THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Saturday, April 4, 2015
For friends of Judge Kevin M. Dowd - and of his law clerk, and his brother-in-law - life in court is good
I already wrote on this blog about a judge, the Albany County Family Court Judge Sue Kushner, who failed to disclose that certain attorneys appearing in her courtroom (and whom she was heavily favoring) were her Facebook friends.
This post is about a new specimen of the same kind, Judge Kevin M. Dowd and his law clerk (who authors his decisions and sometimes announces to the parties decisions of Judge Dowd under her own signature) Claudette Newman.
Claudette Newman has a Facebook page.
Based on her Facebook page and pictures posted there, a party has recently figured out that Claudette Newman's grandchildren and the party's children play together, his children visited Claudette Newman's house - all the while Claudette Newman was the law clerk for a presiding judge in a proceeding involving the father, and the connections through which came to Claudette Newman's house was through the mother and maternal grandmother of the children.
And Judge Dowd presided over the party's case for years, harassed him for years and bent the law toward the mother and maternal grandmother for years, and the party could not figure out, why.
Until he found the Facebook page of Claudette Newman where she posted pictures where her grandchildren and the party's children were together, and until the party then learnt from a witness that her children were in the law clerk's house, which the law clerk never denied when confronted.
I will explain what is wrong when a judge's law clerk accepts a party-in-litigation's children as her house guests.
Normally, in New York custody proceedings, the only time the judge (and his law clerk) sees the children is in a so-called Lincoln hearing, in the presence of the children's attorney and with a stenographer present taking the record of everything that is said.
Even though the parties are not allowed to be present (to save the children from parents' ire if they say anything "wrong" about either of the parents), and the parents are never allowed to see the transcript of the Lincoln hearing, the trasncript goes to the Appellate Division, in case of an appeal, even though sealed.
So, the procedure is strict - once again, the Lincoln hearing should be scheduled, on notice to parties, the attorney for the child or children should be present and all the conversation should be on stenographic record.
In the case where the law clerk, a person who often sits in the proceeding and who most often, if not always, drafts the judge's decisions and has a tremendous influence on the judge, accepts a party's children, without disclosure, in her home as house guests, there is no attorney for the children present in such communications, no notice to the parties and their counsel (in this case, the party who had children at the time of the visit to the law clerk, and the party who did not know was pro se and could not afford an attorney, and Judge Dowd did not advise or appoint one for him), and a stenographic record is certainly not taken.
Since no record exists of possible communications between the law clerk and the children, there is no possibility to know what was it that the judge (and his law clerk) relied upon when making a decision in a custody case - the evidence submitted at trial or the results of communications with children at the law clerk's house.
The failure of the judge to advise a pro se indigent party of his right to an assigned counsel under the circumstances, especially when English was not even the party's native language, is, on top of being wrong and a reversible error, even more suspicious.
The children did not wind up in the law clerk's house on their own. They should have gotten there through permission of their parent who had them at the moment, while the other parent was unaware of what is happening.
According to my information, the father did not know and did not allow such visits, and the visits occurred when the children were in the mother's care. The mother had an attorney, the father did not.
No investigation, as far as I know, was conducted of either the law clerk or the mother's attorney to verify whether the mother's attorney knew of the children's contact with the law clerk and did not report it.
Once again, it was grievous attorney misconduct for the law clerk (1) to allow a party's children into her house and (2) not to report it to the parties in the proceedings.
Yet, when the subject was brought up on a motion to recuse, the judge did not apologize for the actions of his law clerk who did not report the ex parte contacts with the children to the parties and counsel, did not promise to discipline the clerk, did not remove her since she compromised integrity of the judge by her ex parte communications with the children and by non-disclosure of the communications to the parties.
Instead, upon my information, Judge Dowd violently reacted to the motion to recuse accusing the party to be a "very dangerous person" because the party challenged the judge's integrity.
In other words, the judge decided to protect the law clerk who committed misconduct and compromised his integrity by an ex parte communication with children, parties in a custody proceeding, and instead harassed and punished the party which resulted in a federal lawsuit.
I believe, this is a grave matter of public concern that a judge with THIS "level" of integrity remains on the bench. I understand that the NYS Commission of Judicial Conduct most often acts like a shredder of complaints, but it is sad that authorities take action only when something absolutely outrageous and causing a media scandal in the large media pay attention to it.
As an example, the Pennsylvania authorities ignored or rejected, according to the information in the press, 40 complaints against the "Kids-for-Cash" judges. Of course, the judges had to be taken off the bench when federal authorities charged, prosecuted and convicted them for taking kickbacks (but not for sentencing 2000 children to loss of liberty in a juvenile facility in return for cash).
What MORE should Judge Dowd and his law clerk do for the NYS Commission for Judicial Conduct to pay attention?
By the way, the attorney for the mother in the party's case, Dolores Fogarty of Utica, NY, is listed as a full time employee, public defender of the Otsego County:
I do not know how Ms. Fogarty can work as a private attorney while continuing to be a full-time employee of the Otsego County, but she surely does.
Ms. Fogarty has a fine example in working on the side of being a full-time county employee from other "judge-connected" attorneys in the area.
Ellen Coccoma, the County Attorney for the same Otsego County and the wife of the most powerful upstate New York judge, Chief Administrative Judge for upstate New York Michael Coccoma - Mrs.Coccoma works as a full time employee of Otsego County, and at the same time toils on the side as a private attorney, as a "special counsel" for a Binghamton firm Hinman, Howard and Kattel, a law firm that features the local Supreme Court courthouse as the picture for their Binghamton office, so being a full time county employee and working on the side as a private attorney, obviously during county-paid time, is "in vogue" in upstate New York.
In Delaware County, a full time County Attorney who is currently running for a Family Court judgeship, Porter Kirkwood, former employee and colleague of the local horror story, "king of the bench" Judge Becker and Judge Becker's friend, has toiled as a private attorney during taxpayer-time for years, when he was still an Assistant County Attorney.
But Judge Dowd is apparently unconcerned that attorneys appearing in his courtroom appear there while they must be someplace else, where taxpayer pay them to be.
Judge Dowd has a soft spot for government employees and always bends over backwards in court proceedings to suit their needs, whether the law allows that or not, according to my personal experience with this judge as an attorney.
Upon information and belief and review of records, Judge Dowd bent over backwards for "Dee" Fogarty's client in the party's proceedings that I describe above in the case where Judge Dowd's law clerk had the party's children, without the party's knowledge, as house-guests.
Maybe, Judge Dowd has a soft spot for public defenders like "Dee" Fogarty because Judge Dowd's own brother-in-law John Cameron is a pubic defender in Chenango County, and I wonder whether being a brother-in-law of a judge helped him along to get that position.
So, if the judge assigns to an indigent party a public defender, interesting questions can be raised as to privacy, privileged communications and conflicts of interest in that representation that may, and, I am sure, do arise under such circumstances.
Attorneys know about the potential conflicts of interest, but are deathly afraid of voicing an opposition to anything Judge Dowd does, however wrong it is, for fear of being "blackballed" from "his" courtroom and from the practice of law generally.
But, let's go back to Judge Dowd's law clerk's Facebook page.
I provide here scans of pictures and names of all of Claudette Newman's Facebook friends that were listed on her Facebook page as of today.
In the very first batch of Claudette Newman's friends we see Zachary T. Wentworth.
Zachary T. Wentworth is an assistant public defender of Chenango County, working under Judge Dowd's brother-in-law John Cameron.
That Zachary T. Wentworth was assigned to the party in question after Judge Dowd recused from the party's case (with a retaliation that eventually resulted in a federal lawsuit against Judge Dowd) is phenomenal.
So, even though Judge Dowd recused from the party's case, with a retaliation involving egregious harassment, the reach of Judge Dowd into the case never ended.
The next batch of Claudette Newman's Facebook friends includes Brett Cowen, of Cowen Law Firm, with offices in Sidney, NY and Delhi, NY:
When you look at Judge Dowd's assignments of attorneys in, let's say, Chenango County Family Court (available for public viewing on e-courts), you will see that being a Facebook friend of a judge's law clerk pays off for Mr. Cowen's law firm, as well as it pays off for Judge Dowd's brother-in-law's employees and spouses of Judge Dowd's brother-in-law's employees.
Remember, assignments for assigned attorneys means money, at $75.00 an hour, including travel time.
Brett Cowen's law firm's offices are located in Sidney, NY and in Dehi, NY. I wonder which of the distances he bills in his vouchers for travel.
But I wonder even more, are assignments of the Cowen law firm by Judge Dowd listed below a product of Brett Cowen's friendship with Judge Dowd's law clerk? Or Brett Cowen's internship with Judge Dowd that Mr. Cowen reports on his LinkedIn page?
Here are the rest of Claudette Newman's Facebook friends:
What readily springs to mind is that not only Judge Dowd's brother-in-law is the public defender in Chenango County, but Judge Dowd's law clerk Claudette Newman is at least Facebook friends with:
Assistant Public Defender Zachary Wentworth
Appears to be the mother of the Assistant Public Defender Julie Wentworth, and
the wife of the other assistant public defender, Aaron Dean - Diane DiStefano
Interesting connections, aren't they?
Indigent parties who get assignments of public defenders may keep wondering how whether those public defenders got appointed and keep their jobs because of the familial relationship of their boss with the judge and because of the assistant public defenders' or their family members' friendship with Judge Dowd's law clerks...
And look how many assignments Zachary Wentworth gets in Judge Dowd's cases in Family Court, and what such "friendship", not to mention work for Judge Dowd's brother-in-law as Mr. Wentworth superior, does to create conflicts of interest with his clients, especially if there are issues of judicial bias or misconduct of Judge Dowd to be addressed, and knowing Judge Dowd, such issues should arise in nearly every case.
What also readily springs to mind is that not one, not two, but three local court stenographers who are actively appearing in Judge Dowd's cases are Facebook friends of Judge Dowd's law clerk:
Brenda Friedel, court reporter
Helen Hagen, senior court reporter
Deb Thiel-Stalker, court reporter
I know all three of these ladies through appearances in court where they took record in the cases I handled as an attorney, and I have nothing against them personally. Nor do I have questions about their professionalism at this time.
Yet, on behalf of my clients I have a concern as to independence of transcription if, to get a lucrative assignment to a court case, a stenographer must befriend the judge's law clerk, and especially because Judge Dowd fights tooth and nail against videotaping of open court proceedings where he is presiding, even though New York Chief Judge Lippman has publicly announced two years ago that not having "cameras in the courtroom" is an anachronism.
My concern is that, if there are any disputes regarding completeness and/or correctness of the transcript, financial dependency on the judge and "friendship" with the judge's law clerk may take precedence over the court stenographer's professionalism.
So, when you have a Judge Dowd case, immediately check - is your attorney a FB friend with Claudette Newman? If not, you might be in trouble.
Thursday, April 2, 2015
New York DEC maps of "environmentally protected objects" are bluff, and it is now up to litigants in the Appellate Divisions, 1st, 2nd and 4th judicial departments to bring the NYS Court of Appeals to that realization
We received a "template denial" from the New York State Court of Appeals on our appeals as of right on constitutional questions in a case against New York State Department of Environmental Conservation.
I know that such cases have to be decided by panels of 5 judges.
I only see the name of one judge (Jonathan Lippman) who "presided" over the case, and an indication that Leslie Stein did not take part (the same Leslie Stein who has made the decision in this case in the court below after being offered by the Chief Executive Officer, the Governor, what pretty much looks as a bribe, a nomination to that same Court of Appeals).
I also see that Judge Lippman defied his constitutional oath of office in this decision and usurped authority to pick and choose which constitutional questions that he has to review on appeal are "substantial" and which are "insubstantial".
As far as I know, the U.S. Constitution does not make such a distinction, and does not give authority to anybody to make such a distinction.
Yet, here is what we have from the lips of Judge Lippman, the lecturer as to "justice for all" from all imaginable pulpits:
The issues in the case were crystal clear: the government (and the courts) imposed upon my husband in 2006 notice of prohibited conduct (alleged protected stream) where the alleged stream was allegedly disturbed in 2001, while the notice was created in 2006, and that was not a map, but an affidavit of a DEC biologist, and while the map was and still is BLIND, UNREADABLE and cannot give any notice to anybody else. Also, the DEC biologist's affidavit could only be used as an official DEC record for purposes of giving notice if it was filed with the NYS Secretary of State, with a notice to the public to give comments - which, of course, was never done, it was a self-serving document prepared for litigation 5 years after the DEC lost its case in criminal court.
Here is the map and my earlier description of issues pertaining to the map and the case.
Please, see for yourself if you can see any "protected streams" or tie the map to any addresses. If you can, you can be awarded a crystal ball reader award, because in the DEC only one person can allegedly "read" that map - and that is the author of the affidavit of the DEC, biologist (not a map specialist) Jerome Fraine.
Of course, not.
- where the appellate quasi-judicial officer, the Commissioner Alexander "Pete" Grannis sued Mr. Neroni ( and me as a now "necessary party") after not allowing me in as a necessary party at the administrative level and while trying to confirm his own decision as a judge while now suing as a party, which is normally not allowed by law;
- where Judge Becker was at the same time represented by the NYS Attorney General in his individual capacity, which disqualified the NYS Attorney General from appearing in front of that same judge representing other clients - and yet the NYS Attorney General represented the Commissioner in those proceedings in front of Becker and (surprise!) - won! against us. Of course, recently a witness and I saw Becker shaking an Assistant AG's hand as if he was Becker's long-lost friend
If there is no major public outcry, people's admittedly violated constitutional rights, in the eyes of the highest New York State Court, are insubstantial.
Wednesday, April 1, 2015
A complaint has been filed against Judges Kevin M. Dowd of Chenango County Supreme Court and against Joseph F. Cawley of Broome County Court
A defense counsel receives evidence from plaintiffs' counsel, on the eve of a jury trial, that the judge and his personnel are witnesses in the case.
The defense counsel subpoenas the judge and his personnel as witnesses at the trial.
The judge (Judge Dowd) refuses to recuse and continues to control evidence and interfere with subpoening witnesses to prevent impeachment of credibility of Plaintiffs' evidence.
In order to do that, Judge Dowd accepts filings of letters instead of affidavits from politically connected attorneys directly into his chambers, while the court may not review any submissions in the nature of motions unless they are first filed in the county clerk's office of the county where the case is litigated.
I have evidence showing that nothing has been filed in the county, yet Judge Dowd accepted letters-in-lieu-of-pleadings by fax and mail directly into his chambers and relied upon such papers, even though, once again, Judge Dowd had no authority to review any pleadings or papers filed in substitution of pleadings that were not filed first with the county clerk's office.
Judge Dowd also involved another judge, Judge Joseph F. Cawley of the Broome County Court, in his wrongdoing.
Apparently, communicating with a judge who has been called as a witness in a proceeding, tainted Judge Cawley and made him a witness in the same proceedings.
Moreover, transfer of files to Judge Cawley in support of the "Order to Show Cause" that Judge Cawley signed while Judge Dowd remained on the case and while there is no order of assignment of Judge Cawley to the case, was done "chambers-to-chambers", without initial filing with the Delaware County Clerk's office, and without return of the files by Judge Dowd back to the court clerk to be transferred to another judge.
Apparently, no procedural constraints exist when judges want to protect somebody's misconduct, including their own.
Well, hopefully, the NYS Commission of Judicial Conduct must investigate now. If they do not, I will simply include Judge Dowd's and Judge Cawley's misconduct into the case study of judicial misconduct in my upcoming book on the subject.
Litigants and attorneys appearing in front of Judge Dowd! Be on the alert as to how the judge accepts filings from your opponents, especially if your attorneys are well-connected attorneys who the judge appears to favor. I would suggest always checking with the County Clerk of the county where your case is litigated (if you are in the Supreme Court). This judge has a pattern of bypassing the law on filing with attorneys he favors.
Voters, when Judge Cawley comes up for re-election, note that he is only luring you with promises of how good and law-abiding he is up until he gets on that bench. Then, apparently, what another judge (witness in the proceedings) directs him to do, controls.
Monday, March 30, 2015
The case against the Chenango County CPS proceeds to trial in federal court
The U.S. District Court for the Northern District of New York partially denied today a motion for a summary judgment that the government was asking for in the case Argro v. Osborne, Case No. 3:12-cv-910 (NAM/DEP), against the Chenango County CPS and some of its workers in their individual capacities.
The court also partially granted my clients' cross-motion regarding discovery.
The civil rights lawsuit by three plaintiffs alleges violations of their due process and 4th Amendment rights pertaining to incidents of searches of plaintiff's residences and personal property by the Chenango County workers.
The case is ordered trial-ready.
The trial date is not set yet.
Sunday, March 29, 2015
You sued a judge - the judiciary will get even with you! Right, Judge Lambert?
Judge John F. Lambert of Otsego County Court, assigned to made two cases in Delaware County, one a civil case in the Delaware County Supreme court, O'Sullivan v Bowie, and another a criminal case in Delaware County Court, People v. O'Sullivan, made two blunders in those cases practically at the same time.
BLUNDER NO. 1
In the case of O'Sullivan v. Bowie the judge allowed to reopen the default of police officer Bowie sued in his individual capacity by Barbara O'Sullivan for assault on her with the use of a police vehicle.
That same judge ordered previously to the police officer, on an Order to Show Cause, to serve Barbara O'Sullivan with the motion to reopen his default by personal service.
No affidavit of personal service was filed with the court.
So how could Judge Lambert even hear that case then, if service, as ordered by the judge, was not done?
Well, the judge not only heard the case, but found that Ms. O'Sullivan was properly served and granted the motion.
Yet, all he had to do to deny the motion is simply read his own Order to Show Cause and compare it with what kind of affidavit of service was filed, especially that Barbara O'Sullivan is a pro se litigant and the judge should have been more careful in observing her rights.
What is also quite amazing to me is that police officer sued for misconduct is represented by counsel at taxpayers' expense and the Supreme Court waives his filing fees for the motion, as if he is a representative of the government, even though he is sued, once again, in his individual capacity only. Not too many breaks for a person who should be charged for assault and attempted murder of a woman?
BLUNDER NO. 2
Judge Lambert is presiding over the parallel criminal case of People v. Barbara O'Sullivan where the officer who made an assault on Barbara O'Sullivan is allowed to file charges against her, but the Delaware County District Attorney filed no charges against Derek Bowie for assault upon Barbara O'Sullivan (sending the message to the community that her life is expendable - because she sued Delaware County judge Carl F. Becker, the patron of the local government of Delaware County?).
Barbara O'Sullivan has made a pro se motion there asking to dismiss the indictment against her because she was not notified of the scheduled grand jury proceeding.
A New York statute required such a notification.
Judge Lambert ruled that because the felony complaint was "disposed of" at the end of the felony hearing in the lower court, the prosecution did not have to notify Barbara O'Sullivan of the pending grand jury proceedings.
I wonder how a case may be "disposed of" when a person is "held over" for the action of the grand jury at the end of the felony hearing in the lower court.
Being "disposed of" is being dismissed.
I wonder why Judge Lambert suddenly forgot that.
Two major mistakes in two parallel proceedings, civil and criminal, against the same person?
A coincidence?
In my opinion, there are just too many coincidences.
When all of those "errors" are on issues that would require to rule in favor of a woman who had the courage to sue a judge, and when Judge Lambert keeps coming up with reasons (contrary to applicable law) as to why such relief should not be granted - the only reasonable explanation that a reasonable observer can come up with for such behavior of Judge Lambert is - the judge is trying to help out the police officer and to bury a woman who sued a judge.
And it appears that Judge Lambert should have had the decency of recusing from both cases long time ago.
Are Jewish litigants safe in courts of upstate New York?
It happened in June, so it could not be Hitler's birthday, Hitler's birthday is April 20th (according to the parent's and my own search on the Internet).
Saturday, March 28, 2015
Labor market regulation and the rate of arrests, criminal charges and incarcerations raising interesting questions
According to a study I recently read, 30% of jobs in the U.S. are certified or licensed.
Another 33% of Americans, or 1 in 3, have criminal records that often, if not always, preclude them from getting a decent job.
Licensing and certification process practically excludes those who have a criminal record, so we can assume that the 33% of Americans with criminal record cannot apply for the 30% of the U.S. jobs, the ones that require licensing or certification.
That leaves 27% of Americans who neither have a criminal record nor are licensed or certified, to be employed in "regular" jobs not requiring a license or certification.
Out of those 27% an undisclosed amount may have arrest records that did not result in a conviction, but may still prevent gainful employment.
So, at the rate America, on the one hand, increasingly regulates the labor market and closes entry into increasing number of professions, and, on the other hand, at the rate the U.S. increasingly charges and incarcerates its citizens (while failing to charge and incarcerate its politicians known for having committed crimes, such as, for example, those responsible for the torture program), the country may be killing its own labor markets and efficiency of its economy.
Something the candidates for presidential elections should think about and answer to the voters as to how they are going to fix this problem.
Or, is the problem of increased incarceration artificially created, to create felony convictions in minority population and to thus block the minority votes?
And there is also this interesting issue - do courts ever think about problems with the American labor market when they "impute" income charging parents, often with a criminal record, with the obligation to get jobs which they cannot possibly get? To keep the debtor's prisons filled?