"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, December 26, 2015

SDNY Judge Shira Scheindlin: selling out her judicial integrity to buy back into good graces of her peers - at the expense of an indigent civil rights plaintiff and his attorney

As a disclaimer, I never litigated in the U.S. District Court for the Southern District of New York and have no plans to do so.

I do not have personal knowledge of participants in this story.  I formed any opinions expressed in this blog as to SDNY Judge Shira Scheindlin by reading court documents.

Here is an article in The New York Times of December 15, 2015 where the reporter asserts that a woman reported domestic abuse by her husband, then recanted, criminal charges against her husband were allegedly dropped because of her alleged recantation, her husband nevertheless sued the police, and SDNY Judge Shira Sheindlin (1) granted against the civil rights plaintiff a summary judgment and (2) ordered the indigent civil rights plaintiff and his attorney to pay $19,075 in legal fees to New York City.

I am very interested in the topic of chilling civil rights litigation through sanctions and attorney fees, so I pulled court records of the case from to form my own opinion as to what occurred.

As it often happened, what occurred was not as it was described in the mainstream press.

First, any law school student knows that a judge deciding a motion for a summary judgment cannot engage in credibility determinations and claim that she does or does not believe affidavits of witnesses presented to her.  

By doing this, a judge usurps the role of a jury, and in a federal civil rights case, that right is guaranteed by the 7th Amendment to the U.S. Constitution.  Judge Shira Scheindlin was sworn to uphold the U.S. Constitution and its 7th Amendment, not to violate it.

New York City and its police department made a motion for a summary judgment supported by inadmissible hearsay statements of plaintiff's wife (not a party in the proceeding) presented through affidavits of other people.

Such statements are not only inadmissible as hearsay, but the wife:

  • denies even making those hearsay statements that NYPD defendants attempted to ascribe to her, since they were recorded in English from her statements Spanish about her diabetic episode, and without the benefit of an interpreter;
  • denies that a Spanish interpreter was provided to her and
  • stated that people to whom she spoke did not know Spanish, while she did not know, speak or understand English. 

Yet, Judge Shira Scheindlin, who was admitted to practice law 39 years ago, in the far-away 1976, 

in reviewing a motion for a summary judgment where she has no right whatsoever to assess the evidence submitted for credibility, rejected as "incredible" the sworn affidavit of the wife obtained with the help of a certified court interpreter and, instead, believed affidavits referencing to the wife's alleged hearsay statements which she denies making and claims that she was never provided an interpreter while those to whom she spoke did not understand Spanish and she does not speak or understand English.

What happened, in fact, was as follows:

A plaintiff brought a civil rights action.

The defendants brought a motion for a summary judgment, supported by inadmissible hearsay.

Under such circumstances, defendants did not meet their burden of proof, and plaintiff did not even have a necessity to oppose the motion.

Yet, the plaintiff did oppose the motion and provided an affidavit from the very witness whose inadmissible hearsay statements the defendants provided to the court on their motion for a summary judgment, denying that she ever made those inadmissible hearsay statements.

The judge, instead of denying the motion for a summary judgment to defendants, sanctioning defendants for frivolous conduct and granting the reverse summary judgment to plaintiff because plaintiff presented the only admissible competent evidence in the case, engaged in assessing credibility of the evidence provided by plaintiff and defendant, which a judge deciding a motion for a summary judgment has no authority to do, decided credibility issues against plaintiff's witness, against plaintiff and against plaintiff's attorney, granted the summary judgment to the defendants and slapped the indigent plaintiff and his young civil rights attorney with $19,075.00 legal fees of defendants.

Why Judge Shira Scheindlin acted contrary to the law and contrary to her duty in those proceedings (Jimenez v New York City)?

A likely answer can be found in Judge Scheindlin's prior, very recent, history.

Here is some information about the judge.

It was also reported that the judge is something of a control freak, running her clerks to tears and, let's say, extremely unreceptive of criticism:

she "has a reputation has a holy terror. She works her clerks like dogs, berates them frequently, and sometimes even makes them cry. Don’t pee on her robe and tell her it’s raining!

Judge Scheindlin's clerks, government employees, are reportedly required to work 11-hour workdays plus 6 hours every weekend, which amounts to a 61-hour week, which, I am sure, is a violation of labor laws.  

Judge Scheindlin is reportedly such a control freak that she prohibits her clerks from eating their lunch outside of her chambers. 

I wonder if Judge Scheindlin controls the length of her clerks' restroom breaks as she controls their eating and leisure time.

Judge Scheindlin was also portrayed in the press as a judge who frequently ruled against the New York City police department:

In the Jimenez case Judge Scheindlin, while unlawfully assessing credibility of Mrs. Jimenez, as opposed to alleged hearsay statements of the same Mrs. Jimenez presented by the police, which Mrs. Jimenez denied, stated that there is no reason to believe that the police would lie in concert with hospital personnel (from a hospital who failed to provide an interpreter to Mrs. Jimenez and thus may have engaged in medical malpractice for which the statute of limitations did not yet run). 

 Judge Scheindlin's role, presiding on a motion for a summary judgment, was not to "take" or not to "take Mrs. Jimenez' statements as true".

Judge Scheindlin's role was to verify whether, on the basis of admissible and competent evidence, triable issues of fact were presented in the case.

There were no triable issues of fact, and the motion for a summary judgment should have been granted to Mr. Jimenez (the plaintiff), because he provided an affidavit of a witness, and the opposing party provided only inadmissible hearsay.

In the alternative, Judge Scheindlin had to note that parties' stories differ, triable material issues of fact were raised on the record, and the summary judgment should have been then denied and the case should have proceeded to trial.

Yet, Judge Scheindlin engaged in credibility determination between admissible evidence (plaintiff's) and inadmissible evidence (defendant's) and inadmissible evidence provided on behalf of NYPD - won.  

The "alleged conspiracy" of fabrication of documents obtained without an interpreter, to Judge Scheindlin, was "too fantastic to be credible".

Yet, Judge Scheindlin was not at all as naive as an unborn babe and is very well aware of the potential and tendency of police witnesses for perjured testimony and cover-ups, and she had several points of personal disqualification that she has failed to disclose in the record, as she was required by law.

For example,  in 1998 Judge Scheindlin did not allow introduction of an elaborate lying scheme of police officers who tried to blame strangulation of a victim upon a mysterious "black stranger". 

And, Judge Scheindlin is far from being impartial as to ability of medical personnel to lie, having a husband, Dr. Stanley Friedman (note the difference in last names preventing research on issues of disqualification), professor of pharmacology in SUNY-Downstate Medical Center, MD/PhD Program Director at the SUNY Downstate Medical Center and reportedly, in the past the Dean of that entire Medical Center.  

As to misconduct of NYPD that Shira Scheindlin refused to believe on a motion for a summary judgment, despite a sworn affidavit provided to her, as recently as in May of 2013 the "New Yorker" claimed that:

"The primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D."

In the same article, the "New Yorker" stated that:

"A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade.   In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens."

Mr. and Mrs. Jimenez are Mexicans, immigrants, and Mrs. Jimenez does not speak English, which would be the prime targets of discrimination and lying behavior of both the police and the medical personnel who did not provide services of interpreter while attempting to provide treatment, and thus may have committed an act of malpractice.

Additionally, Judge Scheindlin is Jewish.

She willingly discloses that her daughter is "a political consultant and pollster in Israel". 

The hospital that did not provide an interpreter to a medical patient who did not speak or understand English, was the Mount Sinai Hospital.

Last, but not least, in October of 2013 Judge Scheindlin was taken off a case by the federal appelalte 2nd Circuit court because of the legal advice to sue in an additional case, and to sue - guess who - the NYPD that Judge Scheindlin gave, on record, to a civil rights plaintiff.

The sua sponte removal of Judge Scheindlin by the 2nd Circuit in the middle of the trial was unprecedented.

Even more unprecedented was Judge Scheindlin motion to vacate the order of reassignment that she presented through an attorney and that was versed as a motion to vacate OR as a petition as a "friend of the court" (amicus curiae), which was a complete procedural faux-pas.

Judge Scheindlin did not have a right to give any party a legal advice to sue their opponent in litigation or anybody else.

She still did.

Judge Scheindlin had no authority whatsoever to make motions to vacate the order of reassignment of another judge, because she was not a party and has no procedural right to make such a motion.

She still did.

Her motion, of course, was denied by the 2nd Circuit.

I will provide the decision of the 2nd Circuit in a separate blog, it is long, but it is worth publication, with comments, in full.

After being removed from a case where she advised a party to sue NYPD, Judge Scheindlin certainly should not have ever been assigned to a case involving NYPD.

She still was.

And she ruled for NYPD, disregarding the rules of evidence and usurping the jury's right to decide issues of fact in a trial, not in a motion for a summary judgment.

So, NYPD whose shenanigans came in front of Judge Scheindlin for decades, now cannot have a motivation to lie and act in concert with medical personnel.

Of course, medical personnel cannot possibly have motives for a cover-up.

That's Judge Scheindlin's statement while:

  • she believed instead to hearsay statements in the affidavit of "Hannah Cohen, a volunteer advocate with the Mt. Sinai Sexual Assault and Violence Intervention Program", a Jewish witness volunteering for a program ran by a Jewish hospital who claimed that she spoke to Mrs. Jimenez through a Spanish interpreter - even though an affidavit from the interpreter herself was not provided;
  • the judge herself is Jewish;
  • her husband is Jewish and a physician in charge of a medical hospital program, whose privileges or standing in the medical community could very well be affected had Judge Scheindlin allowed the case to proceed to trial, and
  • her daughter is a "political consultant and pollster" in Israel.

Of course, since Hannah Cohen did not know Spanish, her affidavit was worth absolutely nothing without an affidavit of the actual interpreter - which was not provided - about what Mrs. Jimenez allegedly said, and Judge Scheindlin knew that.

Yet, to rule in favor of an immigrant and against credibility of a Jewish witness Hanna Cohen (even under the circumstances when credibility determinations was not within her authority) was not a self-restriction that a control freak such as Judge Scheindlin could bear.

Judge Scheindlin should never have been assigned to the Jimenez case.

The only likely reason Judge Scheindlin was assigned was for her to restore her reputation after her disgrace of removal from the case Floyd v City of New York in October of 2013, reconfirmed in an order of removal of November 13, 2013 that I quote below:

It must be noted that Judge Scheindlin, after giving legal advice to a party during litigation as to who to sue, was only removed from the case, but not from the bench, even though removing her at that point was very simple, since Judge Scheindlin has been on senior status since 2012.  She would simply be told to take full retirement and not assigned new cases.

Had Judge Scheindlin been just directed (as she should be directed now, after her disgraceful performance in the Jimenez case) to just go on full retirement, she wouldn't have suffer any financial loss.

She would have suffered only the loss of power, the loss of her unlawful power to engage in giving legal advice as part of litigation, her unlawful power to deny her clerks, making unlawful and self-serving decisions that a law student would have got an "F" for, to deny her clerks, federal employees, their right to a 41-hour work week and their basic human right not to be hypnotized by their employer while they are munching on lunch.

But, that did not happen.

Judge Scheindlin is still on the bench.

Apparently, our federal court system is very forgiving to misconduct -  if it is judicial misconduct, and very unforgiving against indigent civil rights plaintiffs and their attorneys, even when they are completely without fault.

Apparently, a federal judge in this country MUST be biased, but she must be biased only in favor of the government.

Had Judge Scheindlin counseled the "right party", the NYPD how to sue a civil rights plaintiff, I can bet she will never have been removed from the case.

Yet, she counseled against NYPD, was removed and disgraced, and her lifetime tenure and, in apparently tried to rescue her reputation with the higher court authorities by selling out her judicial integrity and ruling in favor of NYPD - even if the record and the law was against that ruling.

Apparently, it was acceptable for Judge Scheindlin to have an indigent plaintiff and his young attorney, both people without any political clout, to pay - in reputation and in financial sense - for her trick of rescuing her reputation by ruling in favor of NYPD, even if it was against the law and the record.

It was really worth the 61-hour work week and gulping your lunch under supervision of a control-freak judge to author such opinions...

Poor clerks...


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