When a referee and a prosecutor cannot read...

On October 23, 2014, as I wrote on this blog before, I appeared in front of a referee in my disciplinary case, a very old man who appeared to have problem with either concentration, or retention of information, or memory, or all of the above.

We talked for some time off record, then the referee recalled that he has to say what he was saying on record, and he put on record, not exactly what he said off record, but here is the transcript: 

That was the sum and substance of why I was dragged to Syracuse on a 6-hour roundtrip, so that Referee Sirkin would say this to me, obviously he could not say that in an adjournment letter.

I draw your specific attention to what he said he will do next time we meet.

Referee Sirkin clearly said, on record that he will "have [his] decision on the grievance committee's motion and respondent's cross-motion and depending on how [he] rule[s] will depend on future proceedings, whether there be no future proceedings, or a hearing, or a mitigation hearing, if requested".

In fact, a referee in a disciplinary proceeding does not have any authority to decide motions and cross-motions, to rule on liability and to decide whether further hearings are or are not going to be held.

Here are two statements of Mary Gasparini, which are diametrically opposite to one another, and made within the SAME sworn affirmation:

That's a correct statement of the law.  That statement was in the order appointing Referee Sirkin.  Obviously, Referee Sirkin has a problem with reading and perceiving the law and orders of courts, due to his age, arrogance, or desire to retaliate against me for making a motion to disqualify him on statutory grounds and for cause.

The only authority of a referee in a disciplinary proceeding is, if issues of fact are raised on the record, to hear and report to the court about those issues of fact only.

The referee has only an authority "to report", not do "decide" or "rule" on any legal issue.  

Liability of an attorney in a disciplinary proceeding is a legal issue, and Referee Sirkin clearly says in the transcript that based on his ruling, he may deny me a hearing and move to a mitigation hearing, which means he is planning to make a decision on liability, the decision he has no authority to make.


Naturally, after hearing that the referee plans to completely usurp the authority of the court he does not have and, possibly, deny me the trial, the only thing that the referee was ORDERED BY THE COURT to do, I moved to disqualify the referee.

Look what Mary Gasparini says about that:

To Mary Gasparini, it is clear from the same transcript where the referee says he is going to decide motions and cross-motions and, possibly, deny me the right to a trial which was ordered by the court, that the referee did nothing wrong.

Mary Gasparini does not see the referee exceed his authority, even after she correctly states under oath what that restricted authority is - to hear and report on factual issues only.

Mary Gasparini is paid enormous amounts of taxpayer money to protect the public from attorney misconduct.

Yet, instead of doing any due diligence on cases she is working on, cases where she holds livelihood and reputation of attorneys and their families, and attorneys' ability to work at all, since disbarred attorneys are pretty much unemployable, Mary Gasparini, on state time, prefers to go speak at private CLE seminars to teach other attorneys about attorney ethics.

Yet, Ms. Gasparini advances mutually exclusive arguments to the court and considers that ethical.

Ms. Gasparini, obviously, would have benefited from a couple of those CLE seminars on ethics, at her own expense, of course.

Yet, that might not help, as all the "ethics" that are governing Ms. Gasparini's conduct is impunity.  Once again, who is going to discipline her for apparently unethical behavior - herself or the court that she is the "auxiliary" of?  

The TASER-happy Delaware County does not have proper safety procedures or records regarding TASER certification and use

On September 24, 2014 I filed with Delaware County Sheriff's Department this FOIL request:

This is the response that I received from the Delaware County to this FOIL request.

Please, note that Delaware County claimed that no records exist in answer to my questions 1, 2, 3, 5, 5 and 7.

I already wrote in the previous post about search of attorney files, and that is a clear violation of attorney-client privilege and interference with criminal defendants' right to counsel which is only confirmed by the lack of written policy.

The lack of records in answer to my question No. 2 is a risk to public safety.

In other words, Delaware County does not have a written policy that would require the County to order an officer to desk duty and to turn in his pistol and TASER if, let's say, as Derek Bowie claimed under oath on the stand, his disability from a dog bite was so bad that his fingers were getting numb.

Yet, Deputy Derek Bowie was not ordered to desk duty despite his "seriously numbed fingers" and, as a consequence, the public in Delaware County was at his mercy.

Imagine if Derek Bowie's fingers get completely numb when he is driving, or he grabs his pistol or TASER and then his fingers get numb on him or on you.  He then will either not be able to protect a person when he needs to protect him or her (and that includes his partner, another police officer), or he can accidentally misfire - at any of you, with sad consequences.

What I absolutely loved is that Delaware County, while claiming it is certified by the Criminal Justice Department and while it has to show compliance in accordance with such certification on over 130 parameters, claims to have no record whatsoever of such compliance.

Of course, I will verify that with the Criminal Justice Department and will ask it to revoke Delaware County Sheriff's certification if no such records are kept.

If I learn that it is simply a stonewalling tactic, I will sue under Article 78, as required by New York Freedom of Information Law, with a request for attorney fees.

Both ways, it is a losing tactic for Delaware County to make claims as, let's say, disingenuous as this one.

Furthermore, Delaware County has no records showing certification of the "non-lethal" weapons, TASERS which can be, as various reports in this country and abroad show, can be very lethal.

This is clear liability of the county not to certify TASERS at all, or on each day when they are released or used, and that liability, if it results in a fatality, injury or a lawsuit, will be backed up with your own money, county taxpayers, so, please, pay attention.

The same refers to lack of records in response to questions No. 6 and 7.

It is elementary to have such certification and sign-out procedures of the TASER equipment, for the safety of both the officers themselves and the public.

Apparently, Delaware County doesn't give a damn about that safety.

And as to training as to how to use TASERS, see question No. 9 and Delaware County's response to it, "by policy, all employees who carry TASER guns, are certified accordingly".

Yet, no records of such policies or certifications are provided, so, as with policies to search attorney files, this is just an ad hoc invention to keep at bay the information-hungry civil rights attorney.

How safe are you, residents and visitors of Delaware County?  Apparently, not safe at all.

Delaware County Sheriff does not have written policies to search attorney files

I have posted on this blog some time in September two recordings of my telephone conversations with Delaware County officials (State of New York).

One conversation was with the chief of correctional facility in the Delaware County Sheriff's Department claiming that the Sheriff's Department has a policy to search attorney's files when attorneys come to visit their clients who are held in jail.

The other conversation was with the Delaware County Attorney Porter Kirkwood who claimed he did not know of any policies.

On September 24, 2014, two days after I was not allowed to see my client in Delaware County jail because I refused to allow my attorney file to be searched, I made a FOIL request with the Delaware County Sheriff asking to provide me all written policies referring to search of attorney files.

I received recently an answer to that request indicating that there are no such written policies in existence.

Thus, when I was ordered by the jail guard to be searched, it was simply an oral directive from the jail authorities to do that, and not a follow-up on any written policy, as policies as important as that one have to exist in writing.

I am also waiting for Delaware County's response to my other FOIL request, where I am asking to provide copies of jail sign-in sheets showing names of attorneys who visited their clients since early September, 2014, and, if the attorneys were allowed to visit their clients, videotapes showing that attorney files of those particular attorneys were searched. 

I have a funny feeling Delaware County will devise a way of denying me that request... 

What a mess...

Does a taxpayer-paid prosecutor have a right to appear at CLE seminars during business hours or is it a waste of public funds and attorney misconduct?

You know chameleons - those lizards who change color to blend with the environment for purposes of self-protection.

This is what prosecutors do in attorney disciplinary proceedings - they claim they are part of an executive branch to defeat constitutional challenges to the propriety of the proceeding and they claim they are part of judicial branch to protect themselves from disclosure of public records that may get them fired.

Normally, a prosecutor is a representative of an executive branch of the government.

In a valid court proceeding, a neutral prosecutor, an executive officer elected by the people, who is independent of the court, makes decisions whether to investigate or prosecute a case, investigates and prosecutes cases.

In attorney disciplinary proceedings, the disciplinary committee constitutes, as I already wrote on this blog, of unpaid "volunteers", attorneys in private practice, private competitors of the disciplined attorney.

The attorneys representing these unpaid volunteers are paid by the state.

Seethroughny.net shows that the prosecutor that is  currently prosecuting my disciplinary case, Mary Gasparini, is paid as part of the judiciary, had a rate of pay in 2013 of $98,692.00 and was actually paid in 2013 $101,114.

This hefty payment came out of your pockets, New York taxpayers, so I, as a taxpayer, I became very interested when Ms. Gasparini asked a referee to adjourn a conference date because Ms. Gasparini was scheduled on the proposed date of the conference to speak at a CLE (continued legal education) seminar.

As far as I know, public speeches at privately held seminars for which attorneys pay through their noses, are not part of "duties" of prosecutors, so I filed a Freedom of Information Request with the disciplinary Committee seeking timesheets of Ms. Gasparini on the day of a prior CLE seminar where she "spoke".  I was interested how can a public prosecutor appear at such seminars on her state-paid time.

Actually, I was very interested in those time-sheets of Mary Gasparini because two of the prior prosecutors of the case, Steven D. Zayas and Peter Torncello, "resigned amid investigation" into allegedly filing false time-sheets.

So, I filed a FOIL request:

I received two answers as to Mary Gasparini's participation in the CLE's on taxpayer-paid time.

My first answer was an irate "Second Reply Affirmation" claiming that I am trying to "thwart" the disciplinary proceeding any way I can.

I guess, raising constitutional issues, including obvious issues of disqualification of a referee, in a timely filed motion to vacate, renew and reargue and based on documentary evidence and proper legal authorities is considered "thwarting" disciplinary proceedings.  So much for a neutral and impartial prosecutor.

In her "Second Reply Affirmation", under oath, Mary Gasparini:

(1) acknowledged that she did ask the referee (whom she called a "judge") for an adjournment because of her appearance to speak at a CLE seminar; 

(2) claimed (without supporting documents) that she is not compensated for speaking at the CLE seminars; and 

(3) claimed that speaking at CLE seminars (during business hours as a prosecutor and while obviously delaying proceedings that she is prosecuting) is somehow part of Ms. Gasparini's "duty".

I cannot verify truthfulness of Mary Gasparini's first statement that she is not compensated for speaking at the CLE seminars, but she is, in fact, compensated, by the taxpayers, for speaking at CLE seminars while doing nothing as to her direct duty of prosecuting cases.

Also, while Ms. Gasparini's statement is unverifiable, or, at least, she has failed to provide documents from the CLE provider confirming that she is not being compensated for her "speaking" at CLE seminars, copies of recordings from that seminar, including Ms. Gasparini's speech, are being sold as online access and as CDs.  I wonder if Ms. Gasparini is not compensated for sales of those either.

My second answer was a response from Ms. Gasparini's boss, attorney Gregory J. Huether.

Mr. Heuther claimed that the Committee is an "auxiliary of the court", therefore, it is part of the judiciary and cannot be reached by FOIL.

In fact, when denying my FOIL request about policies, time-sheets and paychecks, Mr. Huether, a seasoned attorney, had to know he is violating the FOIL law and the policy New York State Court Administration, distinguishing between "administrative" records (reachable by FOIL) and court records (not reachable by FOIL, but reachable under Judiciary Law 255).

I guess, even when trying to prosecute an attorney for allegedly frivolous conduct, the disciplinary prosecutors do not feel beneath them to engage in frivolous conduct themselves - when it suits to protect their own personal interests and careers.

Time-sheets of a public employee, whether that is an employee of a court or of an executive agency, are administrative records reachable by FOIL.

When prosecutors try to pretend that they are not part of the court when I challenge constitutionality of disciplinary proceedings under the "judge-advocate rule" and that they are part of the court when they want to protect themselves by stonewalling my access to public records, their own time-sheets that can potentially lead to their "resignation", as it did with Mr. Zayas and Mr. Torncello, that is called prosecutorial misconduct.

Yet, there is no hope that disciplinary prosecutors will at any time be disciplined for that misconduct, because who is going to discipline them - themselves or the court that they are "the auxiliary" of?

Complaints were filed against Judges Peters, Stein and NYS Governor

Complaints were filed with the U.S. Attorneys' office dealing with corruption in New York State government, with a request to investigate and prosecute judges of the NYS Appellate Division 3rd Department Leslie Stein, Karen Peters and NYS Governor Andrew Cuomo for theft of honest services of a judge - for nomination of Judge Leslie Stein to the Court of Appeals on October 17, 2014 while she was a presiding appellate judge on a DEC case, while she was not removed from the panel by Chief Judge Karen Peters and did not step down voluntarily, but instead ruled for the DEC 6 days after the nomination.


Complaints were also filed with the New York State Judicial Conduct Commission.


I am wondering whether any discipline or prosecution will follow.

When judges are testifying as experts...

I wrote in the previous post about Judge Sharpe's "visionary" unsworn testimony on behalf of the prosecution in a case where the judge claimed that in 50 years a gene will be discovered showing that some people may have uncontrollable urges to view child pornography.

Apparently, Judge Sharpe did not find that unsworn testimony of a judge on behalf of the prosecution is somehow inappropriate.

So far, I know of only one more judge who also loves to testify as a medical expert, Judge Carl F. Becker of the Delaware County Court, New York.

Judge Becker offered (and relied upon) his own unsworn opinions as:

(1) forensic dentist;

(2) forensic gynecologist;

(3) forensic ophtalmologist (Judge Becker stated in an open criminal proceeding that a legally blind defendant is not as blind as he pretends to be - when the judge accepted a plea from a legally blind defendant that he drove the truck with drugs), and

(4) forensic surgeon (Judge Becker stated, also in an open criminal proceeding that a criminal "suddenly" needed a surgery to avoid sentencing while he is not as disabled as he claims to be - and that New York State will provide free medical care to such person behind bar).

Those are cases I know about, there might be a lot more.

In all of those cases Judge Becker made his unsworn and unqualified expert opinion in favor of a party with a higher social standing.

And, while the 2nd circuit reversed the case where Judge Sharpe offered his unsworn and unqualified expert testimony on behalf of the prosecution, in New York, appellate court affirmed decisions involving unsworn testimony of Judge Becker - every one of them.

In the view of Judge Gary L. Sharpe people are "genetically predisposed" to view child pornography. Is something seriously wrong with this judge?

In 2011 Judge Sharpe, the Chief Judge of the U.S. District Court of the Northern District of New York, was reversed by the Court of Appeals for the 2nd Circuit because the judge considered in imposing a sentence upon a criminal defendant his own personal genetic theory that people are genetically predisposed to view child pornography.

The Court of Appeals for the 2nd Circuit reversed and remanded the case to a different judge in view of apparent inability of Judge Sharpe to be fair.

Even though objections to unreasonableness of sentencing were not preserved for appellate review, the court still reviewed them for "plain error".  The appellate court noted: "we may exercise our discretion to notice the forfeited error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings".

At sentencing, the judge made a ruling that was stunning in its logic (or, rather, a complete lack thereof).

Rejecting reports from psychologists that the defendant was of low or moderate risk to reoffend in the future (which, to be fair, the judge could be correct about, because psychology is not an exact science), the judge made his own scientifically unsupported claim that 50 years in the future a gene will be discovered which governs defendant's uncontrollable urge to possess child pornography.

This comes from a judge who has been on the bench for a long time, has practice law for decades, and has been a prosecutor for some time.

The judge had to know that in this country people are not punished for "uncontrollable" behavior.

When the judge pronounced that defendant's behavior in possessing child pornography was uncontrollable, the judge just as well said that the conviction should be tossed.

Yet, the judge used his unsupported personal opinion that possession of child pornography may be uncontrollable behavior not as a mitigating factor, but as an aggravating factor for sentencing, which is completely illogical and begs an answer - did Judge Sharpe start to have mental health problems back in 2011 when he offered his "forensic geneticist" opinion in U.S. v. Cossey?

It sure looks like that to me because recently Judge Sharpe sanctioned me for correctly reading the 11th Amendment to the U.S. Constitution...  To me, that is a sure sign that something may be wrong with the judge.

Appellate court, while reversing Judge Sharpe's decision, stated the following:

"It is undisputed that it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics. For Cossey’s challenge to survive, there must be error and it must be plain. Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted. 

The court’s belief that Cossey was genetically incapable of controlling his urges affected the court’s decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey’s substantial rights. " 

Was Judge Sharpe sanctioned for his unsworn testimony as a forensic geneticist on behalf of the prosecution?  Not at all, and that's the problem.

Federal judges are supposed to serve for life "on good behavior".  Mental health problems cannot be considered "bad behavior", because, once again, it is behavior that a person cannot control.

Yet, there should be some way to suspend or take off the bench judges who start to act in a bizarre way, unreasonably hurting people.

If such behavior is just plain malicious and vicious, it is even worse.

Federal rules of judicial discipline declare that a complaint against a judge will not even be accepted if the complaint is against the judge's behavior in a certain case - it is allegedly an appellate issue.

I already wrote in this blog about federal appellate courts rubber-stamping the lower court's decisions, and it is especially hard to have a judge recognize that a another judge not only acted "unreasonably", but committed an outright judicial misconduct.

Yet, the concept of absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS ON THE BENCH was invented by the judiciary specifically because judicial discipline is available.

So, the concept of absolute judicial immunity refers to a judge's behavior in a court proceeding and cloaks the judge with immunity from lawsuits BECAUSE judicial discipline is available as an alternative to such lawsuits.

On the other hands, federal judicial discipline for whatever the judge did in court proceedings is NOT available specifically BECAUSE it was done in a court proceedings.

See the logic?  There is no logic.  There is only a desire of the judiciary to protect itself from accountability for ANY acts, no matter how malicious and how corrupt, no matter what.

As an example, if a federal judge imposes, for a kickback, illegal criminal sentences (as it happened with juvenile sentences in the "Kids for Cash" scandal in a state court in Pennsylvania, Luzerne County), simply to fill privatized prisons, then the following happens:

(1) appellate courts will never find misconduct in whatever the judge is doing;

(2) disciplinary authorities will reject complaints about the judge BECAUSE judge's conduct complained about happened during a court proceeding; and

(3) and the judge is covered by absolute judicial immunity BECAUSE his conduct, again, happened during a court proceeding and because PRESUMABLY judicial discipline is available as an alternative means to a lawsuit (although we know it is not available).

The result - there is no legal remedy for malicious and intentionally incorrect judicial decisions, as well as for corruption on the bench.

I am far from accusing Judge Sharpe of corruption on the basis of the described case, there is nothing in the case indicating corruption.

Yet, there is something in the case indicating malice - and the court, although it ruled that the court was "unreasonable" and although the appellate court remanded the case to another judge, Judge Sharpe was not disciplined and remained the Chief Judge of the U.S. District Court for the Northern District of New York.

Yet, Judge Sharpe's claim about "genetic predisposition" to possess child pornography is disturbing, at least because it can be used to completely eliminate possession of child pornography as a crime - if people have uncontrollable urges to possess it.

And the other disturbing question of public concern that clearly arises would be - is Judge Sharpe's personal opinion as to uncontrollable urges to possess child pornography based on personal experience?

I wonder whether there is authority in the United States who runs regular psychological analyses of judges, like they, no doubt, do in FBI, CIA and in any other governmental jobs presupposing high-stress, fast-track work environment requiring split-second ability to react.  

Even though Judge Sharpe does not believe in such evaluations, probably, only such evaluations will be able to reveal judges who are unfit to remain on the bench - and that will save people who appear in front of them a lot of grief.