"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.

Wednesday, March 22, 2017

The circus of 3R's - recusal, re-entry, retaliation - continues, now with #JudgeBrianBurns the #PacherilleCaseHero in the ring

I wrote on this blog some time ago about the rule of 3R's - recusal, reentry, retaliation - much practiced by New York State judges.

There is a new development in the history of the "3R rule", but before I go into that, some history of the 3R rule in the same case.

3Rs 3JudgeCarlFBecker style

In 2009, the then-Delaware County and Family Court judge Carl Becker recused from a case involving myself and my husband.

In 2011 Carl Becker re-entered cases where my husband and myself were parties and ruled against us.

In August of 2012, Carl Becker recused from my cases again.

In September of 2012, Carl Becker re-entered two of the cases in order to:

  • filibuster an appeal where his illegal sanctions were discussed; and
  • hurt my other client with a decision that was materially different from the one that he has read after the trial in court several months before the recusal.
2 state appellate courts:

  • the Appellate Division 3rd Department, and
  • the New York State Court of Appeals, and

and two federal courts:

  • the U.S. District Court for the Northern District of New York;
  • the U.S. Court of Appeals for the 2nd Circuit, and
did not consider this behavior as improper, unconstitutional, retaliatory or violating my rights and rights of my clients (and that is just that issue, without considering the actual evidence of bias, personal involvement in the case and ex parte communications with parties and counsel).

In 2014, when I filed a motion to vacate Becker's sanctions based on new evidence, Judge Frank Revoir out of Chenango County was assigned to one of the cases Becker mishandled (and where he sanctioned me for criticizing him, and without disclosing conflicts of interest), yelled at me that advancing constitutional arguments in Family Court is the equivalent of lying.  New York Commission for Judicial Conduct did not find anything wrong with that behavior.  Revoir then recused, and Judge Connerton was assigned.

Judge Connerton is a bigot who found it appropriate, even when she was forced to dismiss the case brought against me and my husband by Becker's buddy William Moon in retaliation for me making a motion to recuse on behalf of a client (not my friend, just a client), because Becker did not disclose his representation of Moon and personal knowledge of Moon (petitioner in child neglect cases) for 27 years before coming to the bench.

Of course, as it was recently reported, judges in New York are not disciplined even when they directly discriminate against people based on their language disability, as it happened when four (!) judges out of Queens County, New York (New York City) scolded jurors for not knowing English enough to sit on criminal juries

(which involves perception by ear of oral testimony in the English language and perception and memorization of jury instructions, the law read by the judge sometimes for up to an hour),

one of the judges went so far as to telling jurors that if they are disqualified for not knowing the English language (a "language disability" protected by the federal Americans with Disabilities Act), the judge will order them not to be paid for that day off from work, even though they had to come and would have been prosecuted had they not come.

So, when judges are not disciplined even for that, Connerton's "furrowed brow and hurried speech" in an order of dismissal (which I could not appeal since it was in my favor) was child's play.

While dismissing the case, Connerton,

  • taught social services how to bring the case better the next time; and
  • made a negative inference against me for my allegedly "furrowed brow and hurried speech" at the trial -
knowing well from hearing me speak, with an accent, that English is not my native language, and that the manner how non-native speakers speak under stress should not be held against them as some kind of misconduct.

So, I was sanctioned, and my license was suspended eventually, for allegedly NOT presenting enough evidence of judicial misconduct while making motions to recuse (as judged by the object of the motion to recuse, Judge Becker), and, Judge Connerton refused to read newly emerged evidence of Becker's misconduct that Becker did not disclose because there was too much to read of that evidence.

Moreover, Connerton lied to me, in writing, that she has never said anything about her headache when thinking about reading my motion.  I published Connerton's lies and what she really said in the transcript in a blog, here.

Then, in an interesting succession of events:

  1. In June of 2015 the U.S. Supreme Court issues a case Reed v Town of Gilbert where it rules that regulation of speech based on its content without strict scrutiny violates the 1st Amendment and must be struck;
  2. in November of 2015, without deciding my argument that sanctions against me for contents of my motion to recuse violate the 1st Amendment, I was suspended by state court for 2 years without a hearing, for mysterious additional "abuse of judicial process" which nobody explained to me in the disciplinary proceedings what that was, and for failure to express remorse for what I did wrong - since I did nothing wrong, there was nothing to express remorse for, and especially when my expression of remorse was required before the court's finding of liability;
  3. in November of 2015 I was ALLEGEDLY - and secretly  - suspended by the U.S. District Court for the Northern District of New York in a secret proceedings where the whole docket is still hidden - while many courts recently ruled is unconstitutional, and while the New York State Court Administration is now investigating Nassau County Courts for the same behavior, hiding court dockets; so, if there is no written public evidence of suspension (no public order of suspension), there is no suspension, but I am listed as suspended in federal court - even though I am not treated as suspended for purposes of serving on me some, but not all, pleadings in cases where I was also a party in interest, by electronic means - I am going to reflect this conceptual mess in when you are an attorney and when you are not an attorney in my upcoming book "Conceptual inconsistencies in attorney regulation in the U.S.";
  4. in June of 2016, 3 events happened:
    1.  the U.S. Supreme Court issues a new opinion in Williams v Pennsylvania, ruling that when the same judge acts as an accuser and an adjudicator in the same case, that is a violation of due process, and the judge's decision is void - while Carl Becker commenced all proceedings on sanctions against me sua sponte (on his own motion) and acted in those proceedings as unsworn witness, accuser, prosecutor and adjudicator, a clear match with Williams v Pennsylvania;
    2. an attorney I did not personally know, Woodruff Carroll, who is known for "lacking a filter", after an ex parte communication with one of the federal judges I sued for out-of-court misconduct, came up with a new explanation as to why I was suspended - because I and my husband (who practiced law for 35 years before I was admitted to the bar in 2009) sued "everybody who is anybody" in New York State, and
    3. the New York State Court of Appeals, including the Chief Judge whose appointment I opposed by written testimony before New York Senate, asking for criminal investigation of Janet DiFiore instead of elevation of her to the position of the Chief Judge of the State of New York, denied me review of my constitutional appeal that she was mandated by law to review as of right, claiming that "no substantial constitutional questions were involved" - so, the NYS Court of Appeals picks and chooses which of constitutional provisions are "substantial" enough for them to enforce.

So, after the U.S. Supreme Court issued the two opinions (2015 and 2016) directly on point of Becker's 2011 sanctions against me, the law allowed me to move to vacate sanctions based on new law, so I did.

I made a motion to vacate in Delaware County Family Court.

I wrote what happened there - unbeknownst to me, Judge Connerton recused, and the bravest judge in the world #JudgeGaryRosaTheCoward assigned himself to the case who actually discussed that case before he ran for elections and made pledges to voters based on that case claiming that Judge Becker committed misconduct in that case, and promised that he would be different - that Judge Rosa - ruled against me, refusing to vacate Judge Becker's sanctions.

When I made a motion to vacate, renew, reargue and recuse, pointing out that I was not notified that Rosa was assigned before he issued his decision (without a hearing), and was not given an opportunity to timely move to recuse, Rosa responded to my motion to recuse with a diatribe acknowledging that he saw red because of my motion, and claiming what I said was a lie - even though I relied on statements of a party in that same litigation that did not oppose my motion.

Rosa recused, and then - and then, the curtain rises, and a "new" judge steps in:  Judge Brian Burn of Otsego County, THE Judge Brian Burns whose misconduct and abuse of power in order to retaliate against the father of a boy whose rights Burns violated at trial I criticized in my blog many times.

3Rs by Brian Burns and Mary Rita Connerton

Here is Judge Brian Burns order of assignment to the case - by the recused Judge Mary Rita Connerton who infused herself back into the case from which she recused.

Note three more interesting personages on that order of assignment:

  • Michael Coccoma,
  • Molly Fitzgerald, and
  • Richard Northrup - all of them without exception "honorables".

Of course, when yet another previously recused judge whom I criticized for his misconduct in the blog after his recusal, and whom I criticized about a case that he was sued for in federal court (and hired the former law firm of one of the presiding judges to defend him) same as in the case of assignment of Gary Rosa, I was not notified that Judge Burns was assigned until I received his decision, so I had no opportunity to make a timely motion to recuse, because Judge Burns recused from my cases before and his re-entry into my case was completely improper.

And here is Judge Burns' decision confirming legality of the previous illegal decision of Judge Rosa (who was clearly disqualified and whose decision was clearly void as that of a judge who discussed the case ex parte, pronounced his contrary opinion ex parte, and solicited and received votes based on his contrary assessment of the case, which now constitutes voter fraud).

The interesting part about Judge Burns' assignment is that Judge Burns also recused from all of my cases in October of 2013, after I sued him on behalf of a client and challenged constitutionality of the Family Court Act in child neglect proceedings:

In that case, I challenged constitutionality of New York Family Court Act, and judge Burns in his official capacity, enforcing that act, because:

  1. while claiming it is a "civil proceeding", and affecting parental constitutional rights, the Family Court Act did not allow a jury trial in child neglect or abuse proceedings;
  2. while claiming it is a "civil proceeding", the Family Court act allowed issuance of criminal arrest warrants for not appearing in a supposedly civil case where parents were not even served, or even if they would be - in a civil case non-appearance may only result in a default judgment, not a criminal arrest warrant;
  3. because the Family Court Act allows change of custody of children without parents' presence in court and without service of process on them.
Burns instantly got off all of my cases.

Now, after I criticized him in my blog regarding his misconduct in the Pacherille case in the Otsego County Court -

Part I, published on November 9, 2015 (a week before suspension, so I wonder whether this blog contributed to my suspension, too, and whether Judge Burns asked for my suspension - in view of the interesting version of why I was suspended delivered to me by attorney Woodruff Carroll in court pleadings in July of 2016, that it is because of my own and my husband's civil rights lawsuits agaist "everybody who is anybody" in New York) - The Anthony Pacherille story, Part 1 - for judge Brian Burns of Otsego County Court, NY, justice is for sale;
Part 2, published November 11, 2015 (4 days before suspension) - The Anthony Pacherille story - Part 2. Judge Burns strikes back against the child because the child's father asked him for compassion;
Part 3, published November 18, 2015 - The Anthony Pacherille's story, Part 3 - after the sentencing: thin skin, long arms, the sense of entitlement and the complete lack of integrity of Judge Brian Burns of Otsego County;
Part 4 , published November 18, 2015 - The Anthony Pacherille story: Part 4 - freedom to protest in front of a public official's home; and
Part 5November 21, 2015 - The Anthony Pacherille story - Part 5: Judge Burns hires a law firm with ties to the presiding magistrate judge in Tony Pacherille's federal lawsuit -

after all that, Burns, a judge who recused in 2013 from all of my cases, a judge known for his thin skin and retaliative conduct against those who publicly criticize him online for his behavior in court, was now assigned by Connerton, another recused judge, to preside over my motion to vacate sanctions imposed upon me by Becker, another recused-and-reentered judge that judge Rosa, a judge who disqualified himself by soliciting and receiving votes based on his characterization of Becker's sanctions as improper, refused to vacate in retaliation against my criticism of Judge Rosa's and his law clerk's misconduct.

And what did Burns say in that decision of his?

Well, Burns was never known for being a big constitutional scholar.

In this case he painstakingly try to appear impartial and to pretend to do some "constitutional" analysis.

But, of course, the predominant feeling emanating from the decision of Judge Burns is fear - the fear of making a misstep that can ruin his own career.

And, since application of the law in my favor (when the law is in my favor) would be such a political misstep, Burns, of course, refused to apply the law the way it supposed to apply - and suggested to me instead to raise that question in front of the Appellate Division (that itself 3R'd with me and my husband several times).

First of all, I must note that Judge Burns entirely ignored the argument that Judge Rosa could not preside over proceedings that he:

  1. discussed ex parte with my then client and her mother in 2012;
  2. pronounced his opinion that sanctions imposed by Becker were wrong;
  3. pronounced his opinion that sanctions imposed by Becker was specifically the type of misconduct that he will try to avoid if he is elected a judge, and the reason why he is running for a judge;
  4. solicited and received votes based on such opinion about impropriety of Becker's sanctions.
Burns simply ignored that argument, ignored arguments of bias or appearance of bias and retaliation - of course, Burns will not know bias and retaliation if these creatures are screaming in his face, judging on his conduct in the Pacherille case, see Parts 1 through 5 above - and jumped right into analysis whether Gary Rosa's determination did or did not clearly apply the law.

Here is what Burns said about applicability of Reed v Town of Gilbert to my case. 

In my motion I specifically described procedure required by the U.S. Supreme Court for review whenever content-based regulation of speech is ALLEGED (that's what I did in my motion):

That is part of Reed v Town of Gilbert, a case which says nothing about discussing and matching FACTS of analyzed cases to the U.S. Supreme Court precedents, but LEGAL ISSUES:

So, the question in front of Judge Burns was not whether a judicial decision was to be treated the same way as a town ordinance (which is what he did):

Do you get it? "...the Reed decision establishing that strict scrutiny must be applied to a Town Ordinance was simply not applicable to judicial finding of frivolous conduct".

First, Reed did not establish that "strict scrutiny must be applied to a Town Ordinance".  It established, in the broadest and most general terms, that content-based regulation of speech by the government - any government, any branch, under any circumstances - is subject to strict scrutiny, and mandated a procedure for review of any regulation of speech that is content-based, on its face.

Yet, Burns played "merry-go-round" with the U.S. Supreme Court case, reducing it to just a case strictly about a town ordinance.

Second, Burns, after Rosa, continued to introduce the rule of review that is very popular in American courts - it is called "because I said so".

Instead of a reasoned analysis (of course, I understand that I am not in Finland where a REASONED court decision is considered a basic human right), Rosa, and Burns after him claim that content-based review of a judicial sanction for "frivolous conduct" (frivolous conduct being a motion to recuse seeking to establish for a pro bono indigent client her constitutional right for impartial judicial review) is "simply not applicable" - no explanation given.

Burns applied the same "simply not applicable because I said so" rule to Williams v Pennsylvania, too. 

Same as in Reed, Burns narrowed the holding in Williams to specific case, while the holding was very broad, and included ANY case where a judge also acted as an accuser:

This phrase about "a constitutionally intolerable probability of bias" is not restricted to a criminal case, otherwise the court would have said so.

Moreover, a habeas corpus petition - as Judge Clarence Thomas pointed out in dissent - is a civil case.

So, both Williams v Pennsylvania and my case are civil cases where the extremely broad holding of Williams, a prohibition for judges to also act as accusers in the same cases, clearly applies.

Yet, admitting that would

  1. have required to rule in my favor - and potentially restore my law license, which would be a political faux pas for Judges Rosa and Burns;
  2. undermine the whole idea of sua sponte sanctions by courts, acting as accusers and adjudicators - and courts in the U.S. are known only to usurp power easily, but would never cede it, even if courts are wrong.

Here is how both Rosa and Burns applied Williams in my case:

Williams v Pennsylvania
What happened in my case
How Burns and Rosa review this issue?

Characteristic of the case: civil or criminal?

Civil case (habeas corpus petition)
Civil case
Claimed that Williams v Pennsylvania is a criminal case and a death penalty case, and what the court said there, is not applicable to sanctions for frivolous conduct

Was punishment by the government involved? Y/N

Yes, death penalty
Yes, sanctions for frivolous conduct

Did not review the issue that in both cases punishment by the government occurred

Who commenced the proceeding that led to punishment?
The presiding judge (when he was a prosecutor)
The presiding judge (through a sua sponte motion – order to show cause “why counsel should not be sanctioned”)

Did not review this similarity
Was judge asked to recuse? Y/N
Yes, refused to recuse and filed a concurring opinion complaining about federal defenders who asked him to recuse

Yes, refused to recuse and punished counsel for making motion to recuse
Did not review this similarity
Did the accuser/adjudicator judge act as a witness in the case? Y/N
Refused to address the issue that Williams applies even more when the presiding judge was not only an accuser/adjudicator, but also an unsworn witness in the case

Did the accuser/adjudicator judge act as an alleged victim in the case? Y/N
Yes (the sanctions were imposed for alleged frivolous conduct, harassing the judge himself with a motion to recuse)

Refused to address the issue that Williams applies even more when the presiding judge was not only an accuser/adjudicator, but also an alleged victim in the case

In my case, as compared to Williams v Pennsylvania, the accuser-adjudicator judge (there is no doubt about that, Becker started sanctions proceedings on his own motion) also acted as an unsworn witness making statements about his own elections and about customs of following or not following the law in Delaware County, and as an alleged victim, claiming in the proceedings that he started, prosecuted and adjudicated that I was harassing him personally with the contents of my motions to recuse.

Apparently, not only the accuser/adjudicator prohibition of Williams v Pennsylvania applied, but it applied with a vengeance, in the legal language, a fortiori (even more so), because there were more disqualifying factors in how Becker brought, prosecuted and adjudicated the sanctions proceedings: Becker was

  • accuser
  • adjudicator,
  • unsworn witness, and
  • alleged victim

in the same proceedings.

Yet, the two corrupt judges, both known for their corruption and for their retaliation against critics, could not possibly apply the law to the facts as the law required it to be done - because they did not like the result.

Therefore, they fixed they geared their "constitutional" argument towards the result desirable for them.

After Burns narrowed the holdings of both U.S. Supreme Court cases to specific facts of the case, he skipped the issue of bias entirely:

Moreover, Burns then openly lied when he refused to "overrule" the 3rd Department, because, as Burns falsely claimed in his decision, the 3rd Department allegedly affirmed the sanctions against me in

Matter of Adams v Bracci
2012 NY Slip Op 07922 [100 AD3d 1214]
November 21, 2012

(which did not happen, because the 3rd Department never reviewed my appeal on sanctions, only my client', having dismissed mine without review on a technicality).

Moreover, Judge Burns must know that if a higher precedent (U.S. Supreme Court is the highest) applies, it applies and is mandatory for ALL courts, including Judge Burns, and Judge Burns does not have a right to require me to jump through another hoop and go up to an appellate court for review, simply because Burns wants to play safe and is afraid to "overrule" the 3rd Department.

The diligence of this judge is clear in that he did not even care to read the precedent he was referring to - Matter of Adams v Bracci, 100 AD3d 1214 (3rd Dept., 2012), which was NOT my appeal at all, and cannot be "deemed" as my appeal.

What can I say.

To expect honesty from an "honorable" (by job description only), but actually corrupt judge would be naïve.

Yet, the public needs to know about tricks that this judge continues to play with the law to come out on top in retaliation against critics and in pleasing his real bosses - not the People of the State of New York who elected him, but higher-ranking judges who continue to elevate him despite his obvious misconduct - because, in his misconduct, he is "one of them", part of the brotherhood, equally smeared (no, not by blood, like mafia does it, but by misconduct anyway).

So, this is the story of recusal-reentry-retaliation of Judge Burns and Judge Connerton who assigned him (and who, in her turn, answers to a 3R judge Michael Coccoma and to the employer of Porter Kirkwood judge Molly Fitzgerald).

The 3Rs of other New York judges in my cases:

  • 3Rs of Judge Kevin Dowd;
  • 3Rs of Judge James Tormey;
  • 3Rs of Judge Michael Coccoma;
  • 3Rs of the entire New York State Appellate Division 3rd Department

I described in my blog earlier.

What is significant in the 3R practice is that you may never be assured that a judge who recused from your case because he admits he cannot be impartial will not re-enter that case or other cases where you are a party, and rule against you (predictably), while refusing to recuse and even sanctioning you for asking him to recuse, and appellate courts consider that as nothing inappropriate - making litigants' constitutional right to impartial judicial review an illusion.

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