Crime & Federalism

In his lawsuit, disgraced lawyer Joseph Rakofsky and his lawyer, Richard Borzouye, allege: 

C&F,through JOHN Doe#1,with malice and hate, in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties' in reckless disregard for the truth, published that "He [Rakofsky] was so incompetent that the trial court ordered a mistrial. In other words, the client was deprived of his constitutional right to a fair trial due to attorney incompetence." However, the record is clear that RAKOFSKY requested that he be permitted to withdraw as counsel and was so permitted and that Judge Jackson granted RAKOFSKY's motion solely because a conflict existed between him and his client and never "ordered a mistrial' because [h]e was so incompetent" or for any other reason'

(Rakofky Complaint, Para. 148; emphasis added.) Is that true? In ordering a mistrial, here is what Judge Jackson actually said:

So I am going to grant Mr. Deaner's request for new counsel [based on the conflict issue]. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial.

So I'm going to grant the motion for a new trial.

(Rep's. Tr. at 4-5; emphasis added.) 

It thus seems that the trial court did not, as Joseph Rakofsky and Richard Borzouye claimed in their Complaint, order a mistrial "solely" because of the client conflict issue, and not for "any other reason." Instead, the trial court relied on another ground.

Josepy Rakofsky, as an attorney-at-law, is an officer of the court. He took an oath to tell the truth. His lawyer, Richard Borzouye, took a similar oath.

Did they violate their ethical duties to the trial court when they alleged that "Judge Jackson granted RAKOFSKY's motion solely because a conflict existed between him and his client and never 'ordered a mistrial' because' [h]e was so incompetent" or for any other reason"?

When the trial court used "Alternatively," he was "offering or expressing a choice." That is, he was granting a new trial based on the conflict issue, and alternatively, because of "manifest necessity." Here, again, is what Judge Jackson said, on the record, in open court:

So I am going to grant Mr. Deaner's request for new counsel [based on the conflict issue]. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial.

Perhaps it's unfair to claim that Rakofsky and Borzouye committed fraud. Perhaps they were mistaken, and acting in good faith? Rakofsky possess the trial transcript, which he claims cost him $1400, and which he claims to have read.

Assuming Rakofsky and Borzouye did not commit fraud would require inferring that they are incompetent, since any average person would understand that a person who uses the adverb alternatively did not decide something solely based on one factor. Did either of them read the $1400 transcript before making allegations in an official court document?

And so we are right back where we started. Either Rakofsky and Borzouye are frauds, or they are incompetent. Whatever the case, they are out of their leagues. 

Rule #1: When one finds himself in a hole, stop digging. Rule #2: Get out before you find yourself buried. 

Rakofsky and Borzouye have been busy with their shovels, and there's no indication either of them have enough judgment or integrity to toss their shovels aside. Whether their strategy will remain effect remains an open question. (Not really. Losing this lawsuit and being humiliated on the Internet will be the least of their troubles. They will be lucky to keep their law licenses, and to not file for bankruptcy after the winning defendants sue them for malicious prosecution and abuse of process.)