Sunday, February 15, 2015
The incompetence of Mary Gasparini, a CLE lecturer on attorney ethics and attorney disciplinary proceedings, has been confirmed as a matter of law
A disciplinary prosecutor, Mary Gasparini, asks to put an attorney in jail for treating an open court proceeding as an open court proceeding and for violating her own privacy.
Gasparini does it despite a statute providing that proceedings she claims to be closed are open to the public, despite the fact that Gasparini never satisfied conditions for closing the proceedings, and did not follow requirements to close court proceedings, as set in multiple mandatory precedents of the New York State Court of Appeals, the U.S. Court of Appeals for the 2nd Circuit and the U.S. Supreme Court, not to mention the New York State statute, Judiciary Law 4, that provides that all court proceedings but those enumerate, are public and may not be made closed to the public simply at judicial discretion.
This woman should not be teaching the CLEs, she should not be even an attorney.
It is my opinion, based on Mary Gasparini's conduct, or rather, misconduct throughout my attorney disciplinary proceedings, crowned by her attempt to bring meritless criminal charges against me for opening public court proceedings to the public and for violating my own privacy, that her competence, as well as her integrity are very obviously at minus double digits.
I wonder if Mary Gasparini will ever decide to prosecute herself for incompetence and misconduct - because nobody else can bring a disciplinary case against a disciplinary prosecutor in New York.
To put a person in jail for treating a public court proceeding as a public court proceeding... Welcome to New York!
Judiciary Law Section 4 provides:
Sittings of courts to be public. The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.
Attorney disciplinary proceedings are not among those enumerated in Judiciary Law 4.
In a precedent decided pertaining specifically to attorney disciplinary proceedings, Matter of Capoccia, 59 N.Y.2d 549 (1983), the New York State Court of Appeals has provided the following:
"In the absence of good cause shown why a hearing conducted
incident to such proceedings should NOT be open to the public,
on a written waiver of confidentiality by the attorney respondent
in such proceedings and a request by that attorney that
the hearings be open, it is error to deny such request".
In its case decided during the same term as "Capoccia" above, Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378 (1983) the New York State Court of Appeals re-affirmed the presumption of access to the court proceedings, that unless good cause is shown, on a motion, argued in an open-court hearing, why such court proceedings should be CLOSED, and unless the court makes findings of fact supporting its decision to CLOSE the proceedings.
Further, the Weisenberg court and other courts developed a set of factors to be met to CLOSE ANY court proceeding in the state of New York, and such factors include:
(1) a compelling state interest to close the court proceedings;
(2) the exception is statutory;
(3) the exception is specific;
(4) the exception is strictly and narrowly construed to effectively and necessarily meet protection of the compelling public interest, and
(5) there is no less restrictive means to do that
Unless all of those above factors are met - court proceedings in New York, all of them, are presumed to be public.
Which means that no court orders providing otherwise are lawful, and no individuals may be criminally charged and put in jail for treating open public proceedings as open public proceedings.
Yet, I stand accused at this time, to be in CRIMINAL contempt of court, and stand the risk of being put in jail for simply following the law and requesting, as Matter of Capoccia provided, to open my disciplinary proceedings to the public, because I waived confidentiality.
Instead of requiring my prosecutor who obviously wanted a secret proceeding, to show cause why the court should be CLOSED, the court directed instead, that I must make a motion requesting the court to OPEN the proceeding that is presumed public, Judiciary Law 4, Matter of Capoccia.
The court clerk purported to explain the court's position by reliance upon Judiciary Law 90(10).
Yet, nothing in Judiciary Law 90(10) provides for closing of court proceedings, and the NYS Court of Appeals, in the Matter of Capoccia, specifically pointed that out:
With respect to appellant's claim that he was entitled to have the hearings in this instance opened to the public, we agree, but find it unnecessary to reach his constitutional contentions. The statute on which the Appellate Division and respondent rely for closure of the hearings in the face of appellant's express waiver, subdivision 10 of section 90 of the Judiciary Law, literally read, does not address the question whether attorney disciplinary hearings shall be closed or open to the public. It provides in pertinent part: "Any statute or rule to the contrary notwithstanding, all papers, records and documents * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential". The Appellate Division, First Department, has concluded that this subdivision imposes no nonwaivable blanket bar to public hearings as is manifested by the promulgation of section 6.2 of the rules of its Departmental Disciplinary Committee which provides:[59 N.Y.2d 554]"§ 6.2. Waiver. "Upon the written waiver of confidentiality by any Respondent, all participants shall thereafter hold the matter confidential to the extent required by the terms of the waiver."1 The provisions for confidentiality set forth in subdivision 10 of section 90, even if in principle considered relevant to the public hearing question, were enacted primarily, if not only, for the benefit of the attorney under investigation.2 Accordingly, on a duly executed waiver of confidentiality by that attorney and his demand therefor, the hearings in his disciplinary proceeding must be made open to the public in the absence of a determination by the Appellate Division that for due cause demonstrated the hearings should be closed in whole or in part.3
I expressly waived my privacy and confidentiality in writing.
I asked the court in writing, several times, to open my proceedings to the public.
Under Matter of Capoccia, that is enough to have my proceedings open for the public - based on MY REQUEST ALONE, no further jumping through hoops.
The court refused to do that and directed me to file a motion to show good cause why the court should ALLOW an open public proceeding to be an open public proceeding. Well, the court should know the law and should know that it does not have the power to withhold such consent when I asked to make my open proceedings open to the public.
The prosecution is, in this case, obviously interested in keeping my disciplinary proceedings secret, even though they are public under Judiciary Law 4, Matter of Capoccia + my written waiver of confidentiality.
The prosecution made no motions as required by law, to close my disciplinary proceedings.
No open hearing on record was held in court on the issue whether the proceedings must be closed.
The court made no findings on record before closing the proceedings explaining its reasoning, in accordance to the set LAWFUL factors, as to why it is closing the proceedings.
How many times should I be punished for following the law?
Now, the zeal of the corrupt public officials transcended all boundaries and they now want to put me in jail for simply opening public proceedings to the public.
Will the disciplinary prosecutor next time ask the court to re-instate the death penalty for my sake for simply asking what was my right to ask, and what was the court's duty to give me FOR THE ASKING, as provided by law? And the court will oblige?
The prosecution did not even TRY to make the required motion to CLOSE the public court proceedings.
The prosecution did not even TRY to meet its burden of proof on such a motion.
The court obligingly changed the rules, including several constitutional and statutory precedents of the New York State Court of Appeals, the U.S. Court of Appeals for the 2nd Circuit and even by the U.S. Supreme Court to require, instead, me to show the court "good cause" why the open court proceedings should be open, not for the prosecution to show good cause why they should be closed.
Simply because the court wants to help the prosecution hide the prosecution's, the referee's and the court's own misconduct in a highly political and sensitive case, and to protect from embarrassment multiple hostile witnesses that were about to be called in my attorney disciplinary proceedings, the court's desire of such kind is not a valid reason to close the proceedings which are public by statutory law and where I expressly and in writing waived my privacy and confidentiality.
Yet, instead of sanctioning these judges and these attorneys, one of these judges, Eugene Fahey, is already elevated by nominating him to the NYS Court of Appeals, so that he can continue to exercise his abysmal level of competence in the highest court of the state, and so that he makes sure he protects incompetence and misconduct of NYS public officials from rightful public scrutiny and accountability.
What I described above does not sound like a court proceeding following the rule of law.
It sounds like an inquisition's Star Chamber where no law exists and the only purpose of the proceeding is to nail the accused no matter what.
When the government wants to put an attorney behind bars for treating an open public proceeding as an open public proceeding, and for violating her own privacy, we hit the bottom, ladies and gentlemen.
The rule of law is truly dead.
Saturday, February 14, 2015
Analysis of political connections of powerful law firms in an upcoming book
Instead of publishing ratings of law firms on this blog, I decided to prepare and am preparing for publication a book on connections of powerful American law firms to American courts, with analysis and tables that I created from public records.
I will announce the day of publication additionally. It will be by this coming summer. Stay tuned.
A petition for a rehearing en banc was filed in the case Neroni v. Coccoma in the U.S. Court of Appeals for the 2nd Circuit
The case filed and prosecuted pro se by my husband Frederick J. Neroni raises important issues of public concern, such as (among others):
(1) the use of public funds for free legal representation of private attorneys connected to the judiciary (see my blog post "assigned counsel for the rich");
(2) failure of the New York State court system to notify litigants that certain retired judges are appointed Judicial Hearing officers in certain courts, which prevents the public from knowing where the JHO's law firms are appearing in the same courts where the JHO is part of, despite the disqualification;
(3) the use by attorney disciplinary prosecutors of the results of disciplinary prosecution against attorneys for private gain.
You can word-search this blog for more information on the Neroni v. Coccoma case, I have several posts dedicated to this case. The word-search window is located to the right of the text.
The petition additionally raises the following issues of extreme public concern:
- connections of powerful law firms, Hiscock & Barclay LLP (of Albany, NY) and Hinman, Howard & Kattell LLP (of Binghamton, NY) with the U.S. District Court for the Northern District of New York and with its judges, through the court system and its various "Committees" and through outside "Councils", and other "mentoring" and social networking organizations, as well as by accepting employees of the court for employment and partnership in these law firms (see e.g. my blogpost "Judges Indebted to Others");
- assignment of civil rights appeals in the U.S. Court of Appeals for the 2nd Circuit to a "fast and negligent" track to be decided by non-precedential "summary orders";
- the fact that judges assigned to civil rights appeals (and who decided it by non-precedential "summary orders") are predominantly very elderly, 75 to 80 years old, and possibly lack the necessary vigor for an effective precedential analysis and de novo review on appeals REQUIRED for the civil rights appeals as of right;
- consistent denial of equal protection of laws and due process of laws to civil rights appellants in the 2nd Circuit by dividing appeals into the tracks that, according to the court's arbitrary rules, are "worthy" or "unworthy" of precedential review de novo "as of right".
Stay tuned as to how the petition is decided.
Friday, February 13, 2015
The quid pro quo a la Mary Gasparini and the disciplinary court, or more food for thought to Jonathan Lippman for his upcoming "State of the Judiciary" address
On February 6, 2015 I've written on this blog about Mary Gasparini's corrupt attempt to urge the referee in my case to file a fraudulent Referee Report and submit a falsified transcript to the court.
I know Mary Gasparini is an active reader of my blog, based on copies of my blogposts she submits to my disciplinary court. So, Mary Gasparini read my blog and got enraged.
On approximately February 11, 2015 Mary Gasparini got enraged even more, because she received copies of two letters that I provide below.
On February 9, 2014 I notified the Referee that I cannot in good faith file a "Proposed Referee Report" of my own because there is nothing to report - the Referee did not do his job and did not hold the evidentiary hearing that the court ordered him to conduct, so he has nothing to report to the court.
On the same date of February 9, 2015 I asked the court to allow me to file a number of motion - due to the court's "anti-filing injunction" prohibiting me even to address ongoing misconduct of the Grievance Committee, the Referee, the cooking of the transcripts of the stenographer - and misconduct of the court itself. One of the motions that I asked the court to allow me to make was for sanctions against the Grievance Committee and its attorney Mary Gasparini and to dismiss due to egregious misconduct of the prosecution.
After receiving my letters, the court did not allow me to make the motions.
Instead, the enraged court and the enraged Grievance Committee engaged in an ex parte communication with the Grievance Committee advising the Grievance Committee as to how to cure defects of their purported criminal contempt proceedings against me.
I am not sure who initiated that "discussion", but I have a funny feeling it might be the court, even though whoever initiated it, it is equally bad.
As a result of the court's legal advice to the Grievance Committee, the following masterpiece was born on February 11, 2015.
Based on that piece of legal advice by the court to the hopelessly incompetent Grievance Committee, I have sent to the court a request to step down. We will see if the court has any remnants of integrity to actually do that.
Oh, and by the way, on January 30, 2015 the U.S. Court of Appeals for the 2nd Circuit, its elderly judges who are usually assigned to the "fast-and-sloppy" track to decide civil rights appeal through "non-precedential summary orders", produced this masterpiece of legal thought in my husband's pro se federal appeal:
In that masterpiece, the three elderly judges (see the table of the names and ages of judges of the U.S. Court of Appeals for the 2nd Circuit here) "resolved" the issue whether it is constitutional for a disciplinary committee to be considered "an arm of the court" (which then clearly undermines legality of attorney disciplinary proceedings because the court then is the same as the prosecutor).
Here is how these three brilliant jurists resolved the issue:
Because the 2nd Circuit "consistently extended quasi-judicial immunity" to attorney disciplinary committees based on the doctrine that an attorney disciplinary committees are "an arm of the Appellate Division", the claim that such an extension is unconstitutional due to merging of judge and prosecutor, is somehow wrong.
The U.S. Court of Appeals for the 2nd Circuit, therefore, thinks that if it has a history of making unconstitutional decisions, they must be constitutional just because the court did it for a long time.
Which begs the question - should those elderly judges finally retire and absolve litigants of their presence, with such senile logic?
In fact, a rule as ancient as the ancient Rome, provides:
"Abusus non tollit usum", which means that if somebody does something wrong (for a long time), doing something wrong (for a long time) does not set the wrongdoing as a new right.
Yet, courts keep doing exactly that - do it wrong, do it wrong for a long time, and then claim that since they were doing it this way (right or wrong) for such a long time, it must be right.
As to attorney disciplinary proceedings, it is one slippery slope:
(1) From allowing courts and judges whose misconduct attorneys must challenge on behalf of their clients if they see such misconduct in front of them, to "regulate", or, in other words, control livelihood and reputation of those same attorneys who are criticizing the courts;
(2) To allowing the courts to actually make procedural and substantive rules pertaining to disciplinary proceedings against attorneys, appoint prosecutors, shape the structure of the disciplinary committees with super-majority of lawyers over lay public members;
(3) To "granting immunity" to both courts and the disciplinary prosecutors for malicious and corrupt acts during those proceedings, while the grant of immunity to prosecutors is based on the concept that prosecutors are "arms of the court" TO, finally, what the court did in my case on February 11, 2015 -
(4) openly giving the incompetent Grievance Committee advice as to how to nail me better.
Food for thought for Jonathan Lippman for his upcoming "State of the Judiciary" address on February 17, 2015.
Something is profoundly rotten in how attorney disciplinary proceedings are handled in New York.
Something stinks very badly.
In fact, it is the "arms of the court" that stink very badly.
And it is the courts themselves that stink very badly, together with their various "arms".
Hiding that fact and punishing those who inhale the stink for not professing that they smell roses, will not help.
Putting band-aids to treat this gangrene, as Judge Lippman appears to be planning to propose in his speech on February 17, 2015, will not help either.
The disciplinary court gives the Grievance Committee legal advice how to properly commence frivolous contempt proceedings against me
I received today a spectacular letter from my disciplinary court.
The letter was dated February 11, 2015.
In the letter, "Principal Appellate Court Attorney" Christopher D. Lindquist practically gives the Grievance Committee legal advice as to how to bring a contempt proceeding in the court so that it can successfully proceed.
The court did not just reject an improperly commenced proceeding.
The court advised the Grievance Committee how to cure the defect to allow the proceeding to be "calendared" and to go forward.
The letter also mentions discussions "earlier" the day when the letter was written, and, judging by the content of the letter, the discussions were specifically on how to help the Grievance Committee cure any defects of filing.
That is an ex parte communication, pure and simple.
But - lo and behold - I am not even allowed to make a motion as of right after the court blatantly acknowledged the ex parte communication in a letter, because the court self-servingly imposed upon me an anti-filing injunction, and failed to respond to my letter politely requesting the court to, please, allow me to make a motion against the court to remove the court for bias and misconduct.
It is obvious that I can obtain no fair ajudication in this court... Nor anybody else can.
If the rule of law and equal protection of law is dead as to me, it is dead as to everybody else.
My blogs hit 100,000 views. Thank you for your readership.
My blogs covering issues of independence of court representation, access to court and judicial, prosecutorial misconduct and misconduct of "politically connected" attorneys hit over 100,000 viewers in less than a year. Thank you, my readers!
That's a lot for such difficult and politically sensitive topics as attorney independence and judicial misconduct.
Readers' interest and readers' feedback show me that these topics are important to the public. Readers report to me from all over the country that judicial misconduct is rampant everywhere, but the media does not adequately cover these topics, out of fear or policy.
That was my personal experience, too.
Before starting this blog, I went to several media outlets who listened to me and then faded out and dud not run the stories.
Yet, we will achieve nothing if we are going to be hiding under the rock instead of addressing the blight on the name of this great country that pervasive and uncontrolled judicial misconduct has become.
This blog is my political statement as an attorney who is being persecuted for trying to do my best for my clients, including my attempts to ensure for my clients their constitutional right to an impartial judge.
There is a growing recognition in this country that stifling criticism of the judiciary by attorneys, who know about judicial misconduct best, is a voter misinformation issue and a public safety issue.
Think "Kids for Cash" scandal in Pennsylvania where attorneys would not speak against the judge who was sentencing kids into a private juvenile facility for years, in return for kickbacks from owners of the facility who needed the "kiddy jail" full to keep the financing flowing.
When there is an uncontrollable king on the bench (and many, if not most, judges behave as if they are such kings in "their" courts), you may pretty much be assured that the democracy is dead and what you have is a dictatorship which will continue and affect your life for as long as you and other people will remain silent and accept it.
We need a court reform, we need to clean up the act of our "public servants" (including judges) who seem to run and control their master, the People, more than it is allowed to do by law.
Those who usurped absolute power should be legislatively controlled, and those controls should be effective.
I am grateful for your readership and feedback to my blog and will strive to continue to cover these issues in the future.
Thank you!
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