"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, February 29, 2016

On the need of independently created records of court proceedings

I dedicated a lot of time on this blog to covering issues of preservation of records of court proceedings, not only as to what was said, but also the body language of participants.

I wrote about the fact that my own disciplinary proceedings were adamantly secret, even when it was illegal to close the courtroom after I opened it, by operation of law, through a written waiver of my privacy.

I wrote that I was criminally charged practically for violation of my own privacy, for blogging about judicial and prosecutorial misconduct in cooking the transcripts of my disciplinary proceedings, specifically, for posting both the transcripts and the audio-recordings of the same conferences that did not match the transcripts, including material issues (whether the proceeding was a hearing or a conference, who were the parties present, whether I waived any issues, whether I testified or not).

Judging by my own experience as an attorney, on what my clients and readers reported to me and on my research for this blog, preservation of the record of court proceedings is a problem across the United States.

Of course, fabrication of transcripts is a crime, and not only in New York.

Here is a question of a legal consumer asked on Avvo about fabrication of transcripts, and an answer by a California criminal defense attorney.

Thank you, attorney Marshall, even though I wonder whether the attorney and the court reporter will be prosecuted criminally if the opposing counsel is himself the state Attorney General, like it already happened in California - recently its Attorney General was criticized by a court for fabricating a transcript of confession in a criminal case.  

Yet, I completely agree with Attorney Marshall's determination above.   It is a crime to cook court transcripts, no matter how you look at it.

I will definitely ask disciplinary attorney Mary Gasparini to be disbarred - when the new attorney disciplinary rules will kick in in July of 2016.

I will also ask the New York court system to yank certifications of court reporters who cooked the transcripts, but I doubt that any of what you say will happen to the perpetrators of such fraud will happen.

Because the very court that such attorney Gasparini and two court reporters were defrauding for cooking the transcripts are aware of the fraud and refused to address it or sanction the fraudsters.  After all, that fraud was "for the benefit of the public" - brought in order to bring to heel the much-hated critic of judicial misconduct, so it is totally forgivable.

Here is a petition filed online at 2 months ago by a New York litigant.  The New Yorker is asserting that certain transcripts of a divorce proceedings were inaccurate, in order to protect misconduct of a judge:

I wonder if the alleged serious misconduct of the judge involved (there are two judges in New York by the last name of Cooper, so I do not know which one is meant here), was investigated and addressed.

If allegations are not investigated simply because they are not put together in a refined way, as an attorney would, that is not a good reason to deny investigation, because what is asserted is serious misconduct, that includes condoning fabrication of transcripts.

Reports of alterations of court transcripts were made recently in Pennsylvania (see also here, and see that the reporter in question sued the lawyer for even alleging the alteration of transcripts) and in New York, where, apparently, a whole code language exists indicating that the record should be "cleaned" and what needs to be done with it.

In the same Pennsylvania, the Supreme Court has removed a judge for alteration of transcripts (but did not take her off the bench, disbar her, nor was she criminally prosecuted) for alteration of a transcript in a death penalty case and removing her own disparaging remark from the transcript.

In Ohio, a judge would stop recording of a proceeding because - as the judge claimed - the recording equipment would, coincidentally, "not pick up", and - as the attorney claimed, because the judge wanted to fix the transcript as he saw fit (you will soon see a separate blog about how Delhi Town Court, NY judge Richard Gumo was doing the same - for years).

In Texas, an individual asked a question on Avvo, an attorney rating system where attorneys also answer questions of individuals in exchange for an increase for their rating.  

The question was pretty staight-forward:

Yet, the answers given by two Texas attorneys were anything but straightforward.

First, none of them were civil rights attorneys - one announced himself as a "criminal defense attorney" and the other as a "personal injury lawyer".

Yet, the question required an answer from a civil rights attorney, because it involved potential issues of quasi-judicial immunity.

And the answer is - no, there is no judicial immunity given to court reporters, there is, among others, a case on the subject, Antoine v Byers, decided in 1992 by the U.S. Court of Appeals for the 9th Circuit.

 Yet, one of the answerers concentrated on whether the person would be able to prove the alteration and "declined to comment" beyond that point, obviously fearing retaliation for giving a potential advice that the person can, in fact, sue a court reporter for alteration of records, and can even seek that the reporter's certification be yanked and that the reporter be criminally prosecuted (as the California attorney above suggested).

The second attorney who answered acknowledged that a "serious injustice" may have been committed against the asker, but tried to channel the asker's efforts first into an appeal.  

Yet, such an approach has two problems.

First, it did not answer the question whether a person can sue the court reporter or not - which is he can, for common law fraud and, possibly, for more.  Suing a court reporter and appealing a case where the court reporter committed a crime are two different things.

Second, appealing based on an altered transcript may make the problem worse and irreversible for the asker, making the advice truly bad and counter-productive.

I did appeal a lot, and I know that, at least in New York and in federal courts (and, I am sure, in any other court), a record on appeal must include a certified transcript of proceedings.

In this case, the certified transcript will have to be the altered transcript perjurously certified by the court reporter.

After the appellant submits such a transcript that the appellant him/herself obtained, while knowing the transcripts were altered, there is a distinct possibility that the appellant will have waived the issue that the transcript was altered.  After all, the appellant him/herself has submitted that altered transcript certified as good, to the court, thus committing the appellant's very own crime. 

Even federal judges were reported to have ordered alteration of transcripts, and retaliation against whistle-blowers who reported such misconduct.
Since in many jurisdictions, audio and video recordings of court proceedings are not allowed, or, to make an audio recording or a video recording of proceedings (security tapes) is made the exclusive right of the court, it is the court and its personnel who can do anything it wants with the transcripts and even with digital files.

See how #JudgePhyllisKeaty of Louisiana handled the issue of court recordings in which she did (her version) or did not (the attorney's version) disclose having a property interest in a real estate firm that handled the sale of the litigants' property.

Note that while what Judge Keaty did reads like a disciplinary or criminal proceeding against her, it is in fact a successful disciplinary proceeding against the attorney whistle-blower Christine Mire who found out and reported Judge Keaty's misconduct:

So, the attorney did what she is supposed to do - due diligence.  She asked for the audio recording.  

By the way, I myself and many of my former clients and of readers of my blogs asked for audio CDs of court proceedings from New York courts, with an invariable answer - NO.  That is not "our procedure".  Our procedure is that you pick a stenographer from an "approved list", agree with the stenographer on the price, tell the court the name of your "chosen" (or, rather, coerced) stenographer, and then the court will send the stenographer the audio-recording (possibly, with instruction of how to "fix" whatever "problems" in that audio tape).

As you see above and below, the stenographer in Chistine Mire's case became initially just "very defensive", and then sued to enjoin disclosure of the audiotape, but Respondent still obtained the tapes and was actually able to prove that the recordings were actually altered.

 So, did #ChristineMire get a Citizen of the Year award for her courage, perseverence and due diligence in looking for evidence BEFORE accusing the judge of any appearance of impropriety?

No, she was stripped of her ability to earn a living for a "year and a day", with 2 years "unsupervised probation" during which she should be a good girl and never try to do the same as what she did for which she lost her law license - never to try again to do a thorough job for her client and never again try to seek existing evidence of judicial misconduct and corruption.

And, the judge who should be stripped of her black robe, disbarred and put behind another kind of bars, testified against attorney Mire in her disciplinary hearing.

#JudgePhyllisKeaty testified like that:

So, in other words, Judge Keaty lied as to what was cut out of those court tapes.

While Christine Mire was charged with making "unfounded motions to recuse", thus "delaying litigation", "disrupting the tribunal" and making accusations against a judge that were "false or made with reckless disregard to truth or falsity", 

  • Christine Mire was right that the tapes were altered;
  • Christine Mire as right that Judge Keaty lied as to disclosure of her interest in the real estate firm;
  • Judge Keaty changed her disclosure firm after and as a direct result of Christine Mire's investigation;
  • Judge Keaty was ordered off the case, so Christine Mire's motions to recuse were not unfounded, after all.

I do not believe that any of this circus would be possible if one simple thing was done - if proceedings were public, and if any member of the public present at such proceedings, including parties and their attorneys, could videotape proceedings themselves or order videotaping from others.

Then, there could be multiple videotaped versions of the same events and a very good possibility to compare who doctored what, without fighting "very defensive" court reporters to see what exactly is in the record of the court proceeding where the attorney and her client was attorneys of record, and thus had an absolute right to the record of proceeding, in all forms, paper, audio and video, if those records existed.

And, while one of the dissenters in Christine Mires disciplinary case, Judge Weimer, said this:

So, for an attorney and a sitting appellate judge, what he just listed above (most scans above were from his dissenting opinion), was enough for a criminal investigation and charges against Judge Phyllis, he refuses to see the facts for what they were and insists that "the standard of review" "does not require [him] to question [his] assumption (he still cherishes assumptions, after reading that record! - TN) that all judiciary members involved are honest, eminently competent and motivated by the noblest intentions, an assumption applicable to each of the judges in this matter".

Judge Weiner (whose own law license, and thus judgeship and livelihood) was in the hands of the same "disciplinary council" that went after Christine Mire, stressed his solidarity with his own brothers and sisters, judges involved in using attorney disciplinary proceedings, designed to protect consumers of attorneys' services, into an institutional vendetta against a whistleblower of judicial misconduct.

Judge Weiner, even as he dissented and thus, tried to do "the right thing" for Christine Mire, stressed twice - at the beginning and end of phrase, I highlighted it in yellow, that he still cherished assumptions of honesty, eminent competency and noble motivations for all judges "involved" in the case, including the one likely engaged in criminal conduct and the ones who were covering her up and going after the whistle-blower.

There was a more honest dissent in Christine Mire's disciplinary case - short and to the point, by judge Hughes.

I applaud to Judge Hughes.

That one paragraph of Judge Hughes' dissent was all that was needed to dismiss the case against Attorney Mire.

The record of attorney Mire's disciplinary proceedings would serve wonderfully as evidence before the grand jury to indict Judge Phyllis Keaty and whoever else was participating in doctoring transcripts and court tapes. 

I guess, the feds need to step in there, as state system, the system of the "honorables" who do not want to see misconduct of their own "brothers and sisters" even when facing evidence of it, will only continue to do more of the same - pursuing not the perpetrators of court corruption, but the whistleblowers, and destroying their lives.

For that reason, I am all for the YouTube revolution.

Allowing any member of the public to video-record court proceedings will be a large step forward to clean up the courts.

It should be done now.  And people, through grass roots movements and through aggressively petitioning their legislators, or voting out of office those who are not responsive to requests for such legislation, can do it.

Sunday, February 28, 2016

When an attorney is criticizing judicial misconduct, truth is falsity and disruption of the tribunal

Yesterday, I ran the first blog covering the case of Louisiana female attorney Christine M. Mire who was suspended this month for a year and a day, with a 2-year probation and a directive to pay all costs of extensive disciplinary proceedings - for legitimate criticism of judicial misconduct and corruption, based on documentary evidence.

I continue coverage of Christine Mire's litmus-test case showing how the government uses attorney discipline as a tool that is contrary to the purpose of attorney regulation, protection of consumers.  Here, a skillful and fearless advocate was stripped of her ability to practice and earn a living as a result of her skillful, fearless and legitimate advocacy on behalf of her clients, and in retaliation of exposure of judicial corruption.

The more I read the materials of Christine Mire's disciplinary case available online, the more I feel that the State of Louisiana (same as  what other states disciplining attorneys for criticism of judges are doing) created some kind of distorted reality in order to arrive to their conclusions against Ms. Mire and in order to sanction her.

The rules Ms. Mire was sanctioned for violating were for "disrupting the tribunal", "delaying litigation" and "making statements about competence or integrity of a judicial officer which are false or with reckless disregard to truth or falsity" of those statements.

Yet, as I will show through posted scans from materials of Ms. Mire's disciplinary case in the blogs to come, Ms. Mire was punished for (1) making motions to recuse and for (2) not backing down after motions to recuse were rejected by a biased court, for filing a writ that challenged integrity of that court that would disregard obvious evidence of judicial misconduct and personal FINANCIAL of the judge interest in litigation.

Earlier in this blog, I wrote a lot about the concept that lawyers who even dare to touch upon the subject, call "intellectual dishonesty" of judges (see articles here, here, here /specifically about the problem for non-reporting judicial misconduct, as well as intellectual dishonest of judges/, and in some more blogs, you can just type "intellectual dishonesty", "judicial immunity" and "judicial misconduct" in the search window of this blog on the right).

This type of dishonesty occurs when judges ignore relevant portions of the record or relevant mandatory law in order to arrive to a conclusion that would benefit some high-ranking member of the government (especially, a judge) or some well-connected party or attorney.

In Ms. Mire's case, the orwellian disciplinary proceedings established that there was circumstantial evidence indicating that Judge Phyllis Keaty may have been involved in fabrication of court transcripts and in redaction and amplifying of court audio-files, and that Judge Keaty had a financial interest in litigation through having an interest in a real estate firm that was selling the property that Judge Keaty was about to split in litigation, as a factfinder.

Yet, attorney Mire's motions to recuse Judge Keaty were called a disruption of the tribunal, unnecessary, unfounded and meant to delay litigation, and the statements of Ms Mire in those motions to recuse, and in her writ, were branded as either false (despite unrefuted evidence to the contrary in the record), or made with "reckless disregard of truth or falsity".

In this regard, before I start publishing the actual scans from Ms. Mire's proceedings, I wanted to make some references that reading of Ms. Mire's disciplinary case sparked.

There is a form of mental abuse called gaslighting, named after a 1944 Oscar-awarded movie describing this type of abuse, "Gaslight", where the reality of a witness of some event compromising the abuser is being intentionally distorted.  Gaslighting, as a technique, was often used by the Soviets against political dissenters.  Both the dissenters or critics of the government were portrayed as nuts, and the reality of what they were asserting was distorted by the government.

Here, when the government was saying - 

  • yes, Judge Keaty did have an ownership interest in the Keaty Realty, the real estate firm that handled the sale of the property Judge Keaty, as a fact-finder, was splitting in the family court litigation; 
  • yes, there is evidence that court tapes were redacted and unknown pieces of those audio files were taken out;
  • yes, Judge Keaty did testify under oath in her testimony AGAINST attorney Mires (not in Judge Keaty's own disciplinary or criminal prosecution - which was never brought against her, despite overwhelming evidence of misconduct) that the redacting portions of the audio file was necessary to take out coverage of other court proceedings that happened that same day;
  • yes, it was established that no other court proceedings were happening that same day, so Judge Keaty lied as to the reason for redacting the tapes, but acknowledged the fact of redacting the tapes, so nobody knows what exactly was taken out of those tapes at Judge Keaty's direction;
  • yes, it was established that Judge Keaty's alleged disclosure as to her interests, that Attorney Mire said was never made by Judge Keaty, was miraculously added to the court audio-files, professionally, by means of third-party equipment and software not in court possession.

Yes, yes, yes, yes and yes.

All of that evidence is enough to convict Judge Keaty of state and federal crimes, take her off the bench and disbar (none of which happened)

But, that same established evidence was not enough to protect an attorney from being stripped of her due process right to earn a living, simply because she was doing her job for her clients and was trying to inform voters in an upcoming election campaign of Judge Keaty for a higher court that Judge Keaty is unfit for office.

I would say that Louisiana court and disciplinary council engaged in elaborate gaslighting of Christine Mire, same as Soviets did to political dissenters, same as the Eastern Germany's (a split-off part of Germany dominated by Soviets that is no more in existence)  "Stasi" internal spying agency did to critics of governmental misconduct.

I would like to stress to my readers that all this "Stasi"-like forms of mental torture, punishing an attorney for telling the truth, for thorough investigation, for producing evidence of judicial corruption, for making it public - instead of making Christine Mire Citizen of the Year of the State of Louisiana - was done at public expense and for the declared purpose of protection of the public.

Protection from what?

In 2014, Indiana attorney Paul Ogden has made a comprehensive analysis of Rule 8.2 which he called "the disciplinary rule of choice for sanctioning attorneys who criticize judges".

Paul Ogden mentioned in his article that when applying the Rule 8.2(a):

(a)    A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

courts across the United States reject the reach of the 1st Amendment and applicable U.S. Supreme Court cases interpreting it.

I would add, as a result of my own experience and research, that courts consistently disregard jurisprudence on content-based regulation of speech, including the applicable standards.

In one of his other articles, Paul Ogden raised an issue whether attorney disciplinary rules, specifically, a rule to be honest with the disciplinary court, are obligatory for disciplinary counsel, too, raising the issue of selective non-enforcement of disciplinary rules against disciplinary prosecutors perpetrating fraud upon the disciplinary court by using false evidence.

The principle of fraud upon the court does not go away even if the court (as it usually is in cases of persecution of an attorney for criticism of judicial misconduct) welcomes such fraud with open arms.

In yet another article, Paul Ogden points out that in 98% of cases, disciplinary courts find against attorneys on violations of Rule 8.2(a) (false criticism of judges or criticisms with reckless disregard to the truth or falsity of attorneys' statements).

All of the above is clearly applicable to how Louisiana attorney Christine M. Mire was disciplined and suspended for "a year and a day" this month.

By the way, the due process threshold for making a motion to recuse (to ensure constitutional right of a litigant, attorney's client, to have not only justice, but also appearance of justice), is appearance of impropriety.

An appearance of impropriety is a matter of PERCEPTION.

So, attorneys who are punished for making motions to recuse are punished for their PERCEPTION.

They may not even PERCEIVE that something is fishy - even when looking at the evidence that PROVES that something is fishy.

To require an intellectual, a professional, to say that the King has clothes on when the King is naked in a very ugly way is to require attorneys to do a lobotomy on themselves.

Which is what attorneys regularly do, to survive.

For example, in his law review article "Culture of Quiescence" (which I was sanctioned by Judge Becker for quoting and then my license was suspended based on sanctions of Judge Becker for quoting constitutional law and that law review article) Professor Carl T. Bogus states the following:  

Professor Bogus assumes, as many other legal writers, that judges come to the bench predominantly based on lofty and noble motives.

Yet, the reality of such motivation is likely very, as it was recently reflected in a book written by a former judge who disclosed that the motive to assume a judgeship was very simple - to aid his clients and his law firm a confession he made only after he has left the practice of law and shortly before his death.

The ongoing saga of #AntoninScalia, and the havoc his death caused not only politically, but in cases of corporations who cannot now get what they were awaiting from the judge, possibly after some hunting trips or more, as well as more and more evidence of conflicts of interests he ignored and the power he had, stifling the critics, indicates how important, in fact, it is to criticize judicial misconduct at the time it is happening, and not only when the judge is safely dead.

Professor Bogus makes important observations about the impact of impunity of judges and about the unrelenting survival technique of lawyers - unfounded flattery, or "sycophanting",  upon judges.

Once again, Professor Bogus tries to play safe even in his very bold article for the industry of legal writing, and assumes without a reasonable evidence (my personal opinion), that judges come to the bench initially with "dedication and humility" - a proposition not supported by evidence, and I refuse to make favorable assumptions for any member of the government, especially the judiciary, based on available evidence refuting reasonableness of this assumption.

Christine Mire was guilty of failing to swallow up the knowledge of judicial corruption, sell out her clients, shut up and suck up to the judiciary.  Instead of "bowing and scraping" and saying "yes, your Honor, that is what you said, your Honor", she investigated and found that "that was not what her Dishonor said", and that, in fact, #HerDishonorJudgePhyllisKeaty has cooked court transcripts to cover up her personal financial involvement in the case.

THOSE were her "disciplinary violations" that her clients whose rights she was fought to protect, were protected from through suspension of her law license.

I did not see protests in the streets against depriving consumers of legal services of a powerful and skillful advocate, Christine Mire, not because she made false statements about a judge, but because her statements were TRUE, BASED ON DOCUMENTARY EVIDENCE, and PRETTY DAMNING, and were made during the judge's election campaign.

Christine Mire was, very simply, made an example of.  If you want to keep earning a living, just shut up - that's what the sanctions the 2-year probation requirement - says.

And until the public starts to vigorously protest against being deprived of skillful advocates under the guise of contrived attorney discipline, judicial misconduct will remain unpunished and adamant everyday occurrence in American courtrooms.

A consumer's challenge to occupational regulation has been filed with a court seeking permission to hire an unlicensed service provider

I have written a lot on this blog about occupational regulation (which includes attorney licensing), an elaborate sham by which professions protect their markets from competitors, raise prices and restrict services to consumers - all under the guise of consumer protection.

Even a law professor recently recognized that the so-called regulation of lawyers by the government is a sham that lawyers pulled at the behest of the American Bar Association, in order to avoid "real" regulation by the "watchful and intrusive eye of the state" (meaning - by a neutral state agency, which is exactly what federal antitrust laws require for regulation of markets regulated by market players - attorneys by attorneys, plumbers by plumbers, taxi drivers by taxi drivers, doctors by doctors).

Yet, litigation so far, as far as I know, only concerned clashes between disciplined professionals and professional boards (infested and overpowered by the disciplined professionals' competitors), or between competitors in the same profession.

Now I have information that, in a historical move, a consumer of services that are regulated (it is a crime to practice that particular profession without a license, and the profession is regulated by market players without proper supervision by a neutral governmental agency) filed a challenge in court asking the court to allow the consumer to waive protections extended to him by the government in the form of professional regulation/licensing.

The consumer, reportedly, claimed to the court that, as a competent adult, he has a standing to decide whether to accept or reject help offered by anybody, including the government, and, as a competent adult, he chooses to reject consumer protection given him through occupational regulation.

He has chosen a certain unlicensed provider, and insisted to the court he wants to use that particular provider to provide services for him.  

He insisted that he knows the provider's educational background and skills, and is happy to use that provider. 

He asks the court to issue a decision declaring that he is allowed to opt-out of occupational regulation, for himself only, and to hire an unlicensed service provider.

He also asked the court to issue a decision absolving the provider from any kind of punishment on behalf of the government for providing services to the consumer without a license, in the consumer's particular case.

I have no doubt somehow that the challenge will be denied by the court, and I will not disclose the name of the case, the name of the consumer, the name of the service provider or the type of services sought to be provided by an unlicensed provider - until a decision on that challenge is issued by the court.

But,  I am truly interested to see the answer to this litmus-test challenge.

I am truly interested to see how the court will be twisting around the underlying declared purpose of occupational licensing - protection of consumers, and how the court will justify forcing the government's unwanted help and "protection" (through occupational licensing) upon an unwilling competent consumer.

The challenge may show the way for other consumers to follow the path to under occupational regulation that is taking close to 40% of the American work force, and is responsible for unemployment, raising prices and restricting the range of services, stifling innovation and preventing people's travel across state lines because of lack of reciprocity in occupational licensing between states and smaller localities.

Since all of that is done for the benefit of consumers, a consumer must surely have a right to say "no" to occupational regulation, opt out of it, and choose unlicensed service providers of the consumer's choice.

The court will decide whether consumers in this country, while declared to be beneficiaries of governmental "protection" through occupational licensing, are, in fact, captive cash cows for well-lobbied efforts of professions with the government who have no right of choice at all of their own providers of services in private matters.

Saturday, February 27, 2016

Yet another (female) attorney suspended for criticizing confirmed judicial corruption - now in Louisiana

When you see something like this:

you invariably think that an attorney must have attacked a judge with a sledgehammer.

Yet, remembering that I was suspended for two years for sanctions imposed upon me for "making threats against the court", which can have the readers believe that I threatened physical violence against a judge, while I simply made a motion to recuse a judge based on record of misconduct and conflicts of interests, and notified the judge that he is a witness in the case and that I intend to call him to testify as a witness, I decided to find the actual disciplinary case of attorney Christine Mire.

And what a treasure it was.

First of all, the "attack on judge" was criticism of CONFIRMED and DOCUMENTED corruption of a judge - including a financial stake in the outcome of a divorce proceedings (the judge's real estate firm was selling the property that the judge was splitting as a factfinder in the divorce case) and falsifying court transcripts (there was unrefuted evidence that the audiofile where the judge allegedly made disclosure of her conflict of interest was sliced, matters were redacted out of there, and other matters were added to it by means of recording equipment that the court did not have available).

Yet, it is not the judge - Phyllis Keaty, of Louisiana, and not the three judges of the appellate panel who covered her up - who lost their law licenses and their judgeships - but an attorney who criticized them in a pleading, fully supported by documentary evidence.

Here is the 38-page disciplinary decision against attorney Christine Mire.

Attorney Christine Mire, for her efforts to do her duty for her client, and for her efforts to do her duty to report judicial corruption and misconduct, got suspended from the practice of law for a year and a day, and ordered to pay the expenses of the unconstitutional disciplinary proceeding against her.

Attorney Mire raised the issue of the 1st Amendment in the case, which the court rejected based on a 1964 case that has nothing to do with content-based regulation of speech.

Strict scrutiny, the required standard for attorney speech regulation, was not used by the disciplinary court.

There was a strong dissent in the case though, clearly indicating that (1) the attorney had objective grounds for her criticism, and that (2) the attorney's criticism of the judges is protected by the 1st Amendment and the Free Speech Clause of the Louisiana State Constitution.

Apparently, the dissent has fallen on deaf ears of the court - but I wonder whether Attorney Mire will appeal it to the U.S. Supreme Court and whether the sans-Scalia court will actually take this case.  

High time to take a case of retaliation against critics of judicial corruption, and it is suspect that the court, judges who belong to the same class as those criticized by sanctioned attorneys, would not "exercise their discretion" to hear such cases, leaving such constitutional violations unanswered, their victims without a remedy, the bar intimidated and refusing to make motions to recuse for fear of retaliation, and constitutional rights of litigants to an impartial judiciary not enforced.

I applaud your courage, attorney Mire.  And I wish you luck with the U.S. Supreme Court.  I will gladly provide an amicus brief for you.

I must also point out that our timid press, including the legal press, in its efforts not to misstep against "the honorable" and very powerful judiciary, prefers to choose words in a sensational heading like Law360 did, which could easily be understood that Christine Mire was suspended for doing physical violence to a judge.

But, this very blog exists exactly because the so-called mainstream media is too timid to address issues of public concern - prosecutorial and judicial corruption which are rampant in this country.

I just wrote about a dismissal of fabricated criminal charges against my dear friend Barbara O'Sullivan, here and here.  

I mentioned there that her attorney Joe Ermeti refused to make a motion to recuse, as did his previous attorney Tyner.  

Joe Ermeti is actually the attorney who referred his other client to me back in 2014, with an instruction to his client in a pending case to have me make a motion to recuse for him, because Ermeti did not want to be "blackballed" in a certain judge's court while I allegedly, and in Ermeti's opinion, had "nothing to lose", with the disciplinary proceeding already pending against me.

So, Ermeti recognized that the motion to recuse was warranted and necessary, but did not want to do that for his client in a case where he was an attorney of record and was duty-bound to make that motion.

This is the type of courage that decisions like the one against me, and now against Christine Mire, inspire in our "honorable" legal profession.

All that Mire had to do, same as all I had to do to keep our respective law licenses was shut up and not defend our clients' constitutional right to an impartial judge.

We did not.  We did our duty by our clients.  And we got slammed.  And I wonder when courts will start to realize that what they are doing is very visible and very disgraceful.

By the way, one of the dissenters in Christine Mire's case, Judge Weimer, mentioned that chill. 

With all the cowardly scraping and bowing, the dissenter did more than the "majority", he (or she, I only know the last name) at least stated that Christine Mire's conduct was constitutionally protected and that she should not have been sanctioned for it.

A detailed analysis of the disciplinary decision, including the analysis of attempts of one of the three dissenters to, at the same time, scrape and bow before a judge who was caught in criminal conduct (fabricating court transcripts) and his duty to rule fairly for Ms. Mire, will follow.

By the way, the corrupt judge has made it to the appellate court which refused to discipline her, and instead disciplined the attorney who exposed her misconduct.  

One point that she was especially mad at at Christine Mire was that Christine Mire circulated her writ regarding Judge Keaty's misconduct among her friends and members of the bar during her election campaign.  

Judge Keaty knew she could not win a defamation lawsuit against Mire, because truth is an absolute defense, especially in a case where the allegedly defamed person is a public official, so instead she used attorney discipline as a tool of punishment.  And it worked.  So far, at least.

Here are the pictures of the parties in this sorry story: the panel of the court that refused protection and punished Christine Mire - now including the culprit judge Keaty.

Judge Keaty's election video clip claiming that she is a judge of experience, and "served the community with honor, integrity and distinction".

Well, the clip also says, quite truthfully, that Keaty has 12 years of experience "behind the bench", not "on the bench".   Wheeling and dealing for 12 years - and only caught by Christine Mire who suffered for it while Judge Keaty got promoted.

I presume there was no criminal investigation into the actions of #JudgePhyllisKeaty and whoever helped her to cook the transcripts, nor a larger investigation into how many more transcripts #JudgePhyllisKeaty cooked in her "service" to the community "with honor, integrity and distinction" - "behind the bench".  

The transcripts were apparently fabricated in a professional way, so you have to do it a number of times and involve a number of experts to do it the way it was done.  

The dissenter even mentioned that Judge Keaty's court did not have at its disposal the software or equipment to do the edit of the transcripts.  

Thus, the edit had to be made outside of courts, and the question is - who is doing it.  

And who will be doing it again, since Keaty is emboldened by not being disciplined or prosecuted for fabricating the transcripts, and especially by having the messenger punished and the rest of the bar intimidated?

Remember, Judge Keaty released the sewn-together audio-file to Christine Mire, obviously in full confidence that Mire will not discern the fraud, that the audio-file was actually cooked.

It was a perfect crime.  Not so perfect though, because Christine Mire still was able to prove that the audio-file was sliced, redacted and added to.

So, for her thorough investigation Christine Mire was rewarded - with a suspension for a year and a day, and with costs of disciplinary proceedings awarded against her.

No, Christine Mire did not attack Judge Phyllis Keaty with a sledgehammer.  

She simply stated, on the available record, and to protect her clients rights, that Judge Keaty should have recused, and that what she did was corrupt.  

Which was true.

For a full analysis of Christine Mire's disciplinary decision, including the three dissents - stay tuned.

Corrupt prosecutors Hubbard and Northrup should be impeached and disbarred for prosecuting an unsustainable criminal case for the benefit of a relative of their employee, on unsustainable and fabricated evidence

Delaware County DA - now judge - Richard Northrup brought a felony indictment against my friend Barbara O'Sullivan in the fall of 2014 for allegedly having a dog (not her own) assault a police officer, Derek Bowie - which was dismissed on February 25, 2016, when even Judge Lambert and Acting Delaware County DA John Hubbard could not proceed to trial with the case as dirty, while Barbara refused to allow them an easy way out and plea to a misdemeanor.

The indictment was brought secretly, in violation of applicable law, and after the now-Acting DA Hubbard learnt through the felony hearing that the charges were unsustainable.

I have written about the circumstances preceding that occurrence when Derek Bowie assaulted Barbara O'Sullivan 2 weeks prior with a police vehicle and smashed a tablet in her hands with which she was videotaping his misconduct.  When he read on this blog that the tablet and the recording on it still survived, he needed to get Barbara, Alecia and Alecia's dogs out of the house to get to the tablet.  So he fabricated criminal charges of resisting arrest against Barbara and Alecia, and went to their property, at night, with the help of two other officers, Tahir Haqq and Eric Alexander.

I handled a felony hearing for Barbara on September 22, 2014.

I want to show that the charges against Barbara should have been dismissed as of September 22, 2014 by Gumo  and should have never been brought into the grand jury by DA Northrup, employer of the alleged victim's uncle (please, also note that Northrup put the case through the grand jury without notifying Barbara or myself, as her counsel at the Delhi Town court level, which is a violation of Criminal Procedure law - Barbara made a motion to dismiss the indictment later, but Judge Lambert unlawfully denied the motion, saving the illegal indictment).

My opponent was John Hubbard, now the Acting District Attorney of Delaware County.

Here is what was established at that hearing:

1) Derek Bowie (who had a grudge against Barbara, was a suspect in an attempted murder/vehicular assault against Barbara 2 weeks prior and who should have been pulled from any investigations or arrests of Barbara) was the only witness of the alleged bite.  

I will run a separate blog showing how Derek Bowie was trying to defraud the Workers' Compensation board about that alleged bite, and how the then DA and now-judge Richard Northrup was helping him do it, and create false evidence for trial (and, possibly, the grand jury) to make the case stick.

2) Officer Tahir Haqq did not see the dog bite Bowie because it was dark and because everything was "in a blur";

3) Officer Alexander did not see the dog bite Bowie either, because he was behind the house when the dog got out and did not see the door.

4) Officer Alexander saw Barbara secure the dogs, at the request of officers, into cages, before she went out to open the door.  Officer Alexander did not exclude the possibility that a dog was first secured into his cage and then escaped.

5) Both officer Bowie and officer Haqq who saw how the dog came out of the door, describe it as "going around" Barbara, "pushing around" her or even "blowing around" her.

Derek Bowie:

Tahir Haqq:

6) It was established on record that the dog did not belong to Barbara.

Tahir Haqq:

7) It was established on record that Barbara daughter Alecia, the owner of the dog, was not at home when the officers came.

Tahir Haqq:

8) It was established on record that the dog was large and heavy.

Derek Bowie:

9) It was well known in the area that Barbara, a lifetime resident of Delhi, a small town where everybody knows everybody, is a disabled corrections officer with a broken wrist, so for three male officers to expect her to control an escaped dog, not her own, was somewhat unreasonable - and did not establish her intent to release the dog beyond the reasonable doubt, or by any standard at all.

10) It was established on record that Barbara did secure the dogs and that it was possible that one of the dogs simply escaped and went around her when she opened the door.

Eric Alexander:

On this record, no criminal prosecution was possible.  It was not possible to prove intent on this record even by preponderance of the evidence, much less beyond the reasonable doubt, as a criminal case required.

Prosecutors Northrup and Hubbard, if they want to feign neutrality and good faith - it was all in there, in the felony hearing transcript of September 22, 2014, it was clear that a criminal case against Barbara was unsustainable.  

John Hubbard, the current Acting DA, was there.  He heard that testimony.  He knew the case sucked, even without any other legal issues, and that he cannot prove it at trial.

The only reason to put that case, secretly as they did it, through the grand jury, was to harass Barbara and cause her stress.  

After all, it is highly unusual that a prosecutor offers a no-jail-time and no-probation plea offer, only to make the case not go to trial - that's what John Hubbard several days ago.

John Hubbard also intimidated Barbara by threatening to depose her as to contents of MY blog, an act of pure stupidity since Barbara does not direct what I say on my blog, I am not sure she even reads my blog and knows its contents, and whatever is in my blog is pure hearsay as far as Barbara is concerned, and thus inadmissible at trial.

So, Northrup and Hubbard relied on their "star witness" Derek Bowie against Barbara O'Sullivan, Derek Bowie's victim.  

Hubbard was a law partner of Judge Becker whom Barbara sued.  

Hubbard told Barbara in 2010 that she shouldn't have hired me for Alecia's custody case and that whatever Becker does is correct - as an explanation as to why he let go the criminal case of death threat against Barbara O'Sullivan and deceived Barbara O'Sullivan as to the time of the proceedings, so that she would not be able to come and protest in open court.

Hubbard knew - for a million reasons in this case - that the case should not have been filed and should have been dismissed long ago on legal insufficiency, jurisdictional deficiency, judicial and prosecutorial misconduct grounds, because of

  • reasons explained in my motion to dismiss that I served upon him before the felony hearing started on September 22, 2014 and that Gumo dismissed without reading; 
  • reasons that Barbara explained in her pro se motion to dismiss for failure to notify her of the grand jury proceedings and her pro se omnibus motion filed and denied by Judge Lambert, until he realized, with the trial pending within days, that another reversal on appeal on the law, right after the embarrassing reversal on the law in Norman Michaels' case, will be too much for his judicial career;
  • in her writ of prohibition filed with the Appellate Division 3rd Department and ignored by that court; as well as reasons that transpired from the felony hearing that I describe here, and reasons.

No self-respecting prosecutor would bring felony charges in good faith on the record such as this, 
  • when it is not clear whether there was a bite, a bruise, or nothing, 
  • where the only witness is severely compromised by a self-interest to lie and is a suspect in an attempted murder on the alleged criminal defendant, so the alleged victim rather sought to be the first at the door of the courthouse with the criminal charges against the victims of his misconduct to discredit them if they would sue him:

  • where the intent to release the dog could not be established on record even by preponderance of the evidence, much less beyond the reasonable doubt, as required in criminal proceedings;
  • and where the alleged victim's injury was, as the O'Connor Hospital diagnosed, a BRUISE, which is insufficient to bring the D felony charges, even if all other issues did not exist:

This was released to Barbara in discovery in March of 2015 by Northrup.

In June of 2015, Northrup released to Barbara Derek Bowie's worker's compensation claim stating that he had not only a bruise (as O'Connor diagnosed him and which was insufficient for charges),  but also a puncture wound.

Northrup knew that when a medical document says, as a diagnose from neutral medical personnel, "bruise", and a workers comp claim  filled out self-servingly by Bowie himself says "puncture wound and bruise", that is workers compensation fraud.

Yet, he unflinchingly proceeded to prosecute the case, obviously intending to introduce the "puncture wound" fraudulent and self-serving claim of Derek Bowie at trial.  Grand Jury minutes are secret, but I bet that Derek Bowie's puncture-wound claim was submitted to the grand jury, too, with Northrup's blessing.

Neither Barbara's previous attorney Tyner who received this information initially, nor her current attorney Ermeti who got her file in October of 2015, made any efforts to move to eliminate fraudulent evidence and preclude Derek Bowie from testifying about his "puncture wound".  

Ermeti did not move to preclude Bowie's testimony about his "injury" even when Hubbard added insult to injury by sending to him an uncertified and unauthenticated copy of pictures that Hubbard received, allegedly, from Delaware County K-9 officer John Demeo (who himself has a dark history albeit protected by Civil Rights Law 50-a blocking access to records of misconduct of police officers) who was not on the property when the alleged dog attack happened, but who somehow had the possession of the picture allegedly of Derek Bowie's "injury":

The picture shows a puncture wound and not a bruise.

I was at the felony hearing and saw Bowie wear a tiny band-aid on his arm, while being in uniform, with a taser and a pistol on his belt. So, Bowie was not off duty and was allowed to handle a police vehicle, a taser and a pistol, even though he complained under oath on September 22, 2014 that their fingers were allegedly numb - from a bruise, which was likely self-inflicted by his baton, based on the contents of the video CD from the dash cam of one of the police cars.

Bowie was  very interested to lie in this case.

He was also very interested to have the dog killed.

That's why he nearly tasered the dog to death.

That's why the dog, with a taser barb sticking through his jaw, was left in the pound by the dog control officer who acted on directions of the police, FOR THREE DAYS, without permission to the shelter to remove the barb.  The dog's owner's permission or requirement to treat the dog were ignored since the dog was officially in the custody of the dog control officer. 

Bowie and his cronies definitely were waiting until the dog either rips himself apart from pain and bleeds to death, or infection will set in and kill him, or Judge Gumo will kill him (Bowie applied to have the dog killed) - but, at all costs, the dog should not  have survived by the trial, so that dog experts would not be able to evaluate the dog and see that he is not dangerous (my 8-year-old son was around him many times, with never an issue to his safety).

By the way, Ermeti reportedly ignored Barbara's request to hire a dog expert for trial.

The hospital record of Derek Bowie indicates a bruise, not a puncture wound, so it is clear that Hubbard, to win the case, same as Northrup before him, was going to introduce fabricated evidence at trial, and Ermeti, Barbara's defense attorney who outright refused to confront Hubbard for any misconduct in the case, not only condoned it, but agreed to introduction of this evidence at the hearing for the validity of the warrant, with no hearsay objections or objections to certification, authenticity or clear inconsistency between this picture and the diagnosis in Bowie's medical records.

Moreover, the picture that does not show whether it is on an arm or leg, on a male or female, on Derek Bowie or on John Demeo bit by his K-9 companion, was sent in an uncertified format by Hubbard to Ermeti.

Ermeti did not question Hubbard's "integrity" on that and allowed introduction of this totally hearsay picture from an unknown source into evidence at the hearing before trial - a complete sell-out of Barbara as Ermeti's client, in my opinion.  Ermeti also refused to file a motion to disqualify Hubbard for misconduct, to move to dismiss the indictment because of the presence of a disqualified prosecutor in the grand jury (disqualified as the employer of the alleged victim's uncle, investigator Jeff Bowie), or to recuse Lambert.

Ermeti actually lamented to Barbara that, because he "had" to challenge Gumo, he would not be able to work in Gumo's court any longer and that he will not make a motion to recuse Lambert, because he does not want to lose his business before Lambert. 

Instead, Ermeti told Barbara that, if Lambert would rule against her as to the warrant (fortunately, that did not happen, but it is in hindsight now, yet Ermeti said that before the order was made), Ermeti would advise her to take the plea - but he STILL did not want to move to recuse, disqualify or dismiss, nor did he make the necessary motions for judicial subpoenas of records, from the Sheriff's department,  from the Town court, from the Family Court, from the Worker's Compensation board where Bowie submitted his medical records, or from the hospital.

Why Ermeti steered Barbara into a plea? Because he knew the law very well.  He was already paid an enormous sum by the family, which he likely already partially or fully spent on his trip to the Bahamas while Barbara was scrambling what to do before trial.  Yet, New York law does not allow a criminal defendant to sue her attorney for malpractice, unless the conviction is overturned, even if the conviction was caused by that malpractice.

So, had Lambert ruled against Barbara on the warrant, and had Ermeti steered her into the plea bargain, Barbara would not have been able to sue Ermeti for malpractice and not making the necessary motions for her in the 4 months since he received a huge retainer from Barbara's family.  In fact, Ermeti disclosed to Barbara right before trial that he did not know which motions were or were not made in the case and which hearings were or were not held in the case.  

And, there is a reason to believe that Ermeti had a reporter on hold to report Barbara's plea bargain, so it was all planned and arranged.  Only Barbara appeared stubborn and did not want to plea.  Not when she was clearly framed by the prosecution.

Northrup and Hubbard should not be "serving" the public in their high positions of trust.

It is exceedingly clear that they do not deserve ANY trust whatsoever in how they handle criminal cases.

Whether they will be disciplined, is another question, but complaints against them for misconduct in this case will most assuredly be filed.

As to how those complaints will be resolved, stay tuned, I will report it here.