"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.

Thursday, February 9, 2017

A leak from Delaware County (NY) Department of Social Services tells a story of a single honest attorney within DSS Department. And that was not #AmyMerklen, the #ActingCountyAttorneyofDelawareCounty and an applicant for the permanent position of County Attorney

I've read that #AmyMerklen, the now-DSS attorney, has been recently elevated to the position of an Acting County Attorney of Delaware County, New York, when Porter Kirkwood, after his unsuccessful run for a judicial seat, and after reports appeared of an FBI investigation into financial activities of Delaware County (NY), its former Commissioner of Social Services William Moon (who Porter Kirkwood represented for years), and the pet non-profits used by Moon and other local government officials to funnel taxpayer money through it for unnecessary services - where Kirkwood worked, reportedly, as an errand boy.

Moreover, in an interview to Walton Reporter, Amy Merklen reportedly claimed that she has made an application for the position of the County Attorney, along with "other candidates", undisclosed to us the taxpayers.

As a homeowner in Delaware County, and a taxpayer whose money pays Amy Merklen's salary, I am concerned that Amy Merklen is the Acting County Attorney, or that she is going to be chosen (which is what likely will happen) as a permanent County Attorney.

Ms. Merklen was frequently my opponent in litigation in child abuse and neglect cases where I represented parents, and I know well her competence and shortcomings.

I would consider Ms. Merklen a sturdy yes-woman, abiding, for purposes of her own job security and, as it shows now, future career, to any bidding of her supervisors or her powerful "clients", even if the bidding is completely illegal.

For example, when Delaware County Department of Social Services fabricated a child neglect case, personally, against me and my husband, within 10 days after I filed my first motion to recuse Commissioner Moon's friend and counsel of 27 years Judge Carl F. Becker from presiding over child neglect and abuse cases where Commissioner Moon acted as a petitioner and his personnel (people who Judge Becker also knew personally and represented for years), because Judge Becker, contrary to the rules of judicial ethics, never announced his prior representation of the party whose credibility determination he was making in a bench trial, and never offered, as he was required by rules of judicial ethics, the parties an opportunity to object and make a motion to recuse.

The case was since dismissed.

When I made that motion, by the way, other attorneys in the case gave me "round eyes" and whispered to me outside of courtroom that "everybody knows it, but nobody challenges it".

The fabricated retaliative child neglect case that traumatized my child and tried to taint me and my husband, as well as to put us in jail and take our law licenses (that was in the fall of 2009, my husband's law license was taken on pretextual reasons nevertheless, in 2011, and mine was suspended for sanctions imposed by the same judge for motions to recuse, in 2015).

Recently, I received a leak from the Delaware County DSS, from a person who, while not willing to have me disclose that person's identity due to job security issues and fear of retaliation, could no longer keep silent about corruption going on in Delaware County.

With amazement, I have learnt that there WAS actually an attorney within the Delaware County DSS, and its legal department no less, an attorney who, risking that attorney's  (I will not say whether it was a man or a woman) own position, license and livelihood,  has actually stood up to the crew who brewed the fabricated and politically motivated child neglect case against me and my husband.

The attorney, reportedly, confronted Porter Kirkwood who agreed to bring the fabricated case against us and accused him of cooking politically motivated cases for his friends Moon and Becker.

Reportedly, the attorney was immediately fired, sued or threatened to sue the Delaware County, and the case was settled for an undisclosed amount.

The person who reported this to me is still working for Delaware County and, of course, I will not disclose that person's identity.

What I will do though, is to add a 4th attorney to the tally of those who I know suffered from criticism of corruption within the county, and its judiciary, in addition to:

1) David Roosa;
2) Frederick Neroni; and myself,
3) Tatiana Neroni
4) XYZ.

What is important today is that that one honest attorney was not Amy Merklen. 

Amy Merklen, as a true battle horse, chose not to oppose her boss's command to prosecute a fabricated case.  She looked apologetic to me when she appeared at depositions that we called for, including a deposition of Commissioner Moon - who told me point blank, and in the presence of Amy Merklen (and I have a transcript of what he said) that "nothing would have happened had you opened THAT DOOR".

What was meant was that by not opening "that door", the door to our HOME LAW OFFICE where confidential files of our clients were kept and did not allow the social services and the police "to just look" - to conduct a warrantless search.

Interestingly enough, even though Moon and Kirkwood brought fabricated child neglect proceedings against my husband and myself (since dismissed, but first diligently prosecuted by Porter Kirkwood, and by Amy Merklen who appeared as our opposing counsel at depositions), Moon, Kirkwood or Merklen did not seek or were unable to obtain a court order or a warrant to search our home law office.

So Moon, Kirkwood and Merklen knew when he was talking about bringing a child neglect proceeding against two local attorneys, opponents of the local police, prosecution and DSS in litigation, in retaliation for not "opening THAT DOOR" and not allowing to search confidential files in the home law office, that what they were doing was completely illegal - but still continued to do that.

And that branded the image of Merklen as an attorney for me.

As did the fact that Merklen never brought HER OWN motion to recuse Judge Becker for violating the rule of judicial ethics, and never pointed out that there is an appearance of impropriety, and thus a question as to the legal validity to Becker's child neglect and abuse adjudications, that Becker presided, without announcement of his prior lifetime representation of the Department, over cases of child neglect brought by the Department and Merklen, and made credibility determination of his own former clients who he knew personally.

In 2017, the Walton Reporter reported that Amy Merklen has worked for Delaware County "for a decade".

That indicates that she worked in Delaware County since 2007, and did not represent the Delaware County DSS at the time Becker was still an attorney - Becker first ascended the bench, likely illegally, since no competent evidence of his election exists, in 2002, 5 years before Amy Merklen came to work for the Delaware County.

Yet, Amy Merklen could not possibly not know that Becker WAS the DSS former attorney while appearing in front of Becker and quietly accepting biased rulings of the judge in favor of her "client" as a given.

Amy Merklen has been admitted to practice law in 1999.

Yet, her years prior to coming to the Delaware County, from 1999 to 2007, are a mystery.

Here is how Walton Reporter describes Amy Merklen's career as an attorney:

There is nothing said about her experience from 1999 to 2007, from admission to the bar until she came to work for Delaware County.

Moreover, Amy Merklen herself, in her own LinkedIn account, also does not disclose her prior employment, misrepresenting into the bargain that she is working in "Albany, New York area", not in Delhi, New York.

Yet, I found a public document dating back to 2005 where Amy Merklen was listed as an attorney for the New York State Department of Health, and the case was dealing with professional discipline of a New York State Doctor Kevin M. Downs, M.D., then of the Women's Health Center in Plattsburgh, New York.

Amy Merklen's address at that time was:

I am going to FOIL the New York State Department of Health for the dates of employment of Amy Merklen, her position with the government, and her salary, since the information available on without FOILing dates back only to 2008, when Amy Merklen was already employed by Delaware County.

Yet, the information immediately available about her salary is that Amy Merklen's salary grew from $75,769 in 2012 to $89,280 in 2016 (I am going to FOIL the Delaware County about her salary in 2007 through 2011 and will publish that information once I receive the response).

Once I receive information about Amy Merklen's salary in the New York State Department of Health and about her salary from some time in 2007 (in February of 2007 Merklen was still working in the NYS Department of Health, disciplinary board, according to this public document) to 2012 in Delaware County, the picture will be clearer whether Amy Merklen came to Delaware County as a promotion or as a demotion, and if it was a demotion, then it will be interesting to know the reasons.

I did get public documents on the Internet indicating that Amy Merklen was employed with the New York State Department of Health at least as far back as in 2001, and she worked here.

Attorney Anthony Benigno, Esq. who worked with Amy Merklen at the NYS Department of Health's disciplinary board (see him listed as an attorney of record in a disciplinary case of the NYS DOH in 2002), is still working in the Department of Health -

apparently, working as an attorney in Albany, for the State of New York, is a lucrative position, and a position of power over physicians that people are unlikely to voluntarily cease to just go work for a Department of Social Services in a rural county 89 miles away from Albany, up in the mountains.

And, Anthony M. Benigno has reportedly earned more in 2008 working as an attorney for the disciplinary board of the Department of Health than Amy Merklen got in 2016 from Delaware County $89,280, after working for the County for 10 years)

As to Amy Merklen's competence as an Acting County Attorney, and a candidate for the permanent position of a County Attorney, which paid Porter Kirkwood $125,825 in 2016, an increase of nearly 41% in her salary (compare with her own salary prior to her advancement to the position of the Acting County Attorney of $89,280).

Was worth being a yes-woman and do illegal biddings of her bosses, wasn't it?

There may have been two more reasons to conceal her prior employment with the disciplinary board of the New York State Department of Health.

The first of the two reasons is that prosecution of disciplinary cases against doctors in administrative proceedings in the NYS Department of Health do not an equivalent of litigation experience, because:

  • in administrative proceedings, rules of evidence are inapplicable;
  • the standard of proof is not preponderance of COMPETENT evidence (no hearsay), but "substantial evidence", which, as my law professor in insurance/administrative law said, is "anything which is not absolutely, positively, screamingly insane".
As to the specific context of disciplinary proceedings regarding doctors, medical education is so expensive and all-consuming, the loss of medical license constitutes such a devastation of the doctor's entire life, and of the life of his family, that most likely, Merklen did not even have to prosecute cases - doctors, like attorneys in most disciplinary proceedings, simply caved in and agreed to any "lesser charges" and to at least some punishment, only not to lose their licenses.

Additionally, with the disciplinary "board" that consisted from competitors of doctors subjected to disciplinary proceedings, and the disciplinary judge being the employee of the prosecuting Department of Health, Merklen did not have a true adversary proceedings either.

Possibly, one of the reasons why Merklen conceals her prior employment in interviews and on her LinkedIn account is to conceal the fact that Delaware County hired an attorney for a position with a heavy litigation load, who had no litigation experience, and I wonder what strings were pulled to get Merklen her position in Delaware County legal department in the first place.

So, not only Amy Merklen did not have true litigation experience in a truly adversarial court proceedings before coming to the Delaware County, but she had a vast intimidation experience as a "civil prosecutor" before coming to Delaware County, intimidating doctors into settlements by the idea of loss of livelihood the very same way as she is was intimidating parents into "deals" with social services, with the help of a biased judge, former attorney for her own DSS Department, with the idea of loss of their children first to foster care, then to adoption out of foster care. 

What is most suspicious is, with a potential for bribes in such disciplinary proceedings, where Merklen held in her hands the fates and livelihoods of millionaire physicians, I doubt that anybody voluntarily leaves such positions, something is fishy in why Merklen left and went to work in the middle of nowhere.

As to competence of Amy Merklen as a trial, litigation attorney, I can judge from my own experience as her opponent in litigation (often a successful opponent, even in front of a biased judge).

While litigating against Amy Merklen, I have learnt that, for example, she has a short fuse.

When Amy Merklen feels cornered with legal arguments, she does not compose herself (in my experience), but instead explodes into your face - which is a problem only for her, because an opposing counsel who is not afraid of her temper tantrums, can use her anger against herself, since a person in anger is less attentive to detail.

Next, Amy Merklen, either from being overworked (even though I don't know why, there are only 47,000 people in Delaware County, mostly old, and an ever-shrinking number of children, shrinking to the point that a school in the area has closed recently for lack of children, and two maternity hospitals in the area recently closed, also for lack of babies born), or from whatever reasons, does an extremely sloppy job in her pleadings, and I mean - not only in the child neglect and/or abuse petitions, but also in opposition to motions.

That may be the direct result that between 2007 and 2015, when Becker was on the bench, Merklen did not have to knock herself out too much, and knew that Becker would always take her side, no matter what.

Yet, even that did not always work.  Which brings me to several more lapses in competence of Amy Merklen in litigation: 
  1. lack of knowledge in the area of expert evidence,
  2. lack of knowledge of evidentiary rules, and
  3. a complete loss as to what to do if she does not have her way when the opponent is firm on the client's rights.

For example, Amy Merklen can call an expert witness without fully researching what her opponent can do with the medical evidence Merklen is seeking to introduce.

In one of the cases I litigated, Merklen called a medical witness and introduced, over my objection, medical evidence into the case, but I was able to actually have Becker (who hated me with a passion) be forced to dismiss a case of child abuse based on what Merklen's own expert said on cross-examination.  Becker turned purple when he himself saw what was coming, jumped into the fray with his own, additional examination, meant to helped Merklen, but only made matters worse.  The physician who was obviously not a professional bought witness, honestly answered questions, and as a result Merklen could not meet her standard of proof for child abuse.

Next, Merklen frequently does what other DSS attorneys also do in child neglect or abuse proceedings - calls the parent to testify against himself, claiming that, since criminal charges were never filed (yet) against the parent, no 5th Amendment issues exist.  While that is a lie, which I will expose, among other tricks of Social Services, in my coming book about DSS, judges often fall for that lie and allow such examination.

What Merklen does not take into consideration though - possibly, because parents are usually represented not by private counsel, but by assigned attorneys who are afraid to vigorously litigate the matter not to lose the judge's favor and not to lose future lucrative assignments at $75 an hour (including for the time driving to and from court and sitting in the waiting room), and because Merklen expects bias in her favor from the judge, as it has always been the case with Becker, that same Department's own prior counsel of 27 years - is that calling your opponent to testify against himself is a double-edged sword.

In New York, the law:

1) does not allow to impeach your own witness; and
2) does allow the opponent to cross-examine any witness using leading questions.

What it does is that a respondent parent who Merklen calls to testify can say absolutely anything under oath, and Merklen will be unable to impeach her own witness, that's number one.

Number two is that Merklen gives to her opponent a gift of being able to cross-examine his own client and ask his own client leading questions, an opportunity that an attorney for a parent never usually gets unless his opponent calls his client to testify.

So, instead of having the parent testifying against himself, which is the easy way for Merklen to win a case that she did not prepare for trial, hoping for a biased judge, a corrupt assigned attorney and trembling parents who will eventually fold to threats of removing their children and adopting them out of foster care, and agree to some kind of a "deal" with admission of "guilt", which will trigger "services" from the DSS - and secure money in the budget for the DSS Department at the next meeting with the voters - Merklen may get shot in the foot and have the parent testify completely against what Merklen planned for him.

I had such a situation when Merklen called my client to testify against himself, and when I started to lead him with questions on cross-examination.

Merklen jumped up, all red (as I said, she has a short fuse and cannot control herself in the courtroom) and practically shouted, "objection, leading".

I have a funny feeling that Becker had a problem of some kind with her, too (or with women attorneys in general), because at that point he told her, with an obvious pleasure, that it was cross-examination, and leading questions on cross-examination are allowed by evidentiary rules in New York.

I also came to realize during litigation that, since discovery and motions are nearly never done by assigned attorneys in child neglect and abuse cases, Merklen usually does not know how to handle them, and tries to strong-arm the court by claims that "we always do that this way" (in our neck of woods, I might add).

With some judges it works, with others - not always so.

As I recall, Judge Brian Burns once refused to cave into Merklen's tactics when she, and her "client" (a social worker) claimed that they "always" require parents to submit to alcohol and drug ("CDC") evaluations and to mental health evaluations as a condition to see their children held in foster care (without regard, by the way, whether mental health issues or alcohol and drug issues are even raised in their Petition), and that they "always" require parents to sign "contracts" to allow "parent aides" from DSS's pet non-profit "Delaware Opportunities" to supervise visitation with children held in foster care, and thus for DSS to funnel money towards Delaware Opportunity for that important task - as a condition of seeing the children at all.

Judge Burns, without pronouncing, of course, that such "practices" and "policies" are unconstitutional (I believe, they are, and are waiting for their challengers in court), put Merklen in her place and allowed visitation with children in foster care without any such conditions, because those conditions are not to be found anywhere in the governing statute.

I also had complaints (both as an attorney, and as a blogger) about actions of social services of Delaware County about pregnant women's and their babies' health jeopardized by Merklen-led and advised DSS Department, where:

  1. First, a pregnant mother would be either told to walk into a remote location carrying heavy stuff, contrary to advice of her physician, nearly at the time of her confinement, as a condition DSS put on seeing her other children at all - and thus the pregnant mother is being deliberately put into a position of a Hobson choice whether to risk her own and her baby's life, having a risk to go into labor in that remote location without medical help, and during cold weather, or to see her other children;
  2. then, after jeopardizing the baby's life, the same DSS is trying to snatch that baby once it was born claiming that the mother "derivatively neglected" the baby who has just come out of her womb, while the mother is healthy and the baby is healthy, so what the h*ll is that neglect, nobody knows, and the DSS, which did not give a damn whether the baby will drop on his head and die in a cold and dirty field a mere month prior, is, of course, a safer solution for the baby now than the baby's own mother; and
  3. the baby then is snatched off the mother's breast and stopped from getting the milk to strengthen the immune system, and
  4. the DSS would keep the baby away from the mother, and from her breast milk, now claiming that the baby's immune system is weak, and the mother presents an infection risk;
  5. I also had a report that DSS made reckless claims to a pregnant mother that they will snatch her baby once it is born no matter what, driving the mother to giving birth out of hospital, to prevent such snatching.
  6. I also had a report of a pregnant mother who allegedly lost her early pregnancy in the Delaware County jail, without any medical assistance, and while the Delaware County would not even recognize that happened, after she was brought into jail for "obstruction" of an assault by DSS and police, in the middle of cold New York winter, on her home in the middle of the night in order to "see how children are fairing", during which assault both the mother and at least one of the children were tasered - and the mother, likely as a result of having been tasered, has lost her pregnancy, which the Delaware County reportedly refused to document or provide medical care for.
This is the Department of Social Services of the Delaware County, New York led and advised by Amy Merklen.

Protectors of children.

Amy Merklen should be proud of herself. 

She is a true heir to the "legacy" of the now-resigned and running former Delaware County Attorneys Richard Spinney, Porter Kirkwood and Carl F. Becker (who is also a judge resigned after 13 years pitching victories in social services cases to Merklen, Kirkwood, Moon and Co. and "clearing the field" of any critics of their corrupt actions, in order to secure funds coming to their pet non-profits, relatives and friends).

But, to me as a homeowner in Delaware County and a taxpayer paying her salary,

  • her possible demotion, or questionable motives to come to work for a nondescript remote rural county DSS Department from her posh State government position in Albany;  
  • her interesting efforts to conceal her prior place of employment;
  • her short fuse;
  • her lack of competence in litigation,
  • her proven lack of integrity;
  • and the abysmally cruel and unconstitutional things that social workers do under her advice and care to parents in Delaware County, including parents of soon-to-be born and newborn babies, in order to get their grubby hands on federal funds financing foster care and adoption out of foster care,
are not good characteristics for a permanent position of a County Attorney, and whoever is reading my blog from the Delaware County can consider it as a public letter of opposition against appointment of Amy Merklen as a County Attorney, and against her current appointment as an Acting County Attorney.

Moreover, with the current corruption mess, and the FBI investigation of dirty dealings in Delaware County, which Amy Merklen, as part of the legal department, was necessarily aware of for 10 years and kept mum about it, there is a need to hire for the position of a Delaware County Attorney somebody who is:

  1. not an insider;
  2. not somebody who knew of and covered up as an attorney dirty dealings of officials in Delaware County, but
  3. somebody entirely new and not "connected" with anybody in the clans or government of New York State, Delaware County or other counties, or any other townships, and
  4. not related to anybody so "connected" by blood, marriage, "relationship", friendship, work, study or any other close connection.

I would certainly prefer such a non-insider, for the position of a County Attorney, whose main obligation is to advise the County:

1) how to handle taxpayer money (our family's money included), and 
2) how to not violate the law, so that taxpayer money (also including our family's money as taxpayers) would not further be expended in litigation against the County,

an attorney with more competence, more integrity and more backbone than Amy Merklen has to advise her staff as to what is legal and what is definitely not.

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