defenders of the public in court only to those who the courts (and not the public directly) approve through "admission to the bar"? and
• what is the legal basis for judges to regulate their own law licenses - when nobody can be "a judge in his own case", right? and
• what is the legal basis for judges to INCORPORATE professional associations of folks they regulate INTO THEMSELVES, into their own branch of the government, making them part of the government - as judges have done in 30 states, concealing from the public the essence of illegal incorporation under the vague concept of "mandatory bars"?  By the way, the history of incorporation of "bar association" into the judicial branch of the government is also not taught in American law schools - because it is not only illegal, but it is shameful.

Those are just SOME constitutional questions that the "future lawyers of America", law students, are never taught.

And, as a law professor, Professor James Milles, frankly told in 2015 the New York Statewide Commission on Attorney Discipline, 

• he is not comfortable to criticize how a court in his area regulates attorneys because "everybody knows each other and it is a very cozy system" - consider the honorable legal profession, the honorable judicial profession (regulator of attorneys) that puts "honor" in his job title and requires the regulated folk (attorneys) to presume it and jam it down the public's throat, at the time while the regulators actually give themselves an absolute immunity for malicious and corrupt conduct, and
• that inconsistencies in "standards of punishment" can lead law students to disrespect ethical rules on the whole.

That's why the bigger issues - constitutional issues listed above regarding attorney regulation are not even touched upon in "attorney ethics" classes.

So, as you understand, when somebody like the DA's Association of the State of New York, tries to - supposedly - address issues of constitutionality of a Commission for Prosecutorial Conduct, in raising those issues, all those above areas of law could be touched and highlighted, so it requires an expert in all those three areas to navigate these "controversy-fraught waters".

But, true experts, for obvious reasons stated above, are not available on these three subjects.

What is available are people like the two attorneys hired by the DA's Association, who, in challenging constitutionality of the Commission on one ground, CONDEMN the existing system of attorney regulation for unconstitutionality on many, many issues that they blundered in unawares.

The text of the lawsuit for me as an expert in all three above areas (in fact, I am writing a book on these three areas, combined) looks like a dance on landmines by people in blindfolds, surely hitting on every landmine in the attorney regulation landscape there is.

With this in mind, I will start my analysis of the issues in the lawsuit.

Stay tuned.

New York trial and apellate judges openly defy constitutional rights of criminal defendants. Now, a criminal defendant in a murder trial was forced to be represented by a hostile attorney, who retaliated by setting his client up for a 40-year sentence.

I have written on this blog about a torture case.

A torture conducted by an American judge in an American court against a criminal defendant, simply because the defendant was trying to insist on an argument that he has a right to make a pro se motion to replace his lawyer - who he sued, together with the presiding judge - and to make a motion to recuse.

For insisting on his constitutional rights, the criminal defendant was tasered several times, and then removed from the trial and held away, without any medical attention, in the courthouse's holding cell, while the hostile lawyer who did not make any objection to the  judge's torture of his client in court, or against his client's removal from the trial, "represented" him.

The "representation" ended up, of course, with a conviction that was appealed, and on appeal the prosecution had the audacity to argue that the defendant supposedly "waived" his right to appeal the judge's bias because the hostile lawyer (who the defendant sued before trial, fired and wanted removed) failed (naturally) to make a motion to recuse.

The appellate court (in Texas)

1. condemned torture without calling it torture; and
2. remanded the case to the same judge - who committed torture in the first place - with an instruction how to retry the case, without torture, in such a way that the conviction would now stick.

Now, I hear a lot that Texas and New York are two different things, that Texas is heavily pro-Republican and against the defendants' civil rights.  And, New York, on the opposite, is pro-Democrat and pro-defendants' civil rights.

Right.

New York has just created its own precedent by which an indigent criminal defendant - in a murder trial, no less, same as in Texas - was forced by the judge to proceed to 

1. a suppression hearing, and then
2. to a trial

represented by a hostile lawyer with whom the defendant had an ongoing conflict - existence of which the court did recognize.

And, of course, "official" legal scholars and their outlet, the New York Law Journal, has shifted the public's attention from what really happen, this way:

So, according to New York Law Journal, it is not so much a criminal defendant with a risk of spending the rest of his life in prison was stripped of his right of an attorney who would at least not have a conflict with the defendant and a grudge against him because of the conflict, but it is a lawyer who "lost his bid to withdraw" - because of his "client's" "unjustified hostility".

Let's first look who are our "heroes" who produced this pearl of wisdom - in the court below and in the appellate court.

The "hero" who decided that a criminal defendant in a murder trial can be denied a lawyer who he can trust not to retaliate against him because of the ongoing conflict between them - in a case that poses a risk of depriving the defendant of his liberty for the rest of his life - is the now-already retired judge Ronald A. Zweibel.

Here is his attorney registration:

Considering that the minimum age of an attorney when he is admitted to the bar in New York State is 25 years and deducting it from Judge Zeibel's year of admission, 1967, we get his approximate year of birth, 1942. He is 77 years old now.

He was 73 years of age, 3 years past mandatory retirement for judges in New York, at the time of the first sentence of defendant George Ventura in 2014, which was, according to the decision, amended for an unknown reason in 2016.

The "heroes" who affirmed the 40-year conviction in this case, appellate judges who affirmed his conviction and sentence under the circumstances, were judges

Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ. 


Judge Rolando Acosta

This is not the first time when Judge Acosta has issued a decision undermining criminal defendant's confrontation rights under the 6th Amendment of the U.S. Constitution.


In 2016, Judge Acosta affirmed on appeal the use of testimony of a witness in a criminal proceeding from outside the country (from Egypt) through Skype, despite obvious authentication problems and teleprompting implications of such testimony.

The alternative would be to deny the prosecution's presentation of that witness, and to dismiss the criminal charges, with prejudice, for failure of the prosecution to be ready for trial and produce a witness in court - for no fault of the defendant.  

In 2017 he has issued a decision reversing, on state statutory grounds, the trial court's correct decision requiring the release information about misconduct of police officers - under a state statute that had, as its purpose, undermining criminal defendant's 6th Amendment rights for effective cross-examination and impeachment of police officer testifying for prosecution in criminal proceedings.

The case name was Matter of Luongo v Records Officer.

In 2018, interestingly, the case was again heard on appeal - now by the 2nd Department, I understand, the 1st Department recused - and still supported dismissal of the petition, thus protecting employee records of police officers from the prying eyes of the public employing those officers and especially from the prying eyes of criminal defendants who have a federal constitutional right to see those records, which constitute a Brady material, information that can form a basis of impeachment of a police witness on cross-examination in a criminal proceeding.

So, on December 4, 2018 Judge Acosta violates yet another criminal defendant's 6th Amendment Confrontation rights, which he appears to do systematically - which the New York Law Journal misrepresents as a decision affecting only the lawyer's rights, saying nothing about the defendant's rights violated by the judge - and 3 days after that the same New York Law Journal allows the judge to use itself as a forum, now expressing disdain to criminal defendants' constitutional rights on yet another subject - the so-called waiver of the defendant's right to appeal:

Let's put what the judge said about violations of the criminal defendants' right to appeal at the level of the lower court in a larger font:

"In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what's the point?"

The point being that if the appeal waiver is not proper, then not only the sentence, but the conviction that has led to the sentence becomes appealable.

But, that, apparently, escapes the judge who is the presiding judge of one of the 4 intermediate-level appellate courts in the State of New York, and a regulator of attorney's licenses in a large area, New York City and surroundings.

Judge Acosta explained his court's policy (while policies are legislative in nature, and courts in New York do not have authority for legislative policymaking in the appellate process) in disregarding challenges to constitutionality of challenges to appeal waivers entirely:

• the court's convenience, his court's protection of itself against too many cases on the docket ("deluge" of cases): 

"Although appeal waivers have been upheld since 1989 (People v Seaberg, 74 NY2d 1 [1989]), recent comments by practitioners regarding the fairness and enforceability of these waivers has brought the issue to the fore (see, e.g., David Loftis, Appeal Waivers Are Not Truly Voluntary, NY Law Journal, Nov. 15, 2018, citing Prof. Nancy Gertner, Having the Right to Appeal is an Issue of Fairness, New York Times, February 4, 2016); Larry Cunningham, In Defense of Appeal Waivers, NY Law Journal, Nov. 26, 2018.  The Second Department’s recent decision in People v Anardo Batista (___AD3d ___, 2018 NY Slip Op 07445 [2d Dept 2018])—where it specifically addressed, among other things, the appellate delay created by trial courts’ “perfunctory appeal waiver colloqu[ies]” (id. at p. 8)—has also raised the question of what appellate courts should do when faced with a deluge of waiver cases."

"

The First Department has had a different experience with this issue.  Indeed, even though we take the appeal waiver issue seriously, we have streamlined our approach and do not experience the delays that our colleagues in the Second Department deal with."

Yeah, right, they "take the appeal waiver issue seriously" - this seriously: 

"In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what's the point?"

And, the idiot even boasts that he has less work than the 2nd Department as a result of his unconstitutional policy.

Judge Acosta also has a pronounced mania of grandeur:

"In our experience, excessive-sentence cases consume very little of our precious time, even though we have decided hundreds of such cases in the past five years. "

In translation into plain English this means that Judge Acosta considers it beneath his court to dedicate too much time - any time at all, actually - to cases of "excessive sentencing".  After all, if people will spend in prison, at the expense of New York taxpayers, more time than they should, that is not such an important issue.

Hundreds of cases in the "past five years" regarding challenges to excessive sentences were reviewed with hardly any "precious" time of the court spent on it - in other words, criminal defendants in such cases were denied thorough (or any) judicial review of their case.

While a judge has NO RIGHT to pick and choose, to which case he needs to dedicate his undivided attention, and which type of case he can review on the basis of "they have already won - so what's the point?"

A wonderful approach for an appellate judge, don't you think?  The prosecution has already won, so what's the point of appealing it?

Acosta openly states that when the case of discretion in cases challenging excessive sentencing presents itself - the court automatically refuses to exercise its discretion, as a matter of policy:

" more commonly, the panel chooses not to determine whether an appeal waiver prevents it from exercising a discretionary sentence-reduction power that it declines to exercise in any event" - and the New York Law Journal publishes it without any attempt for critical assessment of that "policy".

Acosta also openly states that 

"

But, when that is not the case, and to the extent that deciding “whether a particular sentence is excessive [can be] less time-intensive” than determining the validity of an appeal waiver (see Batista, 2018 NY Slip Op 07445, p. 13 [Scheinkman, P.J., concurring]), it only makes sense to adjudicate the appeal more efficiently by resolving the former issue instead of the latter.  Appellate courts, as well as trial judges, of course, take this approach all of the time to expedite the resolution of cases (see, e.g., People v Chapman, 101 AD3d 406, 406—407 [1st Dept 2012] [declining to decide whether the introduction of Molineux evidence was proper, since the admission of the evidence was unquestionably harmless])."

What he is saying is:

the court's review of a challenge to constitutionality of an appeal waiver can be more time consuming than the review of a challenge to the supposedly excessive sentence (punishment).

Why?

Judge Acosta does not say, but it is obvious:

because the review of a challenge to constitutionality of an appeal waiver 

• is mandatory;
• requires extensive research into the history of constitutional claims and into underlying law - constitutional provisions, statutory law and court precedents; and
• such a challenge may address the guilt/conviction, not just the punishment

while

the review of a challenge to excessive sentences 

• addresses discretion of the lower court and of the appellate court;
• does not require extensive research;
• addresses only the punishment - and thus, can be rejected automatically.

Acosta, thus, admits that his court, as a matter of policy, jumps over constitutional issues that may involve challenges to the defendant's guilt or innocence - "preferring" not to see such challenges or to see it "as" challenges to the length of punishment only.

This is an unconstitutional leap over the challenge involving the guilt stage to the challenge involving only the punishment stage, and a clear demonstration of the court's bias in favor of the prosecution.

Acosta is openly - to the point of brazenly publishing his "policy" - engages in self-praise for such a good method, saving the court such a lot of "precious" time:

"Because of this method, this Court has issued only a small number of decisions finding the appeal waiver invalid.  In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what’s the point?"

What's the point of existence of the appellate court then if it considers it beneath itself to do its work?

What's the point for New Yorkers to pay to Judge Acosta $210,500 a year for not doing his job?  Because Acosta considers his time too precious to consider constitutional issues, reducing them to issues of his own discretion, and deciding ahead of time that he will exercise that discretion in favor of the prosecution?

Based on just the Chief Judge Acosta's record, is it any surprise how Judge Acosta decided the case where 

So now, because of the 1st Department's presiding judge consistent policies to undermine constitutional rights of criminal defendants on appeal - in order to save the court's "precious time", we now have a precedent denying an indigent criminal defendant his right to be represented by an attorney who he truly trusts with his liberty - lifelong liberty.

Instead, in the 1st Department, at least, the court, while recognizing that THERE IS A CONFLICT between the defendant and his attorney, and thus, a high risk that the defendant will be deliberately set up by his hostile attorney to be convicted and sentenced, the court still undertakes to decide whether the defendant's hostility towards his attorney - acknowledged by the court - is "reasonable" or not.

And a hostile attorney may retaliate against his client by setting the client up for a conviction, and by "not preserving issues for appeal", like the attorney did in George Ventura's case - because, according to New York's other court-invented unconstitutional "policy", only in civil cases clients of lawyers can sue their attorneys for causing a wrongful judgement through malpractice - in criminal proceedings a criminal defendant must first have the conviction caused by his lawyer's malpractice reversed, which is usually impossible to do - and only then sue him for malpractice:

"Carbone has appealed his criminal conviction but, at this point, his undisturbed determination of guilt precludes anyrecovery for negligent representation (see id.; Matter of Swain v County of Albany, 268 AD2d 747, 748-749 [2000], lv denied 94 NY2d 764 [2000])".

So, the attorney for George Ventura - who had a conflict with his client - did not preserve for appeal the issue that his client's 6th confrontation rights were violated:

"defendant forfeited his right to confront the witness and rendered his witness's out-of-court statement admissible. Defendant did not preserve his claim that the witness's statement was insufficiently reliable to be admitted, and we decline to review it in the interest of justice"

but, under New York "caselaw" criminal defense attorneys can freely violate their clients' constitutional rights, negligently or, as in this case, deliberately in retaliation for his public humiliation in court at the hands of his client - with impunity.


In other words - in New York indigent criminal defendants, thanks to courts' gutting of their constitutional right to counsel in different ways simply do not have a right not only to an attorney of their choice - 

a feat that can be easily accomplished if the court only determines eligibility for a taxpayer-paid attorney, but not the identity of that attorney, the court then issues a voucher for a criminal defendant, and it is the criminal defendant, and not the court, who chooses an attorney he can truly trust with his liberty in a criminal proceeding - 

but even to an attorney who would not have a conflict of interest in the case, a personal grudge against his client.

By the way, not only the attorney had a conflict of interest in that case.

The trial judge had, too - and a huge one, at that:

One does not become a Chairman of the New York State Crime Victims Board forcibly - it is a voluntary choice.

The judge who has a record to be an active victim's advocate may not be allowed to preside over criminal proceedings.

As judge Zweibel was allowed by the State of New York to do - for decades.

The name of the trial lawyer in People v Ventura was not revealed in the appellate opinion, obviously, on purpose.

I was able to locate the initial article about George Ventura's arrest in 2012 for the shooting death of Richard Cedeno, and

an article as to how the person that George Ventura accused of shooting, Richard Cedeno, died.

Naturally for New York's criminal "justice", habitually discriminating against people of color, defendant George Ventura is brown-skinned

By another interesting coincidence, the supposed victim of George Ventura's shooting was Richard Cedeno, who, in 2007, was a supposed passenger in a car where the driver, Jose Rivera, shot a plain-clothes police officer.

In this situation, a criminal defendant would have to be double-cautious in his choice of an attorney, the attorney's competence, integrity and courage - as the actual shooter, investigated by the NYPD, could very well be from within the NYPD.

I wonder whether this is the reason why the Internet appears to be scrubbed clean of any mentioning of George Ventura's attorney and why his current appellate attorneys refuse to talk to reporters about the case - and why the appellate judges did not identify the trial attorney who sold George Ventura out and set him up for a 40-year sentence.

Are they afraid?

Presumption of innocence in the minds of Americans is something really, really stupid

I have written on this blog repeatedly about the general tendency of the American public not to accept the concept of presumption of innocence in criminal proceedings.

I wrote about it, for example,

• in October of 2015 (shortly before New York stripped my law license for making constitutional arguments in motions to recuse a biased and corrupt judge on behalf of a pro bono indigent client) - regarding criminal charges in Mississippi and reaction to pretrial publicity of American public, the jury pool;
•  in August of 2017 regarding pending charges in Chenango County, New York.

It is happening not only in Mississippi or New York - but across the country.

Just get on Facebook and read comments to any announcement of criminal charges, especially about children.

It is usually this type of stuff - this case is out of Leadwood, Missouri:

Note the word - "charged".

As in - presumed innocent.

As in - the police and prosecution SHOULD NOT engage in pretrial publicity that may undermine due process rights of the accused.

As in - the report must say, if at all, that the police ALLEGE that they have found those conditions.

Yet, allegations of the police, and criminal charges brought based on those allegations, are presented to the public as EVIDENCE.

Which is direct police and prosecutorial misconduct - deliberate contaminating of the jury pool.

And that intentional contamination of the jury pool did produce the desired result:

The public, right on cue from the prosecution, 

• presume guilt of those just charged, instead of innocence - no matter what courts are going to tell them;
• announce a desire to "get on that jury" to 
• convict and
• sentence to death - because they need no more "evidence" than a media article about charges brought; and
• express an opinion that these lousy parents do not have a right to "walk the earth" and are "Satan's Spawn".

Now, I have asked a question (the only one who actually asked that particular question) - what about presumption of innocence.

Same as in my discourses in 2015 and 2017 (links above), the reaction was - bashing me for mentioning presumption of innocence of people charged with a crime and actually presumed innocent.

Two people responded.

One - the one who wanted to get on "that jury" in order to convict and sentence to death based on the news article, calling people charged with a crime and presumed innocent "Satan's Spawn" and calling me out for "standing up" for them.

The other simply threw some animated gifs at me, one of a monkey, another saying "this is really, really stupid", and a third one, saying "there seems to be no sign of intelligent life anywhere".

Remember, why.

Because I mentioned the main constitutional right of criminal defendants in a criminal proceeding in the United States - presumption of innocence.

So, police and prosecution, with the help of the media, has turned the right to a jury trial into a joke, inciting emotions from the public long before the trial and causing people to believe unsworn hearsay allegations as evidence, believe to the point that presumption of innocence becomes a very, very stupid idea.

Recently, the Mueller investigation, in order to justify its continued existence costing taxpayers millions of dollars (don't start with the "investigation paying for itself", please, that is yet another constitutional violation), further embedded into the minds of American public, the jury pool, the idea that

charges and indictments are, in fact, evidence of a crime committed - contrary to the concept of presumption of innocence UNTIL FOUND GUILTY BY THE JURY OF YOUR PEERS, and contrary to the standard jury instructions based on that concept.

So, on the one hand, there exists a constitutional right of every criminal defendant in the United States to a presumption of innocence (declared by the U.S. Supreme Court 123 years ago, in Coffin v United States, 156 U.S. 432 [1895]) and to his right to remain silent from the beginning to the end of the proceedings (the 5th Amendment right not to incriminate oneself).

And, based on the 5th Amendment and presumption of innocence, all standard jury instructions in criminal court include an instruction to the jury that an indictment is not evidence.

What IS evidence as per jury instructions, is:

• testimony of witnesses (under oath, at trial, in front of the jury);
• exhibits RECEIVED INTO EVIDENCE at trial, not any other "exhibits", such as "reports" of "experts" provided to the media or to any governmental body other than a court, during a jury trial;
• stipulation by parties - as to the facts only, parties cannot stipulate what constitute or does not constitute the law.

And yet, when recently I mentioned in my comment to an article regarding the Mueller's investigation that he has failed so far to produce any evidence, those answers that at least attempted to address my statement on the merits and not bash me as a "stupid crazy fucking Russian troll", insisted that an indictment is, indeed, evidence of a crime:

And, even though jurors are forbidden to draw negative inferences and consider as evidence of a crime a criminal defendant's (or suspect's) invocation of his 5th Amendment right to remain silent, and remaining silent:

that does not prevent either jurors convicting defendants, despite clear court instructions to the jury, for not testifying at trial (rewind it to 6:35), or members of the American public in comments pointing out (here, in opposition to my comment that Mueller's investigation produced no evidence), this "evidence":

And, remember what is considered evidence in court as per jury instructions?


We now have "evidence" in the trial-by-the-media, like this:

No names ("a witness cooperating with Mueller has told investigators", "according to the people familiar with the matter, who spoke on the condition of anonymity to discuss sensitive matters").

Here goes the 6th Amendment right to confront your accuser - you do not even know the accuser's name, but it is supposedly "evidence".

And let's see this "crown jewel" of an answer as to the "no evidence" statement:


Let's list what Nicholas Perez considers "evidence" in a criminal proceeding - compare with evidence as per jury instructions above:

• 187 criminal charges in active indictments, or
• in indictments "to which individuals pleaded guilty" (so, the case was not presented to the jury and was not proven beyond the reasonable doubt);
• 32 people and 3 businesses named in plea agreements and indictments;
• 6 guilty please from 5 defendants, including Gates, Flynn, Papandopoulos, Pinedo and van der Zwaan;
• 25 counts in charges "facing" (at that time) Manafort;
• Serving four weeks in prison and deportation of van der Zwaan after pleading guilty;
• what kind of charges indictments include;
• that there were 4 guilty pleas for making false statements; that
• 25 Russian nationals have been charged with crimes along with 3 Russian business entities;
• that 13 individuals "believed to be linked to Russian intelligence agencies" have been charged, including Kilimnik, a resident of Ukraine; that
• 4 individuals working directly for or acting as advisors to Trump's 2016 campaign have been indicted, and 3 have pleaded guilty

In other words - NO EVIDENCE, if you compare what was alleged as evidence with what is accepted in court as evidence, as per criminal jury instructions (above).

And, one of the most important points that Nicholas Perez has made, pointing out "evidence" that the Mueller's criminal investigation has supposedly unearthed is this:

Bought evidence - and, thus, impeachable as not reliable.

If you hear the juror in Paul Manafort's trial, her full statement to the press, you will find there that the juror did not believe the main witness against Paul Manafort specifically because he testified in exchange for a plea bargain.  As the juror indicated, she believed that such a witness would do anything to save himself, and is thus not believable.

That is the reason why pleas or agreements for leniency with prosecution are considered "Brady material" that must be disclosed to the defense, in order for the defense to use it in cross-examination and impeachment of such a witness, at trial.

Here is a checklist of North Carolina public defenders as to what needs to be addressed in cross-examination of a "snitch", a person who testifies against a criminal defendant in exchange for a benefit from the prosecution:

It is not by chance that criminal defendants are given confrontation rights by the 6th Amendment, and that bought witnesses - by any benefit or favor at all - are subject to impeachment by the defense.

By the way, one of the legal scholars commenting Mueller's actions in seeking to buy witnesses by "favorable" plea offers or withdrawing ("vacating") their charges commented that, had a criminal defense attorney tried to buy a witness with the help of ANY benefit offered to that witness in exchange for his testimony at all, the defense attorney would have been criminally charged with contempt of court, fraud upon the court and obstruction of justice.

Apparently, when the prosecutor engages in the same criminal conduct - buying a witness, tampering with a witness by offering him benefits for certain testimony in favor of the prosecution - it is glorified by the public and presented as "evidence".

What can I say.

Hatred and political expediency are powerful motives.

But, in this particular situation, the "necessity" for certain individuals, groups, business and groups of media outlets to flare hatred to one person, Donald Trump, further eroded, to the point of destruction, the constitutional right to a fair jury trial for ALL Americans - because, based on media's presentations that 

• Mueller's indictments ARE evidence, that 
• invocation of a right to remain silent under the 5th Amendment IS evidence;
• that a coerced or bought plea agreement IS evidence; that
• bought testimony IS evidence -

contaminate the jury pool of the country BEYOND REPAIR.