"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.

Tuesday, March 26, 2019

On the players who oppose and who support the Commission for Prosecutorial Conduct

New York Governor Cuomo has until the end of day on Wednesday, March 27, 2019, to sign into law the new amendments for the Commission for Prosecutorial Conduct.

I consider the new amendments a very bad idea and am vigorously opposing it - since it is going to be populated with the same players who routinely cause wrongful convictions, it blocks the public from participating in the work of the Commission (all members of the Commission are to be licensed attorneys or ABA-approved law professors who will never deign to criticize or prosecute "their own" or get to the true causes of wrongful convictions - prosecutorial and judicial immunity for malicious and corrupt conduct, lack of transparency in criminal cases and lack of equal-with-civil cases discovery rights in criminal cases).

The DA Association, whose lawsuit has triggered the pre-agreed-upon (according to insider Jeffrey Deskovic, 

and without telling the public before Cuomo's reelection about that pre-agreement) shelving of the initial bill for the Commission - declared as a "revolutionary", "first-in-the-country" legislation to deal with wrongful convictions, ask Cuomo to veto the legislation as still unconstitutional.

Albany DA Soares, presuming guilt of all criminal defendants, claimed that;

“That investigation may include hearings attended by the defendant at which the prosecutor, victims, witnesses, and police officers may be compelled to testify about sensitive aspects of the defendant’s ongoing case,” Soares wrote. “These consequences will chill lawful prosecutorial conduct, impair prosecutorial discretion, and interfere with the operation of District Attorneys’ offices".  

As I said before, Soares should be removed from office for this phrase alone - since he PRESUMES GUILT of the defendant by presuming that complaining witnesses in criminal cases are "victims" - before the conviction by a jury.

Unfortunately, the amendments to the bill ARE, indeed, very, very bad - and it does not save the bill that 
  • it has on its banner a declared purpose of supposedly "fighting wrongful convictions" (the way it was passed it has no potential of doing that), nor that 
  • a famous New York exoneree, the 3rd year Pace Law School student Jeffrey Deskovic has called upon the public to support the amendments, while, after initial superfluous engagement in answering criticism of the amendments, refusing to debate crucial flaws of the amendments as "minor" and not worthy of his attention at this time.

Deskovic has his own - irreconcilable - conflicts of interest that he does not discuss when calling upon blanket public support - from the same public who he considers good enough to give support (and money) to his endeavors, but not good enough to populate PUBLIC Commissions to resolve what Deskovic's future colleauges, attorneys, have botched up - wrongful convictions.  For that public office, Deskovic said to me, there must be "standards" - and none less than the country's aristocracy, 
  • licensed attorneys and 
  • law professors - and law professors only from law schools accredited by the Illinois corporation (ABA) sued for discrimination against law schools in order to block the poor from getting legal education
may satisfy those rigorous "standards".

Once again, Deskovic claimed to me yesterday that only licensed attorneys, and only ABA-approved law professors may take public office to look at misconduct of licensed attorneys (prosecutors, defense attorneys and judges) who are causing wrongful convictions - because only they satisfy the necessary (according to Deskovic) "standards".  

An interesting position, isn't it?  Or, rather, an early case of professional deformation and a down-his-nose look on his own supporters, the "ordinary people".

While advocating this position, Deskovic does not discuss his disqualifying conflicts of interest for this particular advocacy.

  • has spent 16 years in prison for the crime he did not commit, who 
  • received a large settlement from New York taxpayers for that (not from the actual perpetrators), who
  • is now getting paid for lecturing about his case to those who routinely cause wrongful convictions in New York - judges, prosecutors and the police, who
  • awaits to get a license from the New York judiciary, and thus must abstain from criticizing the judiciary - even if they are causing wrongful convictions (as Jeffrey Deskovic must know they are).

How good a lawyer and legal analyst he is, or is going to become may be revealed from the news of his recent lawsuit against 2 TV producers.

Deskovic was so eager for a TV series about himself and his projects, and for a promise of more money, that he handed over to 2 people $1,020,000 before signing a contract with them - which they took and, according to his pending lawsuit, used on their own "personal expenses".

Here is how the arrangement to hand over $1,020,000 without a contract transpired:

"In the spring of 2015, Deskovic answered an ad on Craigslist “seeking stories of personal interest for a show designed to … help individuals and entities who have been wronged,” court papers say.
After meeting the two TV execs behind The Security Brief TV, a company that also produces a justice-themed podcast that claims to have more than 250,000 weekly listeners, Deskovic told The Post that he was promised a percentage of the company, a co-branding with his non-profit The Jeffrey Deskovic Foundation for Justice, and a producer credit.
“There were ten ways to Sunday that we were going to make money on this venture which was going to be like a talk show,” Deskovic told The Post. “That’s not what happened.”
After handing over $1,020,000, Deskovic anxiously waited for a contract laying out his agreement with Viollis and Murphy. Four years later it has yet to arrive, court papers say."

How hungry for fame and more money one should be to 

  1. answer an ad on Craigslist for a million-dollar project?
  2. to agree to finance a TV show - big time - in order to bring more fame to himself and his "non-profit" corporation?
  3. to hand over a million and twenty thousand dollars to two strangers for mere promises - without a written contract?

We are talking about a future lawyer here, graduating now from an elite law school, who has spoken to me about "standards" - that only licensed attorneys and ABA-accredited law professors are good enough to be appointed to the public office of resolving the mess created by … surprise! - licensed attorneys (prosecutors, defense attorneys and judges).
About a future lawyer who is making a living by giving lectures to lawyers, prosecutors, judges and police officers.  For licensing - mandatory continued legal education (CLE) - credit.
Which tells a lot about the quality, and necessity, of CLE.
Imagine how stupid Deskovic's future clients must be to hire him!
To hire a lawyer that openly admits, in writing to the court, in a lawsuit, to handing over $1,020,000 in return for PROMISES of more money and more fame, and a portion in the business, and no written contract?
A law student whose future livelihood, his licensing and continued CLE lecturing (CLE courses, to be acknowledged for mandatory licensing credits, must be certified by the judiciary) and ability to practice law, heavily depends on whether or not he refrains from criticizing his future regulator, the judiciary.
How can a person be perceived as a bona fide "advocate" against wrongful convictions when he
  • has this many unreconcilable conflicts of interest,
  • is this hungry for fame and money no matter how they come by, and who
  • runs from public debates of what may be wrong in the legislation he is so ardently trying to push through, after a self-aggrandizing campaign, with multiple pictures of himself at the New York Senate, or himself lecturing to police or judges, or himself accepting various "awards" - only because a DNA test showed that he was not the perpetrator of the crime he was convicted for, only because he was released, sued, got a settlement from the County taxpayers and used the money for his education and for promoting his BUSINESS?

Players from BOTH sides of this bill are bad.

Moreover, they are not even players from opposite sides.

Both Deskovic and Soares belong to the same clan, the same aristocratic class - the American legal profession:

that CAUSES wrongful conviction, and fights - Soares openly, and Deskovic in a round-about way, by blocking members of the public from populating the Commission and getting to the bottom of real causes of wrongful convictions and real people that actually caused them.

There will be no end to wrongful convictions in this country, and in the State of New York if people will continue to allow the self-proclaimed aristocracy, the American legal profession, to dictate who is to take public office to look at their own messes.
Only people with no ties to the legal profession can bring an end to the mess.

I support free access of citizens to grand juries.

I support abolition of prosecutors' control and legal advice to grand juries. 

Grand juries populated by "simply people", independent, not controlled in any way by the legal profession - are the answer to the wrongful conviction crisis.

  • prosecutors, in the presence of immunity of judges for civil lawsuits, are the only people at this time to be able to investigate and prosecute judges (yes, I know, it ended really well for Pennsylvania AG Kathleen Kane, who was suspended, prosecuted and convicted on a fabricated felony case, incarcerated and disbarred because she investigated judges, and it resulted in public discipline for Soares himself for criticism of a judge) by bringing criminal charges against them, including with the help of grand juries which prosecutors now are legal advisers of;
  • judges control prosecutors' livelihood and behavior by:
    • having control of their law licenses - worked well in Kathleen Kane's case;
    • bribing prosecutors with 
      • absolute immunity (through a court precedent, not statutory law) for malicious and corrupt acts while prosecuting a case, and
      • with an unspoken, but universal, across-the-country, policy of not using attorney discipline against prosecutors (if they do not criticize or investigate judges, of course, then all bets are off).
Do you think, in your right mind, that prosecutors will bite the hand that feeds them?

That they will prosecute judges for the crimes of violating people constitutional rights (it is a federal crime, 18 U.S.C. 242)?

It is a very cozy arrangement, and, unless and until it is broken, until people have DIRECT access to grand juries to file complaints with grand juries directly and to directly trigger grand jury investigations of prosecutors and judges (and, often, defense attorneys, especially public defenders and assigned counsel, those groups of people who are now to populate the Commission on Prosecutorial Conduct to BLOCK investigations of wrongful convictions rather than fight wrongful convictions) - and roles of these licensed attorneys in wrongful convictions, the number of wrongful convictions will remain growing.

Regardless of whether Cuomo will or will not sign the new amendments for the Commission for Prosecutorial Conduct.

Whether people are going to support abolition of judicially created prosecutorial and judicial immunity, the cause of wrongful convictions,

whether the people are going to support changes in laws regarding the grand jury, removing control over grand juries by the American legal profession - remains to be seen.

But, do not complain if you do not support actual measures that can actually help eliminate or reduce wrongful convictions, but support fake idols like Deskovic and his pet self-promoting projects.

Those projects were never designed to help people in the first place.

Why Albany County (New York) District Attorney P. David Soares should be removed from office, immediately

One's innermost, most important views are often revealed the best in a critical situation threatening the person's well-being.

Albany DA Soares' point to oppose the new amendments (they are bad, and I oppose them on my own grounds, which I published yesterday) for creation of a Commission for Prosecutorial Conduct is, among others (his letter was not published in full, just mentioned) this:

“That investigation may include hearings attended by the defendant at which the prosecutor, victims, witnesses, and police officers may be compelled to testify about sensitive aspects of the defendant’s ongoing case,” Soares wrote. “These consequences will chill lawful prosecutorial conduct, impair prosecutorial discretion, and interfere with the operation of District Attorneys’ offices.”

So, DA Soares PRESUMES GUILT of the defendant by presuming that complaining witnesses in criminal cases are "victims" - before the conviction by a jury.

So much for the Albany defendants' constitutional, due process, right for an impartial prosecutor.

And, so much for the defendant's right to equal protection of law - with, at the very least, a defendant in a civil case who is entitled, under New York law, to a fullest discovery of all issues, even if the civil case is based on allegations of defendant's criminal behavior, as in, let's say - assault or battery.

Then the defendant has a right to:

  • depose his accuser (not a victim yet, before the final decision of the court) before trial;
  • have the accuser answer, under oath, interrogatories, questions of defendants about the case;
  • have the accuser answer, under oath, Notices to admit, about crucial points of the case;
  • disclose crucial documentary evidence about the case - where discovery laws are "liberally construed" in favor of discovery.
All of that - with much lower stakes than in a criminal case where the worst that the criminal defendant may expect is not the loss of property (as in a civil case), but the loss of liberty.

It is not DA Soares' "fault" - other than aggressive lobbying by prosecutors against the reform of discovery that would at least equalize discovery in civil and criminal cases - that such a law is already on the books.

But, IT IS prosecutor Soares' fault to call complaining witnesses in all criminal cases "victims", ahead of time, before the trial, before the verdict - thus, presuming guild of criminal defendants.

And, for this, people need to demand that Soares must step down as infit for the office of the prosecutor.

Monday, March 25, 2019

Why I think that it is a VERY BAD idea to support amendments to the bill for the Commission on prosecutorial conduct in New York

If you remember, back in the summer of 2018 New York has passed, with much fanfare, the "first in the country" bill on creation of a Commission for Prosecutorial Conduct - to supposedly fight wrongful convictions which New York is a runner-up for in the country.

Of course, the whole idea of creating such a Commission posed a question - is that an admission, then, that the system of attorney discipline in the State of New York would not prosecute rogue prosecutors and that attorney discipline in the state is politically selective and politically motivated?

After the creation of the Commission - in January of 2019 - was created in the summer of 2018 by a legislative act, the Governor who has signed that bill into law has been re-elected.

After he has been re-elected, it was revealed to the public that the Commission, the way it was signed into law, was never meant to be, and the Governor did not sign appointments to it come January 2019.

Instead, in the fall of 2018 the state prosecutor's association - as was pre-agreed by players in this "process" of "creating" this Commission - filed a lawsuit challenging constitutionality of the initial bill.

I wrote about that lawsuit extensively here:

And, here are my articles dedicated to the prosecutors' lawsuit challenging the initial bill creating the Commission for Prosecutorial Conduct in New York - and to events and individuals surrounding that bill.

Part I can be read here.  Prosecutors' challenge to the New York State Commission for prosecutorial conduct: shooting themselves, and the attorney regulation, in the foot - in more ways than one. Part I.

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

Part III - here.  Voters and the wrongfully convicted in the State of New York, you have been duped - prosecutors' lawsuit challenging the New York State Commission for Prosecutorial Conduct was fixed before it was filed, the Commission was never planned to start its work on January 1, 2019, and many people knew it

Part IV - here.  Prosecutors' pre-fixed lawsuit challenging constitutionality of the New York State Commission for Prosecutorial Conduct, Part IV. The Legislature and the Governor inadvertently nixed prosecutorial immunity for the Attorney General and his Assistants and to special counsel assigned to prosecute criminal cases.

Part V - here.  New Yorkers, if you don't like it, you can all go to Moscow - or can you? New York eases the creation of wrongful convictions while blocking the means to prevent them and make those who cause them accountable

Part VI - here.  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

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

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

Part IX is here.The New York prosecutor's lawsuit - a selective approach to infringments upon prosecutorial discretion. 

Now, the amendments to the bill have passed both chambers of the New York legislature and went to the Governor for signature.

And, sadly, now that the bill - a very bad bill, as I will show further - has hit Cuomo's desk, Jeffrey Deskovic, a 3rd-year Pace Law School student, a soon-to-be lawyer who has been exonerated and paid a large settlement after serving 16 years in prison for rape and murder that he did not commit, and is currently trying to build his future career as a lawyer by capitalizing on his exoneration from a wrongful conviction, while giving CLE lectures to judges, prosecutors and the police - those same people who drum up wrongful convictions, rubbing shoulders with top state public officials and running various shows - has recently posted an appeal to his supporters asking them to support amendments to the Commission for prosecutorial conduct.

The amendments have already passed the New York State Legislature, both the Senate and the Assembly,

and there is no way - not after the amendments gave Cuomo and his friend-in-crime Chief Judge DiFiore a supermajority of appointees on the Commission - that Cuomo will not sign those amendments, so it is just a matter of time, and I do not even understand why Deskovic asked his supporters to call the Governor's office and urge him to sign it.  He will anyway.

But, since Deskovic did issue such a call to his supporters to support these amendments, I actually read them - and am calling upon people to call the Governor and urge him NOT to sign the amendments, at least as a matter of principle - since we know that Cuomo will definitely sign the bill, as an assertion of power and one more act of self-aggrandizing that Cuomo loves so much.

They are very, very, very bad.

Here are several points that I have made to Jeffrey Deskovic - and he has actually answered them, so I will be posting my points, his answers and my responses to those answers, as his answers provide interesting revelations about how and for what real, not declarative, goals, were the amendments passed and the Commission put into being.

Here are my points - why these amendments SHOULD NOT be passed into law.


1. NOT ONE of the members of the new commission (as well as the old commission) is a person independent of the ties with the legal profession and the judiciary, the sources of wrongful convictions. 

2. The Court of Appeals, the authority removing judges, is removed from the bill and Appellate Divisions (that currently have a policy of non-prosecution against bad prosecutors) are inserted instead. That is a recipe for disaster, everything will remain the same. 

3. The number changes - the Governor is given in the new bill twice as many appointments as before, while the majority leaders of both houses now have twice less appointees. The power shifts to the Governor, big time, and we know what kind of Governor New York has and how he has been using his power so far. 

4. There is a discrepancy in requirements to appointees. For prosecutors, they can be former or retired prosecutors, but for criminal defense attorneys - they must be present-time defense attorneys, it is a discrimination. 

5. both criminal defense attorneys and prosecutors must be attorneys "in good standing", thus excluding from the process former criminal defense attorneys who were wrongfully suspended or disbarred for doing too good of a job for their clients, being licensed or not licensed must have no bearing on the experience and ability to hold that public office, 

6. The Chief Judge now may appoint only a professor or dean from an "accredited" (by the ABA, an Illinois corporation with foreign secret membership) law schools - an unreasonable requirement giving improper power for the ABA over review of wrongful convictions. And, 

7. the time when the Commission may start reviewing a case has changed dramatically: it cannot start its review of the case before criminal charges are filed or before the case has been investigated for under a year. That gives prosecutors a year to "properly" fabricate a case and make a wrongful conviction a given. 

All in all, the amendment castrates the bill, cutting out the only potential teeth it could possibly have - the bad bill that it was initially anyway, I wrote about it in my blog.


8. Amendments castrating the bill were made to appease prosecutors who have filed a lawsuit. When else did you see legislation changed because public officials whose misconduct the legislation is trying to address are upset about its effectiveness?


9. 4 appointees from Cuomo and 3 from his friend-in-crime (literally) DiFiore, a former prosecutor = an absolute majority on the Commission of 11.

Imagine how those 7 will rule.

It is a stillborn, and shameful, concession, a waste of public money and a dangerous illusion that wrongful convictions are now going to be addressed.

You, yourself a wrongfully convicted person, suggest to support THAT?


I will publish in separate articles answers to these points by Jeffrey Deskovic and my responses to them.  Jeffrey Deskovic's answers reveal a lot about how this legislation came about, and for what real, different from declarative, reasons, it came about.

Stay tuned.