The Court System's War on Lawyers Continues

I just got off the phone with another person regarding a motion to seal a conviction under New York's new sealing law (CPL Section 160.59).  This person advised me that he was informed by some official at New York's Office of Court Administration (OCA) that no lawyer is needed to file a motion to seal under the new law.  (As if to say, "don't bother").  

All that would be required is to fill out a form that OCA is in the process of developing.  This I suppose is technically true.  No lawyer is ever needed really by a person in the criminal justice system.  A person is free to dispense with a lawyer and represent himself at a murder trial.  (Interestingly, however, a corporation must always be represented by counsel in any legal proceeding, no matter how trivial.  We seem to worry more about protection of the interests of corporations in America than we worry about the protection of people.)

But nobody would seriously tell someone faced with murder charges, "you don't really need a lawyer," even though as a technical legal matter, you don't.  

But apparently the people at OCA that our potential client spoke with were quite explicit that all he had to do was fill out the as yet to be developed form and that would be just fine.  Especially in the context of a motion as serious and with such potentially far reaching life changing consequences as the new motion to seal a conviction, it is nearly downright evil to make people believe that their interests could be served just as well by filing the motion themselves as hiring a pesky lawyer.

The motion that is required by the new law must address quite a few separate factors, some of which have to deal directly with legal issues related to sentencing and plea bargaining.  Failure to grasp and address these issues in the motion could become a problem.  The argument must address these factors and present them in a way that is most likely to result in a favorable outcome.  

Also, the decision to seal is ultimately up to the Judge.  This isn't some sort of check box thing where if you check all the boxes you automatically get a conviction sealed.  There is discretion with the Judge.  With discretion comes the possibility that a Judge might not see it your way.  Where that is true you need a compelling argument to convince a Judge.  Trying to come up with compelling arguments to convince Judges is what lawyers do.  It is what lawyers go to law school to begin to learn, and it is what lawyers continue to learn by actually practicing law.

The result being sought by a motion to seal is momentously important.  It is the difference between continuing to live with a devastating criminal conviction and essentially getting a clean slate or fresh start.

Further, the statute specifically allows for the prosecutor (a lawyer) to decide to contest the motion and force there to be a court hearing.  This will require skill and understanding of how to present evidence at a criminal court hearing, how to cross examine, how to direct examine, and how to make arguments at the conclusion of a hearing that will be persuasive to a judge.  Even if the prosecutor doesn't ask for a hearing, the Judge can require one anyway.

So just imagine a person fighting for a vitally important thing like sealing a criminal record, but fighting against a prosecutor (who is a lawyer) and trying to persuade a Judge (who is a lawyer).  The only person not a lawyer in that circumstance is the person who OCA told not to bother hiring a lawyer.  

As soon as the Government doesn't send a lawyer to argue the the case, and soon as the person deciding the case isn't a lawyer, then maybe send non-lawyers in to contend against them.  But when the Government is sending a lawyer in to argue against the motion, and when the Government is sending a Judge in to decide the motion, how on God's green Earth could ever once make the smallest amount of sense NOT to have a lawyer prepare, file and argue the motion?

This is flat out lunacy.

I suppose OCA would have us simply do away with the Bar Examination and oversight of the legal profession altogether.  It would make things simpler and faster if defense lawyers weren't there to oppose the Government or make arguments to Judges.  

I would think that circumstances like this are situations where people might say something more like, "Yes, I think people go to law school and get experience making legal arguments, and practice law for a reason."  Apparently, OCA seems to think there is no value in the lessons learned in law school, there is no art to making legal arguments to Judges, and there is no value in the experience of practicing law in a courtroom.  Just do it yourself.  No matter how serious the matter is or how important the outcome is to you.  

It seems pretty clear to me that it makes sense to get legal assistance with a motion to seal a criminal conviction, regardless what OCA may say.