7th and 2nd Circuit now approved exceptions to prosecutorial immunity

I wrote recently in this blog about the recent decision (September 2015) of the U.S. Court of Appeals for the 2nd Circuit that carved out an exception to prosecutorial immunity in preparing false evidence for presentation to the grand jury in prosecutor's investigative capacity.

I recently found another, earlier, case from the 7th Circuit (of January 2014) where the court similarly made an exception to prosecutorial immunity when false evidence was prepared in the prosecutor's investigative capacity.

The 7th Circuit court rejected the prosecutor's claim that, notwithstanding that the false evidence was prepared during the investigative stage, the injury occurred during the trial when the false evidence was introduced and where the prosecutor was covered by absolute prosecutorial immunity.

Such a claim is obviously completely immoral - not that the prosecutor advancing it cared a bit about immorality or dishonesty rather than his liability.

The court very logically reasoned that, for example, in products liability case, the injury may occur when a pipe bursts, but the future injury is put into motion when the defect is created.

So far, 2nd and 7th Circuit started to chip away at prosecutorial immunity, even though by small pieces.

I wonder when it will occur to federal courts (where majority of judges are former prosecutors who, of course, feel for the fate of their brethren appearing in front of them as defendants in civil rights actions, see for example, my previous blog post) that the concept of absolute prosecutorial immunity is not only immoral, but has nothing to do with Civil Rights Act or the U.S. Constitution that is enforced by private actors - victims of prosecutorial misconduct - through the Civil Rights Act.

The not-so-sharp Gary Sharpe is replaced in his position of Chief Judge of Northern District of New York - by yet another former prosecutor Glenn Suddaby

Since 2000 the U.S. District Court for the Northern District of New York was led exclusively by former prosecutors.

First it was former prosecutor and former Onondaga County assistant District Attorney Judge Scullin who served as Chief Judge 2000 to 2006.

Then it was former prosecutor and former Onondaga County district attorney Judge Mordue who served as Chief Judge from 2006 to 2011.

Then it was not-so-sharp Judge Sharpe who punishes people for correct reading of the 11th Amendment.  Judge Sharpe served as Chief Judge of NDNY from 2011 to, as far as I understand, end of August of 2015 when Judge Suddaby was appointed in his place. 

Before becoming a federal judge, Judge Sharpe toiled as a prosecutor in the New York State Attorney General's office, and then in the U.S. Attorney's office, and left a son as his successor for each of his former employers, who continued to appear in front of Judge Sharpe after employing his sons.

Now it is a career prosecutor and former Onondaga County assistant district attorney Judge Suddaby who replaced Judge Sharpe as Chief Judge in NDNY.

By the way, the current Chief Magistrate that regularly pairs up with Suddaby, Sharpe, Mordue and Scullin while presiding over civil rights cases - and regularly tosses them on court-contrived grounds that have nothing to do with the U.S. Constitution or the Civil Rights Act - is David Peebles, yet another former assistant district attorney from Onondaga County.

As we see, former prosecutors led the NDNY court for the past 15 years, and former prosecutors from Onondaga County District Attorney's office have led the court for 11 out of those 15 years, including now.

That is, while the law school roommate and buddy of the current Onondaga County District Attorney William Fitzpatrick Judge James Tormey, and Fitzpatrick himself are being sued in the same court where so many judges, including the Chief Judge are Fitzpatrick's former colleagues in the Onondaga County District Attorney's office and might very well know him personally.

The court, as far as I could see in the docket of that lawsuit, never attempted disclosure or transfer of the case to another court due to the HUGE appearance of impropriety.

Well, at least appointment of Judge Suddaby removed the embarrassment of having a Chief judge of a federal court who cannot read the U.S. Constitution that he is sworn to protect - and who presides over and rules for cases where his sons' two employers (U.S. Attorney and New York State Attorney General) are appearing.

Yet, Suddaby, as a career prosecutor, has a prosecutorial mentality which, coupled with absolute prosecutorial immunity that Suddaby "enjoyed" for his entire legal career could not but breed a special kind of arrogance and disdain to the rule of law and a sense of entitlement.

The entitlement that allows Suddaby to regularly preside, without disclosure, over cases where his former employer the Onondaga County is sued (according to my review of cases on Pacer.gov) and ruling for that former employer.

When prosecutors become judges reviewing civil rights cases, you know civil rights will be screwed, and they are.

Will Porter Kirkwood and Carl Becker be disciplined for misconduct for having Becker appear in a judicial robe in Porter Kirkwood campaign flyer - after retirement?

Now, I understand that the sense of privileges and entitlement die hard.

Especially for such a self-important buffoon as the recently retired Delaware County Judge Carl Becker who, reportedly, could storm into a post office and get into the face of a federal postal worker asking her if she knew WHO HE IS, that he is A JUDGE.

It is hard to accept that yesterday you were an almighty God with absolute immunity for malicious and corrupt acts - and today you are just an ordinary attorney without employment.

So, Becker, despite his claim that he left the bench in a hurry, years before reaching the mandatory retirement age, in order to spend more time with his family, after he learnt that his daughter is pregnant with his second grandchild and will soon move to Australia.

Yet, instead of spending time with his daughter, who does not reside in New York, as far as I know - Becker mentioned Seattle when I was appearing in front of him - after retiring, Becker is seen all the time hovering around the courthouse, parking in employee parking spot and driving a car that still sports a "judge" license plate - in violation of the law.

Impersonating a judge when you are not a judge is misconduct for an attorney.

Becker continues to impersonate a judge when he parks in the employee parking lot when he is no longer an employee of the court system and when he drives around with "judge" license plates on his vehicle when he is no longer a judge.

But, Becker's misconduct rose to new heights when he appeared on Porter Kirkwood's judicial election campaign flyer in his robe - while stating that he is a "ret." judge.

Well, many people will not recognize "ret." as "retired", but will see the robe and identify Becker as a presently sitting judge who renders support to Porter Kirkwood's election - which is fraud upon voters.

And, Porter Kirkwood positioned Becker as one of the "leaders we trust" on his campaign flyer when he intentionally put Becker's old photo from his years as a judge on his present campaign flyer.

Now, at the time of Porter Kirkwood's election flyer went out, Becker was no longer a judge, and Porter Kirkwood well knew it.

With support sings for Porter Kirkwood reportedly all around Delhi and Delaware County, to the point that it seems to observers like an assault of the Red Army on the county with all those red signs around - I doubt that Porter Kirkwood did not have enough money to invest into a new post-retirement picture of Carl Becker.

At least, he knew not to put a picture in a robe of another retired judge and unemployed attorney - Carl Mugglin

- who offered support to Kirkwood in the same flyer, or at least he cut the photo off so that what Mugglin is wearing does not look like a robe.

In Becker's case, his photo is the identical photo from his recent judgeship, that was published a news article when Becker was a judge, and there is no question that what Becker is wearing is the black robe.

Yet, for Porter Kirkwood's information, it is not Halloween yet, and Becker, while he can use his black robe as a bath robe and walk in it around the house reminiscing his past glory, he has no right to appear in that robe in public, or endorse election campaign flyers in a robe, as if he is still a judge.

And I will make sure that the disciplinary committee for election of Porter Kirkwood, and the Judicial Conduct Committee - if Porter Kirkwood is elected - takes up the case of Porter Kirkwood soliciting impersonation from Carl Becker as if he is still a sitting judge.

Because for a retired judge to appear in an election campaign wearing a robe to which he is no longer entitled is attorney misconduct.

As well as it is attorney misconduct for Porter Kirkwood to solicit and publish such impersonation.

No presumption of innocence in Mississippi - and not only there

It was reported today that a Mississippi judge, in an interview, stated that people charged with crimes are all criminals.

That is - people who are presumed to be innocent until proven guilty by a jury of their peers, are guilty, according to the judge - just because they were charged with crimes.

And this is the mentality of many criminal judges, and not only in Mississippi.  A mentality that needs to be weeded out of the system in order for people to get elementary justice.

The Mokay saga continues as a black comedy - after 8 years of litigation, Plaintiffs got a $156,290 judgment against themselves

I've been writing about the Mokay saga extensively here, you can run the work "Mokay" in the keyword search window on the right in this blog to see all the blog posts about it.

The latest interesting news are that - after 8 years of litigation of a completely meritless case, the six plaintiffs got a $156,290 judgment against themselves.

The case started in Delaware County Supreme Court in June of 2007.

A partial summary judgment on liability was made in 2008.

In 2009, the New York State Court of Appeals allowed to charge attorney fees as damages in litigation.

In the Mokay case, the ONLY items charged as damages at the ex parte trial in April of 2015 were attorney fees of two  law firms:  Harlem & Harlem and Harlem & Jervis.

There was no retainer agreement in the record for Harlem & Jervis.

There was no consent to change counsel in the record for the change of counsel from Harlem & Harlem to Harlem & Jervis, notarized by each one of the six plaintiffs in the action.

Judge Kevin Dowd did not care about such pesky issues as retainer agreements and consent to change counsel.

He was irate because of the length of litigation - against Mr. Neroni, of course, not against Harlem & Jervis.

And, in order to "make Plaintiffs whole", Judge Kevin Dowd has awarded $156,290 in actual damages based on attorney fees of these two law firms chargeable by Harlem & Jervis and Harlem & Harlem against their clients. 

Yes, of course, Judge Dowd made the judgment against defendant Frederick Neroni.  Yet, by saying that Plaintiffs claimed that those attorney fees are their damages against Mr. Neroni, Judge Dowd also acknowledged that Plaintiffs agreed to those attorney fees by Harlem & Harlem and Harlem & Jervis.

Which made Plaintiffs liable to Harlem & Harlem and Harlem & Jervis for those legal fees, jointly and severally.  In other words, the money judgement acknowledging attorney fees of $156,290 as "actual damages" of the Plaintiffs, is a money judgment by Plaintiffs' alleged attorneys against the Plaintiffs.  Against each and every one of them.

So, as of June 12, 2015, the date of the decision of Judge Kevin Dowd, 

1) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Daniel Mokay individually, and against his property;

2) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Andrew Mokay individually, and against his property;

3) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff David Mokay individually, and against his property;

4) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Patricia Knapp individually, and against her property;

5) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Christine Reed individually, and against her property;

6) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Estate of Andrew Mokay Sr, and against its property (and the property of all of its beneficiaries) - and that is in addition to attorney and Executor fees of Harlem & Jervis and the Executor Daniel Mokay charged against the Estate in the probate proceedings.

But the beauty of it all is that Judge Dowd created this money judgment of $156,290 against the Plaintiffs without any testimony from the Plaintiffs!

That's right, none of the Plaintiffs testified in the ex parte Mokay trial (where the public was also not allowed, I have an affidavit from a witness who was duped by the court personnel into believing that the trial was adjourned and not happening, when it was happening at the very same time as the witness asked to go observe it).

None of the Plaintiffs came forward at the trial to say:

1) yes, I hired Harlem & Harlem to represent me in this litigation;
2) yes, I hired Harlem & Jervis to represent me in this litigation;
3) yes, I am aware of every billing item that Harlem & Harlem and Harlem & Jervis presented to this court today;
4) yes, I approved of these billing items as MY legitimate costs of litigation;
5) yes, I am aware that the money judgment that I am seeking against Defendant Mr. Neroni is also collectable by Harlem & Harlem and Harlem & Jervis against me, as attorney fees against a client;
6) yes, Harlem & Harlem and Harlem & Jervis advised me of the potential conflict of interest in obtaining such a money judgment in this trial against Mr. Neroni, which will also be enforceable against each one of the plaintiffs;
7) yes, I agreed in writing for Harlem & Harlem and Harlem & Jervis to proceed to trial and obtain a money judgment against Mr. Neroni that will also be collectable against me by Harlem & Harlem and Harlem & Jervis.

None of the Plaintiffs testified.

And Judge Dowd rubber-stamped boxes of evidence supplied to him during and after (!) trial by Harlem & Jervis, simply because they were submitted against the much hated Mr. Neroni who sued Judge Dowd and whose wife sued Judge Dowd on behalf of client (not Mr. Neroni) - without any verification of the above issues by any of the Plaintiffs through testimony.

The only testimony upon which this money judgment was entered against Mr. Neroni and against the Plaintiffs was testimony of a non-party with interest in the money judgment, attorney Richard Harlem, son of a judge.

Of course, Judge Dowd's "brain", his law clerk Claudette Newman (who is also a local town justice, a judge in her own right), could not sit with him on that bench and could not advise him how to rule while he was dreaming of urinals built by law schools in his honor -  that's what he has put on record in a custody proceedings several years ago, and I do not think his mental capacity has improved since then.

Yet, the decision of June 12, 2015 was made two months after the trial ended.  Judge Dowd's "brain" had enough time to function and not to make a money judgment enforceable against the Plaintiffs where Plaintiffs did not testify, and THE ONLY witness who did testify was a non-party with interest in the money judgment, whether against Mr. Neroni or against the Plaintiffs - attorney Richard Harlem.

Good job, Judge Dowd.

Good job, Claudette Newman.

Good job, Richard Harlem.

Good job, James Harmann, the "trial counsel" for the Plaintiffs.

Good job, Michael Getman, another son of a judge, who stated before the trial began that his client Connie Mokay's interests 

         (Connie Mokay was a co-defendant in the action 
         and a beneficiary of the Plaintiff Estate of Andrew Mokay 
         as a widow with a right to an elective share of 1/3 of 
         the Estate, reduced in half by agreement with 
         Mr. Getman without any consideration) 

are "aligned with the Plaintiffs" and then left the trial - thus allowing Judge Dowd to create, without any objections, to enter a money judgment of $156,290 enforceable by Harlem & Jervis against the Estate in which Michael Getman's client Connie Mokay has interest as a widow with an elective share.

As I said above, the Mokay saga is quickly becoming a black comedy - or a vaudeville. 

Yet, serious researchers of Judiciary Law 487 and Amalfitano v Rosenberg, the New York State Court of Appeals case that allowed attorney fees as damages in Judiciary Law 487 claims, need to at least take note that, if attorney fees incurred by plaintiffs and chargeable against plaintiffs by their attorneys are advanced as damages at trial on behalf of plaintiffs, 

• a conflict of interest is present where attorneys have interest in obtaining a money judgment not only against the defendant in the action, but against their own clients;
• such a conflict of interest must be discussed with the client;
• a written consent for the attorneys to proceed must be signed by each plaintiff;
• plaintiffs - at the very minimum - must testify at trial to confirm that they DID hire these attorneys who have an interest in a money judgment against their own clients, and that they DID approve legal fees of these attorneys claimed as damages.

Because - otherwise we get what we got in the Mokay saga.

A $156,290 money judgment against each and every one of the Plaintiffs, enforceable against them by allegedly their attorneys Harlem & Jervis and obtained against them while their presence is not mentioned in the trial transcript (in their absence) and without their testimony.

Just think about the potential of abuse - an attorney walks into the courtroom, gets on the witness stand and testifies that A, B, C, D, E and F owes him hundreds of thousands of dollars, and the court approves a money judgment that goes both against the A, B, C, D, E and F's alleged opponent and against them, too.

And, the court, without hearing out the testimony of A, B, C, D, E and F, grants the hundreds of thousands of dollars against the defendant, but also by the attorney against A, B, C, D, E and F - without their testimony or even presence.

Here, "to make Plaintiffs whole" (or rather, to make a hole in Plaintiffs' pocketbooks), Judge Dowd created a money judgment of $156,290 against each one of them, enforceable against them by son-of-a-judge Richard Harlem, in their absence and without their testimony.

That decision, by far, beats the decision about the urinals built by law schools in Dowd's honor - as part of a custody proceeding.

All in all, it was really well worth the 8 years of litigation in Mokay v Mokay - for Richard Harlem, not for the Plaintiffs.

I wonder when Richard Harlem will start collecting his hard-earned judgment of $156,290 against Daniel Mokay, David Mokay, Andrew Mokay, Christine Reed and Patricia Knapp.

But, that will be part of the black comedy genre.

I will report further on this case as information becomes available.

Stay tuned.

Porter Kirkwood's additional conflict of interest triggered a question - why do we need courts at all when most important issues are already being decided out of court?

I indicated in the previous blog that a Porter Kirkwood's supporter has claimed, no doubt as a public "service", Porter Kirkwood's participation in the so-called "surrogate decision-making committee".

Here is some more information on these "committees".

Here is their composition:

Consider it:

for some reason, you temporarily cannot make an informed consent medical or end of life decision for yourself.

Instead of going to court to have a legal guardian appointed for you by the court and have issues of medical treatment and end of life decided in court, a "panel" is appointed consisting of:

• a physician who may be connected to the organ-donation industry;
• an attorney who may be connected to your heirs;
• your heirs who may be interested in your quick departure over the rainbow; and
• an "advocate for persons with mental disabilities" - who also can have his or her own conflicts

These individuals will decide your fate - from surgery to end of life.  Without court.  Without law guardians.  Just like that - a panel of four people, not elected by the people to be a judge, not meeting requirements of the New York State Constitution to become a judge.

And Porter Kirkwood is already a part of this unconstitutional arrangement with a clear potential for eugenics.

There is no reason whatsoever - NONE - why courts should not or cannot be involved.  Major medical treatment and especially end of life decisions should not be handled without consent of either the person him- or herself or his legally appointed (through courts) guardian who is sworn to protect the person's best interests.

Moreover, persons with interest in the patient's demise (such as family members) may not be involved in decision-making - as it happens in these "panels".

Here is some more information provided by the Committee itself.  This is what Porter Kirkwood is ALREADY doing.

So, SDMC recognizes that it is an "alternative approach to the court system", and, since a deprivation of life and liberty is involved, it simply cannot be done through out-of-court panels consisting of people with conflicts of interest and a direct interest in the patient's demise.

Courts can hold emergency sessions if treatment is needed immediately, so the problem is not with time.  There is simply no constitutional justification for these death panels.

When people are unable to provide informed consent, a court-appointed representative should be able to do it, but the keywords are - "court-appointed".  And when people have "no surrogate to provide consent on their behalf", there is a procedure under Mental Hygiene Law to have such a person court-appointed.

Whatever authority is claimed under the statute, the statute itself is blatantly unconstitutional.  No other state allows such an out-of-court procedure, and for a good reason.

Facilities who are interested in providing medical care and being paid (involuntarily) out of property of the person incapable of giving consent, are now eligible for a "consideration", out of court, to MAKE you, if you cannot make a medical decision for yourself, undergo their costly treatment - for which you will then be made to pay.  Isn't that a perfect setup for corruption?

For Kirkwood, who already ok'd award of millions of dollars bypassing public bidding - participation in this committee is a perfect fit.

One more reason to flee from New York until your former client or a disgruntled family member puts you to death, through the use of such a "panel".

And - isn't it a sad irony that the issue as to WHY WE NEED THE COURTS if issues of life and death can be decided informally, out of court - would pop up as a result of a JUDICIAL ELECTION campaign?

Because the question is very clear.

Why are we talking about Gary Rosa's judicial experience in Family court matters?

Why are we talking about Porter Kirkwood's experience in Family Court matters?

Why do we need to talk about experience in court at all?

Why do we need to elect judges at all?

Why do we need courts at all?

Why wouldn't we have "appointed" some "panel of volunteers", and they will decide all issues in our life for us - without the costly court system.

Why?

Porter Kirkwood serves up hamburgers really well and plays God with people's lives through the "surrogate decision making committee"

No, I am not joking.

This was offered "on a personal note", as a qualification of a judicial candidate Porter Kirkwood for the position of a Family Court judge - as opposed to Judge Gary Rosa's statement in his election campaign that he is always "on-call" as a judge for criminal arraignments and orders of protection.

Porter Kirkwood obviously endorsed his qualification by posting his "personal note" on his Facebook campaign website:

It is not only that Porter Kirkwood is a perfect hamburger server 4 days a year during Fair-on-the-Square in Delhi (happens every Friday in July), he also volunteered in DelYouth Soccer (where his son was), Boy Scouts (where his son was) and Youth Court (again, in the school where his son is).

Wow - what a public service, to participate in extra curricular activities of your own child.  

Now, Glenn V. Cole Jr. advertises Porter Kirkwood "professionally speaking", reiterating the tired fairy tale about the allegedly 3,000 cases allegedly handled by Porter Kirkwood - an absolutely unlikely and unverifiable claim.

Moreover, Glenn V. Cole Jr. is not an attorney:

has no verifiable legal training and certainly cannot pronounce a "professional opinion" as to how good Porter Kirkwood is as an attorney.

I am an attorney, I do have a legal training, I participated in cases where Kirkwood appeared - both in Family Court and in federal court - and I can attest that Kirkwood lacks basic competence and ethics.

How Kirkwood was "instrumental" in forming Drug Treatment Court and Family Court is also (1) unverifiable, since information about that court is not public, and (2) raises all kinds of conflict-of-interest and ex-parte-communication issues, because the alleged "creator" of Drug Court in Delaware County (who was re-elected in 2012 on the same fairy tale), Carl Becker, presided over child neglect proceedings while communicating with Porter Kirkwood in "creating Family Treatment Court" and "Drug Treatment Court" - and that is in addition to their ex parte communications behind the courthouse that were visible, and those likely ex partes by phone and in person that were not visible or verifiable.

Mr. Cole also indicated that Porter Kirkwood was allegedly recently appointed to the Surrogate Decision-Making Committee by the New York State Justice Center for Protection of People with Special Needs.

Sounds wonderful and honorable.  Right?  Let's look into what the alleged Committee does and how what the Committee does fits with what Porter Kirkwood does in his public employment and private practice.

Here is what the Committee does:

Even though SDMC claims legal support in a 2012 New York Legislation, the powers of the Committees and their functioning is clearly unconstitutional, since they sit in "panels" in substitution of courts and have authority to make, on behalf of incompetent individuals, major decisions involving major treatment and even end of life.

There can be no constitutional basis for medical and especially end-of-life decisions to be made, for an incompetent individual, without a court-appointed legal guardian and outside of court procedure.

It is no wonder that this program is "unique" for New York only - no other states authorized such an extraordinary setup that can be potentially used for elder cleansing and cleansing of people with disabilities - outside of the court system, with not judges, but "panels of volunteers" deciding issues of people's major treatment and even lives.

For Porter Kirkwood to wield such a power is especially horrible, since Porter Kirkwood, while being a social services attorney for Delaware County,  recently represented, for money and during taxpayer-backed county time, defendants in a civil action accused of elder abuse and wrongful death of an elder.  

Moreover, Porter Kirkwood is the last person who should be appointed to such a panel, since he tried to have concocted a mental health diagnosis of a child, by a hired expert who never saw the child, in order to label the child and thus diminish the child's credibility against Porter Kirkwood's own son in a potential court proceeding.

It is interesting that Kirkwood was appointed to this particular "death squad" panel when Delaware County Surrogate's Court was litigating the shenanigans of his clients, a social worker and the ex-Commissioner of Social Services, who self-dealt specifically with an end-of-life patient, a 89 old lady, and played with her will. 

One thing I can say about Kirkwood - while Judge Gary Rosa "simply" serves the public straight as a 24-7 on-call judge, Kirkwood is engaging in "projects", one shadier than the other.

Good grief - end of life decisions, out of court, by Porter Kirkwood as a member of a "panel".  Gives me creeps.