A recusal is an act of renouncing the judge's authority to preside over a case.
After the judge renounced his authority, presumably he or she is off the case and may not make any rulings in that case.
Lawyers in New York and generally in the U.S. are deadly afraid of making motions to recuse, even when they know such a motion is required based on documentary evidence in the case.
Why? Because a judge that is the object of a motion to recuse may retaliate viciously against such an attorney, sanction him, using the lax, vague and arbitrary judicially created "frivolous conduct" rule and send the lawyer into the disciplinary commission, which can leave the lawyer without his or her practice, reputation, livelihood, with his lifetime into the costly legal education gone down the drain and his skills unwanted and even prohibited to be used, even for the benefit of people, if the lawyer is suspended or disbarred from practice as a result of such judicial retaliation.
So, lawyers do not usually make motions to recuse, but pro se parties, on their own behalf, do.
And sometimes judges recuse on their own.
What happens after recusal occurred and what are the legal consequences of a recusal?
As the recent developments in the New York and federal law show, the judiciary does everything to water down the logical and reasonable consequences of judicial recusal, to help bad judges escape accountability for their misconduct.
Issue No. 1
May a judge who recused from the case rule in the case?
The logical answer: of course, not, the reason for a recusal is to remove the judge from the decision-making in the case.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct. Judge Carl F. Becker of Delaware County who hastily retired from the bench on July 31, 2015, from the coveted bench where he got after a ferocious election campaign wrought with fraud upon voters, re-entered two cases after recusal and made decisions in those cases, and no discipline was imposed upon him by the NYS Commission of Judicial Conduct despite my report of that. Appellate Division relied upon his unlawful decision on re-entry in one of the cases, both cases were from Family Court and both involved me as counsel for people against whom Carl F. Becker ruled on his re-entry after recusal.
Issue No. 2
May a judge who recused from a party's case preside over any other cases of that same party pending at the same time or closely thereafter?
The logical answer: of course, not, when a judge recuses himself from a party's case, he acknowledges that there is an appearance of impropriety or lack of impartiality that prevents the judge from presiding over such party's case. Such an implied admission destroys presumption of impartiality for that judge for any other case of that party.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
The same Judge Becker recused himself in 2009 from a case that his friend Delaware County Commissioner William Moon (who also hastily retired, a little earlier than the hasty retirement of judge Becker, and before the audit of Delaware County by the NYS State Comptroller that found multiple "indiscretions" by his department was complete) commenced against me and my husband in child neglect (dismissed after 2 years of litigation and a full trial, putting our whole family, including our children, through hell) 10 days after I brought a motion to recuse Judge Becker from a child neglect case of a client specifically because Judge Becker, the presiding judge in a bench trial and a fact-finder in a case, had extrajudicial knowledge about witnesses and represented the Petitioner in the case for 27 years prior to coming to the bench.
Judge Becker, upon information and belief, was still in communications with the presiding judge over that case, and soon after his recusal assigned himself to several cases where my husband and I were parties and repeatedly ruled against both my husband and I, generating over $100,000.00 in judgments against us, and generating several "frivolous conduct" decisions against me that were then sent to the disciplinary authorities, and I was prosecuted and await an order of discipline based solely and entirely upon rulings of Judge Becker in my cases AFTER he recused from my own and my husband's case in 2009.
In 2012, after Judge Becker worked enough havoc in my own and my husband's lives, he recused from ALL of our cases, but reentered two of them after that second recusal and made rulings against my clients (see Issue # 1 above).
Yet, recusal of Judge Becker from ALL of my cases in 2012 indicates that after his recusal in 2009 he should have been assigned to any of my cases and all of his rulings in cases where I or my husbands were parties, are void and should be vacated.
Judge James Tormey recused from one case involving me as a party in Chenango County Supreme Court, but refused to recuse from another case involving me as a party-plaintiff where I sued an attorney who is also a judge in a justice court, for his fraud upon the court. Judge Tormey stayed on the case in order to punish me for suing Judge Tormey in federal court - and he did, openly imposing sanctions, in part, for suing the judge himself. Judge Tormey also imposed against me an anti-filing injection, imposed upon me $2,000 in sanctions and over $8,000 in legal fees while misrepresenting the record in order to punish me instead of my opponent. Then, Judge Tormey sent his decision to the disciplinary committee before sending it to me, and the disciplinary proceeding got transferred to the 4th Department where two of the committee members are Judge Tormey's employees.
Issue No. 3
Can a judge get assigned to the case directly related to the one from which the judge has recused, remain or get assigned to a related case?
The logical answer: of course, not. If a judge feels he cannot be impartial in one case of a party, he cannot then claim he can be impartial in a case directly related to the case from which the judge recused, where issues of fact and law may be shared.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
Judge Kevin M. Dowd recused from Neroni v Harlem which was based on misconduct of attorney Richard Harlem, his crew and his clients in the case Mokay v Mokay, Delaware County Index No. 2007-695, yet, staunchly refused to recuse from Mokay v Mokay, bringing it, through adjournments given to Plaintiffs but not to me, through an ex parte trial during my documented medical leave, to a judgment against my husband of over $300,000.00. All the while, Kevin Dowd asked me after my husband's health during conferences in unrelated cases, calling my husband by his first name, "Fred", and asked to "say hello to Fred" for him.
Judge Michael V. Coccoma recused from Mokay v Mokay in 2007, but continued to assign judges to that case, and to all other cases involving my husband as a party.
Judge Coccoma recused from all of my cases, I believe, in 2012 after he started to actively assign himself to my cases (when I made a motion to punish his wife, an attorney, for frivolous conduct). When I pointed out to him his disqualification and reminded him of his recusal from my husband's case in 2007 and of my motion against his wife, he had the decency to recuse but continued to assign judges to my cases. Judge Coccoma has authority to make decisions pertaining to post-retirement perks for judges, so there is a vested financial interest for judges to make good to Judge Coccoma and rule against his enemies or enemies of his wife - and they diligently do so, judge after judge.
Issue No. 4.
Is a recused judge covered by absolute judicial immunity after he recused from the case?
The logical answer: no, of course not. Recusal is a voluntary cessation of jurisdiction by the judge, so where there is no jurisdiction, there is no immunity. Judicial immunity does not apply "in clear absence of all jurisdiction", and recusal is a voluntary abdication of jurisdiction by the judge, a point of (supposedly) no return.
The real-life answer: maybe, sometimes, in upstate New York and the U.S. District Court for the Northern District of New York jurisdiction, if a party or attorney for the party are critics of judicial misconduct.
Most recently, judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York who is connected through ex parte communications and out-of-court benefits to a law firm involving a disciplinary prosecutor John Casey against me and my husband who was openly bought by my husband's opponents in litigation attorneys Robert Harlem (a retired judge and retired Chief Administrative Judge of the 6th Judicial District) and his son Richard Harlem, to disbar my husband and not them, who were also turned in for his investigation, made a magnificent ruling that stretches immunity beyond the judge's recusal because the judge's misconduct "were related to litigation" from which the judge admittedly recused by the time he engaged in misconduct he was sued for.
Misconduct Judge Kevin Dowd was sued for, as I wrote on this blog, is because, AFTER THE JUDGE RECUSED, he knowingly used a court officer who was an armed Nazi sympathizer and already made an antisemitic comment/threat against Jewish litigant, to throw that Jewish litigant out of the courthouse for making the motion to recuse.
Judge Kahn wrote that there is no support for my argument that a judge loses jurisdiction on recusal, and with jurisdiction, he loses immunity.
So now, as long as a judge's misconduct is "connected with litigation", a judge may recuse and then continue to rule in the case against a party, including directions to armed court personnel to engage in violent actions against litigants who dared to make motions to recuse - and absolute judicial immunity for malicious and corrupt acts will apply even to that.
In other words, when judges have a vested interest, as a group and as a class, in some issue, like their own liability for misconduct in office or after recusals, you can count on judges trying to bend and twist words in order to present the most glaring unconstitutional conduct as lawful and the victim of such misconduct as a pest not entitled to any remedy.
So, the law of recusal is - it is nearly impossible to get, and when you get it, it means nothing.
There are no rules attending recusals, so even if you obtain a recusal, through a great personal sacrifice, the judicial system will retaliate against you so viciously that you may lose everything, your financial stability, your health, your ability to earn a livelihood for your family despite your skills that are much needed for many people.
The rule of law in action.
Tuesday, August 11, 2015
Prosecutions for murder and attempted murder must be mandatory against all individuals who are knowingly sending innocents to death rows
A lot has been said lately about wrongful convictions that landed people on death row. There has been a growing recognition in society that a lot of innocents may have been put on death row, and a lot of innocents may have been executed already.
There has been a growing recognition also that in many cases of wrongful death penalty convictions, such convictions were obtained at the time when prosecutors knew that the person they were putting on death row were factually innocent and withheld that evidence from the defense and the court.
Yet, there are not many reports of discipline against the prosecutors.
And I did not read any reports that prosecutors who KNOWINGLY put people on death row, were tried for murder (if the innocents were executed) or for attempted murder, if the innocents were either rescued from the death row or remain their awaiting an execution while the fight for their release and exoneration continues.
And my question is - WHY such prosecutors, and all members of investigative, prosecutorial and judicial teams who may have had knowledge of the factual innocence of criminal defendants who were convicted and sent to the death row are not prosecuted for attempted murder and for the actual murder?
No immunity protects from criminal prosecution.
Let's put pressure upon our representatives in the State and Federal Legislatures to pass laws making mandatory the criminal murder and attempted murder prosecutions of prosecutors and investigators who knowingly withheld exonerating evidence in death penalty cases.
There is no statute of limitations for murder, and there should be no status protection for murder.
Let's put pressure upon our representatives in State and Federal Legislatures to mandate criminal investigations and prosecutions in ANY case where exonerating evidence is withheld in criminal cases, whether in death penalty cases or not. That will bring a swift end to both prosecutorial misconduct and the position of prosecutors as coveted positions, which will only make the bench clean since now most of judges have a prosecutorial background, and thus an experience of misconduct without accountability ingrained in them as a matter of right before they come to the bench.
If such laws are passed and if a couple of prosecutors, especially well-connected ones, end up on death rows themselves, for murder no less, you will see how quickly the death penalty itself will be deemed unconstitutional and abolished.
It takes a high-ranking pig about to be "lawfully" killed by the government to for the "rule of law" to start working in this country.
So let's require that such laws be put on the books.
It's high time to end prosecutorial misconduct in this country that ruins and sometimes very literally ends people's lives.
There has been a growing recognition also that in many cases of wrongful death penalty convictions, such convictions were obtained at the time when prosecutors knew that the person they were putting on death row were factually innocent and withheld that evidence from the defense and the court.
Yet, there are not many reports of discipline against the prosecutors.
And I did not read any reports that prosecutors who KNOWINGLY put people on death row, were tried for murder (if the innocents were executed) or for attempted murder, if the innocents were either rescued from the death row or remain their awaiting an execution while the fight for their release and exoneration continues.
And my question is - WHY such prosecutors, and all members of investigative, prosecutorial and judicial teams who may have had knowledge of the factual innocence of criminal defendants who were convicted and sent to the death row are not prosecuted for attempted murder and for the actual murder?
No immunity protects from criminal prosecution.
Let's put pressure upon our representatives in the State and Federal Legislatures to pass laws making mandatory the criminal murder and attempted murder prosecutions of prosecutors and investigators who knowingly withheld exonerating evidence in death penalty cases.
There is no statute of limitations for murder, and there should be no status protection for murder.
Let's put pressure upon our representatives in State and Federal Legislatures to mandate criminal investigations and prosecutions in ANY case where exonerating evidence is withheld in criminal cases, whether in death penalty cases or not. That will bring a swift end to both prosecutorial misconduct and the position of prosecutors as coveted positions, which will only make the bench clean since now most of judges have a prosecutorial background, and thus an experience of misconduct without accountability ingrained in them as a matter of right before they come to the bench.
If such laws are passed and if a couple of prosecutors, especially well-connected ones, end up on death rows themselves, for murder no less, you will see how quickly the death penalty itself will be deemed unconstitutional and abolished.
It takes a high-ranking pig about to be "lawfully" killed by the government to for the "rule of law" to start working in this country.
So let's require that such laws be put on the books.
It's high time to end prosecutorial misconduct in this country that ruins and sometimes very literally ends people's lives.
Since documents show that the executed Ethel Rosenberg was innocent, should the surviving members of the prosecutorial and investigative team against her be tried for murder?
A day ago, a letter of the Meeropol Brothers, children of the executed Julius and Ethel Rosenberg, was published.
The children of this married couple, who were executed on their wedding anniversary, the wife - solely for refusal to turn on her husband, as recently released documents show, ask President Obama to finally do the right thing and exonerate at least their mother who was innocent.
The letter caused a rage of comments on Facebook, and one of the recurrent comments was - why would they ask for that? Their "commie" parents were convicted correctly, because AFTER the execution some materials from the KGB was released/surfaced etc.
First of all, nobody saw those "materials".
Second of all, if this country is the country ruled by the rule of law and not the rule of crowd rage driven by after-war fear and McCarthy-ist hysteria, a person can only be convicted after a proper jury trial.
A jury trial may not be considered proper and lawful where it was rigged by judicial and prosecutorial misconduct and where the prosecutor, in a published book, admitted that the judge sentenced the Rosenberg to death on the prosecutor's ex parte recommendation.
The misconduct was well known for years.
The prosecutor was not disbarred.
The judge who engaged in an ex parte communication with the prosecutor in a death penalty case, who was an anticommunist and put his political views into his decisions, and who admitted to going to a synagogue to ask for his G-d's guidance as to what decision to make as to the death sentence, was not taken off the bench and was not disbarred.
On the opposite, he was elevated to the appellate court, the U.S. Court of Appeals for the 2nd Circuit and even made its Chief Judge.
Another member of prosecutorial team, William P. Rogers, an assistant U.S. Attorney at the time of prosecution, not only was a not disbarred or criminally prosecuted, but became a Secretary of State in President Nixon's administration.
After the judge died, after the witnesses who gave testimony against the Rosenberg (Ethel's brother and his wife) died, then the grand jury testimony of Ethel's brother is released that shows that he was lying against her at the actual trial.
Documents are available that prosecutors never wanted to kill Ethel - or Julius, they simply wanted to coerce them to speak by the threat of the death sentence, and especially wanted Ethel to turn on her husband.
As the children of the Rosenberg's write in their letter to President Obama, when such tactics did not work, when Ethel Rosenberg "called the prosecution's bluff", false testimony was used against both of them to obtain a wrongful conviction and to execute them, leaving their young children orphans.
We are talking about something done by people who claimed their "honor" all their lives.
They belonged to an "honorable" legal profession.
They took multiple oaths of office to maintain the U.S. Constitution.
Yet, they did not have the basic human decency of not to obtain a wrongful conviction and a death sentence of a mother of two young children simply because she "called their bluff", and not to have her executed on her wedding anniversary to the husband against whom she refused to testify even at the price of her own life.
I must note that there is such a thing as a spousal privilege, and no spouse can be forced to testify against her husband.
Yet, "the honorable" members of the legal profession not only tried to violate that privilege, but punished an innocent with a death sentence when she refused to do that.
A letter signed by 82 law professors signed in 1976, 23 years after the execution of Ethel and Julius Rosenberg and 39 years before the letter filed by the sons of the Rosenbergs one day ago, points out, based on documentary evidence the professors reviewed, that the presiding judge, a staunch anti-communist, was in favor of their death penalty before the Rosenbergs were found guilty. That's an ultimate pre-judgment.
The letter, written to the House and Senate Judiciary Committee, requested to investigate the conduct of the judge.
That was in 1976.
As the biography of Judge Kaufman shows, not only he was not investigated or disciplined, but he was elevated to the position of an appellate federal judge and was later made a chief judge of the U.S. Court of Appeals for the 2nd Circuit - deciding issues of due process on federal appeals from civil rights cases, of all people, even though, according to the letter of 82 law professors in 1976 to Congress requesting investigation against Judge Kaufman, Judge Kaufman, a trial judge, was trying to unlawfully interfere with appellate process in the Rosenberg case and block appellate motions of the Rosenbergs and their co-defendant.
Judge Kaufman was, obviously, the best candidate for the job on the federal appellate court, and for the job of the chief judge of that court.
So, as the Facebook community continues to rage, why do the sons of Rosenberg want to stir the painful memories of their executed parents, what I see imperative as a lesson coming out of the Rosenberg case is:
1) the secrecy of the grand jury proceedings serves only the prosecution, including wrongful prosecution, and should be abolished; had the grand jury minutes of the testimony of Ethel's brother been released at the time of trial and not a month ago, after all witnesses and the presiding judge are long dead, Ethel would have been spared and her children would not have had to be raised as orphans, be adopted and change their last names to protect them.
2) it is clear that judicial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
3) it is clear that prosecutorial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
4) it is clear that the public, judging by FB comments today, would have convicted the Rosenbergs and would have sent them to death again, should they be tried today - without any evidence, just on the accusation of spying for the Soviets. That shows how low the legal education of the public on the issue of the presumption of innocence and the necessity of the rule of law is in this country, and that should be changed, too.
5) an investigation should be had as to the illegal means by which the wrongful conviction and death penalty of Ethel Rosenberg was obtained, and the surviving individuals who participated in the scheme must be tried for conspiracy to commit murder.
And yes, I fully support the request of the children of the Rosenbergs to formally exonerate Ethel Rosenberg - and to posthumously declare that judge Kaufman committed misconduct and should have been disbarred, prosecuted and, possibly, put to death penalty himself, because sending an innocent to the electric chair is murder.
The children of this married couple, who were executed on their wedding anniversary, the wife - solely for refusal to turn on her husband, as recently released documents show, ask President Obama to finally do the right thing and exonerate at least their mother who was innocent.
The letter caused a rage of comments on Facebook, and one of the recurrent comments was - why would they ask for that? Their "commie" parents were convicted correctly, because AFTER the execution some materials from the KGB was released/surfaced etc.
First of all, nobody saw those "materials".
Second of all, if this country is the country ruled by the rule of law and not the rule of crowd rage driven by after-war fear and McCarthy-ist hysteria, a person can only be convicted after a proper jury trial.
A jury trial may not be considered proper and lawful where it was rigged by judicial and prosecutorial misconduct and where the prosecutor, in a published book, admitted that the judge sentenced the Rosenberg to death on the prosecutor's ex parte recommendation.
The misconduct was well known for years.
The prosecutor was not disbarred.
The judge who engaged in an ex parte communication with the prosecutor in a death penalty case, who was an anticommunist and put his political views into his decisions, and who admitted to going to a synagogue to ask for his G-d's guidance as to what decision to make as to the death sentence, was not taken off the bench and was not disbarred.
On the opposite, he was elevated to the appellate court, the U.S. Court of Appeals for the 2nd Circuit and even made its Chief Judge.
Another member of prosecutorial team, William P. Rogers, an assistant U.S. Attorney at the time of prosecution, not only was a not disbarred or criminally prosecuted, but became a Secretary of State in President Nixon's administration.
After the judge died, after the witnesses who gave testimony against the Rosenberg (Ethel's brother and his wife) died, then the grand jury testimony of Ethel's brother is released that shows that he was lying against her at the actual trial.
Documents are available that prosecutors never wanted to kill Ethel - or Julius, they simply wanted to coerce them to speak by the threat of the death sentence, and especially wanted Ethel to turn on her husband.
As the children of the Rosenberg's write in their letter to President Obama, when such tactics did not work, when Ethel Rosenberg "called the prosecution's bluff", false testimony was used against both of them to obtain a wrongful conviction and to execute them, leaving their young children orphans.
We are talking about something done by people who claimed their "honor" all their lives.
They belonged to an "honorable" legal profession.
They took multiple oaths of office to maintain the U.S. Constitution.
Yet, they did not have the basic human decency of not to obtain a wrongful conviction and a death sentence of a mother of two young children simply because she "called their bluff", and not to have her executed on her wedding anniversary to the husband against whom she refused to testify even at the price of her own life.
I must note that there is such a thing as a spousal privilege, and no spouse can be forced to testify against her husband.
Yet, "the honorable" members of the legal profession not only tried to violate that privilege, but punished an innocent with a death sentence when she refused to do that.
A letter signed by 82 law professors signed in 1976, 23 years after the execution of Ethel and Julius Rosenberg and 39 years before the letter filed by the sons of the Rosenbergs one day ago, points out, based on documentary evidence the professors reviewed, that the presiding judge, a staunch anti-communist, was in favor of their death penalty before the Rosenbergs were found guilty. That's an ultimate pre-judgment.
The letter, written to the House and Senate Judiciary Committee, requested to investigate the conduct of the judge.
That was in 1976.
As the biography of Judge Kaufman shows, not only he was not investigated or disciplined, but he was elevated to the position of an appellate federal judge and was later made a chief judge of the U.S. Court of Appeals for the 2nd Circuit - deciding issues of due process on federal appeals from civil rights cases, of all people, even though, according to the letter of 82 law professors in 1976 to Congress requesting investigation against Judge Kaufman, Judge Kaufman, a trial judge, was trying to unlawfully interfere with appellate process in the Rosenberg case and block appellate motions of the Rosenbergs and their co-defendant.
Judge Kaufman was, obviously, the best candidate for the job on the federal appellate court, and for the job of the chief judge of that court.
So, as the Facebook community continues to rage, why do the sons of Rosenberg want to stir the painful memories of their executed parents, what I see imperative as a lesson coming out of the Rosenberg case is:
1) the secrecy of the grand jury proceedings serves only the prosecution, including wrongful prosecution, and should be abolished; had the grand jury minutes of the testimony of Ethel's brother been released at the time of trial and not a month ago, after all witnesses and the presiding judge are long dead, Ethel would have been spared and her children would not have had to be raised as orphans, be adopted and change their last names to protect them.
2) it is clear that judicial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
3) it is clear that prosecutorial misconduct is not properly addressed in this country, and legislative measures should be undertaken to change that;
4) it is clear that the public, judging by FB comments today, would have convicted the Rosenbergs and would have sent them to death again, should they be tried today - without any evidence, just on the accusation of spying for the Soviets. That shows how low the legal education of the public on the issue of the presumption of innocence and the necessity of the rule of law is in this country, and that should be changed, too.
5) an investigation should be had as to the illegal means by which the wrongful conviction and death penalty of Ethel Rosenberg was obtained, and the surviving individuals who participated in the scheme must be tried for conspiracy to commit murder.
And yes, I fully support the request of the children of the Rosenbergs to formally exonerate Ethel Rosenberg - and to posthumously declare that judge Kaufman committed misconduct and should have been disbarred, prosecuted and, possibly, put to death penalty himself, because sending an innocent to the electric chair is murder.
Monday, August 10, 2015
A. Gail Prudenti is retiring or running from the bench?
Another interesting abrupt retirement was recently announced.
A. Gail Prudenti, the Chief Administrative Judge of the State of New York, retired as of July 30, 2015 after 23 years on the bench, to go and work as an administrator for a law school.
It is notable that her new position, as an administrator of a law school, does not involve either judgeship, or the practice of law.
This woman knows the Chief Judge Lippman very well.
Is she retiring because she wants to, or is she running from the bench while investigations against top New York State officials close to Lippman are getting hotter by the day and while the court administration is sued more and more for corruption, misconduct and refusal to comply with Freedom of Information Laws?
In any event, another question arises - who will replace Prudenti?
Michael V. Coccoma? Coccoma was recently elevated by Lippman as the "chief fiduciary" in the NYS Court Administration, despite lawsuits involving fraud that were dismissed only because of absolute judicial immunity for malicious and corrupt acts.
It seems that the more corrupt and brazen a judge is in New York (if he got high enough, town justices sometimes get disciplined, justices from the County Court and up nearly never get disciplined) - the better career is offered to him/her.
I already wrote about judges of the two appellate divisions, Leslie Stein of the Appellate Division 3rd Department, and Eugene Fahey of the Appellate Division 4th Department who were elevated to the Court of Appeals after brazen misconduct on the bench.
Prudenti successor is NOT Michael V. Coccoma.
So, at least Coccoma was bypassed on his way up the ladder.
I bet, nobody wanted to promote a judge who has been repeatedly sued for corruption, self-dealing, protectionism of his wife through supervising assignments to her cases as an attorney of judges who are close to retirement, are looking into Coccoma's hand to receive post-retirement perks and who oblige Coccoma in retaliating against his and his wife's critics.
A. Gail Prudenti, the Chief Administrative Judge of the State of New York, retired as of July 30, 2015 after 23 years on the bench, to go and work as an administrator for a law school.
It is notable that her new position, as an administrator of a law school, does not involve either judgeship, or the practice of law.
This woman knows the Chief Judge Lippman very well.
Is she retiring because she wants to, or is she running from the bench while investigations against top New York State officials close to Lippman are getting hotter by the day and while the court administration is sued more and more for corruption, misconduct and refusal to comply with Freedom of Information Laws?
In any event, another question arises - who will replace Prudenti?
Michael V. Coccoma? Coccoma was recently elevated by Lippman as the "chief fiduciary" in the NYS Court Administration, despite lawsuits involving fraud that were dismissed only because of absolute judicial immunity for malicious and corrupt acts.
It seems that the more corrupt and brazen a judge is in New York (if he got high enough, town justices sometimes get disciplined, justices from the County Court and up nearly never get disciplined) - the better career is offered to him/her.
I already wrote about judges of the two appellate divisions, Leslie Stein of the Appellate Division 3rd Department, and Eugene Fahey of the Appellate Division 4th Department who were elevated to the Court of Appeals after brazen misconduct on the bench.
Prudenti successor is NOT Michael V. Coccoma.
So, at least Coccoma was bypassed on his way up the ladder.
I bet, nobody wanted to promote a judge who has been repeatedly sued for corruption, self-dealing, protectionism of his wife through supervising assignments to her cases as an attorney of judges who are close to retirement, are looking into Coccoma's hand to receive post-retirement perks and who oblige Coccoma in retaliating against his and his wife's critics.
Is there a legal difference between an electronic recording transcribed by a stenographer and a stenographic record directly made at trial by the stenographer? There is when an appellate court wants to make an inconvenient criminal appeal disappear.
Is there a difference between a criminal trial and sentencing recorded directly by a court reporter/ stenographer or made as an audio recording by the court and then turned over to a stenographer to provide a stenographic record of the court proceedings?
You would think that it is a silly question. Of course, there shouldn't be any such difference - a stenographic transcript is a stenographic transcript.
Yet, Judge Keene's court attorney, of Tioga County, asserts that there is a difference between the two.
Here is a letter sent to me by Judge Keene's attorney on July 31, 2015.
The letter is clearly accusing me of neglecting a client by failing to file an "affidavit of errors" in a case where the court claims no stenographic record was made (while admitting that a stenographic transcript was filed with the court and omitting the fact that a motion to settle that transcript timely made by me is pending in the lower court since March of 2012, for 3 years).
Yet, it appears that the court is trying to shift to me neglect and misconduct of their duties not by one, but by several judges participating in this case on the trial, motion and appellate level.
The case involving a jury trial for a sexual offense resulted in a conviction.
An appeal was timely filed.
Since the defendant was indigent, an assigned counsel (myself) was promptly assigned.
As soon as I was assigned, I requested transcripts of all proceedings, such as pre-trial arraignments, hearings, the trial and sentencing.
When transcripts were provided and I had an opportunity to review them, I put in front of the trial court a motion to settle the transcripts supported by an affirmation (which in New York is an equivalent of an affidavit) pointing out gaps in the transcripts making proper appellate review impossible for the lack of proper record.
Since the case is a high-profile sex offense case upon which several other derivative adjudications are based, the court system which supposed to be a neutral reviewer, resisted the appeal from progressing.
The first judge presiding over the appeal, Judge Carl F. Becker, assigned me to the appeal - the only case Judge Becker has ever assigned me to, and assigned me, conspicuously, after I sued him in state and federal court (both lawsuits were dismissed without reaching the merits or having discovery on the basis of absolute judicial immunity for malicious and corrupt acts on the bench).
At the time Judge Becker assigned me to the case, Judge Stephen Rose of Sidney Village Court, a non-attorney and a former police officer, called me directly to my home office, verified when I will NOT be at home, came to my home at that time, demanded that my husband (at that time a disbarred attorney) should accept delivery by Judge Rose of transcripts in this case, had my husband signed for acceptance of the delivery, and then turned around and complained to the Professional Conduct Committee that my husband is engaged in unauthorized practice of law and I am condoning such practice.
Knowing unethical and corrupt practices of Judge Becker, I have a reason to believe that the only reason Becker assigned this single case to me was because he had an agreement with Judge Rose to use the case to entrap me and my husband into charges of unauthorized practice of law and aiding and abetting the same.
The entrapment did not work the way it was supposed to.
Neither Judge Becker nor Judge Rose are outstanding legal scholars, and neither one of them took into account the law of the State of New York providing that, when an attorney is served with anything at her home, she can be served, by substituted service, upon a person of "suitable age and discretion", and the choice of the person of a suitable age and discretion is with the person serving the papers.
The person serving the papers was Judge Rose (which was a clear "irregularity", but that's what Judge Rose chose to do).
So, Judge Rose came to my home knowing, through prior verification, that I will not be there at the time he comes, chose my husband as a person of "suitable age and discretion" to accept service of papers for me, had my husband sign for acceptance of such service, and then turned around and complained that the perfectly lawful act by a person who does not have to be an attorney and which does not constitute the practice of law, is practice of law on behalf of Mr. Neroni and condoning of the same by me.
I made a motion to recuse Judge Rose and filed a federal lawsuit on behalf of my husband.
Judge Rose recused.
The federal lawsuit on behalf of my husband, Neroni v Zayas, was initially decided (partially) in his favor when Judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York ruled that the case should not be dismissed and should proceed to trial on the issue whether a disbarred attorney may be investigated and prosecuted by an attorney for Professional Conduct Committee any further, or whether a disbarred attorney so investigated may sue for money damages.
After Lawrence E. Kahn, upon information and belief, got some benefits from high-standing attorneys who had material interests against my husband, through the means of the so-called American Inns of Court, Lawrence E. Kahn backtracked on his decision and dismissed the case, on the grounds of absolute judicial immunity of members of the Professional Conduct Committee for malicious and corrupt acts.
Back to People v. Simmons, subject of the letter of the Tioga County judge's attorney who did not mention in her letter that the case is pending on appeal in Delaware County Court.
The motion to settle the transcript was made on March 5, 2012 to the proper lower court.
Judge Becker, as the appellate judge, held a conference in the case, with the special prosecutor James Hartmann and myself as the appellate attorney for the defendant, present.
Judge Becker accepted that the motion to settle the transcript was proper and transferred its review to another court.
Usually, motions must be reviewed, and decision on them made, within 60 days of the returnable date.
More than 3 years passed since I made the motion. The initial returnable date was March 20, 2012.
When the courts woke up and figured that the lower court forgot to make a decision on the motion, they started to blame me.
In the letter by court attorney of currently assigned to the appeal Judge Gerald Keene of Tioga County, the court attorney for the judge claims that because the proceedings at trial and sentencing were not recorded by a court stenographer, I had to file an "affidavit of errors", and if I did not file the same, the appeal should be dismissed.
The court attorney, at the same time, admits in her letter that a transcript (while omitting the word "stenographic" transcript) of the trial and sentencing was provided to the appellate court, making the section of the law she is quoting inapplicable, since it is a distinction without a difference whether the stenographer was actually present in court to create a record that she later transcribed, or whether she transcribed a record from an audio recording of proceedings made by the court. If anything, transcript from an audio recording may be more precise than transcript from the coding and decoding by the stenographer. In any event, the resulting transcript is a stenographic transcript filed with the court, and CPL 460.10(3) does not apply. It would apply if no record would be taken at all.
It is telling that the court attorney does not mention in her letter the conference before Judge Becker, approval by Judge Becker of my motion to settle, directions by Judge Becker and by two subsequently assigned appellate judges to the lower court to review and resolve the motion to settle.
Here is my motion to settle made on March 5, 2012, provided here without exhibits that were filed with the court.
It is clear that I made a supporting Affirmation for the motion which, if the court wants to nit-pick and insist that electronic audio-recording made by the court and turned over for a stenographer to create a stenographic transcript is not the same as the stenographer actually sitting in court and providing the transcript from her recordings, and not from the audio, can be clearly regarded as an "affidavit of errors".
Why are several judges, including Judge Keene, so keen on preventing the appeal from happening?
Because, given the gaps in the record, the reversal in this case is a must.
And, with the reversal, the following things may happen:
1) a sex offender registration of the defendant will be expunged;
2) a new trial will have to be held where previously intimidated witnesses may come forward and testify properly;
3) if the defendant wins, the Delaware County Department of Social Services, the "child" of Judge Becker and of the current judicial candidate Porter Kirkwood, will look very pale, to put it mildly;
4) a federal lawsuit by the defendant may follow against participants in malicious prosecution against defendant which cost him dearly in terms of a served jail sentence, reputation, job and liberty restrictions and irremedeemable financial and emotional losses.
For that reason, it is easier to pound on an assigned counsel who was assigned for the reason of being entrapped into a criminal prosecution for aiding and abetting in unauthorized practice of law, and instead she did her job and staunchly fought for her client (which is unusual for assigned appeals).
Here is the notice of motion to settle the transcript, vacate the conviction and recuse Judge Rose with a supporting affirmation, made on March 5, 2012 and still unresolved.
Which brings me to a question - how can a court that aggressively and vigorously acts as an advocate for the prosecution, for years, through a number of different judges, be a neutral adjudicator on appeal?
I do not usually blog about a pending criminal appeal.
In this case though, I considered it imperative to do that to protect my client's interests since I have a feeling that the assigned judge of the Delaware County Court, the appellate court, seeks ways of how to make the appeal disappear instead of doing his job - because of the embarrassment to so many people, including many judges and one retired judge, that is involved in a reversal that is a must in this case, based on how bad it was handled and how selective the record was, to the prejudice of the criminal defendant.
You would think that it is a silly question. Of course, there shouldn't be any such difference - a stenographic transcript is a stenographic transcript.
Yet, Judge Keene's court attorney, of Tioga County, asserts that there is a difference between the two.
Here is a letter sent to me by Judge Keene's attorney on July 31, 2015.
The letter is clearly accusing me of neglecting a client by failing to file an "affidavit of errors" in a case where the court claims no stenographic record was made (while admitting that a stenographic transcript was filed with the court and omitting the fact that a motion to settle that transcript timely made by me is pending in the lower court since March of 2012, for 3 years).
Yet, it appears that the court is trying to shift to me neglect and misconduct of their duties not by one, but by several judges participating in this case on the trial, motion and appellate level.
The case involving a jury trial for a sexual offense resulted in a conviction.
An appeal was timely filed.
Since the defendant was indigent, an assigned counsel (myself) was promptly assigned.
As soon as I was assigned, I requested transcripts of all proceedings, such as pre-trial arraignments, hearings, the trial and sentencing.
When transcripts were provided and I had an opportunity to review them, I put in front of the trial court a motion to settle the transcripts supported by an affirmation (which in New York is an equivalent of an affidavit) pointing out gaps in the transcripts making proper appellate review impossible for the lack of proper record.
Since the case is a high-profile sex offense case upon which several other derivative adjudications are based, the court system which supposed to be a neutral reviewer, resisted the appeal from progressing.
The first judge presiding over the appeal, Judge Carl F. Becker, assigned me to the appeal - the only case Judge Becker has ever assigned me to, and assigned me, conspicuously, after I sued him in state and federal court (both lawsuits were dismissed without reaching the merits or having discovery on the basis of absolute judicial immunity for malicious and corrupt acts on the bench).
At the time Judge Becker assigned me to the case, Judge Stephen Rose of Sidney Village Court, a non-attorney and a former police officer, called me directly to my home office, verified when I will NOT be at home, came to my home at that time, demanded that my husband (at that time a disbarred attorney) should accept delivery by Judge Rose of transcripts in this case, had my husband signed for acceptance of the delivery, and then turned around and complained to the Professional Conduct Committee that my husband is engaged in unauthorized practice of law and I am condoning such practice.
Knowing unethical and corrupt practices of Judge Becker, I have a reason to believe that the only reason Becker assigned this single case to me was because he had an agreement with Judge Rose to use the case to entrap me and my husband into charges of unauthorized practice of law and aiding and abetting the same.
The entrapment did not work the way it was supposed to.
Neither Judge Becker nor Judge Rose are outstanding legal scholars, and neither one of them took into account the law of the State of New York providing that, when an attorney is served with anything at her home, she can be served, by substituted service, upon a person of "suitable age and discretion", and the choice of the person of a suitable age and discretion is with the person serving the papers.
The person serving the papers was Judge Rose (which was a clear "irregularity", but that's what Judge Rose chose to do).
So, Judge Rose came to my home knowing, through prior verification, that I will not be there at the time he comes, chose my husband as a person of "suitable age and discretion" to accept service of papers for me, had my husband sign for acceptance of such service, and then turned around and complained that the perfectly lawful act by a person who does not have to be an attorney and which does not constitute the practice of law, is practice of law on behalf of Mr. Neroni and condoning of the same by me.
I made a motion to recuse Judge Rose and filed a federal lawsuit on behalf of my husband.
Judge Rose recused.
The federal lawsuit on behalf of my husband, Neroni v Zayas, was initially decided (partially) in his favor when Judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York ruled that the case should not be dismissed and should proceed to trial on the issue whether a disbarred attorney may be investigated and prosecuted by an attorney for Professional Conduct Committee any further, or whether a disbarred attorney so investigated may sue for money damages.
After Lawrence E. Kahn, upon information and belief, got some benefits from high-standing attorneys who had material interests against my husband, through the means of the so-called American Inns of Court, Lawrence E. Kahn backtracked on his decision and dismissed the case, on the grounds of absolute judicial immunity of members of the Professional Conduct Committee for malicious and corrupt acts.
Back to People v. Simmons, subject of the letter of the Tioga County judge's attorney who did not mention in her letter that the case is pending on appeal in Delaware County Court.
The motion to settle the transcript was made on March 5, 2012 to the proper lower court.
Judge Becker, as the appellate judge, held a conference in the case, with the special prosecutor James Hartmann and myself as the appellate attorney for the defendant, present.
Judge Becker accepted that the motion to settle the transcript was proper and transferred its review to another court.
Usually, motions must be reviewed, and decision on them made, within 60 days of the returnable date.
More than 3 years passed since I made the motion. The initial returnable date was March 20, 2012.
When the courts woke up and figured that the lower court forgot to make a decision on the motion, they started to blame me.
In the letter by court attorney of currently assigned to the appeal Judge Gerald Keene of Tioga County, the court attorney for the judge claims that because the proceedings at trial and sentencing were not recorded by a court stenographer, I had to file an "affidavit of errors", and if I did not file the same, the appeal should be dismissed.
The court attorney, at the same time, admits in her letter that a transcript (while omitting the word "stenographic" transcript) of the trial and sentencing was provided to the appellate court, making the section of the law she is quoting inapplicable, since it is a distinction without a difference whether the stenographer was actually present in court to create a record that she later transcribed, or whether she transcribed a record from an audio recording of proceedings made by the court. If anything, transcript from an audio recording may be more precise than transcript from the coding and decoding by the stenographer. In any event, the resulting transcript is a stenographic transcript filed with the court, and CPL 460.10(3) does not apply. It would apply if no record would be taken at all.
It is telling that the court attorney does not mention in her letter the conference before Judge Becker, approval by Judge Becker of my motion to settle, directions by Judge Becker and by two subsequently assigned appellate judges to the lower court to review and resolve the motion to settle.
Here is my motion to settle made on March 5, 2012, provided here without exhibits that were filed with the court.
It is clear that I made a supporting Affirmation for the motion which, if the court wants to nit-pick and insist that electronic audio-recording made by the court and turned over for a stenographer to create a stenographic transcript is not the same as the stenographer actually sitting in court and providing the transcript from her recordings, and not from the audio, can be clearly regarded as an "affidavit of errors".
Why are several judges, including Judge Keene, so keen on preventing the appeal from happening?
Because, given the gaps in the record, the reversal in this case is a must.
And, with the reversal, the following things may happen:
1) a sex offender registration of the defendant will be expunged;
2) a new trial will have to be held where previously intimidated witnesses may come forward and testify properly;
3) if the defendant wins, the Delaware County Department of Social Services, the "child" of Judge Becker and of the current judicial candidate Porter Kirkwood, will look very pale, to put it mildly;
4) a federal lawsuit by the defendant may follow against participants in malicious prosecution against defendant which cost him dearly in terms of a served jail sentence, reputation, job and liberty restrictions and irremedeemable financial and emotional losses.
For that reason, it is easier to pound on an assigned counsel who was assigned for the reason of being entrapped into a criminal prosecution for aiding and abetting in unauthorized practice of law, and instead she did her job and staunchly fought for her client (which is unusual for assigned appeals).
Here is the notice of motion to settle the transcript, vacate the conviction and recuse Judge Rose with a supporting affirmation, made on March 5, 2012 and still unresolved.
Which brings me to a question - how can a court that aggressively and vigorously acts as an advocate for the prosecution, for years, through a number of different judges, be a neutral adjudicator on appeal?
* * *
I do not usually blog about a pending criminal appeal.
In this case though, I considered it imperative to do that to protect my client's interests since I have a feeling that the assigned judge of the Delaware County Court, the appellate court, seeks ways of how to make the appeal disappear instead of doing his job - because of the embarrassment to so many people, including many judges and one retired judge, that is involved in a reversal that is a must in this case, based on how bad it was handled and how selective the record was, to the prejudice of the criminal defendant.
Saturday, August 8, 2015
Judge Thomas J. McAvoy of the U.S. District Court for the Northern District of New York puts public in courtrooms in jeopardy in order to protect a bad judge
On July 24, 2015, the U.S. District Court for the Northern District of New York made brave new law by dismissing a federal lawsuit against Judge Kevin M. Dowd of Chenango County Supreme Court on the grounds of absolute judicial immunity. See Case No. 3:15-cv-000370-TJM-DEP, Dkt. 15.
The lawsuit asserted in no uncertain terms that Dowd's conduct targeted in the lawsuit occurred after Dowd recused from a court case and in retaliation for having to recuse.
Moreover, the means of retaliation - knowingly using an armed Nazi sympathizer on a Jewish pro se indigent litigant to throw him out of "Dowd's" courthouse, once again, AFTER Dowd recused from the case and lost all judicial authority to be there, was not only disgusting, but a clear violation of the civil rights plaintiffs' due process rights.
The concept of judicial immunity, which was "implied" from prior history of immunity in the "old country" where there was no Constitution and where the absolute power (and its abuse) by the King and his servants were the reasons for American independence to begin with, is obviously unconstitutional judge-created self-serving protection to begin with.
Yet, even that concept, as declared by the judiciary, had boundaries - a judge is not protected by absolute judicial immunity for acts in clear absence of all jurisdiction.
What kind of jurisdiction does a judge have AFTER HE RECUSED from a case?
Logically and reasonably - none.
In the opinion of federal senior-status judge Thomas A. McAvoy of the U.S. District Court for the Northern District of New York, Dowd was still covered by absolute judicial immunity after he recused from the case for the following reasons:
1) "Defendant's action in ordering a belligerent litigant from a proceeding is certainly conduct arising directly from the litigation".
A. Nowhere in the complaint is there any mention that the litigant was "belligerent". Making a motion to recuse is not evidence of belligerence as a matter of law - as is any other rights exercised under the guarantee of access to court covered by the 1st Amendment (petitions clause) of the U.S. Constitution which Judge McAvoy was sworn to uphold.
B. On a motion to dismiss factual inferences must be made in favor of a non-moving party (the plaintiff), and the judge made an inference of "belligerence", the opposite inference, in favor of the defendant, a brother-judge.
C. Judge McAvoy mixes apples and oranges in admitting at the same time to conduct of Defendant "arising directly from litigation", from which Defendant already recused, and that Defendant still made an order pertaining to that litigation - from which, once again, he already recused and lost all authority to make any orders "arising from litigation" due to his recusal.
In making his astonishing "arising from litigation" stretch of judicial immunity to cover misconduct, specifically, violent Antisemitic conduct, of a judge in retaliation for a motion to recuse AFTER he recused from the case, Judge McAvoy did pay the lip service to the existing case law that provided that the analysis of whether the act of a judge is an act of judicial nature covered by absolute judicial immunity, the court must analyze
"the nature of the act itself, i.e., whether it is a function normally performed by a judge,
and to the expectations of the parties, i.e. whether they dealt with the judge
in his judicial capacity", citing to Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir., 2009).
Throwing tantrums against parties who moved to recuse the judge, after recusal, is not a function "normally performed by a judge".
A reasonable party does not and should not expect such a tantrum.
And, after the judge recused from the case, he is no longer, cannot and is not authorized by law to act in any judicial capacity.
In his analysis, Judge McAvoy skipped all of those points and misapplied the above rule in a way that I can only deem intentional, or due to Judge McAvoy age and necessity for retirement since he no longer can withstand the intellectual rigors his job requires.
First, Judge McAvoy claimed that Dowd, in ordering removal of a plaintiff, after Dowd recused from the case and while plaintiff did absolutely nothing wrong and was not "belligerent" (there is nothing in the pleadings even suggesting that, so that part is Judge McAvoy's invention of part of the record, which is judicial misconduct in itself), engaged in judicial function.
Here is what the alleged "judicial function" in ordering a known and armed Nazi sympathizer to throw a pro se indigent Jewish litigant from the courthouse AFTER the judge recused from the case and lost all power of control of the case, as presented by Judge McAvoy:
"Controlling the behavior of parties at a proceeding at which a judge is presiding
is certainly a function normally expected of a judge".
Yes, Judge McAvoy, and the key words are "at which a judge is presiding". That means, after recusal the judge is no longer "presiding" over court proceedings and cannot do anything in the proceedings or towards participants in the proceedings.
Further, Judge McAvoy states this:
"Since conflict with and among litigants occurs with some frequency in courtrooms
and conferences, a judge also must sometimes order court staff to exercise control
over parties and avoid conflicts from escalating. Such actions are certainly
an important and regular judicial function".
Once again, Judge McAvoy twisted the facts in the complaint, and not in favor of the non-moving party, as he was bound by the law to interpret the pleadings.
A judge ordering staff to exercise control over parties and "avoid conflicts from escalating" was, first, not a judge any longer in that particular case, but a lay person, was not presiding over any proceedings as a matter of law, and there was no conflict that needed to be prevented from escalating.
Judge's own temper tantrum due to a motion to recuse that the judge granted cannot be, constitutionally, a legal basis for absolute immunity to be stretched beyond the recusal of the judge.
Otherwise, whatever the judge does after recusal, no matter how bad, will be covered by judicial immunity.
Think about it - Judge McAvoy just created a precedent by which Judge Dowd could order the armed Nazi sympathizer/court attendant to shoot down the pro se litigant, as Judge Dowd's way of preventing "a conflict from escalating".
So, Mr. Shtrauch must be happy that he escaped with his life.
As to other litigants appearing in courts covered by jurisdiction of the Northern District of New York, they must now be very afraid for their safety when considering to make motions to recuse, because now a judge, even if he recused, will be cloaked by absolute immunity even if he orders the insolent party who dared to request the judge's recusal to be shot dead - as a method of prevention of a conflict with a party from escalating.
So - one, be very afraid.
Two - shouldn't Judge McAvoy consider full retirement already?
Because, Judge McAvoy's sleep of reasons produced a monster that severely jeopardizes public safety in courtrooms:
And all of that sleep of reason and mockery of the rule of law that insults any reasonable person's intelligence - for what, Judge McAvoy? To protect one bad judge, whose behavior is getting more and more bizarre by the day, from inevitable accountability?
The lawsuit asserted in no uncertain terms that Dowd's conduct targeted in the lawsuit occurred after Dowd recused from a court case and in retaliation for having to recuse.
Moreover, the means of retaliation - knowingly using an armed Nazi sympathizer on a Jewish pro se indigent litigant to throw him out of "Dowd's" courthouse, once again, AFTER Dowd recused from the case and lost all judicial authority to be there, was not only disgusting, but a clear violation of the civil rights plaintiffs' due process rights.
The concept of judicial immunity, which was "implied" from prior history of immunity in the "old country" where there was no Constitution and where the absolute power (and its abuse) by the King and his servants were the reasons for American independence to begin with, is obviously unconstitutional judge-created self-serving protection to begin with.
Yet, even that concept, as declared by the judiciary, had boundaries - a judge is not protected by absolute judicial immunity for acts in clear absence of all jurisdiction.
What kind of jurisdiction does a judge have AFTER HE RECUSED from a case?
Logically and reasonably - none.
In the opinion of federal senior-status judge Thomas A. McAvoy of the U.S. District Court for the Northern District of New York, Dowd was still covered by absolute judicial immunity after he recused from the case for the following reasons:
1) "Defendant's action in ordering a belligerent litigant from a proceeding is certainly conduct arising directly from the litigation".
A. Nowhere in the complaint is there any mention that the litigant was "belligerent". Making a motion to recuse is not evidence of belligerence as a matter of law - as is any other rights exercised under the guarantee of access to court covered by the 1st Amendment (petitions clause) of the U.S. Constitution which Judge McAvoy was sworn to uphold.
B. On a motion to dismiss factual inferences must be made in favor of a non-moving party (the plaintiff), and the judge made an inference of "belligerence", the opposite inference, in favor of the defendant, a brother-judge.
C. Judge McAvoy mixes apples and oranges in admitting at the same time to conduct of Defendant "arising directly from litigation", from which Defendant already recused, and that Defendant still made an order pertaining to that litigation - from which, once again, he already recused and lost all authority to make any orders "arising from litigation" due to his recusal.
In making his astonishing "arising from litigation" stretch of judicial immunity to cover misconduct, specifically, violent Antisemitic conduct, of a judge in retaliation for a motion to recuse AFTER he recused from the case, Judge McAvoy did pay the lip service to the existing case law that provided that the analysis of whether the act of a judge is an act of judicial nature covered by absolute judicial immunity, the court must analyze
"the nature of the act itself, i.e., whether it is a function normally performed by a judge,
and to the expectations of the parties, i.e. whether they dealt with the judge
in his judicial capacity", citing to Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir., 2009).
Throwing tantrums against parties who moved to recuse the judge, after recusal, is not a function "normally performed by a judge".
A reasonable party does not and should not expect such a tantrum.
And, after the judge recused from the case, he is no longer, cannot and is not authorized by law to act in any judicial capacity.
In his analysis, Judge McAvoy skipped all of those points and misapplied the above rule in a way that I can only deem intentional, or due to Judge McAvoy age and necessity for retirement since he no longer can withstand the intellectual rigors his job requires.
First, Judge McAvoy claimed that Dowd, in ordering removal of a plaintiff, after Dowd recused from the case and while plaintiff did absolutely nothing wrong and was not "belligerent" (there is nothing in the pleadings even suggesting that, so that part is Judge McAvoy's invention of part of the record, which is judicial misconduct in itself), engaged in judicial function.
Here is what the alleged "judicial function" in ordering a known and armed Nazi sympathizer to throw a pro se indigent Jewish litigant from the courthouse AFTER the judge recused from the case and lost all power of control of the case, as presented by Judge McAvoy:
"Controlling the behavior of parties at a proceeding at which a judge is presiding
is certainly a function normally expected of a judge".
Yes, Judge McAvoy, and the key words are "at which a judge is presiding". That means, after recusal the judge is no longer "presiding" over court proceedings and cannot do anything in the proceedings or towards participants in the proceedings.
Further, Judge McAvoy states this:
"Since conflict with and among litigants occurs with some frequency in courtrooms
and conferences, a judge also must sometimes order court staff to exercise control
over parties and avoid conflicts from escalating. Such actions are certainly
an important and regular judicial function".
Once again, Judge McAvoy twisted the facts in the complaint, and not in favor of the non-moving party, as he was bound by the law to interpret the pleadings.
A judge ordering staff to exercise control over parties and "avoid conflicts from escalating" was, first, not a judge any longer in that particular case, but a lay person, was not presiding over any proceedings as a matter of law, and there was no conflict that needed to be prevented from escalating.
Judge's own temper tantrum due to a motion to recuse that the judge granted cannot be, constitutionally, a legal basis for absolute immunity to be stretched beyond the recusal of the judge.
Otherwise, whatever the judge does after recusal, no matter how bad, will be covered by judicial immunity.
Think about it - Judge McAvoy just created a precedent by which Judge Dowd could order the armed Nazi sympathizer/court attendant to shoot down the pro se litigant, as Judge Dowd's way of preventing "a conflict from escalating".
So, Mr. Shtrauch must be happy that he escaped with his life.
As to other litigants appearing in courts covered by jurisdiction of the Northern District of New York, they must now be very afraid for their safety when considering to make motions to recuse, because now a judge, even if he recused, will be cloaked by absolute immunity even if he orders the insolent party who dared to request the judge's recusal to be shot dead - as a method of prevention of a conflict with a party from escalating.
So - one, be very afraid.
Two - shouldn't Judge McAvoy consider full retirement already?
Because, Judge McAvoy's sleep of reasons produced a monster that severely jeopardizes public safety in courtrooms:
And all of that sleep of reason and mockery of the rule of law that insults any reasonable person's intelligence - for what, Judge McAvoy? To protect one bad judge, whose behavior is getting more and more bizarre by the day, from inevitable accountability?
Court attorney Nancy Stroud, her hard work to get into employment by the judiciary, and her pool cleaning problems
In my previous post pertaining to the "In God We Trust" sign in the Schenectady County Family Court I wrote about attorney Nancy Stroud who became a court attorney for Judge Jill Polk of Schenectady County Family Court.
I also posted a picture obtained from Nancy Stroud's Facebook page showing appellate judge Elizabeth Garry attending the celebrations in the Schenectady County Family Court.
I must note, in this separate blog post, as I promised, the hard work that got Nancy Stroud into the good grace with the judiciary to gain employment in the court system.
First of all, Nancy Stroud posted herself as a Facebook friend of a wife of a judge Lisa Gordon, and of the Albany County Family Court judge Susan Kushner.
After I blogged about it, Susan Kushner, according to reports of reliable witnesses, fraudulently denied in court having ever been a Facebook friend of Nancy Stroud and Lisa Gordon, and Nancy Stroud made her friend list private, which brings the question I already asked pertaining to the list of Facebook friends of yet another attorney - Claudette Newman, a judge and a law clerk to a judge, if there is nothing secret or inappropriate in that friend list, why hide it AFTER somebody blogged about it?
What Nancy Stroud did not make private is her expression of joy at her employment with the judicial system that happened after Nancy Stroud put on Facebook her friendship with judge Sue Kushner and wife of a judge/magistrate Lisa Gordon.
Here is that expression:
I am sure that readers can only sympathize attorney Nancy E. Stroud for making such a great sacrifice in order to provide public service to New York litigants - forego hiring a pool service and clean her pool on her own. The horror!
In comments to this glamorous picture, Nancy E. Stroud admitted what is not posted on the website of the Schenectady County Family Court, that she is now court attorney for Schenectady County Family Court Judge Jill Polk.
Wife of a judge Lisa Gordon put a "like" on Nancy E. Stroud's appointment.
A friend commented as to how hard Nancy E. Stroud worked to get there:
Who is "both", is not clear.
But Nancy E. Stroud definitely "worked hard" to get a drastic reduction of her income and get hired as a judge's court attorney - judging by her Facebook friendship with judges and their relatives at the very least, and by the fact that the celebrations in the Schenectady County Family Court were attended by Elizabeth Garry, the first openly gay appellate judge (who prevented the press from commenting on her being gay when she ran for the judicial office), but, once elected and appointed as an appellate judge, is flaunting it.
My question is - does the "hard work" includes motivation of Elizabeth Garry to support Nancy Stroud for this employment involving the alleged drastic cut in income, simply as a political move, of one gay woman to another, which nevertheless gives an appearance to the public as an attempt of insulating Nancy Stroud's judge of possibility of reversals by Garry's appellate court for reasons unrelated to merits of cases?
And, as we know, judges hate and fear reversals, to the point of misrepresenting to the voters the history of their reversals - as the recently "retired" Judge Carl F. Becker of Delaware County Court did during his 2012 election campaign.
Also, glamorously clean pool and all, Nancy Stroud's drastic pay cut is heavily outweighed by the following benefits:
1) locked in salary which will only go up, and for which Nancy Stroud should not really break a sweat, as she had to do in her private practice;
2) full absolute judicial immunity for whatever shenanigans she commits as the law clerk for a judge;
3) a path to her own judgeship, since many judges come from law clerks and flaunt that employment during their judicial campaigns;
4) a good medical and retirement package.
5) and - the salary is not so bad in the court system. For example, the salary of the law clerk of the same retired Carl Becker (by the way - it is an interesting question where will Lauren Clark be employed on his retirement, will any of the judicial candidates coming to the bench agree to inherit her, with her incompetent writings?) is well over $100,000 - as reported by Seethroughny.net.
Not bad at all - and is definitely enough to hire pool service and not pretend to friends and public on Facebook that Nancy E. Stroud heroically took a pay cut and went to "work for the State" for any reasons other than her own selfish self-advancement.
I also posted a picture obtained from Nancy Stroud's Facebook page showing appellate judge Elizabeth Garry attending the celebrations in the Schenectady County Family Court.
I must note, in this separate blog post, as I promised, the hard work that got Nancy Stroud into the good grace with the judiciary to gain employment in the court system.
First of all, Nancy Stroud posted herself as a Facebook friend of a wife of a judge Lisa Gordon, and of the Albany County Family Court judge Susan Kushner.
After I blogged about it, Susan Kushner, according to reports of reliable witnesses, fraudulently denied in court having ever been a Facebook friend of Nancy Stroud and Lisa Gordon, and Nancy Stroud made her friend list private, which brings the question I already asked pertaining to the list of Facebook friends of yet another attorney - Claudette Newman, a judge and a law clerk to a judge, if there is nothing secret or inappropriate in that friend list, why hide it AFTER somebody blogged about it?
What Nancy Stroud did not make private is her expression of joy at her employment with the judicial system that happened after Nancy Stroud put on Facebook her friendship with judge Sue Kushner and wife of a judge/magistrate Lisa Gordon.
Here is that expression:
I am sure that readers can only sympathize attorney Nancy E. Stroud for making such a great sacrifice in order to provide public service to New York litigants - forego hiring a pool service and clean her pool on her own. The horror!
In comments to this glamorous picture, Nancy E. Stroud admitted what is not posted on the website of the Schenectady County Family Court, that she is now court attorney for Schenectady County Family Court Judge Jill Polk.
Wife of a judge Lisa Gordon put a "like" on Nancy E. Stroud's appointment.
A friend commented as to how hard Nancy E. Stroud worked to get there:
Who is "both", is not clear.
But Nancy E. Stroud definitely "worked hard" to get a drastic reduction of her income and get hired as a judge's court attorney - judging by her Facebook friendship with judges and their relatives at the very least, and by the fact that the celebrations in the Schenectady County Family Court were attended by Elizabeth Garry, the first openly gay appellate judge (who prevented the press from commenting on her being gay when she ran for the judicial office), but, once elected and appointed as an appellate judge, is flaunting it.
My question is - does the "hard work" includes motivation of Elizabeth Garry to support Nancy Stroud for this employment involving the alleged drastic cut in income, simply as a political move, of one gay woman to another, which nevertheless gives an appearance to the public as an attempt of insulating Nancy Stroud's judge of possibility of reversals by Garry's appellate court for reasons unrelated to merits of cases?
And, as we know, judges hate and fear reversals, to the point of misrepresenting to the voters the history of their reversals - as the recently "retired" Judge Carl F. Becker of Delaware County Court did during his 2012 election campaign.
Also, glamorously clean pool and all, Nancy Stroud's drastic pay cut is heavily outweighed by the following benefits:
1) locked in salary which will only go up, and for which Nancy Stroud should not really break a sweat, as she had to do in her private practice;
2) full absolute judicial immunity for whatever shenanigans she commits as the law clerk for a judge;
3) a path to her own judgeship, since many judges come from law clerks and flaunt that employment during their judicial campaigns;
4) a good medical and retirement package.
5) and - the salary is not so bad in the court system. For example, the salary of the law clerk of the same retired Carl Becker (by the way - it is an interesting question where will Lauren Clark be employed on his retirement, will any of the judicial candidates coming to the bench agree to inherit her, with her incompetent writings?) is well over $100,000 - as reported by Seethroughny.net.
Not bad at all - and is definitely enough to hire pool service and not pretend to friends and public on Facebook that Nancy E. Stroud heroically took a pay cut and went to "work for the State" for any reasons other than her own selfish self-advancement.
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