Ex parte communications between attorneys and judges, public records about ex parte communications and sanctions for seeking and using public records about judicial and attorney misconduct

An article was published yesterday in Pennsylvania about extremely interesting events.

Several attorneys obtained from a County telephone records that indicated that there were text exchanges between district attorneys and judges, and, as I understand are using them or are about to use them to try to vacate convictions obtained by such prosecutors from such judges after they engaged in ex parte messaging, sometimes during hearings.

Even though the actual texts were not released, only records showing the fact of text exchanges between the prosecutors and judges was released, the judges involved undertook an unprecedented step - they filed for injunctions against attorneys who obtained public records showing that they were engaged in text exchanges during or in relation to open public proceedings. 

Moreover, these judges seek to DESTROY evidence of their own misconduct, and that is, before their victims, the criminal defendants in proceedings where the exchanges were taking place, get a chance to make motions to vacate their convictions because of ex parte communications!

I bet that judges did not include as necessary parties into that action to enjoin and destroy their own cell phone records the criminal defendants who they harmed and for whom that evidence is indispensable to overturn their convictions - and that is NOT right.

And the basis for such a request?  Judges indicated in their application to the court that, should the records be released, it will "ruin their public image".

The act of texting with the prosecutors, and thus, engaging in ex parte communication does not ruin, in their eyes, "their public image", but the contents of the text, confirming their misconduct, will destroy their public image - and for that reason the public information that must get the judges off the bench for misconduct, must be destroyed.

The same article (see the link above) indicates that several attorneys in the area declined to comment on the situation that became "toxic" for a very reasonable fear of retaliation from judges.

That is, members of the honorable profession (lawyers) who are supposed to report judicial misconduct, refuse to report it because they are afraid of retaliation for that against them and their clients from the extremely honorable members of the legal profession, judges, whose integrity courts always presume, despite granting them immunity for malicious and corrupt acts on the bench.

The sad part about it is that attorneys in Pennsylvania are still afraid to report judicial misconduct, even after the Kids for Cash scandal in that same state revealed that stifling reports of judicial misconduct can lead to unsafe situation harming (and even leading to deaths) of children.

It has been reported that several attorneys' licenses were suspended or revoked for criticizing judiciary IN PENNSYVLANIA, before the Kids for Cash scandal hit the media, thus stifling reports of judicial misconduct and jeopardizing the public.

The judges who were convicted and are serving federal prison time in the Kids for Cash scandal were subjects of multiple complaints, all of which were nonchalantly dismissed.

Now - a second such scandal, within a short time, pertaining to misconduct of judges, in the same state! And this time, judges belligerently try to have the PUBLIC records of their own misconduct destroyed! Think of the arrogance of these people who think they are not punishable and above the law no matter what they do!

Moreover, across the country judges uniformly sustain discipline against attorneys for criticism of judges protected by the 1st Amendment.

In New York, attorneys are as reluctant to report judicial misconduct, and they have a good reason for this.

My husband who reported misconduct of judges and sued a judge, was disbarred after that.

I am the subject of a disciplinary proceeding specifically based on sanctions imposed upon me by a judge whom I sued, after I sued him, on behalf of myself and two clients.

Judge Carl F.Becker of Delaware County punished me for the following legal conduct:

(1) for seeking under Freedom of Information Law of his financial semi-annual reports to the New York State Court Administration - $1,250 in sanctions;

(2) for using in the court proceedings open public records pertaining to misconduct of another judge (the late Robert Harlem of Otsego County)  and of his son Richard Harlem, which, if properly investigated and prosecuted would have resulted in disbarment of both of these attorneys back in 2000 - $5,500 in sanctions against me for "invading privacy" of the retired judge, his son, the judge's secretary and law clerk, all involved in fraud, for using open court records in another court where sworn pleadings of an Assistant New York State Attorney General Mary Walsh described misconduct, and $5,500 in sanctions against my husband and client Frederick J. Neroni for the same "invasion of privacy" and "harassment'.

The sanctions were imposed, by the way, at the stage of a pre-answer motion to dismiss where all of Mr. Neroni's allegations against these people were PRESUMED to be true, and thus could not possibly be a basis for sanctions - but still were.

And guess what - "attorneys of record" in that interesting case are the same Richard Harlem who was a party in that proceeding, and the firm where Richard Harlem's (and Mr. Neroni's and my own) disciplinary prosecutor John R. Casey is a partner, even though he picked from the bunch of attorneys referred for his investigation and prosecution, Mr. Neroni and me (complainant against retired judge Robert Harlem and his son Richard Harlem) to prosecute, and chose Robert Harlem and Richard Harlem as his firm's paying clients.

Moreover, Richard Harlem and John Casey's firm representing Richard Harlem had the audacity to ask the court to award legal fees against Mr. Neroni for this alleged "invasion of privacy", and, in a paroxysm of greed, John R.Casey's partner David Cabaniss disclosed the fact of ex parte communications between himself and Judge Becker's chambers (12 minutes, one day before the motion hearing) and with the chambers of the next judge, Judge Ferris Lebous (two times, 6 minutes each).

The reason these ex partes were disclosed is because Mr. Cabaniss wanted Mr. Neroni to pay Mr. Cabaniss' clients for Mr. Cabaniss' "legal services" provided during those ex parte communications.

In New York, court rules and Canons of Judicial Conduct prohibit judges to engage in ex parte communication.  Such behavior is also a fundamental due process violation, undermining parties' right to an impartial adjudication.

Yet, ex parte prohibition is not enforced in New York against well-connected attorneys, and the New York State Commission of Judicial Conduct refuses to look at proven ex parte communications as violations.

In March of 2014 I reported an ex parte communication between Judge Christopher Cahill, of the Ulster County Supreme Court, and attorney Dolores Felice (Delice) Seligman, where, in a highly contested divorce proceeding,  a judge invited first Ms. Seligman, an attorney he knew, into his chambers for a 15-minute conference, without my consent, and gave a direction to his secretary not to allow me to enter. 

Then the judge's secretary invited me, for a "leftover" ex parte conference, which I refused to attend.

When I confronted the judge (standing in the doorway of his chambers in plain view of witnesses and refusing to enter and engage in my own ex parte communication), the judge threatened to turn me into the disciplinary authorities. 

When I complained about the judge, the complained was dismissed as not having enough grounds for discipline.

The conclusion - it is ok in New York for judges to openly engaged in ex parte communications, and to threaten attorneys who disagree with such misconduct to have them punished for pointing the misconduct out.

Ex parte communications, even those who are openly observable, are pervasive.

In one and the same case, I moved to recuse, on affidavits of witnesses, one judge based on his ex parte communication IN COURT (after he adjourned the case and after I left the courtroom), in front of witnesses, with a prosecutor, and I am making yet another motion to recuse the next judge on the case, Judge Alta  R. Martin, the "acting" justice of the Greene Village Court, Chenango County, who was appointed after the one who engaged in the ex parte communication - for the same thing, for ex parte communications, for having conferences with the prosecutor in chambers behind closed doors and for engaging in coerced ex parte communications with a represented criminal defendant off record.

According to an affidavit of a witness that I have, prosecutor Michael Ferrarese of the Chenango County District Attorney's office simply barges in Judge Martin's chambers, closes the door and remains there for as long as he wants, discussing unknown topics and not inviting criminal defense attorneys or pro se parties who are present in the courtroom.

Also, Alta R. Martin is a judge who has authored and distributes in her court unique "scheduling notices" which, in defiance of the court's duty to advise criminal defendants of their right to remain silent during the entire criminal proceedings, advises them that they "need" to talk to the prosecutor before the next proceeding.

I just posted a previous blog about a whole ex parte motion that was decided in my disciplinary court that I cannot get access to nearly a year after it was made (and which I moved to vacate today).

I posted a lot this April about a whole ex parte trial conducted by Judge Kevin Dowd of Chenango County, without any shame, in my absence and while the judge knew I had a medical leave from work issued by a physician after diagnosing my back injury that did not allow me to come to trial or withstand the physical rigors of a multi-day trial.

Now in Pennsylvania judges outdid their New York colleagues by trying to have their brethren,  judges from other courts, order to destroy and prevent distribution of public records of gravest concern, obviously containing proof of the judge's misconduct, because otherwise why say that distribution of such records will destroy their "public image".

In fact, it will not only ruin the judge's public image, but will indicate that they engaged in a federal crime of WIRE FRAUD, and theft of honest services of a public officials, the crime that the feds charged New York State former Assembly leader Sheldon Silver at this time.  

The same also may constitute the state crime of fraud and may result in massive voiding of criminal conviction.

Think about it!

Can criminal defendants now move with courts to ask them to compel district attorneys to destroy evidence of their crime instead of prosecuting them?

So, how come judges in Pennsylvania who committed crime against the public and against such criminal defendants have a different status under the law?

Why evidence of their criminal activity must be destroyed?

Also, think how many lives may have been ruined, both of criminal defendants convicted with the help of such ex parte texting, and their families!

Think of the cost to taxpayers for such trials, unlawful incarceration and of the future re-trials!

That is not the judges' concern though. 

Their concern is how to destroy evidence in order to "preserve their public image" - an absolutely shameless request, but what else one can expect from a class of public officials who presume their own integrity while at the same time granting themselves absolute immunity for malicious and corrupt acts in office.

As the new Pennsylvania case indicates, there is no limit to judicial arrogance and the belief deeply entrenched into the judiciary that a judge is God and must be allowed  can do whatever he or she likes, with impunity.

Yet, judges are public servants subject to public scrutiny.

Let's help them realize that, through an appropriate legislative action against judicial immunities, for judicial accountability and for cameras in the courtroom.

Also, since cameras in the courtroom will definitely not catch texting through cell phones, I suggest introduction of laws requiring judges and parties to disclose their cell phone records to their opponents.

There is no place for ex parte communications in court proceedings, other than those that are restricted by statute and are in compliance with the U.S. and State Constitutions.

This situation is pervasive not only in New York and Pennsylvania, but also in other states, like Texas and Florida where such misconduct was reported by the media. 

In Florida (see link in the previous paragraph), a prosecutor and a judge exchanged 1,400 texts and phone calls during a DEATH PENALTY trial. 

In Texas, a judge recently resigned after having been caught texting with prosecutors.   In her texts, the judge was actually recommending to the prosecutions questions to ask witnesses. 

I encourage all attorneys representing clients in death penalty cases, whether in a trial or on appeal, and relatives of such criminal defendants (because one does not have to be an attorney to seek access to public records) to seek telephone records of prosecutors on freedom of information requests.  These records can be a lifeline to the condemned defendants.

On the brighter side, the courage of Pennsylvania attorneys who obtained records exposing texting between prosecutors and judges, distributed them and are fighting for their clients' rights to have access to such public records and to overturn their convictions based on evidence of ex parte communication has showed the way to other people.

Now, texts from cell phones of prosecutors are up for grabs under the Freedom of Information Law, and should be sought by every criminal defense attorney in every criminal proceeding.

And - if judges and prosecutors are ab-using the advancements in technology, why the public is not allowed to simply videotape court proceedings?  Private cameras in the courtroom would have made it a lot easier to catch the texting judges - something that transcripts of proceedings does not reflect.