Will Foster v Chatman help restore justice for the Kentucky #JudgeOluStevens?

I wrote on this blog repeatedly about the unjust suspension of an African-American #JudgeOluStevens from Kentucky who was trying to assert the law and fight racism in criminal proceedings, see my blogs here, here and here.

My blogs were posted in April of this year, 2016.

On May 23, 2016, the U.S. Supreme Court overturned a death sentence from Georgia to an African American man made by an all-white jury, specifically because the prosecution behaved in the exact same manner as the prosecution behaved in Kentucky - struck every African American potential juror from the jury panel.

Judge Olu Stevens rectified that behavior by the only way possible, in fact, by the same way as the U.S. Supreme Court did - at the last level of litigation, by ordering the case with such flawed jury selection to a new trial and then, after the case concluded, going public about prosecutorial misconduct in the case.

Judge Olu Stevens should be commended, not disciplined, for not only doing justice for the criminal defendant, but also for saving Kentucky taxpayers thousands, if not millions of dollars in litigation cost and preventing the need of going to the U.S. Supreme Court after the conviction of African American defendants by all-white juries hand-picked by a white prosecutor.

By the way, the only black justice on the U.S. Supreme Court dissented.  Yet, being black does not gives you a right to uphold racist injustice against your own people.  Fortunately, the rest of the court disagreed with "justice" Thomas.

As the New York Times reports it, there was no doubt that striking the black jurors - and seeking the death penalty against an African American man - were racially motivated decisions:

"In notes that did not surface until decades later, prosecutors marked the names of black prospective jurors with a B and highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.

They ranked those prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time. In the end, prosecutors struck all four black potential jurors.

After Mr. Foster was convicted, Stephen Lanier, the lead prosecutor, urged the all-white jury to impose a death sentence to “deter other people out there in the projects.” The jury did so."

Now that the majority decision in Foster v Chatman is in, I wonder whether Kentucky disciplinary authorities will obey the precedent and restore Judge Olu Stevens to the bench, with apologies - because Judge Stevens' only "fault" was that he tried to uphold the law.

All that Kentucky disciplinary authorities have to do now - a very difficult decision in a racist criminal justice system, I bet - is to uphold the law, and the new precedent of the U.S. Supreme Court, too.  And to do justice to Judge Olu Stevens.

#MaleChauvinistPigsGalore continues: another male jerk - oops, judge - punishes a female attorney defending her clients in court, by handcuffing her. To teach her "courtroom etiquette" - or submission, according to the Bible?

Meet the Las Vegas Justice of the Peace Conrad Hafen:

A white male judge who ordered handcuffed a female attorney with a Muslim name Zohra Bakhtary - simply because she was trying to make a record to prevent unjust incarceration of her indigent client.

From the official court biography of Judge Hafen, one learns - of course - that he is "a man of faith", that was really necessary to include into a judge's profile:

Judge Hafen also is a former prosecutor:
 

Not only that, Judge Hafen is "famous", or, I would say, infamous for helping to severely undermine criminal defendants' rights against self-incrimination in custodial interrogations, in violation of 4th and 5th Amendments of the U.S. Constitution.

Judge Hafen helped eliminate such protections through his argument as a a prosecutor before the U.S. Supreme Court in the case Hibel v Sixth Judicial District, 542 U.S. 177 (2004).

Judge Hafen is very proud of his "accomplishment" in Hibel, he even placed that "accomplishment" into his official court biography:
 

As a religious man, a Christian, a "man of faith", Judge Hibel, of course, must know this text:
 
"A woman should learn in quietness and full submission.  I do not permit a woman to teach or to have authority over a man; she must be silent."  1 Timothy 2:12-13.

And, in front of Judge Hafen was a public defender, a beautiful young woman with a Muslim name, Zohra Bakhtary.

Zohra Bakhtary, according to online sources, is an immigrant from Afghanistan:

The white Christian male elderly - and ugly - judge ordered a young female immigrant attorney (no doubt, speaking with an accent since she immigrated into the U.S. only at the age of 14) with a Muslim name, during her argument raising due process liberty interests of her client (arguing against jail time for an indigent client on violation of probation charges) "to be quiet". 

Because Judge Hafen wanted to "teach her a lesson".

Because Judge Hafen had "problems" with her for the last 6 months, according to his own admission.

Attorney Bakhtary allegedly interrupted Judge Hafen.

Of course, Judge Hafen turned off videocameras, so that it would be his and his stenographer's word against the attorney's word, as to his and the attorney's demeanor and whether the attorney interrupted the judge or was simply trying to put in a constitutional argument for her poor clients edgewise, while run over by the - old Christina ugly male chauvinist judge Hafen.

After all, who knows what kind of feelings a beautiful woman like Attorney Bakhtary stirred in Judge Hafen that could not be satisfied other than through petty vengeance. 

And the judge did "teach a lesson".

He ordered criminal defense attorney for the indigent, Attorney Zohra Bakhtary who came to this country as to the "land of the tree, the country of the brave", the land of the "rule of law", from Afghanistan torn by war - to be handcuffed for making constitutional argument on behalf of her poor client.

So that she would learn her place and "be quiet" when a man tells her to do so.  

Attorney Bakhtary's boss, a male attorney Phil Kohn, who "promised changes" when first elected in 2004, held a "closed doors" meeting with Judge Hafen.

Yet, when he was elected, attorney Phil Kohn also reportedly said:  "I've wanted this job for a long time, so I am very happy".  

So, in order to continue to be happy, Phil Kohn threw attorney Zohra Bakhtary under the bus.

Attorney Kohn did not file a misconduct complaint against the male chauvinist pig judge Hafen.

Attorney Kohn did not file a motion to recuse Judge Hafen from all proceedings where Zohra Bakhtary represents clients, for the elementary purpose of preventing the very same retaliation that was already visited by Judge Hafen not only upon Attorney Bakhtary, but also upon her indigent client.

Instead, the white male attorney Phil Kohn

 
 had a "closed-doors" meeting with Judge Hafen, and "emerged from the meeting with a positive outlook".

Saying this:

"'I don’t think there’s going to be a hangover from this', Kohn said. 'She’s tenacious. It’s probably why today happened. But I don’t believe for one second that this will deter her from doing her job zealously. I know that she will continue to fight for her clients. As far as I’m concerned, it’s behind us.”

How about a little help to a woman abused by judicial misconduct so that she would not be "deterred" from "doing her job zealously" and for continuing to "be tenacious" and "fighting for her clients".

What will happen next if she fights for her clients?  She will be put in jail?

And her boss will hold another "old boys" "white male to white male" closed-door meeting, emerging out of it with a "positive outlook"?

And saying - oh well, things happen, the woman is tenacious, she will endure more abuse, she and her clients. 

No need to turn the pig judge in for misconduct.

No need to protect clients by motions to recuse the pig judge.

Oh, and yes, the cherry that tops the cake, so to say - Kohn said reportedly that "he was concerned that cameras installed in the courtroom to capture audio and video had not been turned on, though that’s not a requirement under state law."

Kohn said:  

 “I would love to watch what happened,” Kohn said, “not just what words were spoken, but how they were spoken.”

So, he recognizes that the demeanor of parties and their body language may make a difference.

And that's exactly why the #MaleChauvinistPigJudgeConradHafen turned off he video and audio cameras.

I do not share attorney Kohn's optimism that Ms. Bakhtary is so "tenacious" that she will continue to take abuse from Judge Hafen without any help from authorities to control Judge Hafen's obvious misconduct, and will continue to jeopardize her law license and livelihood, asking for more contempt citations - without any protection from her boss or from other authorities.

Recently, a Canadian study found that female lawyers leave criminal defense in "alarming numbers", citing as one of the reasons, gender-based courtroom discrimination and abuse.

The situation is no different in the U.S.

I have no doubt in my mind that abuse of Judge Hafen against Ms. Zohra Bakhtary was gender based - as well as ethnicity-based, immigrant-status-based, accent-based and Muslim name-based.

I have no doubt in my mind that Judge Conrad Hafen would never have handcuffed a fellow Christian fundamentalist white male attorney - he would allow such an attorney to speak as much as he wants.

So - will MaleChauvinistPigJudgeConradHafen be disciplined for his misconduct, or is this "episode" is "behind" everybody involved - as Ms. Bakhtary's cowardly boss Phil Kohn said?

Until the next time the Pig Judge strikes?

 I would also like to point out that attorney Zohra Bakhtary does not exactly lack political connections in high places - having been a Clerk to the U.S. Senate Majority Leader Democratic Senator Harry Reid.

Apparently, even such connections cannot protect from a female attorney from abuse in the courtroom by male chauvinist pig judges like judge Conrad Hafen.

So - should a female attorney tolerate abuse and risk jail each time she enters a courtroom because some white Christian fundamentalist chauvinist pig judge wants to subdue her, as his religion (or baser considerations) teaches him to do?

I hope that judge Conrad Hafen is taken off the bench for this "episode".

Then, the episode will be truly "behind us", the public and female attorneys in the courtroom will be protected from judicial misconduct, and integrity of judicial office, undermined by the PigJudge, will be restored in the public's eye.

I will continue to follow this story.

Stay tuned.

The case-fixing judge Robert Mulvey rules on Mokay appeal (after assigning judges in the court below to the Mokay case): unless Mr. Neroni produces part of the record stolen by the trial judge and the Plaintiffs attorney, the thief wins

In 2011, Judge Robert C Mulvey, then the Chief Administrative Judge of the 6th Judicial District was sued by myself, my husband and another party in a case Bracci v Becker, NDNY Case No. 1:11-cv-1473.

The complaint was asserting that Judge Mulvey was assigning the now-retired Judge Becker to certain cases to fix such cases and have them decided a certain way, against me, my clients and my family members, like my husband Frederick J. Neroni.

The case assignments involved in the lawsuit were Mulvey's assignments of Becker to:

1. Mokay v Mokay, Delaware County Index No. 2007-695, where my husband was sued by, purportedly, six plaintiffs, for fraud upon the court - which resulted in my husband's disbarment without a hearing before the end of that litigationl
2. other cases involving my husband and myself as parties, or me as an attorney.

Mulvey asserted to the federal court that assignments of cases is a judicial function, and obtained a dismissal of the federal lawsuit against him on grounds of absolute judicial immunity, where the federal court specifically said on this issue the following:

===
"1. Defendant Mulvey

Plaintiffs "request nominal, actual, special and punitive damages" against Defendant Mulvey. See Dkt. No. 5 at ¶ 322. Further, Plaintiffs request injunctive, declaratory and prospective injunctive relief against Defendant Mulvey for assigning Defendant Becker to cases where Plaintiffs are parties and where Plaintiff Tatiana Neroni is an attorney. See id. Citing no authority, Plaintiffs argue that these actions are administrative and therefore outside the scope of judicial immunity. See Dkt. No. 15-3 at 14.

Courts have held that the assignment of cases are judicial functions and are therefore protected acts under judicial immunity. See Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) ("Although it is an `administrative' act, in the sense that it does not concern the decision who shall win a case, the assignment of cases is still a judicial function in the sense that it directly concerns the case-deciding process. . . ."), vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787 (1986); Parent v. New York, 786 F.Supp.2d 516, 532 (N.D.N.Y. 2011) ("The assignment of cases and issuance of consolidated orders are judicial functions. . ."); see also Zahl v. Kosovsky, No. 08 Civ. 8308, 2011 WL 779784, *9 (S.D.N.Y. Mar. 3, 2011) (holding that the alleged manipulation of the case assignment system is protected by judicial immunity)."

In other words, Mulvey argued to a federal court - and won a dismissal of a lawsuit against him based on that argument - that Judge Mulvey acted in Mokay v Mokay, in a judicial function, at the trial court level.

Bracci v Becker was dismissed on January 9, 2013.

After the dismissal, in April of 2013, information leaked to the press that Judge Mulvey demoted a judge for refusing to decide cases the way Judge Mulvey (an administrative assigning judge) wanted them to be decided, I wrote about that situation in my blog here.

After the dismissal, in April of 2016, I received from New York State Court Administration a document indicating that the judge who decided Bracci v Becker may have been, together with Mulvey, members of a secret organization comprised of federal presiding judges and state judges, defendants appearing in front of such federal judges.  



Judge Mae D'Agostino who decided (and, likely, fixed for Mulvey and Becker) the decision in Bracci v Becker, is currently stalling disclosure of lists of members of that organization that I requested through a Freedom of Information Act request more than a month ago.

Yet, whether Bracci v Becker was fixed or not fixed, in that case Judge Mae D'Agostino established as a matter of law, on request of Judge Mulvey, that Judge Mulvey acted in a judicial function in cases he was assigning to Judge Becker, at the trial level, and one of those cases was Mokay v Mokay.

For example, a federal statute, 28 U.S.C. § 47, forbids judges from deciding cases on appeal where judges were deciding the same cases in the courts below:

And, since Judge Mulvey already won a dismissal of a federal lawsuit against himself by claiming that assigning cases in the court below was a judicial function, and especially with the evidence that Judge Mulvey actually expects from assigned judges to decide cases a certain way, as the demotion of the "stubborn" Judge Biaggio DiStefano demonstrates, Judge Mulvey cannot now turn around and claim that assigning cases in the court below was simply an administrative function for purposes of disqualification from the appeal in the same case.

It is a basic due process issue not to have the same judge who decided the case in the court below to also decide the case on appeal.

Yet, that's exactly what Mulvey did.

Here is what I received in the mail directed to me - even though my law license was suspended, and Mr. Neroni prosecuted his appeal pro se:


Mulvey, as part of the panel of 4 appellate judges, conditionally dismissed the pro se appeal perfected by my husband on March 13, 2016, unless my husband "makes corrections to the record" (the specific corrections are not specified in the order).

In making this order, Mulvey, and the rest of the judges, apparently disregarded the fact that Mulvey exercised a judicial function in the case below, and thus was permanently, as a matter of due process of law, disqualified from hearing appeals in that same case.

In making that order, the entire panel wasted taxpayer money to allow Judge Mulvey to promote personal interests of Richard Harlem, who is, quite "coincidentally",

(1) the son of Mulvey's former predecessor in his prior position of the Chief Administrative Judge of 6th Judicial District of New York, Judge Robert Harlem (now deceased); and

(2) a landlord of many years of Judge Mulvey's former high-ranking client NYS Senator James Seward, see biography of Mulvey showing that he was a "Legislative Counsel" of Senator James Seward

For some reason, "Justice" Mulvey does not mention in his official biography that, while he was a "Legislative Counsel" to Senator Seward, he was also a private attorney - how is that combined in New York, where a public employee is also a private attorney, nobody knows, but "Justice" Mulvey sees that there is a problem in that employment and did not advertise that over the same period of time as he was the "Legislative Counsel" to NYS Senator James Seward, he was also a partner in a private law firm Albanese and Mulvey.

Being a private attorney at Albanese and Mulvey, Mulvey obviously may have had financial interests of his other paying clients at stake that he could promote as "Legislative Counsel" for NYS Senator Seward - begging a question of corruption, or at the very least appearance of impropriety right there.

As to the Mokay case, it is quite a coincidence, of course, that Judge Mulvey aggressively strived to assign two judges to the Mokay case in the court below, 

Carl Becker and Kevin Dowd, who, first, hated my husband and me with a passion and, second, were known to be obedient and to bow to authority, especially that both Becker and Dowd were close to retirement, and Becker, at the time of assignment, was facing re-election in 2012 and needed support of Senator Seward, friend and former client of Mulvey and tenant of Richard Harlem, attorney for purported plaintiffs,

and then was quickly assigned by Governor Cuomo, who already was aware of case-fixing through four appellate judges he either appointed (Judges DiFiore, Stein, Fahey) or failed to prosecute for case-fixing when he was New York State Attorney General (Judge Lippman).


By the way, Becker did obtain support of Senator Seward in his elections and did have communications with Senator Seward, friend of Mulvey and tenant of attorney Richard Harlem, while he handled the Mokay v Mokay proceeding, see picture taken of Becker and Seward on in May of 2012, during his election campaign and while Becker was still presiding on the Mokay v Mokay case:

At Becker's quick retirement that suggested that Becker was offered a "choice" - to leave "on his own" or be booted for misconduct - it was Richard Harlem's tenant Senator Seward who "sponsored" a bill to honor Judge Becker, "a man of faith", in the NYS Senate - same as Senator Seward previously sponsored a bill to honor Richard Harlem's father retired Judge Robert Harlem, while both Becker and Harlem were caught in egregious misconduct many times and should have been jailed instead of honored.

Becker and Seward, both Republicans, supported one another in their re-election campaigns, so a lot of interests were involved to decide in favor of Senator Seward's tenant Richard Harlem, which had nothing to do with the law.

I wrote about Judge Dowd's egregious misconduct in the Mokay case - 

• failing to disqualify himself despite a witness subpoena served upon the judge, his law clerk and his secretary;
• holding an ex parte trial while I was on documented medical leave, 
• blocking the public from observing the trial and misleading the public that the trial was adjourned while it was ongoing, 
• admitting trial exhibits at the trial in bulk, by boxes, without reading them, 
• after the trial, blocking Mr. Neroni and me as his then-attorney, from ever seeing the trial exhibit, even during the pendency of appeal,
• giving away the trial exhibits to Richard Harlem, and thus filibustering the appeal.

A reversal of such a case should be a given.

Multiple fundamental constitutional issues were raised on the appeal.

The original affidavit of purported plaintiff David Mokay was provided to the appellate court indicating that David Mokay NEVER SUED my husband.

That affidavit was not rebutted by Richard Harlem other than through an affidavit of his other client who was accusing David Mokay of perjury.

Once again, Richard Harlem, an attorney, defended against sworn accusation of his purported client David Mokay that David Mokay never hired Richard Harlem, by a sworn accusation of Daniel Mokay that Richard Harlem's purported client David Mokay is committing perjury.

The court did not hold an evidentiary hearing on the issue.

The court did not even mention the issue whether Richard Harlem represents David Mokay - David Mokay states under oath that Richard Harlem doesn't, and that, as well as Richard Harlem's accusing of his own purported client David Mokay of perjury through affidavit of his client Daniel Mokay, is a complete and absolute disqualification of Richard Harlem that should have resulted in:

1) dismissal of the case;

2) award of attorney fees to Mr. Neroni throughout the litigation;

3) referral of Richard Harlem to disciplinary and criminal authorities for egregious fraud and fraud upon the court.

Richard Harlem asked to strike the record because he stole trial exhibits from the record with the help of trial judge Kevin Dowd.

Mr. Neroni, naturally, asked for sanctions against Richard Harlem and argued that he:

(1) cannot provide what is not in the record;

(2) cannot provide what Judge Dowd prohibited court clerks to show to Mr. Neroni or his appellate attorney;

(3) cannot be punished for misconduct of opposing counsel and trial judge.

Those arguments fell upon deaf ears of the court that conveniently included into the appellate panel deciding the motion Judge Mulvey, with all of his personal connections to the case, including acting in a judicial function in the court below.

Once again, the decision was served upon me - while the court knows very well I am suspended from the practice of law since November 13, 2015, and while the appeal was perfected in March of 2016 by Mr. Neroni acting pro se.

Just compare case numbers on the envelope sent to me and on the order regarding Mr. Neroni's appeal: the case number is identical, 521426.

Mr. Neroni's appeal was "conditionally dismissed" - without an explanation, reasoning, discussion or analysis of issues raised or decided by the court.

Of course, in view of complete disqualification of Judge Mulvey, the decision is void for lack of quorum - quorum of 4 judges is required by the New York State Constitution in deciding appellate cases. 

N.Y. Const., Article VI, Section 4(b) provides:

b. The appellate divisions of the supreme court are continued, and shall consist of seven justices of the supreme court in each of the first and second departments, and five justices in each of the other departments. In each appellate division, four justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case.

Since Mulvey exercised judicial functions in the Mokay case in the court below and was absolutely disqualified from presiding over the same case on appeal, there was no constitutional quorum of 4 justices, and the decision is void.

I will, of course, hold my breath waiting until the Appellate Division, the court regulating conduct of attorneys, would follow the law instead of the unwritten requirement of catering of connected attorneys, law or no law.

That particular court blatantly disregarded the law so far and instead exercised raw power - the power of "because I said so, counsel", the behavior the 9th Circuit U.S. Court of Appeals judge Alex Kozinski characterized as egregious judicial misconduct in his scathing dissent regarding disciplinary proceedings of Judge Manuel Real.

The restoration of properly perfected appeal in the court record was conditioned by the court "unless defendant Frederick J. Neroni files and serves a corrected record on appeal and brief on or before July 12, 2016".

So, after filing proper Record on Appeal and brief already, Mr. Neroni is given an impossible task to recover stolen parts of the record, stolen by the trial judge and the Plaintiffs' attorney, and to include it into the appeal - otherwise the thief wins.

So, unless Mr. Neroni, the victim of that theft, "corrects" the record by recovering what was stolen by plaintiffs' attorney, son of a judge Richard Harlem, the victim's appeal of an ex parte $300,000 judgment against him, including  judgment on behalf of a person who provided a sworn affidavit that he never sued Mr. Neroni and never hired Richard Harlem to represent him in that lawsuit, is dismissed.

So, as of May 13, 2016, the Appellate Division 3rd Department invented new rules of attorney discipline and rules of law - allowing attorneys (if they are properly connected) to bring and prosecute cases on behalf of parties who never sued, and

rewarding attorneys and trial judges who conspire to steal portions of the record on appeal during the pendency of appeal with dismissal of such appeals - because stolen trial exhibits are not part of it.

Thus, in the Appellate Division 3rd Department, constitutional rights of access to courts guaranteed by  the Petitions Clause of the federal 1st Amendment to the U.S. Constitution that every judge of that court is sworn to uphold, is conditioned on being able to satisfy impossible tasks required by the court, such as production of trial exhibits conveniently stolen by parties and trial judges with the purpose of filibustering the appeal.

This is some case-fixing, ladies and gentlemen, and it is very obviously criminal.

It is apparent that access to courts cannot be conditioned on fulfilling impossible tasks and on rewarding fraudsters to enjoy the fruits of their fraud if they are well connected to judiciary.

It is also apparent that covering up for fraud constitutes a crime of accessory to fraud, and accessory to theft and falsification of court records after the fact - which is what Judge Mulvey is doing in this case.

It is also apparent that, short of a federal criminal indictment, judges and connected attorneys in this case will not stop fixing it.

Judge Mulvey is already trying hard to save Richard Harlem from criminal prosecution - after all, the decision to dismiss the appeal despite the obvious and ongoing fraud of Richard Harlem was made by Judge Mulvey just 5 days after I wrote in this blog that what Richard Harlem did (prosecuted a case on behalf of a party who never sued) constitutes a federal crime of fraud, and that the feds just recently obtained a criminal conviction against New York defendants when such defendants fraudulently added parties to litigation.

And I know that Judge Mulvey, or those who report to him, reads this blog.

This blog was reported to Judge Mulvey by attorney Paul Tomkins, then of Binghamton, NY, back in 2014, and since them Judge Mulvey upped his retaliation against me to new levels.

Whichever actions Mr. Neroni is going to undertake in this case, I will continue to cover the story on this blog.

As to the amount of fairness and rule of law demonstrated in this entire case - I must quote the same Alex Kozinski who, in yet another recent dissent claimed that a defendant would “have had a fairer shake in a tribunal run by marsupials”. 

In other words, a kangaroo court is a fairer court - Judge Kozinski's words, not mine. 

Only, I wouldn't insult the marsupials.

They are rather cute.  

Chenango County (NY) insurance policy limits show the County defrauded the federal court and the plaintiffs in Argro v Osborne

Chenango County asserted to the federal court for 4 years, through its attorneys, that its insurance policy has very puny payout limit (not more than $150,000) and will not approve a settlement of more than, first, $2,000, then $10,000, and then $30,000.

Not only New York law prohibits insurance companies to insure against intentional misconduct, but the policy limits asserted by Chenango County through its attorneys were not even the truth.

Here is the insurance policy limits from the policy I obtained from Chenango County through a FOIL request.

The policy limit per each occurrence is 1 million dollars (I received policy renewals from 2008 to 2016, coverage limits are identical), and there were many occurrences asserted against the Chenango County Department of Social Services in the currently pending lawsuit Argro v Osborne, see also the 2nd amended complaint in the case.

So, attorney Erin Donnelly of Levine, Gouldin and Thompson, LLP of Binghamton, NY, was, in fact, lying to the court and to the plaintiffs in Argro v Osborne when it said that the County insurance limits are very low.

I will continue to analyze the massive number of documents I received from Chenango County through FOIL and will post some of the most relevant ones, with comments, soon.

Stay tuned.

The idea of deregulation of the legal profession became mainstream - "thanks" to U.S. Supreme Court Justice Sonya Sotomayor's attempt to enslave the legal profession

On May 18, 2016, just last week, I posted a blog about the U.S. Supreme Court Justice Sonya Sotomayor claiming that "forced labor" is good, if it forces the legal profession to serve the poor.

A great argument - for a communist state.

In the U.S., such an argument will eventually legitimize any forced labor under any circumstances - and is a violation of the 13th Amendment and attorneys' due process rights to own their time, their bodies (and not being forced to appear somewhere for free), as well as their income.

Imagine any one of you, my dear readers, are required to provide work for free, as a condition of being able to work and earn a living for your family.

I've been arguing on this blog for two and a half years so far that what needs to be done to close the "justice gap" is to deregulate the legal profession and allow consumers to choose for themselves who they want to represent them in court.

Going from "government knows better who would represent you in court", "you can only choose government-approved/licensed court representatives for yourself" to "a government-approved slave will represent you for free as a condition of earning a living, and will do it well out of professional pride", is going from bizarre to more bizarre.

For the 2.5 years of existence of this blog, my ideas towards deregulation of the legal profession were shared only by economists and consumers, but not by attorneys or "mainstream" law professors.

That is, until May 20, 2016 when George Mason Law School professor Ilya Somin openly opposed Sonya Sotomayor's appeal for forced labor as a condition to practice law.

While stating that forced labor never was, and won't close the "justice gap" for the poor, nor will provide effective or even competent and diligent services, Professor Somin offered three solutions to the problem of the justice gap:

1) deregulation of the legal profession;
2) corporatization of legal services and bundling them with other services - which is not allowed in the U.S. at this time, and is a method introduced in other countries, too, to make legal services more efficient, and with an opportunity for financing of legal services within one corporation by the entire corporation, which may derive income from another business;
3) giving directly the eligible litigants (the poor) paid governmental vouchers to hire an attorney, so that the litigant will be able to chose his own counsel, and thus provide an incentive for attorneys to compete for the vouchers and provide good services.

A law professor who is far from being a radical is offering deregulation as a mainstream issue to help the poor, while attorney regulation is offered to the public as a means to protect interests of consumers (including the poor) - showing that the professor does not believes in authenticity of such declarations, and deems regulation of attorneys as not protecting the consumers, but doing the opposite, hurting the consumers.

Moreover, the idea of offering vouchers directly to the litigants to hire their own attorney is downright brilliant, as it solves several problems at the same time:

1) vouchers given directly to the litigants will eliminate control by judges of assignments of counsel in criminal and family court cases, and by that, assigning cases to either connected attorneys, or attorneys who judges favor;  to keep on the assigned counsel list, attorneys will not raise sensitive issues or zealously represent their clients, if that would cause displeasure of the often pro-prosecution and pro-government judge;

2) quality of legal services for the poor will get better, because the poor litigant will be given an opportunity to "vote with their vouchers" and choose only those attorneys who provide good legal services, which will be defined by word of mouth assessments of litigants, and by online ratings.

It appears that the end of attorney regulation is not that far away - now that a law professor from a conservative school is vouching for deregulation, corporatization and voucherization of legal services.

I will monitor how the idea of deregulation and removing control over who represents the poor on assigned cases, will develop and will continue to cover these issues in my blog.

Stay tuned.

The story of forced retirement of Madison County Judge Biaggio DiStefano because he disobeyed a direct order of Judge Robert C Mulvey to violate the law and decide criminal cases the way Mulvey wanted him to

Judicial independence is valued in this country to the point that judges gave themselves a self-gift of absolute judicial immunity for malicious and corrupt act in order (allegedly) to protect that judicial independence.

Yet, a judge, a Madison County (NY) judge Biaggio DiStefano was taken off criminal cases in 2013 and then forced into early retirement in 2015 because he disobeyed unlawful directives of the then-administrative judge Robert C. Mulvey from 2012 as to how to decide criminal cases.

Judge Mulvey actually has a history of protecting certain judges - but, obviously, not others.

While Judge Mulvey, as I will describe below, was very quick to boot Judge DiStefano off all criminal cases for disobeying Mulvey's unlawful whims, certain judges he kept on cases despite obvious misconduct.

This is a letter of May 3, 2011 sent to me by Judge Robert C. Mulvey, then-Chief Administrative Judge for the 6th Judicial District:

By that time, Mulvey was aware of Becker's shenannigans which I described in multiple complaints to Mulvey - and Mulvey turned a deaf ear to those complaints.

Judge Mulvey did not consider that a threat of a lawsuit against a judge, as well as the actual lawsuit against a judge is a basis of disqualification of that same judge.

In North Carolina, as I wrote earlier on this blog, FAILURE to disqualify himself under such circumstances resulted in discipline against the judge, 7 years before Judge Mulvey expressed this opinion.

But, New York is not North Carolina, and Mulvey, by that time, refused for over 2 years to protect me from harassment by Judge Carl F. Becker - to whom he has sent a copy of the letter, thus announcing to him his policy and practically sanctioning further abuse.

So, I sued - Carl Becker sanctioned me immediately after the lawsuit - and my law license was suspended for making motions to recuse Becker, while Mulvey denied me protection.

And, Mulvey, a subordinate to Chief Judge for upstate New York Michael Coccoma, who recused from my husband's case back in 2007, failed to recuse himself when I and my husband sued him, too - for his own unconstitutional policies and misconduct, and for failure to protect me, my clients and family members from retaliation and for condoning and practically encouraging misconduct of Carl Becker.

Mulvey and Becker escaped the lawsuits by claims of absolute judicial immunity for malicious and corrupt acts, so issues against Becker and against Mulvey were never reviewed on the merits.

Even though my federal lawsuit against Mulvey and Becker was dismissed by judge Mae D'Agostino on January 9, 2013, only more than 3 years after that date, in 2016, did I learn, through a Freedom of Information Request, quite accidentally, that Mae D'Agostino is the "Chairperson" of a shadowy organization "New York State-Federal Judicial Council" where Mae D'Agostino teamed up behind closed doors with New York State judges, possibly, with the very same judges who appeared in that court as defendants.

At this time, Mae D'Agostino is stalling my Freedom of Information Act request for lists of members of the organization she chairs.

The stalling clearly suggests that there are things to hide, and it is very likely that Mulvey participated,  through this shadowy organization, in fixing his own federal lawsuit, too.

But - if an administrative judge in New York, like Mulvey, "simply" assigns a judge to a case, does the administrative judge control actions of the assigned judge, or expects a certain outcome from that judge?

The law says "no" - theoretically.

And, the Appellate Division 3rd Judicial Department, answering that question on January 29, 2015 in "Kilmer v Moseman", also told me "no":

The Appellate Division 3rd Judicial Department, judges Garry, Lahtinen, Rose and Devine, did not consider as a disqualifying factor where a husband assigns a judge to the case where his wife acts as a private attorney for a party - and where sanctions are requested against that wife for frivolous and fraudulent conduct.

And, under the circumstances where the actual judge assigned is close to retirement, and where the husband in question controls lucrative post-retirement assignments - or lack thereof - to retired judges.

The court found no appearance of impropriety in such an arrangement, 

• skipping completely the central husband-and-wife issue, 
• skipping completely the central issue of whether an administrative assigning judge can control the case and behavior of the presiding judge, 

and concentrating instead only on the fact that: 

• "remote";
• "speculative";
• "possible or contingent" financial interests cannot be a basis of disqualification of the judge.

The judge in question, Judge Kevin Dowd, the judge with mental problems who raves about building urinals at law schools in his honor at child custody proceedings - I wrote a lot about Judge Dowd on this blog, just put keywords "Kevin Dowd" in the search window on the right if you want to see and read all blogs about this anti-semitic, anti-women and pro-status judge's shenannigans - that judge actually claimed when I first raised the issue of his disqualification that he is independent from the power of the administrative judge who assigned him - that was judge Robert Mulvey, subordinate of Judge Michael Coccoma, husband of an attorney representing a party in that case.

Dowd entered a decision refusing to disqualify himself on June 17, 2013.

Saying that he is independent from influence and control of the assigning judge Robert C. Mulvey, subordinate of Judge Michael V. Coccoma.

Yet, in April of 2013, two months before Judge Dowd's decision, a County judge from Madison County, New York, Judge Biaggio DiStefano, now forced into retirement by the situation I am going to describe here, went public about Judge Mulvey's efforts to do exactly what the 3rd Department said in Kilmer v Moseman is not happening, influence of administrative assigning judges over presiding judges as to how the case will be decided by the presiding judge.

Judge DiStefano went public as to Mulvey's efforts to:

1) fix court cases the way he wants them;

2) directives to presiding judges to rule the way Mulvey wants them to rule in a particular CLASS of cases, based on "in chambers" directive by Mulvey regarding all cases in a certain class - in violation of the law, without presence of the parties and without regard to facts and circumstances of such cases, and

3) retaliation against judges who insisted on their independence in how they rule in particular cases, and who insisted to their adherence to statutory law, by taking them off the class of cases where they showed that independence and restricting their activities to Family Court only, in violation of the will of voters that elected such judges.

Here is what happened, as reported in the press.

Judge Biaggio DiStefano was at the time of dispute with Mulvey an elected Madison County Judge.

A County Judge in New York is elected for 10 years to preside primarily over the criminal felony court.

The controversy with Mulvey was about the so-called "judicial diversion" program - the famous "drug court" which was the baby of Carl Becker (that's why Mulvey supported him so much and denied me protection, as well as for other reasons I will describe in a separate blog).

Judicial diversion program in New York is governed by statute, Penal Law 216.05.

I will go through the relevant portions of the text of the statute with comments.  

S 216.05 Judicial diversion program; court procedures.
    1.  At  any  time  after the arraignment of an eligible defendant, but
  prior to the entry of a plea of guilty or the commencement of trial, the
  court at the request of the eligible defendant, may order an alcohol and
  substance  abuse  evaluation.  

Procedurally, the above paragraph means the following:

1) the statute fixes the time when an "eligible" criminal defendant  (eligibility is defined by Penal Law 216.00, has multiple exceptions and thus requires the review and determination of eligibility by the presiding judge in criminal court in each particular case) may make a request for the court to CONSIDER that defendant for judicial diversion program;

So, such a request cannot be made, for example, once the trial began.

And, the statute indicates, by the words "may order" that the court does not have to consider the defendant's request, it is within the court's discretion to do so.

In other words, the court can deny the criminal defendant's request to consider him for judicial diversion program, and the court's decision can only be appealed after conviction of the defendant (if the defendant did not waive his right to appeal, let's say, in a plea), and the standard of review on appeal will be then "abuse of discretion" - an extremely deferential standard, abuse of discretion by trial court is usually never found by the appellate court.

So, once again, the procedure is like this:

1) after being charged with "qualifying" felonies through an indictment or Superior Court information (a written waiver of the indictment by the defendant);

2) the defendant is brought (is arraigned) before the criminal court, the County Court;

3) within the statutory restricted period of time, it is then the defendant's choice to ask - or not to ask - the criminal court to consider the defendant for judicial diversion program;

4) after such a request is made, and if the request is timely under the statute, it is then the criminal court choice whether to even consider the defendant's request;

5) if the criminal court decides to consider the defendant's request, he signs the necessary waivers of privacy and is referred to a drug and alcohol evaluation to evaluate the defendant's eligibility for judicial diversion program.

Then, as the statute goes, the defendant can change his or her mind at any time and withdraw from the evaluation:

"An  eligible  defendant  may  decline  to participate  in  such  an  evaluation  at  any time."

Yet, if the defendant signs all necessary papers and goes through the evaluation, the following will happen:

"    2.   Upon  receipt  of  the  completed  alcohol  and  substance  abuse evaluation report, the court shall provide a copy of the report to the eligible defendant and the prosecutor."

So, in continuation of listing of procedural steps towards judicial diversion program:

6) the drug and alcohol evaluation is conducted;

7) the report from the evaluation is provided to the court;

8) the court provides the report to the defendant and to the prosecutor.

After the report is received, the statute provides,

"   3.  (a) Upon receipt of the evaluation report either party may request  a hearing on the issue of whether the eligible defendant  should be offered alcohol or substance abuse treatment pursuant to this article."

So, 

9) either the defendant or the prosecutor may (that's a choice, not an obligation) make a motion for a hearing;

10) as with any motion, the motion is brought before the court, for the court's consideration, and may be granted or denied;

11)  if the court grants the motion, then the court will hold an evidentiary hearing: 

  "At such a proceeding, which shall be held as soon as practicable so as to facilitate early intervention in the event that the defendant is found to need alcohol or substance abuse treatment,  the court may consider oral and written arguments, may take testimony from witnesses offered by either party, and may consider any relevant evidence ...";

12) after the hearing or without the hearing, treatment, as a sentence, alternative to incarceration, may be offered to the defendant, either by court order or agreement between the parties:

    "4. When an authorized court determines, pursuant to paragraph  (b)  of subdivision three of this section, that an eligible defendant should be offered alcohol or substance abuse treatment, or when the parties and the court agree to an eligible defendant's participation in alcohol or substance abuse treatment, an eligible defendant may be allowed to participate in the judicial diversion program offered by this article."

13) the defendant must then enter a guilty plea, or the court must determine, based on certain factors, or by agreement between the parties, that the defendant may enter judicial diversion program without a plea of guilty;

14) then, the court must issue a securing order (bail) for the pendency of the treatment/ judicial diversion program.

14 steps.

The criminal court (County Court) must go through 14 procedural steps before the defendant is actually placed into the judicial diversion program, the so-called "drug court".

These 14 steps are very case-specific, require a request and a consent to such a participation by the defendant, an evaluation and a review of many issues by the criminal court, and many of such issues are discretionary for the criminal court to review and decide - and the criminal court's determinations not to put a certain defendant into the judicial diversion program is subject only to the appellate review, review by the appellate court - IF the defendant makes a choice to appeal after the end of the criminal proceedings before the criminal court.

In 2013, Robert C. Mulvey was not an appellate judge over Madison County Judge Biaggio DiStefano.

Robert C. Mulvey was the assigning judge for Judge DiStefano, who, as the 3rd Department claimed, has no control over the presiding judge.

Apparently, Robert C. Mulvey did not think so.

Because, the then-Chief Administrative Judge for the 6th Judicial District of the State of New York, Robert C. Mulvey, held a meeting between:

1. Himself, Judge Robert C. Mulvey;
2. Madison County Judge Biaggio DiStefano, 
3. Madison County and Family Judge Dennis K. McDermott, elected at that point for the period of 2012-2021, and 
4. Madison County Acting Supreme Court Justice in charge of the County Drug Court, judge Donald Cerio, who is actually a New York Court of Claims judge appointed by the New York State Governor to serve from 2008 to 2017

So, Judge Donald Cerio is an UNELECTED judge, appointed by the Governor to the NYS Court of Claims (where lawsuits against the State of New York are brought), and who is also assigned by an administrative order of the New York State Court Administration to be an "Acting Supreme Court Justice".

On the other hand, Judge Biaggio DiStefano was the judge who was ELECTED by the voters of Madison County to preside over criminal felony cases.

The very cases where it was the direct job of Judge Biaggio DiStefano to consider - in his discretion, and on a timely request from eligible criminal defendants, and after the 14 above procedural steps - whether to put criminal defendants into drug court or not.

It was Judge DiStefano's choice, on a case-by-case basis, based on the record of specific cases, on requests from specific defendants.

Judge Mulvey and Cerio disagreed with judge DiStefano's statutory authority to make discretionary decisions about judicial diversion on a case by case basis and following the procedure required by statute.

Reportedly,  "[t]he story starts last May [that is, May of 2012 - T.N.] during a meeting among DiStefano, McDermott, Mulvey and acting Supreme Court Judge Donald Cerio, in which they were discussing the judicial diversion court.  DiStefano remembers Cerio noting that perhaps county court judges were forwarding too few cases to the diversion program, which Cerio heads up."

So, there was a meeting among 4 judges:

1) administrative/assigning judge;

2) appointed judge who handled drug court; and

3) two elected judges of criminal courts who are authorized by statute to make judicial diversion decisions.

The ONLY reason for such a meeting is to INFLUENCE the two criminal court judges in how they should decide criminal cases in the future.

That was NONE of Judge Mulvey's business and NONE of Judge Cerio's business.

Statistics of how many cases are referred to drug court and policy considerations may not play any part where:

1) it is the defendant's choice to even ask for drug court instead of fighting for his fundamental constitutional rights at trial;

2) it is for the criminal court judge to decide whether to refer such a defendant, if s/he asks, to such a court - and the judge's INDEPENDENT decision must be reviewable not by the judge of the drug court and not by the assigning administrative judge - but only by the appellate court, on appeal, after the criminal case ENDS, not before it begins, and only if the criminal defendant actually appeals the case and did not waive the right to appeal through a plea bargain.

But, the law was obviously not an obstacle for Judge Mulvey or Judge Cerio.

So, Judge Cerio expressed an opinion that the two criminal court judges, in the exercise of their independent opinion and discretion, refer "too few" cases for Judge Cerio to play with.

Why Judge Cerio was asking for more work, and why Judge Mulvey was so bent on helping the unlawful efforts of Judge Cerio is the point to be investigated for appropriate authorities, but it is clear that Judge Cerio's and Judge Mulvey's pressure upon Judge McDermott and Judge DiStefano was unlawful.

And Judge DiStefano said so, while Judge McDermott, the former member of Attorney's "Committee for Professional Standards", didn't object to such an unlawful scheme and pressure upon himself seeking a secret agreement from him as to how he will decide future criminal cases.  

Here is what was the point of objections of Judge DiStefano, according to his interview to the press:

"DiStefano said that at the time, he was interpreting the law as he understood it and it is his legal opinion that some cases are not appropriate for the program. An example he cited was someone charged with manufacturing methamphetamine, who did not have a drug problem, would get judicial diversion.

DiStefano said, at the time, he disagreed with how some cases were being handled."

It is amazing that Judge DiStefano, obviously out of "deference" to his administrative boss, Judge Mulvey, even considered it necessary to express his legal opinion to substantiate his future discretionary decisions to the administrative judge who, by law, is not allowed any control over such decisions.

And - remember? - Mulvey has a very strong policy to keep judges assigned even when they are sued, see letter above.

That is - as I understand now - if they are loyal to Mulvey's directives during secret meetings as to how cases are to be decided.

Reportedly, at that seminal meeting in May of 2012, and over Judge DiStefano's objection to illegality of such a decision, "it was decided by Mulvey that Cerio would determine which cases would qualify for judicial diversion".

So, there will be no rotation of judges, no assignment to criminal cases of judges who were elected by Madison County voters to preside over criminal felony cases in that County, to whom the voters entrusted decision of such cases.

Administrative Judge Mulvey, instead: 

• disenfranchised Madison County voters, 
• cancelled the applicable statute enacted by the State Legislature (after working for several years as a "Legislative Counsel" for New York Senator James Seward), so Judge Mulvey knows more than anybody else about separation of powers;
•  and ruled, without any authority for such a ruling, that from then on the unelected judge Donald Cerio who was interested in increasing statistics in his drug court, (possibly in preparation for a plea to either reappoint him, promote him to a higher court or elect him to an elected judicial position his term is ending in 2017), to handle all determinations of eligibility to drug diversion.

After Judge DiStefano's objections and Judge Mulvey's directive to give to unelected Judge Cerio who handled drug court and wanted more people to come to drug court, authority to decide eligibility for that drug court, the following events happened.

Judge DiStefano, loyal to his judicial oath of office to uphold the law and not the whims of administrative judges, reportedly

1. directed the clerk of the court to transfer cases unlawfully grabbed by Judge Cerio into drug court while skipping the 14 required procedural steps described above, back into his criminal court where such cases belonged;
2. told some defense attorneys that cases of their clients are not eligible for diversion - which was subject only and exclusively to appellate review of Judge DiStefano's discretionary decision, and not to intervention by an administrative judge;
3. wrote to a defense attorney explaining that Judge Cerio's acceptance of a case to the drug court would be a violation of the law - since Judge Cerio was not a criminal court judge, and such cases were placed in drug court skipping the 14 steps required by statute, and approval of the criminal court, Judge DiStefano was exactly right on that.

But, one thing is to be right on the law, and another is when your boss, a Chief Administrative Judge of the large judicial district and a buddy of a New York State Senator does not give a rat's ass about the law, but wants his whim to be satisfied instead.

What Judge DiStefano did was the cardinal sin in New York judicial system - he put the law above the desires of his "betters", his superiors.

Retaliation from Mulvey followed immediately, Mulvey wrote a secret letter to Judge DiStefano (I will try to get a copy through a FOIL request, but I cannot guarantee I will get it), here is what were, reportedly, some of the contents of that letter:

And, Mulvey removed Judge DiStefano from presiding over criminal cases.

I understand that that humiliating restriction was not lifted, and in 2015 Judge DiStefano was forced into an early retirement - for being loyal to his oath of office, upholding the law and resisting unlawful usurpation of his authority and influence of court administration upon his independence as a judge.

In 2013, when Judge DiStefano was removed from the case, he stated to the press:

"When I was elected, I swore an oath to uphold the Constitution of the United States, and the State of New York. I did not take an oath to uphold the wishes of the office of court administration."

At the time of his decision to retire, Judge DiStefano reportedly told the press:

So - the honest judge is was ousted, and Judge Dennis McDermott, the judge who was a part of the disciplinary committee on "professional standards", but who sold his oath of office in order to keep afloat and not to damage his own reputation by contradicting his administrative boss, Judge Mulvey - remains on the bench.

By the way, Judge Mulvey is regularly sued in federal court.

And, each time he is sued, he gets a dismissal based on absolute judicial immunity.

And the doctrine of absolute judicial immunity is declare to have been introduced - even though it is glaringly unconstitutional, allowing judge to break their constitutional oath of office the moment they take it - to allegedly protect judicial independence.

Judge Mulvey.

Granted absolute judicial immunity for malicious and corrupt acts time after time by federal courts to protect judicial independence.

Judge Mulvey, who took an elected criminal court judge off criminal cases because that criminal court judge opposed Judge Mulvey's unlawful interference into Judge DiStefano's judicial independence.

So, we know that Judge DiStefano was forced into an early retirement in 2015.

And, we know that the judge who bowed low to Judge Mulvey and agreed to condone violation of the law, remained on the bench.

You know what happened to Mulvey, possibly in reward for his case-fixing, and very likely not only in this particular situation?

Mulvey was promoted.

In February of 2016 Governor Andrew Cuomo appointed Mulvey to the New York State Supreme Court Appellate Division 3rd Judicial Department.

And, in his new position, Mulvey, following his own tradition, already participated in fixing yet another case, a case where he participated in the court below (a direct disqualification) as an assigning judge - and where he had social and political connections with the attorney in whose favor he ruled, in complete disregard of the record and the law.

About that - in a separate blog.

Stay tuned.