Yet, a judge, a Madison County (NY) judge Biaggio DiStefano was taken off criminal cases in 2013 and then forced into early retirement in 2015 because he disobeyed unlawful directives of the then-administrative judge Robert C. Mulvey from 2012 as to how to decide criminal cases.
Judge Mulvey actually has a history of protecting certain judges - but, obviously, not others.
While Judge Mulvey, as I will describe below, was very quick to boot Judge DiStefano off all criminal cases for disobeying Mulvey's unlawful whims, certain judges he kept on cases despite obvious misconduct.
This is a letter of May 3, 2011 sent to me by Judge Robert C. Mulvey, then-Chief Administrative Judge for the 6th Judicial District:
By that time, Mulvey was aware of Becker's shenannigans which I described in multiple complaints to Mulvey - and Mulvey turned a deaf ear to those complaints.
Judge Mulvey did not consider that a threat of a lawsuit against a judge, as well as the actual lawsuit against a judge is a basis of disqualification of that same judge.
In North Carolina, as I wrote earlier on this blog, FAILURE to disqualify himself under such circumstances resulted in discipline against the judge, 7 years before Judge Mulvey expressed this opinion.
But, New York is not North Carolina, and Mulvey, by that time, refused for over 2 years to protect me from harassment by Judge Carl F. Becker - to whom he has sent a copy of the letter, thus announcing to him his policy and practically sanctioning further abuse.
So, I sued - Carl Becker sanctioned me immediately after the lawsuit - and my law license was suspended for making motions to recuse Becker, while Mulvey denied me protection.
And, Mulvey, a subordinate to Chief Judge for upstate New York Michael Coccoma, who recused from my husband's case back in 2007, failed to recuse himself when I and my husband sued him, too - for his own unconstitutional policies and misconduct, and for failure to protect me, my clients and family members from retaliation and for condoning and practically encouraging misconduct of Carl Becker.
Mulvey and Becker escaped the lawsuits by claims of absolute judicial immunity for malicious and corrupt acts, so issues against Becker and against Mulvey were never reviewed on the merits.
Even though my federal lawsuit against Mulvey and Becker was dismissed by judge Mae D'Agostino on January 9, 2013, only more than 3 years after that date, in 2016, did I learn, through a Freedom of Information Request, quite accidentally, that Mae D'Agostino is the "Chairperson" of a shadowy organization "New York State-Federal Judicial Council" where Mae D'Agostino teamed up behind closed doors with New York State judges, possibly, with the very same judges who appeared in that court as defendants.
At this time, Mae D'Agostino is stalling my Freedom of Information Act request for lists of members of the organization she chairs.
The stalling clearly suggests that there are things to hide, and it is very likely that Mulvey participated, through this shadowy organization, in fixing his own federal lawsuit, too.
But - if an administrative judge in New York, like Mulvey, "simply" assigns a judge to a case, does the administrative judge control actions of the assigned judge, or expects a certain outcome from that judge?
The law says "no" - theoretically.
And, the Appellate Division 3rd Judicial Department, answering that question on January 29, 2015 in "Kilmer v Moseman", also told me "no":
The Appellate Division 3rd Judicial Department, judges Garry, Lahtinen, Rose and Devine, did not consider as a disqualifying factor where a husband assigns a judge to the case where his wife acts as a private attorney for a party - and where sanctions are requested against that wife for frivolous and fraudulent conduct.
And, under the circumstances where the actual judge assigned is close to retirement, and where the husband in question controls lucrative post-retirement assignments - or lack thereof - to retired judges.
The court found no appearance of impropriety in such an arrangement,
- skipping completely the central husband-and-wife issue,
- skipping completely the central issue of whether an administrative assigning judge can control the case and behavior of the presiding judge,
- "possible or contingent" financial interests cannot be a basis of disqualification of the judge.
Judge DiStefano went public as to Mulvey's efforts to:
S 216.05 . 1. At any time after the arraignment of an eligible defendant, but prior to the entry of a plea of guilty or the commencement of trial, the court at the request of the eligible defendant, may order an alcohol and substance abuse evaluation.
- Himself, Judge Robert C. Mulvey;
- Madison County Judge Biaggio DiStefano,
- Madison County and Family Judge Dennis K. McDermott, elected at that point for the period of 2012-2021, and
- Madison County Acting Supreme Court Justice in charge of the County Drug Court, judge Donald Cerio, who is actually a New York Court of Claims judge appointed by the New York State Governor to serve from 2008 to 2017
- disenfranchised Madison County voters,
- cancelled the applicable statute enacted by the State Legislature (after working for several years as a "Legislative Counsel" for New York Senator James Seward), so Judge Mulvey knows more than anybody else about separation of powers;
- and ruled, without any authority for such a ruling, that from then on the unelected judge Donald Cerio who was interested in increasing statistics in his drug court, (possibly in preparation for a plea to either reappoint him, promote him to a higher court or elect him to an elected judicial position his term is ending in 2017), to handle all determinations of eligibility to drug diversion.
Judge DiStefano, loyal to his judicial oath of office to uphold the law and not the whims of administrative judges, reportedly
- directed the clerk of the court to transfer cases unlawfully grabbed by Judge Cerio into drug court while skipping the 14 required procedural steps described above, back into his criminal court where such cases belonged;
- told some defense attorneys that cases of their clients are not eligible for diversion - which was subject only and exclusively to appellate review of Judge DiStefano's discretionary decision, and not to intervention by an administrative judge;
- wrote to a defense attorney explaining that Judge Cerio's acceptance of a case to the drug court would be a violation of the law - since Judge Cerio was not a criminal court judge, and such cases were placed in drug court skipping the 14 steps required by statute, and approval of the criminal court, Judge DiStefano was exactly right on that.
But, one thing is to be right on the law, and another is when your boss, a Chief Administrative Judge of the large judicial district and a buddy of a New York State Senator does not give a rat's ass about the law, but wants his whim to be satisfied instead.
What Judge DiStefano did was the cardinal sin in New York judicial system - he put the law above the desires of his "betters", his superiors.
Retaliation from Mulvey followed immediately, Mulvey wrote a secret letter to Judge DiStefano (I will try to get a copy through a FOIL request, but I cannot guarantee I will get it), here is what were, reportedly, some of the contents of that letter:
I understand that that humiliating restriction was not lifted, and in 2015 Judge DiStefano was forced into an early retirement - for being loyal to his oath of office, upholding the law and resisting unlawful usurpation of his authority and influence of court administration upon his independence as a judge.
In 2013, when Judge DiStefano was removed from the case, he stated to the press:
"When I was elected, I swore an oath to uphold the Constitution of the United States, and the State of New York. I did not take an oath to uphold the wishes of the office of court administration."
At the time of his decision to retire, Judge DiStefano reportedly told the press:
So - the honest judge is was ousted, and Judge Dennis McDermott, the judge who was a part of the disciplinary committee on "professional standards", but who sold his oath of office in order to keep afloat and not to damage his own reputation by contradicting his administrative boss, Judge Mulvey - remains on the bench.
By the way, Judge Mulvey is regularly sued in federal court.
And, each time he is sued, he gets a dismissal based on absolute judicial immunity.
And the doctrine of absolute judicial immunity is declare to have been introduced - even though it is glaringly unconstitutional, allowing judge to break their constitutional oath of office the moment they take it - to allegedly protect judicial independence.
Granted absolute judicial immunity for malicious and corrupt acts time after time by federal courts to protect judicial independence.
Judge Mulvey, who took an elected criminal court judge off criminal cases because that criminal court judge opposed Judge Mulvey's unlawful interference into Judge DiStefano's judicial independence.
So, we know that Judge DiStefano was forced into an early retirement in 2015.
And, we know that the judge who bowed low to Judge Mulvey and agreed to condone violation of the law, remained on the bench.
You know what happened to Mulvey, possibly in reward for his case-fixing, and very likely not only in this particular situation?
Mulvey was promoted.
In February of 2016 Governor Andrew Cuomo appointed Mulvey to the New York State Supreme Court Appellate Division 3rd Judicial Department.
And, in his new position, Mulvey, following his own tradition, already participated in fixing yet another case, a case where he participated in the court below (a direct disqualification) as an assigning judge - and where he had social and political connections with the attorney in whose favor he ruled, in complete disregard of the record and the law.
About that - in a separate blog.