On job security of judges...

Attorney to judge:   Judge, but you testified on behalf of my client's opponents and became a witness in this proceeding.  Here is proof - transcript of the hearing in question.  You are a witness now, you cannot continue to preside, it is a due process violation, please step down.  Since you have previously imposed an anti-filing injunction upon my client (for raising constitutional arguments), I ask you, on an application for an Order to Show Cause to allow me to proceed with a motion to recuse against you raising these issues of your misconduct, Your Honor.

His Honor:  I will not sign it (and will not allow you to challenge my misconduct).

Attorney to judge:  Judge, I saw you communicating with my opponents through your facial expressions.  I am concerned that you are going to do the same with the jury.  Please, allow me to videotape you to make sure you are not engaged in the same misconduct that I already witnessed on this particular date, date is specified.

His Honor:  I will not sign it (and will not allow you to capture my misconduct on camera).

Would you just LOVE to have such a job where nobody can question you because you can prevent anybody challenging you from even seeing the inside of the court with that challenge?

Of course, the question remains whether His Honor acted honorably or, let's say, self-servingly, but that is, ladies and gentlemen, not a question of law and "honor" for these country's judges is a job description, not a moral and ethical restraint.

And there is a long history in American courts to treat constitutional questions as frivolous questions, or pesky questions not worthy of the judge's attention.

Moreover, what kind of constitutional question can overpower the requirement that litigants and attorneys must have faith in the integrity of the judiciary?  The legal profession and court proceedings have long become a brown-nosing exercise where the party who has the most brown-nosing potential (including political connections) always wins.

Anything a judge does in his job is covered by the judge-created presumption of judicial integrity, which apparently is supposed to co-exist along with the judge-created absolute judicial immunity for malicious and corrupt acts on the bench.

And whoever believes that such a combination is illogical and incompatible, and who does not want to believe in the Emperor's new clothes, of the honor of the profession that absolutely immunized itself of liability for dishonorable acts, should be banned from any possibility to earn a livelihood and should be blackballed for life from any meaningful employment.

And with all this job security in place, wouldn't you love to be a judge?

For how long will this nation continue to send children to jail without providing them a counsel to defend themselves?

It is often said that one can judge the true nature of democracy in a nation by the nation's treatment of its most vulnerable members.

The treatment of children by American courts in juvenile and criminal proceedings shows that America has a long way to go towards the true democracy.

Only in 2005, 10 years ago, did the U.S. stop executing children.

Only 3 years ago did the U.S. Supreme Court rule that children may not be sentenced to life without parole as a mandatory sentence, that such sentencing would be a violation of the 8th Amendment.

Nonetheless, according to ACLU, 2,570 individuals convicted as children and sentenced for life without parole, remain sentenced.  Apparently, in the U.S. Supreme Court's "wisdom", the court's pronouncements of what is or is not a violation of the U.S. Constitution enacted in the 18th century does not have a "retroactive effect", a completely illogical concept.

The abysmal treatment by the American judicial system practice is also demonstrated by the pattern and practice of incarcerating juveniles without the benefit of counsel that continues to be a dreadful reality in many states.

The practice caught national attention when a judge in Luzerne County, Pennsylvania, was exposed and ultimately charged for racketeering in a scheme of receiving kickbacks from private actors who built a juvenile jail and needed to fill it in order to receive money from the county.  The judge, for kickbacks, filled that jail with children who the judge sentenced to deprivation of their liberty without the benefit of counsel.

Yet, what the former judge Ciavarella practiced for kickbacks, ruining lives of 2000 children in the process, is practiced throughout the country, and I do not see much of the media attention to that problem.

In Ohio, as of 2004, 15% of children committed with the Ohio Department of Youth Services (juvenile facilities) and 20% placed with the community corrections facilities (adult jails) were unrepresented by counsel.

Detention of juveniles after court proceedings without legal representation was reported in Tennessee in 2014.  Please, note that Tennessee continued what enraged the nation in the Pennsylvania "Kids for Cash" scandal long after exposure in Pennsylvania and, apparently, in defiance of established constitutional precedent of nearly half a century that is described below.

In New Jersey, the child's right to legal representation in the juvenile proceeding is reportedly linked to the income of the child's parent or law guardian, which is, in my view, unconstitutional, because a child himself or herself have no income, and should be entitled to public defender anyway.

A parent's duty of supporting a child does not extend to paying for a lawyer in juvenile proceedings, and parents may have significant conflicts of interests in such proceedings and may be actually the people who reported the child and triggered the proceedings, so they would definitely not be interested to pay for the child's lawyer.

Unfortunately, the U.S. Supreme Court blundered in the precedent on point, In Re Gault, 387 U.S. 1 (1967) by conditioning the child's right to counsel on parents' income, even though it found that a child has a constitutional right to counsel in proceedings that may result in deprivation of liberty.

Yet, at the very least, the U.S. Supreme Court stated, among other things, that "the condition of being a boy does not justify a kangaroo court", In Re Gault, 387 U.S. 1 (1967).

Apparently, for many courts across this nation, being a youth still justifies a kangaroo court, and I do not see any significant movement from state bar associations to change that.

A winning strategy in not reporting judicial misconduct: play dumb

I watched recently a documentary regarding the "Kids for Cash" scandal in the Luzerne County Court in Pennsylvania where two judges were convicted of, among other things, the crimes of racketeering and receiving kickbacks.

The judges ruined more than 2000 lives.  Lives of juveniles, of children.

In the documentary, the Luzerne County Public Defender, in an interview, stated that he "thought" that the juveniles in question who the former judge Ciavarella sent to the juvenile jail in return for kickbacks in proceedings where children were not represented by counsel, actually "validly waived" their right to counsel.

Now, that explanation was, to me, stunning.  The statement gives a new meaning to the phrase "do not insult my intelligence".

A public defender who have worked in this field, including representation of juveniles, for decades, should have known that a child may not legally make a waiver of counsel without such a counsel present.

At the very least, the counsel must be present at the time when a juvenile waives his or her right to counsel, to make sure that the juvenile is properly advise what legal consequences such a waiver entails.

Former judge Ciavarella's misconduct continued for years.

Former judge Ciavarella has sent to juvenile jail without the benefit of counsel 2000 children over the course of several years.

And the public defender would pretend with a straight face that he did not know of any of that?

Good try, counselor, but wasn't it in reality easier not to report judicial misconduct and retain your law license than try to save the kids and put your license on the line risking retaliation from the judiciary?

This blog has turned one year. Thank you for reading.

It is a year and two days since I published my first post on this blog.

During the year of its existence, I found with surprise that I have readership from, literally, around the world.

I have had a lot of feedback, from this country and from other countries.

That tells me that the topics I am raising here are important for people.  I did receive threats trying to prevent me from blogging.  I was accused of being crazy because of my blogging, "coincidentally", by attorneys and attorney-judges who were subject of the criticism.

Of course, the easiest way to address the issue is to try to claim that the issues come from person whose claims should be disregarded because she is stupid, incompetent or mentally ill.

And still, people keep reading.

And I see that issues of judicial misconduct and misconduct of politically connected attorneys picks up speed in the media and, especially in the social media.

So, I am proud to be the contributing member of the corps of at-home journalists who are brave enough to raise issues that the "regular" press is afraid to touch.

I am proud to make a difference, at least to the point of showing to people that not all attorneys are greedy cowards who are afraid to protect their clients' rights and afraid to challenge judicial misconduct that, unfortunately, permeates the U.S. "justice" system.

Thank you for reading and I assure you that I will keep going and will keep raising these issues.

Attorneys and litigants appearing in front of Jonathan Follender, judge in the Town of Denning court, Ulster County - beware of this judge's views that he is above the law and that constitutional rights of litigants are, in fact, "constitutional" rights

I have written on this blog about attorney Jonathan Follender (who is at the same time a judge in the Town of Denning court in Ulster County) who is the author of the following arguments (for which he never was sanctioned by any court):

• loss of consortium of a dog, a non-existing cause of action in New York (compare what "loss of consortium" is);
• death of a corporation (Mr. Follender filed a motion for substitution of the wife of his client due to his client's death in a case where his client was a corporation - and the presiding judge Eugene Peckham of Binghamton, now retired and partner to Levine, Gouldin and Thomson LLP, reviewed and granted the motion!);
• frivolous default (a non-appearance in a civil action may never be considered as frivolous conduct);
• frivolous deprivation of the court of SUBJECT MATTER jurisdiction through "untimely" satisfaction of money judgment - after the same Mr. Follender had me sanctioned in a related case for delaying satisfaction of the same money judgment.

The last one bears specific attention - Mr. Follender claimed, in a case where I never appeared as an attorney, that my alleged influence in satisfaction of money judgment that was "too fast" for his client to grab the home of two people on a homestead sale petition frivolously caused the LOSS OF JURISDICTION by the court.

So, Mr. Follender, at the time of making these arguments, fully realized that he was making them to the court that has lost jurisdiction.

Yet, that did not prevent either Mr. Follender to proceed before the court that has lost jurisdiction, nor Judge Becker from presiding over the case where he lost jurisdiction and making decisions in that case.

Several days ago I received yet another masterpiece from Mr. Follender that got me worried as to his fitness as a judge, so here is what he claimed against me after I finally sued him for defamation, fraud and fraud upon the court for falsely running his mouth against me in a case where I never appeared as an attorney of record.

Mr. Follender claimed that:

(1) my constitutional rights  are actually "constitutional" rights, in quotes;

(2) I must be punished for criticizing the judiciary for well documented misconduct for making "unsubstantiated claim of misconduct" in violation of attorney rules.

Apparently, Jonathan Follender, as attorney and judge, is not aware of the federal pre-emption doctrine under which federal law trumps inconsistent state law on issues of the U.S. Constitution, and where my statements were within the core political speech protected by the 1st Amendment.

Jonathan Follender asked to punish me for criticizing judges by

(1) sanctions;
(2) paying his legal fees and
(3) imposing on me an anti-filing injunction for trying to prove to the court that Judge Tormey punished me illegally and unconstitutionally without reviewing the record and while treating as one two different underlying court cases, one where I was an attorney of record and the other where I wasn't and where Mr. Follender defamed me.

Mr. Follender asked the court to punish me for untimely filing of the record while I came to the court on my deadline bringing BOXES of that record and faced closed doors because the court chose to close its doors due to election day, even though it was not a national holiday.

I brought that same record the next day, which was accepted by the court - yet Mr. Follender had the audacity that I filed untimely and "failed to explain the reason for delay".  Apparently, the court's actions in closing its doors on my deadline while I made a nearly 200 mile roundtrip with huge boxes of the Record on Appeal is not  good reason enough for Mr. Follender.

Mr. Follender asked the court to sanction me for stating an opinion that Judge Tormey should have been taken off the bench long time ago due to his misconduct resulting in lawsuit after lawsuit by female court employees that New York taxpayers have to pay for, and that had Karen Peters, the presiding judge of the 3rd Department who was a member of the Judicial Conduct Commission for years, did her job on that Commission, Judge Tormey would have been taken off the bench and disbarred by now.

Mr. Follender asked the court to sanction me for my opinion that Judge Tormey has a tendency of discrimnating against women, while my opinion was well documented and expressed based on the two lawsuit prosecuted against Judge Tormey by two different females, a court clerk and a court interpreter, for similar discriminating conduct, as well as for his course of conduct against me showing Judge Tormey as a spiteful male who cannot allow a female to challenge his misconduct without abusing his power and sanctioning that female, no matter how lawful her challenge is.

Mr. Follender made a very interesting statement in his pleadings - that I plead as if "I have nothing to lose".

Apparently, to Mr. Follender, reporting of judicial misconduct, a duty foof attorneys as officers of the court and a right of attorneys as citizens participating in democratic processes of their country, can be done only when an attorney "has nothing to lose".

All in all, this is an attorney who is also a judge who things that: 

1. asserting constitutional rights is frivolous;
2. criticizing judges is sanctionable per se, constitutional standards of 1st Amendment do not apply to such criticism despite clear language of constitutional provisions and a long string of cases on that subject by the U.S. Supreme Court, and that no amount of documentary evidence may prevent sanctions for criticism of judges.

Those views, added to the stark incompetence of an attorney who claims, with a straight face, loss of consortium of a dog, death of a corporation, frivolous defaults, frivolously causing delay in satisfying a money judgment and at the same time frivolously satisfying that same money judgment prematurely, a frivolous deprivation of the court of subject matter jurisdiction - those views, ladies and gentlemen, belong to a judge, a person who holds in his hands your liberty, who decides whether you go to jail or not, whether to issue orders of protection or not, whether to evict you from your home or not, whether you should have your property in a small claim action or not.

And that attorneys with that level of incompetence are allowed to be judges is downright scary.

The referee did exactly as Mary Gasparini told him to do - filed a false report claiming there was a hearing and I had a "reasonable notice" of it, and accompanied it with a falsified transcript

The referee filed a report in my case which is practically a word-for-word copy of the disciplinary prosecutor's "Proposed Referee's Report", urging the referee to falsely tell the court that there was a hearing in the case on "reasonable notice" to me, which never happened (and that's why the disciplinary prosecutor Mary Gasparini attempted to commence a criminal proceeding against me, for catching her red-handed in offering fabricated court transcripts to the referee and urging him to present that transcript as true to the court).

Compare the "Proposed Referee's Report" by Mary Gasparini

and the actual Referee's Report dated February 17, 2015 and, according to the letter of the clerk of the court, filed with the court on February 19, 2015:

The referee falsely presented to the court, as Mary Gasparini urged him to do, that the transcript of the January 12, 2015 conference claiming that it was a hearing where I appeared as a witness and testified, is a "true and correct" copy of what occurred during that appearance.

I already posted here the two recording of the "scheduled pre-trials", of the pre-trial conference of October 23, 2014, and of the pre-trial conference of January 12, 2015.  The recording of the October 23, 2014 conference clearly shows that I ask the referee whether the next appearance will be a "hearing", and he clearly answers me (which was not reflected in the transcript of that conference) that it will NOT be a hearing.

Yet, the referee submitted to the court a transcript of the next appearance, that occurred on January 12, 2015, which said it was a "hearing" where I was "called as a witness" and "testified" (without a reference, on whose behalf I did that, and without direct or cross-examination).

Apparently, since the court imposes no discipline on its referees and no discipline on disciplinary prosecutors committing fraud upon the court, such cooking of the transcripts and presenting false evidence to the court will continue.

It is interesting to mention that at the very same time that the referee called the January 12, 2015 appearance "a scheduled pre-trial", the referee has made "findings of fact" without holding any evidentiary hearings (trials, not "pre-trials"), and that was exactly as the disciplinary prosecutor Mary Gasparini has frivolously and fraudulently urged him to do, in complete defiance of court order of September 30, 2015 directing the referee to "take proof", meaning "to conduct an evidentiary hearing", on notice to me - and that never happened.

So, this is one more count of successful fraud upon the court by disciplinary prosecutor Mary Gasparini.  Apparently, when there is no control or oversight over actions of such public officials, misconduct is, as is expected to be, rampant.

North Carolina State Board of Dental Examiners v. Federal Trade Commission - a writing on the wall for the regulation of the legal profession?

On February 25, 2015 the U.S. Supreme Court, in a majority opinion, upheld the ruling of the Federal Trade Commission that members of the State Board of Dental Examiners, who are practicing dentists and thus market participants in the market which they are regulating, are not entitled to immunity for their actions stifling competition in the market.

This decision is, in my opinion, a writing on the wall for the regulation of the legal profession the way it exists today in the United States.

As an example, in the State of New York attorney discipline and prosecutions for unauthorized practice of law, is allowed to be handled by market participants, practicing attorneys, who very obviously have a vested financial interest to eliminate competition, especially as the number of paying clients dwindles.

As far as I know from research of disciplinary proceedings against attorneys in other states, it is not much different.  It is practicing attorneys who target other practicing attorneys, their competitors, for discipline.

At least in New York where I researched the subject exhaustively, the "attorney grievance committees" or "professional conduct committees" existing in the 4 appellate division are not explicitly authorized by statute, and are thus within the prohibition as to anti-competitive practices as set in the decision of the U.S. Supreme Court of February 25, 2015 North Carolina State Board of Dental Examiners v. Federal Trade Commission.

What is authorized by statute, Judiciary Law 90(1)(c) are the so-called "character and fitness committees" that appellate divisions are authorized to appoint only and specifically to "investigate the character and fitness of applicants for admission to the bar".

As to investigating and prosecuting of attorney misconduct, Judiciary Law 90(7) authorizes this only for two categories of prosecutors:

(1) "any district attorney within the department";
(2) an "attorney and counsellor-at-law" appointed by the court specifically for a particular investigation or prosecution, since Judiciary Law 90(7) clearly states that the court may fix compensation for such attorneys only "during or upon termination of the investigation or proceedings".

Moreover, since compensation of such an attorney or attorneys prosecuting a disciplinary case against an attorney must be charged against a county, as provided by statute, Judiciary Law 90(7), it is very questionable that such prosecutors are representatives of a state, rather than of a county, and it is very questionable that such prosecutors would be entitled to any kind of "sovereign immunity" for their actions.

By the way, expenses of the office and auxiliary personnel for the "character and fitness committees" to be appointed for verification of fitness of candidates for admission to the bar, are also passed to either the City of New York (in the Appellate Division 1st Department), Judiciary Law 90(1)(f), or to counties (in the Appellate Division 2nd Department) pursuant to Judiciary Law 90(1)(g).

As to the attorney grievance committees of the 3rd and 4th Departments which investigated and prosecuted me (the 4th Department committee continues at this time), Judiciary Law 90 does not provide for an office or support staff for even "character and fitness" committees for admission to the bar, instead providing only for per diems.

Apparently, a taxpayer investigation is in order as to how offices investigating and prosecuting attorney misconduct are funded in New York, because they certainly are not funded in accordance with the statute, Judiciary Law 90.

Instead of following Judiciary Law 90(7), appellate divisions appoint, instead of prosecutors for a particular investigation or prosecution, "committees", investigators and attorneys for such committees, and funds for offices for such committees, none of which expense is authorized by statute, and fix compensation for attorneys for such "committees" before investigation or prosecution, as a set yearly salary, which is similarly not authorized by statute.

Moreover, the "committees" employ their own investigators and several attorneys, none of which is authorized by statute either.

As a New York taxpayer, I am not at all pleased with such a waste of funds.

As an attorney who is prosecuted by an illegal body consisting of market participants I am not pleased either, and there appears to be a new avenue of proving that attorney disciplinary proceedings in New York are, on top of being a perfect tool of political oppression of attorneys doing their jobs and criticizing judicial misconduct and misconduct of politically connected attorneys, attorneys working for the government, or of any government officials, this is also a perfect tool to eliminate competition - and, as of now, members of such Committees are no longer covered by immunity if there is no political accountability for their actions by the State.

Since the very existence of the "professional conduct" or "grievance" Committees that investigate and prosecute attorney misconduct is not specifically authorized by statute, at least, in the State of New York, and since all such "committees" consist mostly attorneys, application of the North Carolina Board of Dental Examiners v. Federal Trade Commission to attorney disciplinary proceedings is obvious.

Nor is there any supervision of what the committees are doing by the State.  And that is exactly why the U.S. Supreme Court ruled against the Board of Dental Examiners in North Carolina, indicating that such board members are not entitled to the so-called "state-action antitrust immunity".

The bottomline is - members of the attorney disciplinary committees are now, likely, not covered by antitrust immunity either and may be sued for their prosecutions or, rather, persecutions meant to eliminate competition.

I wonder how many attorneys will now be willing to "serve" on these committees.

It is actually a writing on the wall for attorney licensing, the way it exists nowadays.  It is only a matter of time when the axe will fall and the whole scheme of attorney licensing will be pronounced unconstitutional and unlawful under federal laws.

No wonder state bar associations filed amicus briefs in this case in droves - they felt the doom is coming.

And it will come, as it should.