"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.

Sunday, May 22, 2016

The story of forced retirement of Madison County Judge Biaggio DiStefano because he disobeyed a direct order of Judge Robert C Mulvey to violate the law and decide criminal cases the way Mulvey wanted him to

Judicial independence is valued in this country to the point that judges gave themselves a self-gift of absolute judicial immunity for malicious and corrupt act in order (allegedly) to protect that judicial independence.

Yet, a judge, a Madison County (NY) judge Biaggio DiStefano was taken off criminal cases in 2013 and then forced into early retirement in 2015 because he disobeyed unlawful directives of the then-administrative judge Robert C. Mulvey from 2012 as to how to decide criminal cases.

Judge Mulvey actually has a history of protecting certain judges - but, obviously, not others.

While Judge Mulvey, as I will describe below, was very quick to boot Judge DiStefano off all criminal cases for disobeying Mulvey's unlawful whims, certain judges he kept on cases despite obvious misconduct.

This is a letter of May 3, 2011 sent to me by Judge Robert C. Mulvey, then-Chief Administrative Judge for the 6th Judicial District:

By that time, Mulvey was aware of Becker's shenannigans which I described in multiple complaints to Mulvey - and Mulvey turned a deaf ear to those complaints.

Judge Mulvey did not consider that a threat of a lawsuit against a judge, as well as the actual lawsuit against a judge is a basis of disqualification of that same judge.

In North Carolina, as I wrote earlier on this blog, FAILURE to disqualify himself under such circumstances resulted in discipline against the judge, 7 years before Judge Mulvey expressed this opinion.

But, New York is not North Carolina, and Mulvey, by that time, refused for over 2 years to protect me from harassment by Judge Carl F. Becker - to whom he has sent a copy of the letter, thus announcing to him his policy and practically sanctioning further abuse.

So, I sued - Carl Becker sanctioned me immediately after the lawsuit - and my law license was suspended for making motions to recuse Becker, while Mulvey denied me protection.

And, Mulvey, a subordinate to Chief Judge for upstate New York Michael Coccoma, who recused from my husband's case back in 2007, failed to recuse himself when I and my husband sued him, too - for his own unconstitutional policies and misconduct, and for failure to protect me, my clients and family members from retaliation and for condoning and practically encouraging misconduct of Carl Becker.

Mulvey and Becker escaped the lawsuits by claims of absolute judicial immunity for malicious and corrupt acts, so issues against Becker and against Mulvey were never reviewed on the merits.

Even though my federal lawsuit against Mulvey and Becker was dismissed by judge Mae D'Agostino on January 9, 2013, only more than 3 years after that date, in 2016, did I learn, through a Freedom of Information Request, quite accidentally, that Mae D'Agostino is the "Chairperson" of a shadowy organization "New York State-Federal Judicial Council" where Mae D'Agostino teamed up behind closed doors with New York State judges, possibly, with the very same judges who appeared in that court as defendants.

At this time, Mae D'Agostino is stalling my Freedom of Information Act request for lists of members of the organization she chairs.

The stalling clearly suggests that there are things to hide, and it is very likely that Mulvey participated,  through this shadowy organization, in fixing his own federal lawsuit, too.

But - if an administrative judge in New York, like Mulvey, "simply" assigns a judge to a case, does the administrative judge control actions of the assigned judge, or expects a certain outcome from that judge?

The law says "no" - theoretically.

And, the Appellate Division 3rd Judicial Department, answering that question on January 29, 2015 in "Kilmer v Moseman", also told me "no":

The Appellate Division 3rd Judicial Department, judges Garry, Lahtinen, Rose and Devine, did not consider as a disqualifying factor where a husband assigns a judge to the case where his wife acts as a private attorney for a party - and where sanctions are requested against that wife for frivolous and fraudulent conduct.

And, under the circumstances where the actual judge assigned is close to retirement, and where the husband in question controls lucrative post-retirement assignments - or lack thereof - to retired judges.

The court found no appearance of impropriety in such an arrangement, 

  • skipping completely the central husband-and-wife issue, 
  • skipping completely the central issue of whether an administrative assigning judge can control the case and behavior of the presiding judge
and concentrating instead only on the fact that: 

  • "remote";
  • "speculative";
  • "possible or contingent" financial interests cannot be a basis of disqualification of the judge.

The judge in question, Judge Kevin Dowd, the judge with mental problems who raves about building urinals at law schools in his honor at child custody proceedings - I wrote a lot about Judge Dowd on this blog, just put keywords "Kevin Dowd" in the search window on the right if you want to see and read all blogs about this anti-semitic, anti-women and pro-status judge's shenannigans - that judge actually claimed when I first raised the issue of his disqualification that he is independent from the power of the administrative judge who assigned him - that was judge Robert Mulvey, subordinate of Judge Michael Coccoma, husband of an attorney representing a party in that case.

Dowd entered a decision refusing to disqualify himself on June 17, 2013.

Saying that he is independent from influence and control of the assigning judge Robert C. Mulvey, subordinate of Judge Michael V. Coccoma.

Yet, in April of 2013, two months before Judge Dowd's decision, a County judge from Madison County, New York, Judge Biaggio DiStefano, now forced into retirement by the situation I am going to describe here, went public about Judge Mulvey's efforts to do exactly what the 3rd Department said in Kilmer v Moseman is not happening, influence of administrative assigning judges over presiding judges as to how the case will be decided by the presiding judge.

Judge DiStefano went public as to Mulvey's efforts to:

1) fix court cases the way he wants them;
2) directives to presiding judges to rule the way Mulvey wants them to rule in a particular CLASS of cases, based on "in chambers" directive by Mulvey regarding all cases in a certain class - in violation of the law, without presence of the parties and without regard to facts and circumstances of such cases, and
3) retaliation against judges who insisted on their independence in how they rule in particular cases, and who insisted to their adherence to statutory law, by taking them off the class of cases where they showed that independence and restricting their activities to Family Court only, in violation of the will of voters that elected such judges.

Here is what happened, as reported in the press.

Judge Biaggio DiStefano was at the time of dispute with Mulvey an elected Madison County Judge.

A County Judge in New York is elected for 10 years to preside primarily over the criminal felony court.

The controversy with Mulvey was about the so-called "judicial diversion" program - the famous "drug court" which was the baby of Carl Becker (that's why Mulvey supported him so much and denied me protection, as well as for other reasons I will describe in a separate blog).

Judicial diversion program in New York is governed by statute, Penal Law 216.05.

I will go through the relevant portions of the text of the statute with comments.  

S 216.05 Judicial diversion program; court procedures.
    1.  At  any  time  after the arraignment of an eligible defendant, but
  prior to the entry of a plea of guilty or the commencement of trial, the
  court at the request of the eligible defendant, may order an alcohol and
  substance  abuse  evaluation.  

Procedurally, the above paragraph means the following:

1) the statute fixes the time when an "eligible" criminal defendant  (eligibility is defined by Penal Law 216.00, has multiple exceptions and thus requires the review and determination of eligibility by the presiding judge in criminal court in each particular case) may make a request for the court to CONSIDER that defendant for judicial diversion program;

So, such a request cannot be made, for example, once the trial began.

And, the statute indicates, by the words "may order" that the court does not have to consider the defendant's request, it is within the court's discretion to do so.

In other words, the court can deny the criminal defendant's request to consider him for judicial diversion program, and the court's decision can only be appealed after conviction of the defendant (if the defendant did not waive his right to appeal, let's say, in a plea), and the standard of review on appeal will be then "abuse of discretion" - an extremely deferential standard, abuse of discretion by trial court is usually never found by the appellate court.

So, once again, the procedure is like this:

1) after being charged with "qualifying" felonies through an indictment or Superior Court information (a written waiver of the indictment by the defendant);
2) the defendant is brought (is arraigned) before the criminal court, the County Court;
3) within the statutory restricted period of time, it is then the defendant's choice to ask - or not to ask - the criminal court to consider the defendant for judicial diversion program;
4) after such a request is made, and if the request is timely under the statute, it is then the criminal court choice whether to even consider the defendant's request;
5) if the criminal court decides to consider the defendant's request, he signs the necessary waivers of privacy and is referred to a drug and alcohol evaluation to evaluate the defendant's eligibility for judicial diversion program.

Then, as the statute goes, the defendant can change his or her mind at any time and withdraw from the evaluation:

"An  eligible  defendant  may  decline  to participate  in  such  an  evaluation  at  any time."

Yet, if the defendant signs all necessary papers and goes through the evaluation, the following will happen:

"    2.   Upon  receipt  of  the  completed  alcohol  and  substance  abuse evaluation report, the court shall provide a copy of the report to the eligible defendant and the prosecutor."

So, in continuation of listing of procedural steps towards judicial diversion program:

6) the drug and alcohol evaluation is conducted;
7) the report from the evaluation is provided to the court;
8) the court provides the report to the defendant and to the prosecutor.

After the report is received, the statute provides,

"   3.  (a) Upon receipt of the evaluation report either party may request  a hearing on the issue of whether the eligible defendant  should be offered alcohol or substance abuse treatment pursuant to this article."


9) either the defendant or the prosecutor may (that's a choice, not an obligation) make a motion for a hearing;

10) as with any motion, the motion is brought before the court, for the court's consideration, and may be granted or denied;

11)  if the court grants the motion, then the court will hold an evidentiary hearing: 

  "At such a proceeding, which shall be held as soon as practicable so as to facilitate early intervention in the event that the defendant is found to need alcohol or substance abuse treatment,  the court may consider oral and written arguments, may take testimony from witnesses offered by either party, and may consider any relevant evidence ...";

12) after the hearing or without the hearing, treatment, as a sentence, alternative to incarceration, may be offered to the defendant, either by court order or agreement between the parties:

    "4. When an authorized court determines, pursuant to paragraph  (b)  of subdivision three of this section, that an eligible defendant should be offered alcohol or substance abuse treatment, or when the parties and the court agree to an eligible defendant's participation in alcohol or substance abuse treatment, an eligible defendant may be allowed to participate in the judicial diversion program offered by this article."

13) the defendant must then enter a guilty plea, or the court must determine, based on certain factors, or by agreement between the parties, that the defendant may enter judicial diversion program without a plea of guilty;

14) then, the court must issue a securing order (bail) for the pendency of the treatment/ judicial diversion program.

14 steps.

The criminal court (County Court) must go through 14 procedural steps before the defendant is actually placed into the judicial diversion program, the so-called "drug court".

These 14 steps are very case-specific, require a request and a consent to such a participation by the defendant, an evaluation and a review of many issues by the criminal court, and many of such issues are discretionary for the criminal court to review and decide - and the criminal court's determinations not to put a certain defendant into the judicial diversion program is subject only to the appellate review, review by the appellate court - IF the defendant makes a choice to appeal after the end of the criminal proceedings before the criminal court.

In 2013, Robert C. Mulvey was not an appellate judge over Madison County Judge Biaggio DiStefano.

Robert C. Mulvey was the assigning judge for Judge DiStefano, who, as the 3rd Department claimed, has no control over the presiding judge.

Apparently, Robert C. Mulvey did not think so.

Because, the then-Chief Administrative Judge for the 6th Judicial District of the State of New York, Robert C. Mulvey, held a meeting between:

  1. Himself, Judge Robert C. Mulvey;
  2. Madison County Judge Biaggio DiStefano
  3. Madison County and Family Judge Dennis K. McDermott, elected at that point for the period of 2012-2021, and 
  4. Madison County Acting Supreme Court Justice in charge of the County Drug Court, judge Donald Cerio, who is actually a New York Court of Claims judge appointed by the New York State Governor to serve from 2008 to 2017

So, Judge Donald Cerio is an UNELECTED judge, appointed by the Governor to the NYS Court of Claims (where lawsuits against the State of New York are brought), and who is also assigned by an administrative order of the New York State Court Administration to be an "Acting Supreme Court Justice".

On the other hand, Judge Biaggio DiStefano was the judge who was ELECTED by the voters of Madison County to preside over criminal felony cases.

The very cases where it was the direct job of Judge Biaggio DiStefano to consider - in his discretion, and on a timely request from eligible criminal defendants, and after the 14 above procedural steps - whether to put criminal defendants into drug court or not.

It was Judge DiStefano's choice, on a case-by-case basis, based on the record of specific cases, on requests from specific defendants.

Judge Mulvey and Cerio disagreed with judge DiStefano's statutory authority to make discretionary decisions about judicial diversion on a case by case basis and following the procedure required by statute.

Reportedly,  "[t]he story starts last May [that is, May of 2012 - T.N.] during a meeting among DiStefano, McDermott, Mulvey and acting Supreme Court Judge Donald Cerio, in which they were discussing the judicial diversion court.  DiStefano remembers Cerio noting that perhaps county court judges were forwarding too few cases to the diversion program, which Cerio heads up."

So, there was a meeting among 4 judges:

1) administrative/assigning judge;
2) appointed judge who handled drug court; and
3) two elected judges of criminal courts who are authorized by statute to make judicial diversion decisions.

The ONLY reason for such a meeting is to INFLUENCE the two criminal court judges in how they should decide criminal cases in the future.

That was NONE of Judge Mulvey's business and NONE of Judge Cerio's business.

Statistics of how many cases are referred to drug court and policy considerations may not play any part where:

1) it is the defendant's choice to even ask for drug court instead of fighting for his fundamental constitutional rights at trial;

2) it is for the criminal court judge to decide whether to refer such a defendant, if s/he asks, to such a court - and the judge's INDEPENDENT decision must be reviewable not by the judge of the drug court and not by the assigning administrative judge - but only by the appellate court, on appeal, after the criminal case ENDS, not before it begins, and only if the criminal defendant actually appeals the case and did not waive the right to appeal through a plea bargain.

But, the law was obviously not an obstacle for Judge Mulvey or Judge Cerio.

So, Judge Cerio expressed an opinion that the two criminal court judges, in the exercise of their independent opinion and discretion, refer "too few" cases for Judge Cerio to play with.

Why Judge Cerio was asking for more work, and why Judge Mulvey was so bent on helping the unlawful efforts of Judge Cerio is the point to be investigated for appropriate authorities, but it is clear that Judge Cerio's and Judge Mulvey's pressure upon Judge McDermott and Judge DiStefano was unlawful.

And Judge DiStefano said so, while Judge McDermott, the former member of Attorney's "Committee for Professional Standards", didn't object to such an unlawful scheme and pressure upon himself seeking a secret agreement from him as to how he will decide future criminal cases.  

Here is what was the point of objections of Judge DiStefano, according to his interview to the press:

"DiStefano said that at the time, he was interpreting the law as he understood it and it is his legal opinion that some cases are not appropriate for the program. An example he cited was someone charged with manufacturing methamphetamine, who did not have a drug problem, would get judicial diversion.
DiStefano said, at the time, he disagreed with how some cases were being handled."

It is amazing that Judge DiStefano, obviously out of "deference" to his administrative boss, Judge Mulvey, even considered it necessary to express his legal opinion to substantiate his future discretionary decisions to the administrative judge who, by law, is not allowed any control over such decisions.

And - remember? - Mulvey has a very strong policy to keep judges assigned even when they are sued, see letter above.

That is - as I understand now - if they are loyal to Mulvey's directives during secret meetings as to how cases are to be decided.

Reportedly, at that seminal meeting in May of 2012, and over Judge DiStefano's objection to illegality of such a decision, "it was decided by Mulvey that Cerio would determine which cases would qualify for judicial diversion".

So, there will be no rotation of judges, no assignment to criminal cases of judges who were elected by Madison County voters to preside over criminal felony cases in that County, to whom the voters entrusted decision of such cases.

Administrative Judge Mulvey, instead: 

  • disenfranchised Madison County voters, 
  • cancelled the applicable statute enacted by the State Legislature (after working for several years as a "Legislative Counsel" for New York Senator James Seward), so Judge Mulvey knows more than anybody else about separation of powers;
  •  and ruled, without any authority for such a ruling, that from then on the unelected judge Donald Cerio who was interested in increasing statistics in his drug court, (possibly in preparation for a plea to either reappoint him, promote him to a higher court or elect him to an elected judicial position his term is ending in 2017), to handle all determinations of eligibility to drug diversion.
After Judge DiStefano's objections and Judge Mulvey's directive to give to unelected Judge Cerio who handled drug court and wanted more people to come to drug court, authority to decide eligibility for that drug court, the following events happened.

Judge DiStefano, loyal to his judicial oath of office to uphold the law and not the whims of administrative judges, reportedly

  1. directed the clerk of the court to transfer cases unlawfully grabbed by Judge Cerio into drug court while skipping the 14 required procedural steps described above, back into his criminal court where such cases belonged;
  2. told some defense attorneys that cases of their clients are not eligible for diversion - which was subject only and exclusively to appellate review of Judge DiStefano's discretionary decision, and not to intervention by an administrative judge;
  3. wrote to a defense attorney explaining that Judge Cerio's acceptance of a case to the drug court would be a violation of the law - since Judge Cerio was not a criminal court judge, and such cases were placed in drug court skipping the 14 steps required by statute, and approval of the criminal court, Judge DiStefano was exactly right on that.

But, one thing is to be right on the law, and another is when your boss, a Chief Administrative Judge of the large judicial district and a buddy of a New York State Senator does not give a rat's ass about the law, but wants his whim to be satisfied instead.

What Judge DiStefano did was the cardinal sin in New York judicial system - he put the law above the desires of his "betters", his superiors.

Retaliation from Mulvey followed immediately, Mulvey wrote a secret letter to Judge DiStefano (I will try to get a copy through a FOIL request, but I cannot guarantee I will get it), here is what were, reportedly, some of the contents of that letter:

And, Mulvey removed Judge DiStefano from presiding over criminal cases.

I understand that that humiliating restriction was not lifted, and in 2015 Judge DiStefano was forced into an early retirement - for being loyal to his oath of office, upholding the law and resisting unlawful usurpation of his authority and influence of court administration upon his independence as a judge.

In 2013, when Judge DiStefano was removed from the case, he stated to the press:

"When I was elected, I swore an oath to uphold the Constitution of the United States, and the State of New York. I did not take an oath to uphold the wishes of the office of court administration."

At the time of his decision to retire, Judge DiStefano reportedly told the press:

So - the honest judge is was ousted, and Judge Dennis McDermott, the judge who was a part of the disciplinary committee on "professional standards", but who sold his oath of office in order to keep afloat and not to damage his own reputation by contradicting his administrative boss, Judge Mulvey - remains on the bench.

By the way, Judge Mulvey is regularly sued in federal court.

And, each time he is sued, he gets a dismissal based on absolute judicial immunity.

And the doctrine of absolute judicial immunity is declare to have been introduced - even though it is glaringly unconstitutional, allowing judge to break their constitutional oath of office the moment they take it - to allegedly protect judicial independence.

Judge Mulvey.

Granted absolute judicial immunity for malicious and corrupt acts time after time by federal courts to protect judicial independence.

Judge Mulvey, who took an elected criminal court judge off criminal cases because that criminal court judge opposed Judge Mulvey's unlawful interference into Judge DiStefano's judicial independence.

So, we know that Judge DiStefano was forced into an early retirement in 2015.

And, we know that the judge who bowed low to Judge Mulvey and agreed to condone violation of the law, remained on the bench.

You know what happened to Mulvey, possibly in reward for his case-fixing, and very likely not only in this particular situation?

Mulvey was promoted.

In February of 2016 Governor Andrew Cuomo appointed Mulvey to the New York State Supreme Court Appellate Division 3rd Judicial Department.

And, in his new position, Mulvey, following his own tradition, already participated in fixing yet another case, a case where he participated in the court below (a direct disqualification) as an assigning judge - and where he had social and political connections with the attorney in whose favor he ruled, in complete disregard of the record and the law.

About that - in a separate blog.

Stay tuned.

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