"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.

Sunday, June 21, 2015

Trial rules of Judge Kevin Dowd: control your stenographer

I am starting to publish a set of trial rules of Judge Kevin Dowd discernible from Judge Dowd's behavior before and during the ex parte trial in the Mokay case and the most peculiar circumstances surroudning the case, the trial, the transcript of the trial and the trial exhibits.

I will start with the identity of the chosen trial stenographer, her ties to Judge Dowd's court personnel and interesting omissions the stenographer made in the transcript she provided to me.

Normally, a stenographer in a trial must be a neutral person, for obvious reasons - the transcript, noting testimony and admission or rejection of evidentiary exhibits is the ONLY source of information about the underlying court proceedings available on appeal, and must come from a neutral, disinterested party.

For that reason, the stenographer should not be a friend of any parties in the action - or of a judge or judge's court personnel. 

A stenographer should not be a friend of any witnesses subpoenaed in a trial either.

Furthermore, normally, a stenographer must note appearances of parties as well as counsel on the front page of the transcript.

That makes a difference in determining whether a certain party was in default by not coming to the proceedings or not.

Normally, a stenographer must provide the following table of contents as part of the transcript:

  • Of any direct or cross-examination of witnesses;
  • A list of exhibits introduced at trial with a short description of each exhibit.  It is the stenographer's duty to mark each exhibit before it is introduced at trial, and the stenographer makes a list of exhibits for the transcript at trial.

It is the normal practice of stenographers in courts in the State of New York, and I personally observed stenographer Brenda Friedel (as well as other stenographers) create a list of exhibits as she marked exhibits in various trials in which I participated as counsel, and then see the list of admitted exhibits in transcripts created by Brenda Friedel, the trial stenographer in the ex parte Mokay trial.

Something prevented Brenda Friedel from doing her job properly in the Mokay case and creating a list of trial exhibits though - or a table of contents.

In the Mokay case that I've been describing on this blog (see my blog post the Mokay saga, or you can run the work "Mokay" in the search window of this blog) and in several of my previous posts this month, the following "irregularities" occurred:

The stenographer chosen by the judge (because nothing happens in Judge Dowd's court without his permission or choice) was Brenda Friedel.

Brenda Friedel is a Facebook friend of Judge Dowd's law clerk Claudette Newman.

Judge Dowd, Claudette Newman and Judge Dowd's secretary Brenda Beckwith were subpoenaed witnesses at the Mokay trial.

The stenographer Brenda Friedel provided a transcript to me of the Mokay trial that did not contain these required features:

(1) appearances of parties - it contained only appearances of "trial counsel";

Compare with the front page of a hearing in the same Mokay case where appearances of parties were noted as required by law and as is the usual practice of New York courts.  The stenographer in June, 2014 trial was not a Facebook friend of Claudette Newman - and she did the right thing by indicating appearances of parties, as well as of attorneys.

Given that a court observer from the public was misled by the court personnel into believing that the Mokay trial is over when she came to the courthouse at 11:00 am when the trial was going on as a bench trial (non-jury trial), and thus was prevented from observing the trial, I have a right to claim that the plaintiffs were not present in the proceedings.

Failure of plaintiffs to show up at their own trial on damages required a dismissal of the case.  Not that Judge Dowd cared.

2) Lack of table of contents.

The transcript provided to me by Brenda Friedel, of a trial on damages no less, contained no table of contents whatsoever.  In fact, any transcript of any hearing must contain such a table of contents, including a list of exhibits introduced at trial.

3) Lack of the list of exhibits admitted at trial.

You can read in my previous post containing links to audio recordings of my communications with the Delaware County Supreme Court Clerk's office that Judge Dowd ordered the court clerk not to release to me the list of exhibits, or disclose to me contents of trial exhibits that were admitted at the Mokay trial - either before he made a decision based on those Exhibits, or after the decision was made.

The exhibits, as I stated in my previous posts, contained of pleadings in the case that were to be marked by the Plaintiffs' counsel and filed with the court several days before trial, and made available for my review - which did not happen.

Apparently, Judge Dowd makes his own rules in "his own" court of which he obviously considers himself a king.

But, a court with the regular rules not followed and with "rules" instead spontaneously made by the judge, and a judge subpoenaed as a hostile trial witness by a defendant is not a court - it is a Star Chamber.

And, the situation with the stenographer, the transcript and with non-reporting and hiding the trial exhibits and their description and contents, indicates that the main trial rule of Judge Dowd is - control the stenographer for the party you are favoring.

Which suggests to me that Judge Dowd had a stake in the outcome of the proceeding, and I am going to ask the feds to investigate, what kind of stake that was.

Apparently, state authorities in the State of New York are unable - or unwilling - to curb judicial misconduct and corruption, so maybe, just maybe, the feds will.

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