"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.

Monday, January 4, 2016

Otsego County DA John Muehl and his private contract $91,457 or with Otsego County Department of Social Services to wage a war against the poor and special-needs children

People who work for the government and are covered with absolute immunity for malicious and corrupt acts do not care what they do - because they are immune.

But, over the years, this carelessness catches up and makes them get sloppy.  

Very sloppy.  And, when criticized for misconduct, they become belligerrent and defensive, and, in the course of their self-defense, they often make sloppy errors.

Like the Otsego County DA John Muehl did in his e-mail that he sent to me today.

In the e-mail he claimed (among other things that I will discuss in a separate blog), the following:

When you make such all-encompassing and self-serving claims, you need to be careful if such claims are against documentary evidence.

My opinion, "shared by no-one else", was that John Muehl lacks the very basic integrity as a prosecutor based on his prior documented misconduct (I covered it in these blogs, and I described it to John Muehl in an e-mail today).

The reason for my e-mail today was a request for recusal from a criminal case where my husband and I are (alleged) victims of a burglary and an attempted arson.

John Muehl was recently (and quite "coincidentally") assigned as a "special prosecutor" to investigate a case of burglary and attempted arson into my home that the now-Delaware County Judge Richard Northrup neglected as a prosecutor for over two years, obviously because there was no point protecting me, a critic of judicial and governmental misconduct in the area, from a violent crime.  

Delaware County Judge (then-DA) Richard Northrup pretended to resume investigation of the case only when I asked him to return the evidence we gave to the police that I found in my home, so that I could verify its existence and condition and submit it to independent testing.

After Northrup recused, Muehl whose shenannigans and abuse of alcohol I extensively covered on this blog, was assigned as a "special prosecutor" of the case.

It is very obvious that, due to John Muehl's employment in the recused DA's office, as well as due to the fact that my husband has a lawsuit for fraud and fraud upon the court pending since 2009 against John Muehl's Chief Assistant District Attorney Michael Getman, not to mention my criticism of John Muehl in the blogs for misconduct, John Muehl was the last person to pretend to be an impartial prosecutor of a case where Mr. Neroni and I are witnesses subject to perjury liability.

DA Muehl can just as well emerge from that grand jury with an indictment against us rather than an indictment against the burglar, and lying to the grand jury is a D felony subject to 7 years in prison.  John Muehl can easily arrange that for me as an advisor of that grand jury that can be convened on a pretext of an indictment against the burglar, but instead return an indictment against me or my husband.

Holding that in mind, and needing to verify whether the DNA evidence still exists, I asked Muehl to step down from investigation and prosecution of the burglary in my home and to return the evidence.

I received an e-mail from John Muehl today which contained interesting statements that the public would benefit from knowing.

That is the reason for my e-mail.

As to John Muehl's answer that "no-one else" shares my opinion that he committed misconduct in the past...

Well, well, well.

It is childish to claim that "no one else" thinks you did something wrong when you are SUED in federal court for violation of civil rights.

Dismissals on immunity grounds (two cases out of three against John Muehl were so dismissed, the 3rd is still pending and is in at the discovery stage) are not dismissals on the merits and do not resolve the issue whether misconduct Muehl are accused of in lawsuits alone, were, indeed, committed.

Most prosecutorial misconduct is not even pursued in civil rights lawsuits, because criminal defendants either do not have money for such lawsuits, or opportunity for such lawsuits, sitting in prison where Muehl puts them with the help of his misconduct, or because such lawsuits are futile because of judge-created prosecutorial immunity for malicious and corrupt acts.

Yet, there are at least 3 lawsuits listed on against John Muehl that I could find, one of them filed in June of this year and is still pending.

So, contrary to Muehl's contention to me in his e-mail that nobody shares my opinion that Muehl was involved in past misconduct, Jason Gilmore and Heidi Gilmore, plaintiffs in Gilmore v Bouboulis, NDNY Case No. 3:2015-cv-686 would certainly disagree.

By the way, Muehl is represented in that case, at taxpayers' expense, by Christopher Militello and Frank Miller law firm that also represents Delaware County in civil rights lawsuits.

The pending lawsuit against Muehl is really, really bad.

Here is the preliminary statement of the Gilmores in their Complaint against Muehl.  Gilmores are represented in the action by the Legal Services for the Central New York, Inc. and, of counsel, by attorneys Willa Payne, Samuel Young and Dennis Kaufman who filed a comprehensive Complaint on the Gilmores' behalf.

The Gilmores allege that, by aggressive and coercive interrogation, Muehl, threatening them with loss of custody of their children, employment and public humiliation, had them sign a waiver of food stamp benefits, which now makes them struggle to feed their children.

A war against the poor taking food out of children's mouths, very noble of John Muehl.

The Gilmores' complaint indicates that both of the Gilmores, parents to FOUR children, one of them a special-needs child, worked to support their families, the father full-time, the mother part-time, in addition to caring at home for her 4 children.

Here is the description in the Gilmore Complaint as to how John Muehl comes into the equation.

The Gilmore Complaint contains a comprehensive coverage of applicable statutes:

 It also contains description of legal eligibility requirements for food stamps, as well as criteria distinguishing between innocent errors and criminal fraud.

It might help other victims of governmental over-reaching, such as Gilmore, so I publish it here in full.

 Here is the law distinguishing between error and crime in food stamp applications as reflected in the Gilmore Complaint.

Moreover, the federal law provides for alternative proceedings to address food stamp fraud - EITHER administrative (after a due process hearing at the State level) OR criminal, but not both.

 Here is the law explained in the Gilmore Complaint pertaining to the Administrative Hearing (as an alternative to criminal prosecution) for intentional ineligible food stamp applications (food stamp fraud).

The Gilmore Complaint also contains explanation of the procedure for the criminal prosecution that can be held ONLY as an ALTERNATIVE to the administrative proceeding described above.

Here is the agreement that John Muehl signed with the Otsego County Department of Social Services.

  By the way, in my today's e-mail I inadvertently made an error and told Muehl that I need the evidence back in my case to submit it to an independent private prosecutor, not an independent private investigator which is what I meant.

This is what Muehl answered me today:

I will address Muehl's claim that evidence in a criminal case "belongs" to a criminal prosecutor in a separate blog.

Here, of interest is Muehl's claim that "there is no such thing as an 'independent private prosecutor'".

Muehl's claim of today is defied by his contract signed by him with Otsego County DSS where he sells his services to Otsego County DSS as a private client buying his investigative and prosecutorial services, and paying Muehl, on top of his salary paid by taxpayers for his elected position to investigate and prosecute crimes at his discretion, up to $91,467.

Of course, the Otsego County Board of representatives could not authorize private contracting of a public prosecutor.

Of course, the Otsego County Attorney Ellen Coccoma should have stopped the "contract".  Of course, Ellen Coccoma could be busy working on her own private contract with Hinman, Howard and Kattell rather than doing her full-time duty as an Otsego County attorney, and who will challenge her, the wife of Chief Administrative judge of upstate New York Michael Coccoma, who has the power to defy disciplinary rules and criminal law and rescue attorneys who were fired for misconduct from further reach of disciplinary and criminal authorities?

So, Muehl signed the contract with Otsego County DSS for $91,467 on January 13, 2014, and his signature was verified by a notary.

County Law 700 provides that Muehl has a right and duty to prosecute, at his discretion, crimes committed within his jurisdiction.

As a public servant and elected public official, Muehl has absolutely no right to enter into contract for his own or his office's services with any agencies or individuals.

Such a contract provided that Muehl dedicated limited resources of his office to investigate and prosecute individuals targeted by his paying client the Otsego County DSS rather than by the People of the State of New York and those who elected him to office.

Any law that requires anybody to contract the services of a public prosecutor is facially invalid, even if a contract like that is "required" by federal regulations.

A federal regulation, in fact, can require absolutely nothing from a state prosecutor, an elected public official, in terms of entering private contracts.  It is, once again, void, can be viewed as a bribe and a diversion of limited resources from the District Attorney's office and a purchase of DA's discretion to prosecute or not prosecute a certain type of cases or a certain class of people for money, which is what Muehl did.

Muehl knew better than to enter such a contract, which constituted an open bribe to commence criminal investigations on s a paid client - but he still did.

The Gilmore Complaint covers the federal regulations on conditions of accepting of a case for criminal prosecution based on the agreement (illegal, as explained above) with the DA's office.

 Yet, the Gilmores or their attorneys did not challenge constitutionality of federal regulations or state laws allowing to purchase services of a public prosecutor to commit limited resources of the DA's office to investigation of a certain type of cases in exchange for additional contractual payments, thus, creating a financial interest for the DA to dedicate resources to investigate and prosecute food stamp fraud (including over-reaching cases) at the expense of fighting other types of crime.

Instead, the Gilmore complaint describes in detail unconstitutional federal regulations providing for further entanglement between state prosecutors and state departments of social services handling food stamps based on private contracts for services between them:

Here is what Gilmore's financial situation was at the time of application for food stamps, summarizing their statements in the Complaint:

1. the father worked full-time in 2014, and the mother gave birth to the fourth baby in Feb. 2014, and from time to time earned some additional income on Internet, by selling home-made jewelry on  Mother made the food stamp application when she did not have Internet access, and resumed earning on Etsy after she made the application, but never had income that would disqualify the family from food stamps.

In July of 2014 John Muehl's office sent to Ms. Gilmore the following letter:

As simple as that - either a mother of four must appear for interrogation at the DA's office (paid by social services to do this job) or she will be arrested and criminally prosecuted.  

No right to remain silent, no advice that she can bring an attorney with her, nothing.  Either you come or you will be arrested and prosecuted.

At the interview, John Muehl's employee investigator Hunt entrapped Ms. Gilmore as follows:

1. he did not explain to her why she was here; and
2.  she told her to spend as much as she can on Food Stamps.

 Muehl's investigator Hunt then asked for more documents from Ms. Gilmore, which she provided.

Then, Muehl's office sent a letter identical to the July letter in November of 2014, now telling both Gilmores to come to the office without children, and without advising them of their right to counsel.

At the Muehl's office, Muehl's employee Hunt told the Gilmores that either they sign the disqualification statement provided below, or they be charged with an E-felony fraud, arrested and prosecuted, and that they can "call the DA, but we win 9 cases out of 10 like that".

The basis for claim was an incorrect check cancelled by Mr. Gilmore's employer and reissued in the correct amount, which did not subject the Gilmore to any liability.

This is what followed:

Then, Mr. Muehl's employee investigator Hunt deceived the Gilmore by telling them that if they sign the disqualification form, they will avoid criminal prosecution AND their children will remain eligible for food stamps - which was a lie.

Then, the Gilmores, feeling desperate and not having money for a lawyer, signed this agreement:

Of course, such agreements could only be signed with a lawyer present.

Moreover, Gilmore mentioned that Investigator Hunt stopped Mr. Gilmore from leaving until Mr. Hunt allows him and takes him out of the building.

That means that the interrogation was custodial and that the Gilmores were entitled to a Miranda warning about their right to remain silent and their right to a counsel and to an assigned counsel.

Subsequently, the Social Services denied the Gilmores a fair hearing challenging denial of benefits to him AND their children.

The Gilmores were not provided a fair warning of the charges, nor were the charges legally sufficient to deny them benefits in the first place, or to prosecute them administratively or criminally.

The Gilmores were duped not only of their right to advance notice, but also of their right to counsel or lay advocate as provided by federal rules:

This is what happens when a DA's office desperately tries to earn its keep on a private contract.

Gilmores claims included:

1.  Violation of SNAP (food stamp) act and implementing regulations;
2.  Violation of due process of law, 14th Amendment and having policies and practices that violated Gilmores' 14th Amendment rights - John Muehl is sued in his official and individual capacity which exposes him to money damages;
3. Violation of 5th Amendment right against self-incrimination and right to counsel;
4. Denial of due process under the New York State Constitution;
5. Failure to comply with NY State rules and regulations.

 I'd say that the Gilmores share my opinion of John Muehl as a person who committed misconduct prior to today.

And, how stupid it is of John Muehl to make claims to the contrary, while having a lawsuit such as this pending against him.

By the way, Muehl arrogantly moved to dismiss the Gilmore Complaint claiming "no personal involvement".  The contract based on which Hunt operated, signed by Muehl, and "practices and policies" established by him that Hunt followed and that violated the Gilmores' constitutional rights do not count.

Muehl claimed absolute prosecutorial immunity for any misconduct he may have committed and claimed he is entitled to prosecutorial immunity as an "elected public official", even though he acted in signing the contract and having his employees intimidate and coerce the Gilmores out of their lifeline, food for their four children, as a paid contractor of the Otsego County Department of Social Services.

When the Gilmores opposed the motion and asked the court for permission to amend their Complaint, here is how Muehl reacted:

Muehl said that all the above misconduct and violations of the Gilmore's constitutional rights that happened because Muehl (1) signed an illegal contract selling his prosecutorial services for a fee;  (2) had his staff implementing that contract by fraudulent tactics was nothing other than "delegation" of "investigative duties" from Social Services (Muehl forgot to mention "for a fee").

However the court decides to rule on these outstanding motions, if Muehl is given immunity, his actions still constitute attorney misconduct and prosecutorial misconduct.

Of course, Muehl wouldn't know misconduct if it is screaming into his face, especially if it concerns himself, and especially if Muehl is under the influence, as is his usual state.

In his "memorandums of law", by an attorney hired at taxpayers' expense to fight off allegations of Muehl's misconduct in abusing duties of his office for a fee, Muehl claims that it is his lawful right to commit fraud and, for a fee, to wage war on the poor - poor people, poor and disabled children.

So, whoever pays the fee, gets Muehl to "zealously" prosecute whatever they want them to prosecute.

Which is absolutely not what a public prosecutor and his discretion are for.

I noted before in this blog that Muehl should be subjected to an involuntary rehab, disbarment and/or impeachment, see here and here.

The Gilmore case only makes stronger my belief that Muehl should be disbarred and impeached - and soon, before he hurt more people.

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