"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.

Tuesday, May 24, 2016

The case-fixing judge Robert Mulvey rules on Mokay appeal (after assigning judges in the court below to the Mokay case): unless Mr. Neroni produces part of the record stolen by the trial judge and the Plaintiffs attorney, the thief wins

In 2011, Judge Robert C Mulvey, then the Chief Administrative Judge of the 6th Judicial District was sued by myself, my husband and another party in a case Bracci v Becker, NDNY Case No. 1:11-cv-1473.

The complaint was asserting that Judge Mulvey was assigning the now-retired Judge Becker to certain cases to fix such cases and have them decided a certain way, against me, my clients and my family members, like my husband Frederick J. Neroni.

The case assignments involved in the lawsuit were Mulvey's assignments of Becker to:

  1. Mokay v Mokay, Delaware County Index No. 2007-695, where my husband was sued by, purportedly, six plaintiffs, for fraud upon the court - which resulted in my husband's disbarment without a hearing before the end of that litigationl
  2. other cases involving my husband and myself as parties, or me as an attorney.

Mulvey asserted to the federal court that assignments of cases is a judicial function, and obtained a dismissal of the federal lawsuit against him on grounds of absolute judicial immunity, where the federal court specifically said on this issue the following:

"1. Defendant Mulvey

Plaintiffs "request nominal, actual, special and punitive damages" against Defendant Mulvey. See Dkt. No. 5 at ¶ 322. Further, Plaintiffs request injunctive, declaratory and prospective injunctive relief against Defendant Mulvey for assigning Defendant Becker to cases where Plaintiffs are parties and where Plaintiff Tatiana Neroni is an attorney. See id. Citing no authority, Plaintiffs argue that these actions are administrative and therefore outside the scope of judicial immunity. See Dkt. No. 15-3 at 14.

Courts have held that the assignment of cases are judicial functions and are therefore protected acts under judicial immunity. See Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) ("Although it is an `administrative' act, in the sense that it does not concern the decision who shall win a case, the assignment of cases is still a judicial function in the sense that it directly concerns the case-deciding process. . . ."), vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787 (1986); Parent v. New York, 786 F.Supp.2d 516, 532 (N.D.N.Y. 2011) ("The assignment of cases and issuance of consolidated orders are judicial functions. . ."); see also Zahl v. Kosovsky, No. 08 Civ. 8308, 2011 WL 779784, *9 (S.D.N.Y. Mar. 3, 2011) (holding that the alleged manipulation of the case assignment system is protected by judicial immunity)."

In other words, Mulvey argued to a federal court - and won a dismissal of a lawsuit against him based on that argument - that Judge Mulvey acted in Mokay v Mokay, in a judicial function, at the trial court level.

Bracci v Becker was dismissed on January 9, 2013.

After the dismissal, in April of 2013, information leaked to the press that Judge Mulvey demoted a judge for refusing to decide cases the way Judge Mulvey (an administrative assigning judge) wanted them to be decided, I wrote about that situation in my blog here.

After the dismissal, in April of 2016, I received from New York State Court Administration a document indicating that the judge who decided Bracci v Becker may have been, together with Mulvey, members of a secret organization comprised of federal presiding judges and state judges, defendants appearing in front of such federal judges.  

Judge Mae D'Agostino who decided (and, likely, fixed for Mulvey and Becker) the decision in Bracci v Becker, is currently stalling disclosure of lists of members of that organization that I requested through a Freedom of Information Act request more than a month ago.

Yet, whether Bracci v Becker was fixed or not fixed, in that case Judge Mae D'Agostino established as a matter of law, on request of Judge Mulvey, that Judge Mulvey acted in a judicial function in cases he was assigning to Judge Becker, at the trial level, and one of those cases was Mokay v Mokay.

For example, a federal statute, 28 U.S.C. § 47, forbids judges from deciding cases on appeal where judges were deciding the same cases in the courts below:

And, since Judge Mulvey already won a dismissal of a federal lawsuit against himself by claiming that assigning cases in the court below was a judicial function, and especially with the evidence that Judge Mulvey actually expects from assigned judges to decide cases a certain way, as the demotion of the "stubborn" Judge Biaggio DiStefano demonstrates, Judge Mulvey cannot now turn around and claim that assigning cases in the court below was simply an administrative function for purposes of disqualification from the appeal in the same case.

It is a basic due process issue not to have the same judge who decided the case in the court below to also decide the case on appeal.

Yet, that's exactly what Mulvey did.

Here is what I received in the mail directed to me - even though my law license was suspended, and Mr. Neroni prosecuted his appeal pro se:

Mulvey, as part of the panel of 4 appellate judges, conditionally dismissed the pro se appeal perfected by my husband on March 13, 2016, unless my husband "makes corrections to the record" (the specific corrections are not specified in the order).

In making this order, Mulvey, and the rest of the judges, apparently disregarded the fact that Mulvey exercised a judicial function in the case below, and thus was permanently, as a matter of due process of law, disqualified from hearing appeals in that same case.

In making that order, the entire panel wasted taxpayer money to allow Judge Mulvey to promote personal interests of Richard Harlem, who is, quite "coincidentally",

(1) the son of Mulvey's former predecessor in his prior position of the Chief Administrative Judge of 6th Judicial District of New York, Judge Robert Harlem (now deceased); and

(2) a landlord of many years of Judge Mulvey's former high-ranking client NYS Senator James Seward, see biography of Mulvey showing that he was a "Legislative Counsel" of Senator James Seward

For some reason, "Justice" Mulvey does not mention in his official biography that, while he was a "Legislative Counsel" to Senator Seward, he was also a private attorney - how is that combined in New York, where a public employee is also a private attorney, nobody knows, but "Justice" Mulvey sees that there is a problem in that employment and did not advertise that over the same period of time as he was the "Legislative Counsel" to NYS Senator James Seward, he was also a partner in a private law firm Albanese and Mulvey.

Being a private attorney at Albanese and Mulvey, Mulvey obviously may have had financial interests of his other paying clients at stake that he could promote as "Legislative Counsel" for NYS Senator Seward - begging a question of corruption, or at the very least appearance of impropriety right there.

As to the Mokay case, it is quite a coincidence, of course, that Judge Mulvey aggressively strived to assign two judges to the Mokay case in the court below, 

Carl Becker and Kevin Dowd, who, first, hated my husband and me with a passion and, second, were known to be obedient and to bow to authority, especially that both Becker and Dowd were close to retirement, and Becker, at the time of assignment, was facing re-election in 2012 and needed support of Senator Seward, friend and former client of Mulvey and tenant of Richard Harlem, attorney for purported plaintiffs,

and then was quickly assigned by Governor Cuomo, who already was aware of case-fixing through four appellate judges he either appointed (Judges DiFiore, Stein, Fahey) or failed to prosecute for case-fixing when he was New York State Attorney General (Judge Lippman).

By the way, Becker did obtain support of Senator Seward in his elections and did have communications with Senator Seward, friend of Mulvey and tenant of attorney Richard Harlem, while he handled the Mokay v Mokay proceeding, see picture taken of Becker and Seward on in May of 2012, during his election campaign and while Becker was still presiding on the Mokay v Mokay case:

At Becker's quick retirement that suggested that Becker was offered a "choice" - to leave "on his own" or be booted for misconduct - it was Richard Harlem's tenant Senator Seward who "sponsored" a bill to honor Judge Becker, "a man of faith", in the NYS Senate - same as Senator Seward previously sponsored a bill to honor Richard Harlem's father retired Judge Robert Harlem, while both Becker and Harlem were caught in egregious misconduct many times and should have been jailed instead of honored.

Becker and Seward, both Republicans, supported one another in their re-election campaigns, so a lot of interests were involved to decide in favor of Senator Seward's tenant Richard Harlem, which had nothing to do with the law.

I wrote about Judge Dowd's egregious misconduct in the Mokay case - 

  • failing to disqualify himself despite a witness subpoena served upon the judge, his law clerk and his secretary;
  • holding an ex parte trial while I was on documented medical leave, 
  • blocking the public from observing the trial and misleading the public that the trial was adjourned while it was ongoing, 
  • admitting trial exhibits at the trial in bulk, by boxes, without reading them, 
  • after the trial, blocking Mr. Neroni and me as his then-attorney, from ever seeing the trial exhibit, even during the pendency of appeal,
  • giving away the trial exhibits to Richard Harlem, and thus filibustering the appeal.

A reversal of such a case should be a given.

Multiple fundamental constitutional issues were raised on the appeal.

That affidavit was not rebutted by Richard Harlem other than through an affidavit of his other client who was accusing David Mokay of perjury.

Once again, Richard Harlem, an attorney, defended against sworn accusation of his purported client David Mokay that David Mokay never hired Richard Harlem, by a sworn accusation of Daniel Mokay that Richard Harlem's purported client David Mokay is committing perjury.

The court did not hold an evidentiary hearing on the issue.

The court did not even mention the issue whether Richard Harlem represents David Mokay - David Mokay states under oath that Richard Harlem doesn't, and that, as well as Richard Harlem's accusing of his own purported client David Mokay of perjury through affidavit of his client Daniel Mokay, is a complete and absolute disqualification of Richard Harlem that should have resulted in:

1) dismissal of the case;
2) award of attorney fees to Mr. Neroni throughout the litigation;
3) referral of Richard Harlem to disciplinary and criminal authorities for egregious fraud and fraud upon the court.

Richard Harlem asked to strike the record because he stole trial exhibits from the record with the help of trial judge Kevin Dowd.

Mr. Neroni, naturally, asked for sanctions against Richard Harlem and argued that he:

(1) cannot provide what is not in the record;
(2) cannot provide what Judge Dowd prohibited court clerks to show to Mr. Neroni or his appellate attorney;
(3) cannot be punished for misconduct of opposing counsel and trial judge.

Those arguments fell upon deaf ears of the court that conveniently included into the appellate panel deciding the motion Judge Mulvey, with all of his personal connections to the case, including acting in a judicial function in the court below.

Once again, the decision was served upon me - while the court knows very well I am suspended from the practice of law since November 13, 2015, and while the appeal was perfected in March of 2016 by Mr. Neroni acting pro se.

Just compare case numbers on the envelope sent to me and on the order regarding Mr. Neroni's appeal: the case number is identical, 521426.

Mr. Neroni's appeal was "conditionally dismissed" - without an explanation, reasoning, discussion or analysis of issues raised or decided by the court.

Of course, in view of complete disqualification of Judge Mulvey, the decision is void for lack of quorum - quorum of 4 judges is required by the New York State Constitution in deciding appellate cases. 

b. The appellate divisions of the supreme court are continued, and shall consist of seven justices of the supreme court in each of the first and second departments, and five justices in each of the other departments. In each appellate division, four justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case.

Since Mulvey exercised judicial functions in the Mokay case in the court below and was absolutely disqualified from presiding over the same case on appeal, there was no constitutional quorum of 4 justices, and the decision is void.

I will, of course, hold my breath waiting until the Appellate Division, the court regulating conduct of attorneys, would follow the law instead of the unwritten requirement of catering of connected attorneys, law or no law.

That particular court blatantly disregarded the law so far and instead exercised raw power - the power of "because I said so, counsel", the behavior the 9th Circuit U.S. Court of Appeals judge Alex Kozinski characterized as egregious judicial misconduct in his scathing dissent regarding disciplinary proceedings of Judge Manuel Real.

The restoration of properly perfected appeal in the court record was conditioned by the court "unless defendant Frederick J. Neroni files and serves a corrected record on appeal and brief on or before July 12, 2016".
So, after filing proper Record on Appeal and brief already, Mr. Neroni is given an impossible task to recover stolen parts of the record, stolen by the trial judge and the Plaintiffs' attorney, and to include it into the appeal - otherwise the thief wins.

So, unless Mr. Neroni, the victim of that theft, "corrects" the record by recovering what was stolen by plaintiffs' attorney, son of a judge Richard Harlem, the victim's appeal of an ex parte $300,000 judgment against him, including  judgment on behalf of a person who provided a sworn affidavit that he never sued Mr. Neroni and never hired Richard Harlem to represent him in that lawsuit, is dismissed.

So, as of May 13, 2016, the Appellate Division 3rd Department invented new rules of attorney discipline and rules of law - allowing attorneys (if they are properly connected) to bring and prosecute cases on behalf of parties who never sued, and

rewarding attorneys and trial judges who conspire to steal portions of the record on appeal during the pendency of appeal with dismissal of such appeals - because stolen trial exhibits are not part of it.

Thus, in the Appellate Division 3rd Department, constitutional rights of access to courts guaranteed by  the Petitions Clause of the federal 1st Amendment to the U.S. Constitution that every judge of that court is sworn to uphold, is conditioned on being able to satisfy impossible tasks required by the court, such as production of trial exhibits conveniently stolen by parties and trial judges with the purpose of filibustering the appeal.

This is some case-fixing, ladies and gentlemen, and it is very obviously criminal.

It is apparent that access to courts cannot be conditioned on fulfilling impossible tasks and on rewarding fraudsters to enjoy the fruits of their fraud if they are well connected to judiciary.

It is also apparent that covering up for fraud constitutes a crime of accessory to fraud, and accessory to theft and falsification of court records after the fact - which is what Judge Mulvey is doing in this case.

It is also apparent that, short of a federal criminal indictment, judges and connected attorneys in this case will not stop fixing it.

Judge Mulvey is already trying hard to save Richard Harlem from criminal prosecution - after all, the decision to dismiss the appeal despite the obvious and ongoing fraud of Richard Harlem was made by Judge Mulvey just 5 days after I wrote in this blog that what Richard Harlem did (prosecuted a case on behalf of a party who never sued) constitutes a federal crime of fraud, and that the feds just recently obtained a criminal conviction against New York defendants when such defendants fraudulently added parties to litigation.

And I know that Judge Mulvey, or those who report to him, reads this blog.

This blog was reported to Judge Mulvey by attorney Paul Tomkins, then of Binghamton, NY, back in 2014, and since them Judge Mulvey upped his retaliation against me to new levels.

Whichever actions Mr. Neroni is going to undertake in this case, I will continue to cover the story on this blog.

As to the amount of fairness and rule of law demonstrated in this entire case - I must quote the same Alex Kozinski who, in yet another recent dissent claimed that a defendant would “have had a fairer shake in a tribunal run by marsupials”. 

In other words, a kangaroo court is a fairer court - Judge Kozinski's words, not mine. 

Only, I wouldn't insult the marsupials.

They are rather cute.  

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