THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Saturday, April 4, 2015
For friends of Judge Kevin M. Dowd - and of his law clerk, and his brother-in-law - life in court is good
I already wrote on this blog about a judge, the Albany County Family Court Judge Sue Kushner, who failed to disclose that certain attorneys appearing in her courtroom (and whom she was heavily favoring) were her Facebook friends.
This post is about a new specimen of the same kind, Judge Kevin M. Dowd and his law clerk (who authors his decisions and sometimes announces to the parties decisions of Judge Dowd under her own signature) Claudette Newman.
Claudette Newman has a Facebook page.
Based on her Facebook page and pictures posted there, a party has recently figured out that Claudette Newman's grandchildren and the party's children play together, his children visited Claudette Newman's house - all the while Claudette Newman was the law clerk for a presiding judge in a proceeding involving the father, and the connections through which came to Claudette Newman's house was through the mother and maternal grandmother of the children.
And Judge Dowd presided over the party's case for years, harassed him for years and bent the law toward the mother and maternal grandmother for years, and the party could not figure out, why.
Until he found the Facebook page of Claudette Newman where she posted pictures where her grandchildren and the party's children were together, and until the party then learnt from a witness that her children were in the law clerk's house, which the law clerk never denied when confronted.
I will explain what is wrong when a judge's law clerk accepts a party-in-litigation's children as her house guests.
Normally, in New York custody proceedings, the only time the judge (and his law clerk) sees the children is in a so-called Lincoln hearing, in the presence of the children's attorney and with a stenographer present taking the record of everything that is said.
Even though the parties are not allowed to be present (to save the children from parents' ire if they say anything "wrong" about either of the parents), and the parents are never allowed to see the transcript of the Lincoln hearing, the trasncript goes to the Appellate Division, in case of an appeal, even though sealed.
So, the procedure is strict - once again, the Lincoln hearing should be scheduled, on notice to parties, the attorney for the child or children should be present and all the conversation should be on stenographic record.
In the case where the law clerk, a person who often sits in the proceeding and who most often, if not always, drafts the judge's decisions and has a tremendous influence on the judge, accepts a party's children, without disclosure, in her home as house guests, there is no attorney for the children present in such communications, no notice to the parties and their counsel (in this case, the party who had children at the time of the visit to the law clerk, and the party who did not know was pro se and could not afford an attorney, and Judge Dowd did not advise or appoint one for him), and a stenographic record is certainly not taken.
Since no record exists of possible communications between the law clerk and the children, there is no possibility to know what was it that the judge (and his law clerk) relied upon when making a decision in a custody case - the evidence submitted at trial or the results of communications with children at the law clerk's house.
The failure of the judge to advise a pro se indigent party of his right to an assigned counsel under the circumstances, especially when English was not even the party's native language, is, on top of being wrong and a reversible error, even more suspicious.
The children did not wind up in the law clerk's house on their own. They should have gotten there through permission of their parent who had them at the moment, while the other parent was unaware of what is happening.
According to my information, the father did not know and did not allow such visits, and the visits occurred when the children were in the mother's care. The mother had an attorney, the father did not.
No investigation, as far as I know, was conducted of either the law clerk or the mother's attorney to verify whether the mother's attorney knew of the children's contact with the law clerk and did not report it.
Once again, it was grievous attorney misconduct for the law clerk (1) to allow a party's children into her house and (2) not to report it to the parties in the proceedings.
Yet, when the subject was brought up on a motion to recuse, the judge did not apologize for the actions of his law clerk who did not report the ex parte contacts with the children to the parties and counsel, did not promise to discipline the clerk, did not remove her since she compromised integrity of the judge by her ex parte communications with the children and by non-disclosure of the communications to the parties.
Instead, upon my information, Judge Dowd violently reacted to the motion to recuse accusing the party to be a "very dangerous person" because the party challenged the judge's integrity.
In other words, the judge decided to protect the law clerk who committed misconduct and compromised his integrity by an ex parte communication with children, parties in a custody proceeding, and instead harassed and punished the party which resulted in a federal lawsuit.
I believe, this is a grave matter of public concern that a judge with THIS "level" of integrity remains on the bench. I understand that the NYS Commission of Judicial Conduct most often acts like a shredder of complaints, but it is sad that authorities take action only when something absolutely outrageous and causing a media scandal in the large media pay attention to it.
As an example, the Pennsylvania authorities ignored or rejected, according to the information in the press, 40 complaints against the "Kids-for-Cash" judges. Of course, the judges had to be taken off the bench when federal authorities charged, prosecuted and convicted them for taking kickbacks (but not for sentencing 2000 children to loss of liberty in a juvenile facility in return for cash).
What MORE should Judge Dowd and his law clerk do for the NYS Commission for Judicial Conduct to pay attention?
By the way, the attorney for the mother in the party's case, Dolores Fogarty of Utica, NY, is listed as a full time employee, public defender of the Otsego County:
I do not know how Ms. Fogarty can work as a private attorney while continuing to be a full-time employee of the Otsego County, but she surely does.
Ms. Fogarty has a fine example in working on the side of being a full-time county employee from other "judge-connected" attorneys in the area.
Ellen Coccoma, the County Attorney for the same Otsego County and the wife of the most powerful upstate New York judge, Chief Administrative Judge for upstate New York Michael Coccoma - Mrs.Coccoma works as a full time employee of Otsego County, and at the same time toils on the side as a private attorney, as a "special counsel" for a Binghamton firm Hinman, Howard and Kattel, a law firm that features the local Supreme Court courthouse as the picture for their Binghamton office, so being a full time county employee and working on the side as a private attorney, obviously during county-paid time, is "in vogue" in upstate New York.
In Delaware County, a full time County Attorney who is currently running for a Family Court judgeship, Porter Kirkwood, former employee and colleague of the local horror story, "king of the bench" Judge Becker and Judge Becker's friend, has toiled as a private attorney during taxpayer-time for years, when he was still an Assistant County Attorney.
But Judge Dowd is apparently unconcerned that attorneys appearing in his courtroom appear there while they must be someplace else, where taxpayer pay them to be.
Judge Dowd has a soft spot for government employees and always bends over backwards in court proceedings to suit their needs, whether the law allows that or not, according to my personal experience with this judge as an attorney.
Upon information and belief and review of records, Judge Dowd bent over backwards for "Dee" Fogarty's client in the party's proceedings that I describe above in the case where Judge Dowd's law clerk had the party's children, without the party's knowledge, as house-guests.
Maybe, Judge Dowd has a soft spot for public defenders like "Dee" Fogarty because Judge Dowd's own brother-in-law John Cameron is a pubic defender in Chenango County, and I wonder whether being a brother-in-law of a judge helped him along to get that position.
So, if the judge assigns to an indigent party a public defender, interesting questions can be raised as to privacy, privileged communications and conflicts of interest in that representation that may, and, I am sure, do arise under such circumstances.
Attorneys know about the potential conflicts of interest, but are deathly afraid of voicing an opposition to anything Judge Dowd does, however wrong it is, for fear of being "blackballed" from "his" courtroom and from the practice of law generally.
But, let's go back to Judge Dowd's law clerk's Facebook page.
I provide here scans of pictures and names of all of Claudette Newman's Facebook friends that were listed on her Facebook page as of today.
In the very first batch of Claudette Newman's friends we see Zachary T. Wentworth.
Zachary T. Wentworth is an assistant public defender of Chenango County, working under Judge Dowd's brother-in-law John Cameron.
That Zachary T. Wentworth was assigned to the party in question after Judge Dowd recused from the party's case (with a retaliation that eventually resulted in a federal lawsuit against Judge Dowd) is phenomenal.
So, even though Judge Dowd recused from the party's case, with a retaliation involving egregious harassment, the reach of Judge Dowd into the case never ended.
The next batch of Claudette Newman's Facebook friends includes Brett Cowen, of Cowen Law Firm, with offices in Sidney, NY and Delhi, NY:
When you look at Judge Dowd's assignments of attorneys in, let's say, Chenango County Family Court (available for public viewing on e-courts), you will see that being a Facebook friend of a judge's law clerk pays off for Mr. Cowen's law firm, as well as it pays off for Judge Dowd's brother-in-law's employees and spouses of Judge Dowd's brother-in-law's employees.
Remember, assignments for assigned attorneys means money, at $75.00 an hour, including travel time.
Brett Cowen's law firm's offices are located in Sidney, NY and in Dehi, NY. I wonder which of the distances he bills in his vouchers for travel.
But I wonder even more, are assignments of the Cowen law firm by Judge Dowd listed below a product of Brett Cowen's friendship with Judge Dowd's law clerk? Or Brett Cowen's internship with Judge Dowd that Mr. Cowen reports on his LinkedIn page?
Here are the rest of Claudette Newman's Facebook friends:
What readily springs to mind is that not only Judge Dowd's brother-in-law is the public defender in Chenango County, but Judge Dowd's law clerk Claudette Newman is at least Facebook friends with:
Assistant Public Defender Zachary Wentworth
Appears to be the mother of the Assistant Public Defender Julie Wentworth, and
the wife of the other assistant public defender, Aaron Dean - Diane DiStefano
Interesting connections, aren't they?
Indigent parties who get assignments of public defenders may keep wondering how whether those public defenders got appointed and keep their jobs because of the familial relationship of their boss with the judge and because of the assistant public defenders' or their family members' friendship with Judge Dowd's law clerks...
And look how many assignments Zachary Wentworth gets in Judge Dowd's cases in Family Court, and what such "friendship", not to mention work for Judge Dowd's brother-in-law as Mr. Wentworth superior, does to create conflicts of interest with his clients, especially if there are issues of judicial bias or misconduct of Judge Dowd to be addressed, and knowing Judge Dowd, such issues should arise in nearly every case.
What also readily springs to mind is that not one, not two, but three local court stenographers who are actively appearing in Judge Dowd's cases are Facebook friends of Judge Dowd's law clerk:
Brenda Friedel, court reporter
Helen Hagen, senior court reporter
Deb Thiel-Stalker, court reporter
I know all three of these ladies through appearances in court where they took record in the cases I handled as an attorney, and I have nothing against them personally. Nor do I have questions about their professionalism at this time.
Yet, on behalf of my clients I have a concern as to independence of transcription if, to get a lucrative assignment to a court case, a stenographer must befriend the judge's law clerk, and especially because Judge Dowd fights tooth and nail against videotaping of open court proceedings where he is presiding, even though New York Chief Judge Lippman has publicly announced two years ago that not having "cameras in the courtroom" is an anachronism.
My concern is that, if there are any disputes regarding completeness and/or correctness of the transcript, financial dependency on the judge and "friendship" with the judge's law clerk may take precedence over the court stenographer's professionalism.
So, when you have a Judge Dowd case, immediately check - is your attorney a FB friend with Claudette Newman? If not, you might be in trouble.