"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.

Friday, May 27, 2016

The Mokay saga continues: it's tough to be stupid - Judge Kevin Dowd and attorney Richard Harlem are rapidly falling into their own traps

I wrote on this blog recently about how judge Robert C Mulvey has fixed, on request of attorney Richard Harlem, the appeal in the Mokay case.

That Mokay case that was previously fixed in the court below by judges: 

  1. Robert C Mulvey, through assignments of obedient judges who Mulvey could rely upon to obey Mulvey's illegal case-fixing policy that a judge Mulvey assigns to the case must rule the way Mulvey wanted the assigned judge to rule, or else ( promoted to the Appellate Division and fixed the Mokay case on that end, too);
  2. Elizabeth Garry (promoted to the Appellate Division), 
  3. Molly R. Fitzgerald (promoted to Mulvey's prior position as Chief Administrative Judge of the 6th Judicial District, the position formerly occupied by Richard Harlem's now-deceased father judge Robert Harlem), 
  4. Michael V. Coccoma (promoted first to the position of Chief Administrative Judge of the 6th Judicial District and then to the position of Chief Administrative Judge of Upstate New York, and Chief Fiscal officer deciding issues of lucrative assignments to Surrogate's Court and the no-less-lucrative post-retirement assignments of judges as judicial hearing officers);
  5. Carl F. Becker (booted into early retirement, but who knows - I need to check his assignments through FOIL, maybe Becker received some gift for his crookedness, too), and 
  6. Kevin Dowd - not yet booted, but not yet promoted either.

But, promotions aside, it does look bad for judges when stupidity of a son-of-a-judge privileged blue-blood attorney who never in his life thought he had to strain a brain to win in court, combined with stupidity of assigned trial court judge, make the Appellate Division look like a bunch of complete idiots.

Which is what Richard Harlem and Judge Kevin Dowd of Chenango County Supreme Court accomplished with flying colors, and continue to do at this time.

Let's reintroduce a brief timeline of relevant events.

On June 12, 2015 Judge Dowd issues a decision after an ex parte trial on damages.  Let's leave apart the issue that an ex parte secret trial barring the public held despite the fact that the defendant's counsel is on medical leave, and without participation of even the plaintiffs, is unlawful on many levels, and concentrate on the yo-yo maneuvers of Richard Harlem trying to position the same unlawful decision as either final (so the lower court has no more jurisdiction over the case), and non-final, at the same time, for different purposes.

Of course, the same as a woman cannot be just a little pregnant, a court of law cannot have "a little subject matter jurisdiction" which disappears as a mirage for one purpose, namely, to hurt Mr. Neroni and help Richard Harlem, and reappears in the fevered brain of Richard Harlem and judges favoring him, whenever it is convenient.

In the June 12, 2015 decision, in addition to damages after an ex parte trial without presence of plaintiffs, Judge Dowd granted to Richard Harlem Richard Harlem's request to make jurisdiction of Judge Dowd in the Mokay matter not final (as it is supposed for a decision after a trial on damages), never-ending.

Even though this a trial court has no authority to make its jurisdiction on damages in a civil case never-ending and to decide the issue of damages (1) in an ex parte bench trial and (2) in a series of subsequent motions, there is nothing impossible for Judge Dowd when he is bending backwards to suit a well-connected attorney. 

Ok, so, based on the request of Richard Harlem, jurisdiction of the Supreme Court is never-ending as of June 12, 2015.

Good for Harlem?

It depends.

In March of 2016, my husband timely perfects his appeal in the Mokay case.

Richard Harlem files a motion to dismiss the appeal on behalf of Daniel Mokay, Andrew Mokay, David Mokay, Patricia Knapp, Christine Reed, and the Estate of Andrew Mokay Sr. because:

1) my husband did not (and could not) include into the Record on Appeal the trial exhibits that Judge Dowd prohibited to show to my husband and/or to me while I was my husband's appellate counsel, even after the June 12, 2015 decision and during the pendency of appeal, and that Harlem stole from the record with Dowd's help - a blog with transcript and audio recordings of telephone conversations with Supreme Court clerk Kelly Sanfilippo is here; and

2) because, according to Richard Harlem, my husband did not include certain decisions required to be included because the appeal was from a final decision of the trial court.

My husband, naturally, opposed Harlem's motion saying, among other things, that:

1) a victim of theft may not be punished for that theft, and the thief should be rewarded for his theft;
2) Richard Harlem is engaged in a systematic fraud upon the court by claiming that

  • he represents the purported plaintiff David Mokay on appeal and that 
  • he represented the purported plaintiff David Mokay in the court below and 
  • by obtaining allegedly on behalf of David Mokay a $300,000 judgment 
  • while David Mokay is claiming in a sworn affidavit that he never sued my husband and never hired Richard Harlem or his law firms to do that for him;  
  • and while suing on behalf of a non-existing party is a federal criminal offense (recently several New York attorneys were criminally prosecuted and convicted by the feds for that same conduct); and because

3) the Mokay appeal was from a non-final decision of Delaware County Supreme court , made non-final at the request of the same Richard Harlem.  

Yet, as it happens in the cases of nobility, the spoiled son-of-a-judge Richard Harlem cannot have a "no" for an answer, even if that "no" is the result of the law of the case created at his own request.

Apparently, Richard Harlem wanted the best of both worlds - to claim that jurisdiction in the Mokay case in Delaware County Supreme Court is, at the very same time:

1) non-final and never-ending - for purposes of continuing to go back to Judge Dowd and claim more "damages" through a series of motions; and
2) final - for purposes of having the appeal dismissed because the record did not (allegedly) satisfy the rules of appellate court applicable to final decisions of trial courts.

I already described on this blog that Richard Harlem was trying to accuse his purported client David Mokay of perjury to the appellate court with the help of an affidavit from his other client, David Mokay's brother Daniel Mokay.

Daniel Mokay, according to my reliable sources, is the only one of the Mokay children who received anything out of the Estate of their father, and that "something" is $7,000, enough to provide a perjured affidavit against his brother David Mokay on behalf of Richard Harlem.

Accusing one purported client of perjury with the help of another client, in the same case, and on the issue of representation is attorney misconduct, and requires an immediate disqualification of Richard Harlem from representation of anybody at all in the same case, but Richard Harlem is afraid now to lose control over the case, and is digging in. 

But, disqualification is usually obtained in cases where the court's jurisdiction is pending.

Richard Harlem received affidavit of David Mokay on or about April 20, 2016, at the time when:

1) jurisdiction was pending in the Appellate Division - because of Mr. Neroni's perfected appeal; and
2) jurisdiction was pending in the Delaware County Supreme Court - because of the June 12, 2015 making that jurisdiction, at Harlem's request, non-final and never ending.

Richard Harlem did not move to withdraw from the pending appeal, as he was supposed to.

Knowing that his blue blood will carry him no matter what stupidity or fraud he produces, Richard Harlem instead, did the following:

1) On May 9, 2016, during the pendency of his motion to strike the appeal on behalf of David Mokay and other defendants, Richard Harlem files an application for an order to show cause to withdraw in the Delaware County Supreme Court;

2) By filing that motion, Richard Harlem acted as if the order of Judge Dowd of June 12, 2015 made jurisdiction in Dowd's court non-final, and as if Judge Dowd has continued jurisdiction in the Mokay case in the trial court, because when jurisdiction of the court concludes, it concludes for all purposes, there is no point, nor legal grounds in making any motions any more, including a motion to withdraw from representation of anybody at that point.

In his application, Richard Harlem commits yet more fraud upon the court and perjury by claiming, under oath, the following:

Richard Harlem's Affidavit, p. 1:

Richard Harlem continues to claim, under oath, that he is an attorney for David Mokay, while David Mokay stated as of November of 2015, that Richard Harlem is not his attorney, never was his attorney, and that David Mokay never was a party in this action.

Richard Harlem then describes how my husband submitted David Mokay's affidavit to the appellate court - in opposition to Harlem's pending motion to dismiss the appeal on behalf of 6 purported plaintiffs, including David Mokay.

Then, Richard Harlem states, under oath, the following - page 2 paragraph 4:

Of course, signing, under oath, a substitution of attorney, would have been for David Mokay an equivalent of committing a double perjury and acknowledging that 

(1) Richard Harlem, in fact, did represent him, but David Mokay now releases him from that representation, and that 

(2) David is a party in the lawsuit and is going to proceed in the case as a pro se party after David Mokay allows Richard Harlem to withdraw.

Yet, in his affidavit David Mokay provided to Mr. Neroni which Mr. Neroni submitted to the Appellate Division, David Mokay claimed that he has never been a party to that lawsuit and has never hired Richard Harlem or his law firms to represent him in the Mokay lawsuit.

I can give credit to David Mokay, a disabled individual without any legal training, who, according to Richard Harlem's affirmation, refused to sign that fraudulent "substitution of attorney".

Richard Harlem continues to lie by stating under oath the following:

page 2 paragraph 5:

Harlem is presenting the situation as if David Mokay is a capricious and stupid client who IS a party in the case, who does not want Richard Harlem to represent him in that case, but is stubborn and would not sign a substitution of attorney - so such substitution is required by court order.

Yet, the affidavit of David Mokay clearly shows that David Mokay asserts he never was a party in that case, and thus the court has no authority to rule that he IS the Plaintiff in the case where David Mokay claims he ISN'T, and NEVER WAS.

Richard Harlem's affidavit was sworn on May 9, 2016:

As I stated above, the problem of an application for an Order to Show Cause (motion) to withdraw at the level of Delaware County Supreme Court is that such motions to withdraw are made only in an ongoing case, in a case with an ongoing subject matter jurisdiction of the court.

Which means, that Delaware County Supreme Court must still have subject matter jurisdiction in the Mokay case to review any new motions to withdraw from an ongoing proceeding.

Which means that the June 12, 2015 trial decision on damages by Judge Dowd should not be deemed non-final, in order for Judge Dowd to be able to review and resolve the motion.

But, Richard Harlem was arguing at the same time on a pending motion to the Appellate Division that the June 12, 2015 trial decision on damages IS final.

On May 13, 2016 Richard Harlem won the motion in the Appellate Division, and thus, obtained from the Appellate Division a decision that the June 12, 2015 trial decision on damages by Judge Dowd IS final.

Did Richard Harlem promptly notify Judge Dowd that Judge Dowd has lost jurisdiction over the case as of his decision of June 12, 2015, because of the ruling of the Appellate Division on Richard Harlem's request to the Appellate Division to deem Judge Dowd's June 12, 2015 order final and dismiss Mr. Neroni's appeal unless he corrects the record in compliance with rules applicable to appeals of final judgments?

Of course, not.

Let's look at our timeline again as to the yo-yo efforts to deem jurisdiction in the Mokay case in trial court, alternately, final and non-final - as Harlem did.

June 12, 2015 - Judge Dowd grants Richard Harlem's request to make subject matter jurisdiction of Delaware County Supreme Court in the Mokay case never-ending, non-final;

March, 2016 - Richard Harlem asks the Appellate Division to deem the June 12, 2015 decision of Judge Dowd a final decision in the case, for purposes of striking Mr. Neroni's perfected appeal;

May 9, 2016 - Richard Harlem makes a motion to withdraw from representation of David Mokay in Delaware County Supreme Court, which can only be done in cases with ongoing jurisdiction of the court, so Richard Harlem thus claims that the decision of June 12, 2015 was not final - at the same time as he was claiming in the Appellate Division that it was final;

May 13, 2016 - the Appellate Division grants Richard Harlem's motion dismissing Mr. Neroni's appeal because it did not comply with rules of the court applicable to final judgments;

May 13, 2016 - Judge Kevin Dowd signs the Order to Show Cause, acknowledging the Delaware County Supreme Court has subject matter jurisdiction over the Mokay case and that the June 12, 2015 decision was non-final;

May 20, 2016 - instead of notifying Judge Kevin Dowd of the decision of Appellate Division granting Richard Harlem's request to deem Judge Dowd's June 12, 2015 decision as the final decision in the Mokay case in the Delaware County Supreme Court, thus ending jurisdiction of the Delaware County Supreme Court in the Mokay case as of June 12, 2015, Richard Harlem serves Mr. Neroni - no, not with the order of the Appellate Division that provided that the June 12, 2015 decision was final (according to request of Richard Harlem), but with the Order to Show Cause of Kevin Dowd which could only be made if the June 12, 2015 decision was non-final.

It is apparent that Richard Harlem, while trying to save his sorry hide and trying to persuade his remaining clients not to sue him for legal malpractice and fraud, trying to persuade disciplinary authorities not to disbar him and trying to persuade criminal authorities not to lock him up, has made complete idiots both of the appellate panel that ruled for him that Judge Dowd's June 12, 2015 decision is a final decision, and of Judge Dowd who ruled that the same decision is a non-final decision - and both courts did that at Harlem's request made in sworn affirmations or affidavits.

I wonder whether Richard Harlem will finally be picked up by the disciplinary authorities and/or by the feds with a criminal investigation and prosecution.

The fraud has to end, no matter how blue is the blood of the perpetrator.

For how long can this attorney be wasting taxpayer money and committing fraud in several courts against several people?

Is the blue blood of his deceased father and his connections so much stronger than the law?

Is the letterhead of Richard Harlem showing that his deceased father was a Supreme Court judge win over law, fairness and common sense?

Will Judge Dowd and appellate judges continue to bow to this completely incompetent attorney and will continue to make fools of themselves in order to please Richard Harlem and Senator Seward, tenant of Richard Harlem, and other political connections of Richard Harlem?

I also wonder whether David Mokay will oppose Harlem's pathetic perjurous affidavit and motion made without jurisdiction, or will he simply let it go and not file any opposition - because his affidavit of November 2, 2015 that Harlem provided for Dowd's review, already said it all, not requiring to add anything else, and because, based on the Appellate Division's decision of May 13, 2016, the Delaware County Supreme Court has no authority to review any motions at this time, because its order of June 12, 2015 was final, and no motion to vacate that order was made yet.

Let's see how Judge Dowd will rule this time.  I will publish his decision in this case, which becomes more and more entertaining.

Stay tuned.

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