"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, December 15, 2018

The sham of Prosecutoricla Conduct Commission in New York, Part 8, one more "good violation" of the "bedrock principle" of separation of powers

Here is the 8th article of my article series about the sham of Prosecutorial Conduct Commission in New York that was - according to an insider - prearranged to be signed into law before the elections and then stalled "because of a lawsuit" after the elections and before coming into being.

In the last article, Part 7, I have covered the argument of the District Attorneys Association in their lawsuit that the law creating the Commission violates the "bedrock principle of democracy", the separation of powers.

While separation of powers - if it works - is, truly, the bedrock principle of democracy, I have pointed out that prosecutors are quite selective about New York government's violation of this "bedrock principle", picking and choosing which of such violations to condemn and which to support - because it aids those same prosecutors.

I have pointed out that the prosecutors gladly accepted a violation of separation of powers when:

  • The Governor de facto rescinded the law about creation of the Commission for Prosecutorial Conduct (while the law remained on the books and was not - until this day - rescinded or abolished by the Legislature, the only government body that has authority to do that); and
  • that Appellate Divisions (intermediate appellate courts) discharge what prosecutors pointed out as being an executive function of disciplining elected executive officer (prosecutors), including the power of removal - which prosecutors claim belongs only and exclusively to the executive branch of the government, the Governor (and on this, prosecutors are right, since ALL of over 180 licensed professions in New York are regulated by the executive branch, while removal of prosecutors may be, truly, done only by the chief if that branch, the Governor - in accordance with the State Constitution).  Why such a preference?  Because Appellate Divisions have an unwritten policy never to remove a prosecutor still an office - and never did, in all the history of attorney regulation.

There is yet another violation of the "bedrock principle" of separation of powers in favor of prosecutors that prosecutors thoroughly enjoy and never try to complain about or refuse to accept:  the so-called absolute prosecutorial immunity.

Let's look at who's who in how that prosecutorial immunity was given to prosecutors (who hold onto it with a death grip and invoke it whenever they are sued - for causing a wrongful conviction, for example, that has put an innocent person into prison for several decade, or on a death row).

1.  There is a U.S. Constitution, with its Article 6 Section 2 - the Supremacy Clause, making itself the Supreme Law of the Land.

2.  There is Article I of that same U.S. Constitution giving exclusive power to create, change and call back (enact, amend and rescind/abolish) laws exclusively to the U.S. Congress;

3.  There is Article III of that same U.S. Constitution giving to federal courts only the power to do what courts usually do - decide disputes between parties (by the way, prosecutors know limitations of judicial power very well, they pointed out the limitations of judicial power in their lawsuit).

This is from page 12 of prosecutors' lawsuit:

Consider:  "the separation of powers prohibits legislative or JUDICIAL "encroachment on the power of the executive branch", yada-yada-yada...  

The separation of powers, actually, prohibits ANY branch of the government to encroach upon the authority of the other branch - but yet, allows them to "check and balance" the other branches, remember?

Neither the principle of separation of powers, nor the "checks and balances" principle can be found in the text of the U.S. Constitution, it is just what the government "finds" in it - and "interpret" those found principles only and exclusively in its favor.

Collusion of the branches - instead of "checks and balances".

Recognition of the principle of "separation of powers" - only when it favors them.

Ignoring violations of the principle of "separation of powers" - also when such a violation favors them.

Now, see this:

"The function of judges is to determine controversies between litigants".

Oh, really?

So - when judges CREATE LAWS, and POLICIES favoring the government, the various changes to the Civil Rights Act that, taken together has made receiving a legal remedy for violation of a person's constitutional right (which is also a federal crime) practically impossible in the United States - that would be a separation of the "bedrock principle" of separation of powers?

Because judges went outside of their NARROW authority "to determine controversies between litigants" and very well encroach into the area of the Legislature, making law and creating policy for the entire country - like the U.S. Supreme Court does, 

hence the circuses over appointments of judges to that court and the lamentations that the court can "change the law" of the country and "undermine democracy" for decades because of appointment of ONE person to that court?

Do prosecutors come together and file any lawsuits challenging usurpation of power by the U.S. Supreme Court?

I know, I know.

But, let's look at point 4 of our little "who's who" in how prosecutorial immunity came into its illegal being.

4.  The U.S. Congress, basing its actions on Article 1 and the 14th Amendment of the U.S. Constitution, created a statute, the Civil Rights Act, 42 U.S.C. 1983, by which ANY person whose rights under federal law or the U.S. Constitution may sue ANY member of the government (including a judge and a prosecutor), seeking a legal remedy for violation of his rights.

And that is a very commendable law, a bedrock of democracy, because it implements several principles of democracy and fundamental fairness:

  • no-one is above the law, including government officials;
  • there should be a legal remedy for any legal injury, including and especially constitutional violations, violations of civil/human rights - because otherwise the country will inevitably, sooner or later, slide into chaos.

Now, what did our glorious U.S. Supreme Court do with the Civil Rights Act?

Well, of course, it CHANGED it - for which the exclusive right was only in the Legislature, the Congress.

What did the U.S. Supreme Court specifically do with the Civil Rights Act?

It has created exceptions for liability of nearly all members of the government for constitutional violations - violations of that same U.S. Constitution that they are sworn to uphold and defend, as a CONDITION of holding their positions in the first place.

And who was the first class of government officials to receive - unlawfully - this exception from the reach of the Civil Rights Act?

But, of course, the prosecutors - they only people in the United States who have the "discretion" (absolute power) to "choose" whether to bring or not to bring criminal charges for any crimes, including constitutional violations and corruption - against judges.

Absolute prosecutorial immunity was given - to the prosecutors by the court, in total violation of the "bedrock principle" of separation of powers, because, in order to that, the court amended the Civil Rights Act through interpretation, carving an exception into it - in 1976, 
even earlier than judges shamelessly gave the same gift of absolute immunity to themselves - while continuing to call themselves "honorable" as a job title, and while continuing to presume their own honor "as a matter of law", and requiring lawyers to presume their honor and embed trust in their honor into the public.  That self-gift judges gave themselves 2 years later, in 1978.

Think about it.

You are elected or appointed to a public office.

You take an oath to discharge your duties faithfully, as a condition that the office is given to you.

The moment the office is given to you, you use your power to give yourself a "right" to be free of liability for violation of that same oath that put you in office in the first place, and

You continue to claim that you are presumed to be honorable, and

Require, under the threat of punishment, that people depending upon you for their livelihood (lawyers who you give or from whom you take away permission to work in their profession, law licenses) - that lawyers dupe the public, the voters, and claim that you, despite the illegal gift to yourself allowing yourself to engage in misconduct or corruption without legal liability, are presumed-honorable.

Now, for a court to change a statute through interpretation - and especially to do that in order to give favors to powerful government officials as a bribe for those officials not to prosecute judges themselves - is as gross a violation of the "bedrock principle" of separation of powers as they come.

Do you see prosecutors filing lawsuits saying - your honors, what the hell did you do?

Why did you dishonor us so much with your bribe?

Why did you present us to the public as incompetent, corrupt and bought crooks who have to rely upon immunity given to us by one of our potential subjects of investigation in order to sleep peacefully at night and be able to work at all - because that was the explanation in how the immunity was given, that HONEST prosecutors would not be able to work properly, because they will be afraid (consider the mental frailty of the poor dears) of being sued for DISHONEST acts.

For that reason, the gift was given to them that they cannot be sued for DISHONEST acts, to allow them to work further - supposedly, HONESTLY.

So, did prosecutors - EVER - complained to courts about this crazy gift to them, 
  • violating the "bedrock principle" of separation of powers,
  • gutting the Civil Rights Act;
  • destroying the legal remedy GIVEN to people by the U.S. Constitution and by the U.S. Congress; and
  • giving prosecutors a carte-blanche to create as many wrongful convictions as they want?
Because the "condition" of immunity given to prosecutors by courts - attorney discipline - was given with the same "wink and nod" as when the law for New York Commission for Prosecutorial Conduct was enacted - just for the time necessary to dupe voters before elections and to put certain government officials back in office, and then stalled by unlawful agreement between "parties" (an agreement that was never announced to voters when the Commission was announced, with much trumpeting about New York's goodness and being the "first in the nation").

Prosecutors are NEVER removed from office in New York - out of office by Appellate Divisions.

In Pennsylvania, an elected-in-a-landslide State Attorney General Kathleen Kane WAS removed from office - first suspended, then tried, convicted, put in prison, disbarred - 

BECAUSE she dared to investigate and prosecute prosecutors and judges - one judge who she investigated had the audacity to actually preside over her disciplinary case and suspend her, and the court refused to vacate that suspension, deeming such behavior by their colleague proper.

So, I return to the question - do New York prosecutors want to waive the gift of absolute prosecutorial immunity that was given to them illegally and as a bribe by a potential class of subjects in their investigations and prosecutions (judges), in violation of that same bedrock principle of separation of powers that they so ardently (if partially) defend in their lawsuit?

Didn't think so.

Thursday, December 13, 2018

Not so funny: New York prosecutors argue violations of constitutional rights. The circus with prosecutors' "separation of powers" argument.

This is my 7th article in the series covering the (pre-arranged and pre-fixed) lawsuit by New York prosecutors that was part of an agreement to dupe New York voters into voting Governor Cuomo back into office and voting certain senators back into the New York State Legislature, a well-known "bait-and-switch" fraudsters' trick:

  • you give the person-to-be-tricked a bait (like signing into the law the existence of the Commission for Prosecutorial Conduct while not announcing that you have no plans whatsoever to actually put it into existence); 
  • you wait until voters vote for you based on this historical development, advertised as such ("First in the Nation" etc.); and then
  • after those whose re-election depended on this bait are re-elected, you stall that much-waited-for Commission, less than a month before it was supposed to start operating - in accordance with the law STILL ON THE BOOKS, explaining to the public that it is "because of the lawsuit".
This "bait-and-switch" plan has become known - only after it was fully put into fruition - because of the slip-of-the-tongue of an insider of this whole scheme, an exoneree Jeffrey Deskovic who has made his exoneration into business and the basis to build his career.  Of course, he is ALREADY exonerated. Those who wait to challenge prosecutorial misconduct, and wait to complain to the Commission about prosecutorial misconduct that has drummed up their wrongful convictions, can wait some more.

As to other articles in the series, 

In the prosecutors' lawsuit, the central issue was the supposed violation - in the law creating the Commission - of the constitutional principle of separation of powers, you know, the principle underlying the "checks and balances" premise, that the 3 branches are checking upon one another (instead of colluding with one another - which is what the reality is, as the case with the Commission showed once again).

Now, any criminal defense attorney has a risk of die laughing when reading prosecutors' lawsuit.

Because that would be, I bet, the very first time that criminal defense attorney would see a prosecutor argue FOR constitutional rights.

The usual setting for a prosecutor to address constitutional rights is to laugh them into non-existence, in and out of court, which is what prosecutors do consistently and quite successfully - hence, the number of wrongful convictions and the number of people in prisons in the U.S.

Tell a prosecutor in court about constitutional rights of the accused - and you will see the reaction.

They will laugh, most likely.

Because anybody raising constitutional issues is a "bleeding heart liberal", or want to "get out of jail free".  That's it.  That's the range of "constitutional arguments" of an average prosecutor in New York (who, most likely, will then become a judge - the majority of New York, and American, judges are former prosecutors, with the respective mentality as to constitutional rights, and there is NO former criminal defense attorneys on SCOTUS, but several prosecutors).

So, when prosecutors start arguing constitutional rights, it sounds unusual, to say the least.

And, when they hire somebody to argue it who have no clue about civil rights litigation and constitutional rights - and who has to present them in such a way as not to disturb the unconstitutional schemes that benefit their clients - that becomes... well, not even funny.

I already wrote how lawyers for New York prosecutors in this lawsuit exposed a flaw in the law regarding the creation of the Commission for Prosecutorial Conduct that destroyed prosecutorial immunity for the most powerful prosecutors in the State of New York - the Attorney General and Assistant Attorneys General.

The argument regarding the supposed violation of separation of powers is much, much more entertaining.

Because, by trying to prove one thing, attorneys for New York prosecutors have proven another -

  • that the EXISTING attorney regulation is completely unconstitutional, under the state and federal constitution; and
  • that THAT unconstitutionality is OK for prosecutors - because it works in their favor, which says a lot about prosecutors' integrity.

First of all, the entire way how the Commission was stalled this month, was a violation of the principle of separation of powers.

The Governor de facto rescinded a statute on the books by refusing to do his duty and to populate the Commission, refused to make appointments to the Commission.  

The Governor has no right to do that, since he is the Chief Executive Officer of the state, and absolutely MUST execute the law on the books - and make those appointments to the Commission.

And, the Governor absolutely DOES NOT have the power to rescind a law on the books, that is only and exclusively the power of the Legislature.

And, the Legislature DID NOT rescind or amend that law yet, so that law is still operational and must be obeyed.

But - that was pre-arranged, and the Governor did it just as well, because of prosecutors' lawsuit - arguing, as their main point, that creation of the Commission violates the "fundamental constitutional principle" of separation of powers.

If Cuomo violates that same principle - in favor of prosecutors - that's good, even though it is a clear separation of power.

So, prosecutors argue to the court in their lawsuit that separation of powers is a fundamental constitutional principle.


"The New York State Constitution clearly sets forth the distinct roles and responsibilities of each branch of state government.  It is a bedrock principle of our democracy that no statute, no matter how noble its ostensible purpose, may violate that constitutional structure".

Read that?

In the very same lawsuit the prosecutors acknowledge constitutionality of the present scheme of attorney regulation.

Yet, in the current scheme of attorney regulation the court carries out the function of ALL THREE branches of the government - 

  • it legislates the rules for attorneys;
  • it appoints investigators and prosecutors and considers them "the arm of the court" (making court a party and the adjudicator of all attorney disciplinary proceedings); and
  • it adjudicates such proceedings.
Prosecutors have no problem with such a scheme - because, over the last 50 years, only two prosecutors still in office were disciplined (both for criticism of the regulator, judges), and neither one was removed from office.

That unwritten policy was exactly why the public got enraged and wanted a separate body making prosecutors accountable.

That body - prosecutors say - cannot be put into being because it violates the "bedrock principle of our democracy", violation of the separation of power.

The present system of attorney regulation that violates that principle - can do just fine.

Prosecutors' attorneys in this lawsuit actually provided much more proof in their arguments - inadvertently so - that the current system of attorney regulation in the State of New York is unconstitutional.

Let's look how they managed to accomplish that noble feat.


Let's single out the main points of the argument.

  1. District Attorneys are elected executive officers.
  2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
  3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
    1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
    2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".
After reading the draft of this pleading, prosecutors should have, probably, fired their attorneys - because they put their clients' collective feet into their collective mouths very-very far.

But, that did not happen.  And, the pleading was filed - and even portrayed to the public (as was pre-arranged, as I was later told, "gamed out") as THE lawsuit because of which both the Governor and the Legislature immediately stalled (without officially rescinding or amending) a statute on the books which they just voted in and signed into law.

Do you know of any other occasions when any other law was stalled by all three branches of the government because a lawsuit challenging its constitutionality was filed - while no judicial decision on it has been made?

I don't, and I was handling civil rights litigation, filing constitutional challenges to various New York statutes for several years, and now cover such filings in my blog for 4 years so far.

Now, let's go back to the argument of violation of "separation of powers principle".

  1. District Attorneys are elected executive officers.
  2. Under the New York State Constitution, only the State Governor has the exclusive authority to remove a prosecutor.
  3. The law that created the Commission for Prosecutorial Conduct violates the "bedrock principle" of separation of powers in two ways:
    1. "it impermissibly vests executive power (namely, the oversight of executive officers) in a hybrid disciplinary body, the majority of whose members are appointed by the Legislature", and
    2. "it unlawfully grants the Court of Appeals the authority to remove prosecutors, preventing them from exercising their executive authority".
The question is - poor dears, but what do we have NOW that you embrace and call constitutional?

You claim that the Court of Appeals may not remove a prosecutor from office because removal of a prosecutor - by the State Constitution - is an EXECUTIVE FUNCTION, and thus, the exclusive power of the Governor.

But - you do not contest the fact that right now Appellate Divisions have that same power to remove prosecutors by suspension or disbarment?

And, you are even arguing, on behalf of Appellate Divisions (without standing, since Appellate Divisions are not suing - and for a DA's Association to argue on behalf of Appellate Divisions is a very interesting proposition, with interesting implications), that the Commission unlawfully encroaches upon the authority of the Appellate Division to do the very same thing that you contest in that very lawsuit - a judicial removal of an executive officer that only the Chief Executive officer has the power of, by the State Constitution?

Let's go back.

  1. a prosecutor is an elected executive officer - argue prosecutors to the court;
  2. removing a prosecutor is an exclusive executive function;
  3. that executive function, removing of a prosecutor, can be done only and exclusively by the State Chief Executive Officer, the Governor - that is a requirement of the New York State Constitution;
  4. The Commission's composition is unconstitutional - because most of its members are to be appointed not by the Executive, but by the Legislative branch, a violation of the "bedrock principle" of separation of powers;
  5. It is unconstitutional, under the same principle of separation of powers, according to the prosecutors, to allow the Court of Appeals to remove prosecutors - because removal of prosecutors is an executive, not judicial power, BUT
  6. judicial removal of prosecutors by the Appellate Division is proper; and
  7. the Court of Appeals should not intrude and diminish the exclusive jurisdiction of the Appellate Division to remove prosecutors [discipline attorneys]; while
  8. while the "exclusive jurisdiction" of the Appellate Division has sprung from delegation by that "exclusively executive power" by the Legislature to the court (Appellate Division) - which was in violation of the same constitutional principles of separation of powers, because, see above, only the Governor has the power to remove prosecutors, by the State Constitution, as a "bedrock principle of our democracy".

Remember when I said that the idiots chosen by the DA's Association to represent the Association in the pre-fixed lawsuit did not advertise any knowledge in the three main areas of law, expertise in which was necessary to plead this lawsuit:

  • constitutional law;
  • occupational licensing;
  • attorney regulation?
It tells, doesn't it?

This argument is COMPLETELY frivolous, because arguments here are MUTUALLY EXCLUSIVE.

If removal of a prosecutor is an exclusive executive function - by the State Constitution, no less - and can be done only by the State Governor, why the hell do you:

  • attack the Legislature for unconstitutionally delegating executive power to one court, but 
  • defend delegation of that same executive power by that same Legislature to another court?

And, didn't your idiot attorneys just prove that the Appellate Division exercises - unconstitutionally - EXECUTIVE functions when they regulate attorneys in general (which is confirmed by the fact that all other occupational licenses are issued and removed in New York by the executive branch of the government)?

But, if the Appellate Division exercises executive functions - isn't it unconstitutional, as your idiot attorneys argue in that same lawsuit?  As judges engaged in non-judicial functions, in violation of the State Constitution?

And, if that is unconstitutional, why the hell do you defend that on behalf of those same Appellate Divisions?

Or - did you just confirm what people of the State of New York guessed long time ago, and that's why they demanded a separate body to discipline prosecutors, from other attorneys - that while prosecutors tolerate that Appellate Divisions violate the "bedrock" constitutional principle of separation of powers by disciplining prosecutors (a constitutional exclusive executive function), they tolerate it only because there is an unwritten policy by which Appellate Divisions DO NOT REMOVE prosecutors from office (the exclusive constitutional function of the State Governor) by suspension or disbarment - no matter what they do?

Oh, but while defending the "exclusive jurisdiction" of the Appellate Division to discipline and remove prosecutors - while at the same time arguing that it is an executive function belonging exclusively to the State Governor, by the State Constitution, and while attacking at the same time the decision of the Legislature to give that removal power to another court, the Court of Appeals, on separation of powers argument - didn't you also argue that the Court of Appeals should not engage in removal of prosecutors because it is unconstitutional FOR JUDGES on yet another principle - 

the State Constitution forbids judges to carry out non-judicial functions?


So, reviewing complaints against prosecutors and removing prosecutors from office is an unconstitutional non-judicial function for one court, the Court of Appeals - and, then, must be the same way non-judicial unconstitutional function for another court, the Appellate Division.

The cost of hiring idiots to represent you in court, right?

So, the WHOLE ATTORNEY REGULATION scheme, where Appellate Divisions remove attorney licenses (including, potentially, may remove prosecutors from office by revoking their attorney licenses) are NOT JUDICIAL PROCEEDINGS, but are ADMINISTRATIVE, EXECUTIVE proceedings.

Just a logical extension of the same argument.

But then, wait - it then turns out that attorneys (including prosecutors) do not have ANY judicial review of ADMINISTRATIVE decisions to remove their licenses (as other licensed professionals in New York do - by Article 78 or by a civil rights lawsuit in federal court)?

  • Because an Article 78 against the Appellate Division is not allowed by New York State law.
  • Because judiciary is immune from lawsuit in federal court, and
  • because, if disciplinary proceedings revoking occupational licenses of attorneys (as compared to doctors or taxi-drivers) are considered "judicial", then the judicially invented "Rooker-Feldman doctrine" bars such lawsuits in federal court.
So - did prosecutors JUST tell the public that Appellate Divisions, FOR DECADES, were acting in an unconstitutional fashion, engaging in "non-judicial functions", which are prohibited by State Constitution?

But - prosecutors did an even better trick than that.

They said that Appellate Divisions engaging in the same conduct that they called unconstitutional for the Court of Appeals - non-judicial functions prohibited by the State Constitution - claimed that Appellate Divisions are ok in doing that, because another section of the State Constitution supposedly allowed Appellate Divisions to engage in non-judicial functions while not allowing to do the same to the Court of Appeals.


This argument - read in conjunction with the argument regarding the unconstitutional non-judicial functions of the Court of Appeals in investigating and removing prosecutors - reads like that:

  • it is unconstitutional as a violation of our bedrock principle of democracy, separation of power, folks, BUT,
  • if the Legislature allowed violation of the State Constitution, it is ok.
But then - if prosecutors are happy to allow the Legislature to violate the State Constitution in one way, why are they not happy that the Legislature is violating the separation of powers and the State Constitution in any other way?

But, we are not finished with idiotic and mutually exclusive arguments in prosecutors' lawsuit yet.

Here is yet another one.

The Commission on Prosecutorial Conduct and the Court of Appeals are not enumerated Civil Departments - as the State Constitution requires for discharge of executive functions - and thus mau not remove executive officers, prosecutors, from power

The Commission is unconstitutional because it is not included into the enumerated Civil Department Structure of the executive branch.

While Appellate Divisions - courts that do the exact same thing that the Commission is supposed to be doing, create rules of discipline for prosecutors, file complaints, investigate and discipline prosecutors - and while also not being included into the same enumerated Civil Department Structure - are doing just fine, according to prosecutors' lawsuit, and can continue to engage in the same "constitutional violation" that prosecutors are unhappy about with the Commission for Prosecutorial Conduct, with prosecutors' blessings.

While these idiotic arguments prove to the public the importance of carefully choosing your attorney and double-checking his levels of competence in certain areas of law not to look like complete idiots when lawsuits like that are filed, the lawsuit WAS filed.

And, folks - is it because of THESE super-frivolous and absolutely stupid arguments that judge David A. Weinstein assigned to the case (a former Governor's attorney and a former Assistant Attorney General) went outside of his role of a neutral arbiter and urged parties to "stipulate"?

And, it is because of THESE super-frivolous and absolutely stupid arguments that the newly re-elected New York State Governor Andrew Cuomo and the New York State newly-elected Legislature have stalled a statute on the books, entirely in violation of their duties?

They are laughing at you, folks.

They do not even try to make an effort in making their argument borderline plausible and legally valid.

Simply because this lawsuit (without telling the public) was fixed before it was filed, simply because it was pre-arranged that the Commission for Prosecutorial Conduct will not see the light of day, but was just an instrument to dupe voters into electing the same corrupt and incompetent idiots into office - the DA's Association has hired two idiots having no clue in the areas of law that they are required to know to handle such a lawsuit - to put together a hodgepodge of wording interspersed with citations to the State Constitution and court decisions (case law), but being completely, glaringly contradictory and mutually exclusive, because what was said there, did not really matter - the result was prearranged and gamed out.


Consider this: a victim of a wrongful conviction, a 3rd year law student of Pace Law School considers that "if it was illegal, it would not have made the news as being signed with chapter amendments agreed to.  Me and my colleagues GAMING THINGS OUT, IN CONSULTATION WITH PEOPLE ON THE INSIDE, does not constitute anything improper or illegal".

That's one way to put one's foot even further into one's mouth.

So, following this principle - if the news publicizes something that the government has done, that MUST be legal?

And, if somebody like Deskovic, drumming up his business of lecturing around the country to crocodile pits on the advantages of vegetarian diet, in order to bring donations to his non-profit and advance his future career as a lawyer, "GAMED OUT" the stillborn Commission, while ardently arguing to me at the time of that Commission signed into law that it was not stillborn - in order to dupe people not "on the inside" into voting the idiots who made the agreement into office again - that does not somehow constitute "doing something illegal or improper".

With such moral and ethical flexibility - Deskovic will be a good fit into the New York legal profession.

But, with his belief - near the end of his training at a prestigious law school - that the government publicizing something is proof of its legality - I would put the quality of teaching at his law school in question.

After all, all convictions that prove to be wrongful are fiercely publicized by the government as rightful - including, I am sure, how Deskovic's own conviction for rape and murder, from which he was exonerated after having spent 16 years in prison, was publicized.

So, ladies and gentlemen, there are good violations of the "bedrock doctrine" of separation of powers and bad ones.

Prosecutors want the bad ones gone, but the good ones to stay - in fact, they defend the good ones without even having standing to do that (on behalf of the Appellate Division - the exclusive counsel of the Appellate Division, by Public Officers Law Section 17, is the State Attorney General).

And this constitutional gerrymandering - I want a constitutional violation of a bedrock constitutional principle of our democracy if it benefits me - is the actual essence of government ethics - of prosecutors, the Governor, the Legislature, and the judicial branch - in the State of New York.

At least they honestly presented it to the public.

Wednesday, December 12, 2018

New York prosecutors' lawsuit's main point - DO NOT protect whistleblowers of prosecutorial misconduct. On the right of the Governor and the Legislature to stall the law already on the books

This is part 6 of my series of articles about the lawsuit of prosecutors, and relating lawsuits and actions of the New York State Government, to prevent accountability of those who cause wrongful convictions in New York, where New York holds the 2nd shameful place in the number of wrongful convictions, after Texas.

The lawsuit is here.

Part I can be read here.

Part II here.

Part III here.

Part IV here.

Part V here.

Protection of whistleblowers in New York State is non-existent, even if they work in the court system, see description of how that works at the end of Part 5.

A prosecutor is a powerful public official who has an opportunity to retaliate against a whistleblower by discrediting him with a criminal prosecution - and conviction - and putting him in prison, for a very long time.

Of course, that would be witness tampering, a federal crime, but would a prosecutor care about that - because will a federal prosecutor prosecute a state prosecutor? Not in a thousand years.

So, the law regarding the Commission for Prosecutorial Conduct DOES have some really good provisions, and one of them is - authority of the Commission to give transactional (full) immunity to whistleblowers of prosecutorial misconduct.

Here is how the government itself explains transactional immunity:

Such an immunity blocks prosecution for any criminal offenses that a prosecutor can possibly conjure up out of a certain set of facts.

That is what bothered prosecutors and what they wanted stopped - and what they had stopped at this time, illegally.

You know how many times the words "transactional immunity", or "immunity" - are mentioned in prosecutors' lawsuit?

SEVEN (7) times.

Meaning, that immunity really, really bothered prosecutors and they really, really wanted to get rid of it.  In which they succeeded so far, contrary to the law.

Here is how these words were mentioned in the prosecutors' lawsuit to nix the Commission for Prosecutorial Conduct:

Page 6

If the CPC "deems it necessary and proper", it can confer broad transactional immunity from prosecution upon witnesses who appear before it.  Id. at paragraph 499-d(2).

Pages 9-10

"Article 15-A also permits the CPC to call and grant transactional immunity to any witness it choses (so long as it "deems it necessary and proper" to do so (Judiciary Law paragraph 499-d(2)), even if such immunity could thwart ongoing or future criminal prosecution)."

Page 10-11

"Article 15-A violates that clear intent by permitting the CPC to: … (2) grant immunity to those who prosecutors might otherwise prosecute".

Page 12

"And because Article 15-A provides no appellate review of the CPC's discretion to obtain evidence, incorporate evidence into the public record, grant immunity, or conduct investigations that may interfere with active prosecutions, the statute will inevitable cause a flood of collateral litigation under CPLR Article 78 by prosecutors alleging unlawful, arbitrary, and/or capricious conduct by the CPC (citations omitted)".

Page 16

"The non-judicial functions unconstitutionally assigned to judges appointed to the CPC include: … (3) conferring immunity upon witnesses involved in CPC investigations..."

Pages 24-25

"Prosecutors are painfully aware that every decision they now make will be scrutinized by a hybrid political commission operating without constitutional constraints, and that this commission may sanction them, publicize sensitive material pertaining to their cases, and grant immunity to witnesses with virtually no due process."

Pages 25-26

"Prayer for Relief. WHERETOFORE, because paragraphs 1 to 79 establish that no provision of Article 15-A of the Judiciary Law remains by which the CPC may be lawfully constituted and begin operation, and because Plaintiffs would be irreparably harmed if the CPC were to begin accepting complaints, initiating investigations, or conducting hearings, Plaintiffs respectfully request that a judgment and order be issued:

D.  Preliminarily and permanently enjoining the CPC from conducting any hearings into the qualifications and conduct of prosecutors, including a prohibition on ordering any records or papers from prosecutors, or ordering any appearance by witnesses or prosecutors before the CPC, or granting immunity to any person..."

That means - it is very, very important for New York prosecutors to block any government entity from being able to give protection to whistleblowers against them - in other words, they asked the court to prevent doing exactly what they are doing - obtaining evidence against criminal defendants based on immunize testimony (while often not disclosing the fact of giving immunity to witnesses to the defense, despite having a duty to do that - which is in itself prosecutorial misconduct).


Prosecutors want a "right" to be able to go at witnesses regarding their own misconduct with criminal charges, they complain that the Commission, by granting full transactional immunity to such witnesses, prevent prosecutors from retaliating against those who testify regarding prosecutors' misconduct.

And - guess what?

The Legislature and the Governor stipulated to stall the Commission and not to grant whistleblowers of prosecutorial misconduct protection already given to them under the law.

Of course, it is not within authority of either the Legislature, or the Governor to "stipulate" suspension of certain laws, already on the books, through either

  • refusing to fill vacancies on the Commission (the Governor); or
  • suspending indefinitely the law (the Legislature).
The Legislature has only THREE options:

  • To enact (introduce, start, put into being);
  • amend (change);
  • rescind (take back, abolish)
a statute/law.

There is no option to "stipulate temporary suspension" of a statute already on the books.

The law regarding the Commission for Prosecutorial Conduct:

  • has been enacted;
  • has not been amended;
  • has not been rescinded -
and thus, is in full force, and both the Legislature and the Governor MUST OBEY IT.

So, those who were waiting for the Commission to come into force, have a right to sue the damned suckers for dereliction of their duties and to compel them to do their duties, as prescribed under the New York State statutory law.