Criminal defendants have a constitutional right to be present at every significant stage of a criminal proceeding.
Every significant stage of a criminal proceeding must be held on record.
Yet, that's not what is happening in Otsego County Court (State of New York), where Judge John Lambert or Judge Brian Burns are presiding.
The usual "procedure" invented by these judges in felony cases is as follows.
The criminal defendant and his/her attorney are required to appear at endless pretrial conferences, whether they have anything to discuss with the prosecution or not.
Non-appearance is punishable by a bench warrant against the criminal defendant and as a contempt of court against the attorney.
This way these judges make sure that criminal defendant's funds are drained on legal fees before trial, in order to "secure" a plea deal where all factual inconsistencies in criminal charges are waived.
When the attorney and his client arrive for the conference, and many attorneys and clients are scheduled for conferences on the same day, Judge Lambert or Judge Burns (whoever is handling the cases) first ask into their chambers (1) the prosecutor; (2) officers from police and probation.
Defense attorneys are not called into the chambers immediately, and the DA and his witnesses do not leave the chambers with every criminal defense attorney called into chambers.
Later on, at trial, the same witnesses may be called to testify, yet, instead of being sequestered, they sit in the judge's chambers and have a potential to communicate with the judge behind closed doors before the criminal defense attorney is called in.
After a period of communication behind closed doors between the judge, the district attorney and the DA's witnesses, defense attorneys - without their clients, criminal defendants - are called into the chambers.
No stenographers are present and conferences are held off record, in the absence of criminal defendants - which is a reversible error already.
Probation officers are present notwithstanding whether, in accordance with state law, criminal defendants did or did not sign a written waiver to communicate with probation officers as part of a pre-plea investigation.
I know from an attorney who suffered a harsh rebuke from Judge Lambert that judge Lambert verbally lashed out at an attorney who tried to put on record what the attorney discussed in chambers. The attorney was shaken up since Judge Lambert, who was much younger than the attorney, yelled at the attorney (I won't disclose the gender here, to protect the attorney's identity from retribution).
So, instead of carefully preserving all communications with the court at important stages of criminal proceedings on record, Judge Lambert and Judge Burns hold ex parte communications in chambers with the DA (their former boss), the DA's witnesses, probation officers - without written waivers from criminal defendants agreeing to talk to probation officers - and where criminal defense attorneys are invited while the DA and his witnesses are already sitting there, while criminal defendants are never invited and record of such proceedings is not kept.
These conferences happen, as I mentioned above, often, and it is my belief that such conferences are meant to drain criminal defendants of funds to be able to go to trial, because all of their funds are spent on paying their attorneys to appear at such unnecessary and unlawful conferences.
As I mentioned above, both Judge Lambert and Judge Burns are former employees of Otsego County District Attorney John Muehl, both are former Assistant District Attorneys of Otsego County, Judge Lambert is the former Chief Assistant District Attorney of Otsego County, which makes their "familial" interactions with John Muehl an even more egregious misconduct.
And, despite the fact that unlawful practices of Judge Lambert and Judge Burns are well known in the court system, both of these judges were promoted by the New York State Court Administration.
Judge Lambert was made a supervising judge in upstate New York over DWI cases in the 6th Judicial District, and Judge Burns has been promoted to supervise town and village courts in upstate New York in the 6th Judicial District.
It appears that for New York State Court Administration judicial misconduct such as Judge Lambert's and Judge Burns' in criminal proceedings must be not prosecuted, but instead must be rewarded.
Friday, October 30, 2015
Judicial candidates Richard Northrup and Porter Kirkwood, the would-be DA John Hubbard and the corrupt Chairman of the Board of Election whom Richard Northrup refused to prosecute
Here is today's scan of the home page of the Delaware County Board of Elections in the State of New York.
It clearly shows William Campbell as the "Republican Commissioner" for the Board.
I encourage the voters to go to the Delaware County Clerk's office and check out the Certificate of Election filed by the now retired judge Carl Becker in 2011, 9 years after his alleged election in 2002.
I brought a motion to vacate all decisions of Carl Becker in March of 2011 because there was no proof in the Clerk's office in the form of a certificate of election required by County Law that Becker was ever elected.
By that time, as of August of 2010, I had a response from the Delaware County Board of Elections that all original petitions and ballots from the 2002 election is "no longer available" at the Board of Election, because the required retention period is only 2 years, so the original petitions and ballots were disposed of (destroyed) in 2004.
Yet, in 2011 William Campbell who was not a Commissioner of the Election board in 2002, certified Becker's 2002 election, 9 years down the road, with no original documents available - which was clear fraud, and filing such a document was fraud, too.
I reported that fraud to the Delaware County District Attorney's office.
I spoke to John Hubbard, Chief Assistant District Attorney.
The response of Mr. Hubbard to my report of a crime committed in his jurisdiction - involving a Republican Commissioner of the Delaware County Board of Election and the County Judge who both committed fraud, was - "why are you doing this, why do you need to do this?"
That was an interesting question to hear from a prosecutor whose duty was to investigate and prosecute crimes committed in his jurisdiction. Why would anybody report a crime? Especially, a crime proven by documentary evidence before the investigation started? Really, why?
And, John Hubbard did nothing to investigate or prosecute that crime.
Because his boss Richard Northrup, a Republican, eyed the bench in Delaware County forever, and did not want to jeopardize his chances at being nominated by the Republican Committee by prosecuting the Republican Commissioner of the Board of Election for fraud and filing a false document.
Of course, Becker sanctioned me for bringing the motion - even though he reacted to the motion by having Mr. Campbell file a falsified public record. Becker thought it possible for himself to decide a motion about his own legitimacy as a judge - and sent the sanctions to the disciplinary committee which is currently prosecuting me for being sanctioned for bringing up usurpation of public office and corruption of a judge and an Election Commissioner in a court motion.
After Campbell filed a false certificate of election in 2011, Becker "eked" out a victory in 2012.
I wonder whether, with the help of Campbell, Republicans will eke out a victory in this judicial election, too. After all, Campbell must pay back the favor to the Republican DA - running on a joint ticket with the Republican County Attorney -
for not prosecuting Campbell for a crime, mustn't he?
And John Hubbard will become the next DA, right?
Because, while asking me the question why do I need to report a crime that I saw committed by two public officials, Hubbard and his boss Northrup definitely had a definite financial self-interest not to do their jobs and not to prosecute those two public officials.
A career advancement and additional pay meant more for Northrup and Hubbard than doing their duty.
And they will continue to stick to that principle in any new positions they take.
Expect a victory for Northrup and Kirkwood in this coming judicial election, no matter what your votes say.
Campbell forged one election-related document, he can do that another time.
Not to mention that Porter Kirkwood, as County Attorney, has had Campbell's salary raised - as recently as in January of 2015. So, Campbell owes both Kirkwood and Northrup - and that is a real incentive to make sure they win. At all costs.
It clearly shows William Campbell as the "Republican Commissioner" for the Board.
I encourage the voters to go to the Delaware County Clerk's office and check out the Certificate of Election filed by the now retired judge Carl Becker in 2011, 9 years after his alleged election in 2002.
I brought a motion to vacate all decisions of Carl Becker in March of 2011 because there was no proof in the Clerk's office in the form of a certificate of election required by County Law that Becker was ever elected.
By that time, as of August of 2010, I had a response from the Delaware County Board of Elections that all original petitions and ballots from the 2002 election is "no longer available" at the Board of Election, because the required retention period is only 2 years, so the original petitions and ballots were disposed of (destroyed) in 2004.
Yet, in 2011 William Campbell who was not a Commissioner of the Election board in 2002, certified Becker's 2002 election, 9 years down the road, with no original documents available - which was clear fraud, and filing such a document was fraud, too.
I reported that fraud to the Delaware County District Attorney's office.
I spoke to John Hubbard, Chief Assistant District Attorney.
The response of Mr. Hubbard to my report of a crime committed in his jurisdiction - involving a Republican Commissioner of the Delaware County Board of Election and the County Judge who both committed fraud, was - "why are you doing this, why do you need to do this?"
That was an interesting question to hear from a prosecutor whose duty was to investigate and prosecute crimes committed in his jurisdiction. Why would anybody report a crime? Especially, a crime proven by documentary evidence before the investigation started? Really, why?
And, John Hubbard did nothing to investigate or prosecute that crime.
Because his boss Richard Northrup, a Republican, eyed the bench in Delaware County forever, and did not want to jeopardize his chances at being nominated by the Republican Committee by prosecuting the Republican Commissioner of the Board of Election for fraud and filing a false document.
Of course, Becker sanctioned me for bringing the motion - even though he reacted to the motion by having Mr. Campbell file a falsified public record. Becker thought it possible for himself to decide a motion about his own legitimacy as a judge - and sent the sanctions to the disciplinary committee which is currently prosecuting me for being sanctioned for bringing up usurpation of public office and corruption of a judge and an Election Commissioner in a court motion.
After Campbell filed a false certificate of election in 2011, Becker "eked" out a victory in 2012.
I wonder whether, with the help of Campbell, Republicans will eke out a victory in this judicial election, too. After all, Campbell must pay back the favor to the Republican DA - running on a joint ticket with the Republican County Attorney -
for not prosecuting Campbell for a crime, mustn't he?
And John Hubbard will become the next DA, right?
Because, while asking me the question why do I need to report a crime that I saw committed by two public officials, Hubbard and his boss Northrup definitely had a definite financial self-interest not to do their jobs and not to prosecute those two public officials.
A career advancement and additional pay meant more for Northrup and Hubbard than doing their duty.
And they will continue to stick to that principle in any new positions they take.
Expect a victory for Northrup and Kirkwood in this coming judicial election, no matter what your votes say.
Campbell forged one election-related document, he can do that another time.
Not to mention that Porter Kirkwood, as County Attorney, has had Campbell's salary raised - as recently as in January of 2015. So, Campbell owes both Kirkwood and Northrup - and that is a real incentive to make sure they win. At all costs.
Delaware County continues to stall my FOIL requests for copies of no-bid public contracts
In September 8, 2015, I made a FOIL request for copies of all procurement contracts made by Delaware County, NY over the period of 2013, 2014, and 2015.
Most of these contracts were audited by NYS Comptroller, and, according to a report by his office issued in May of 2015, Delaware County failed to submit $129 million worth of contracts to public bidding in 2013-2014 alone. All of that was under the guidance of the current judicial candidate and Delaware County Attorney Porter Kirkwood.
The county gave me a run-around answer on October 7, 2015 claiming that my requests for copies of contracts are "too vague".
In fact, the County knows exactly which contracts are meant, and stalls release of those contracts to prevent me from using such documents in opposition to Porter Kirkwood's judicial election campaign.
It is obvious that Porter Kirkwood, as legal advisor of Delaware County, is behind the stalling, and thus that he perpetrates fraud upon voters by preventing public information about his misconduct from reaching an active opponent to his election, in order to dupe the voters and get elected.
I filed an administrative appeal of denial of my FOIL request, and will post response of the County to it.
Here are the scans of what I requested in my FOIL:
and of the response by Delaware County:
It is obvious that there is nothing vague in questions Nos. 1, 2 and 3, and the County, guided by judicial candidate Porter Kirkwood as the County's legal advisor, is unlawfully stalling release of public documents to prevent their use in opposition to Porter Kirkwood's judicial campaign.
Yet, even if elected, Porter Kirkwood may still be taken off the bench and prosecuted for corruption if misconduct is verified through such contract after he is elected.
Moreover, please, note answers to questions Nos. 5, 6 and 7 of the FOIL request.
The self-dealing mechanic was not punished.
A policy prohibiting self-dealing of Delaware County employees in properties foreclosed upon by the county (on the footsteps of the recently caught former Commission Moon who did exactly that when he still was a Commissioner) was not introduced.
No new policies were introduced 5 months after the State audit while a promise was made to the State Comptroller to introduce policies preventing self-dealing and improper use of vehicles by County employees.
That is all under the "guidance" of County Attorney Porter Kirkwood who is chest-pounding about his allegedly stellar reputation in his judicial campaign, but is at the same time hiding evidence of his misconduct from public exposure.
Corruption in Delaware County is business as usual, and Porter Kirkwood is trying to happily carry that torch, as his predecessor Carl Becker did, to the judicial bench.
Most of these contracts were audited by NYS Comptroller, and, according to a report by his office issued in May of 2015, Delaware County failed to submit $129 million worth of contracts to public bidding in 2013-2014 alone. All of that was under the guidance of the current judicial candidate and Delaware County Attorney Porter Kirkwood.
The county gave me a run-around answer on October 7, 2015 claiming that my requests for copies of contracts are "too vague".
In fact, the County knows exactly which contracts are meant, and stalls release of those contracts to prevent me from using such documents in opposition to Porter Kirkwood's judicial election campaign.
It is obvious that Porter Kirkwood, as legal advisor of Delaware County, is behind the stalling, and thus that he perpetrates fraud upon voters by preventing public information about his misconduct from reaching an active opponent to his election, in order to dupe the voters and get elected.
I filed an administrative appeal of denial of my FOIL request, and will post response of the County to it.
Here are the scans of what I requested in my FOIL:
and of the response by Delaware County:
It is obvious that there is nothing vague in questions Nos. 1, 2 and 3, and the County, guided by judicial candidate Porter Kirkwood as the County's legal advisor, is unlawfully stalling release of public documents to prevent their use in opposition to Porter Kirkwood's judicial campaign.
Yet, even if elected, Porter Kirkwood may still be taken off the bench and prosecuted for corruption if misconduct is verified through such contract after he is elected.
Moreover, please, note answers to questions Nos. 5, 6 and 7 of the FOIL request.
The self-dealing mechanic was not punished.
A policy prohibiting self-dealing of Delaware County employees in properties foreclosed upon by the county (on the footsteps of the recently caught former Commission Moon who did exactly that when he still was a Commissioner) was not introduced.
No new policies were introduced 5 months after the State audit while a promise was made to the State Comptroller to introduce policies preventing self-dealing and improper use of vehicles by County employees.
That is all under the "guidance" of County Attorney Porter Kirkwood who is chest-pounding about his allegedly stellar reputation in his judicial campaign, but is at the same time hiding evidence of his misconduct from public exposure.
Corruption in Delaware County is business as usual, and Porter Kirkwood is trying to happily carry that torch, as his predecessor Carl Becker did, to the judicial bench.
Crowd control in ghost towns
In my previous blog I wrote about the "crowd control" measure invented by the Delaware County police in order to:
1) provide a no-public-bidding "training" contract to the county undersheriff Craig DuMond and his wife Cathleen Dumond;
2) provide public relations/promotion/advanced pay opportunities to members of the families of police management - Craig Dumond and wife, daughter of former police chief Tellian and reported girlfriend of Delaware County jail chief Lt. Stanton.
The article about "resurrection" of "mount patrol" in Delaware County points out two necessities for such a new unit:
1) provide a no-public-bidding "training" contract to the county undersheriff Craig DuMond and his wife Cathleen Dumond;
2) provide public relations/promotion/advanced pay opportunities to members of the families of police management - Craig Dumond and wife, daughter of former police chief Tellian and reported girlfriend of Delaware County jail chief Lt. Stanton.
The article about "resurrection" of "mount patrol" in Delaware County points out two necessities for such a new unit:
- public relations;
- crowd control
Public relations of the police is, first, not a necessity, and, second, should be done not by posing on horseback, but by doing their jobs properly.
As to crowd control - population of Delaware County is dwindling, so I wonder where the mounted patrol unit will find crowds in order to control them other than a one-time weeklong County Fair event.
When I first came to Delaware County in 1999, there were 4 kindergarten classes in Delaware Academy in Delhi and more kindergarten classes in Treadwell.
Now the Treadwell school is closed and building sold, for lack of children to fill it, and the Delaware Academy, reportedly has one or two kindergarten classes.
Delaware County clerk's office workers recently expressed surprise when I finalized a divorce for a client, saying they did not do such a thing for a long time, so cases are dwindling in court, too.
People are fleeing New York state because of high taxes, no jobs and high and all-permeating corruption.
People stopped coming to Delaware County from NYC for vacations and are selling their second residences.
Delhi, NY looks like a ghost town.
That downstaters and out-of-staters stop coming to the Delaware County's neck of woods must have an impact on the number of criminal cases, at least, on DWI cases.
You can only arrest the drinking locals so many times, they are all numbered, and their driver's licenses, once revoked, are revoked and they can no longer be charged for DWIs - unless they get behind the wheel despite a license revocation, which will happen not so often.
Moreover, when a person's driver's license is revoked in Delaware County, he or she tends to leave the are, because he or she cannot maintain employment where there is no public transportation, and there is no public transportation in Delaware County.
To boost fines Delaware County already tried to create a new prosecutor's position - not filled yet, specifically to deal with DWIs, in order to have that prosecutor drum up conviction fines, and with an incentive to do that, the prosecutor will be paid (unlawfully and unconstitutionally) out of those conviction fines, according to the County plan.
Not many violent crimes are reported in Delaware County either, and those violent crimes that are committed, are often committed by people close to the local government, and, if that happens, such crimes are swept under the rug and not prosecuted. Drugs in Delaware County are also not prosecuted as vigorously as they should be, where certain well known locations of drug exchanges and sales are deliberately not patrolled, which begs the question whether the local police and prosecution has a cut in the drug sales.
So, with the dwindling population and the nearly-stopped traffic from out of state or downstate to Delaware County for vacation, tourism and 2nd home purposes, the number of all court cases, including criminal cases, has necessarily gone down, making a new judgeship unnecessary.
Yet, a second judgeship was created to handle the allegedly "increased caseload" which a single judge handled just fine when the caseload and population was larger.
To handle expanding caseload in Family and County/Criminal Court.
In the ghost town of Delhi, NY.
In the ghost Delaware County, New York where there are more bears than people.
At taxpayers' expense.
Clans associated with he local government need to get salary increases somehow, right? And, when honest business opportunities go down, government grows - as well as corruption.
All the more reasons to leave Delaware County.
A new acquisition of the Delaware County police - hooves instead of brains
I wrote on this blog about the spectacular case decided by the U.S. Court of Appeals for the 2nd Circuit where the court upheld the so-called state interest to hire dumb brutes for the police force - specifically, that the government had a legitimate interest to secure that the hired police officers stay on the job and not go anywhere else - and to secure that interest, the government has a right not to admit applications for the police force from applicants with an IQ higher than a certain level.
So, in the 2nd Circuit jurisdiction (which covers New York State), police has a right to be dumb.
Bearing that in mind, let's look at the recent announcement of the new acquisition of the Delaware County police - the "mounted" patrol.
1/ the training and certification contract for the police force was not bid out for public bidding - as required by law, and that was the obligation of county attorney and judicial candidate Porter Kirkwood to oversee.
Instead, the "training" was done by Delaware County undersheriff Craig DuMont and his wife, on their private farm, without offering that training contract to the public for bidding.
I am going to FOIL the county as to the cost of that training, as well as any documents as to how the training contract was awarded.
The self-dealing no-public-bidding contract was happily announced right after the NYS Comptroller's audit found $129 million worth of public contracts awarded, under Porter Kirkwood's guidance as a County Attorney, without public bidding. Since nobody was (yet) charged with corruption, Delaware County clans presume that corruption may proceed.
The happy picture of the group of "mounted" police included present and former sheriffs and their relatives.
2/ I am also going to check with a FOIL request the claim that the "equine officers" come with no cost to Delaware County. My question - who is handling the liability (any horse owner knows how high insurance is for having horses around people, and horses are going to be used for "crowd control", in the midst of people. Who is going to handle the vet and feeding bills, the boarding bills for the horses etc.
3/ Given that Delaware County police officers are taser-happy, baton-happy and use police vehicles as assault tools upon residents of Delaware County, I expected some "resident constitutional rights" training, yet, instead, Delaware County preferred horseback training for their officers.
4/ I am also going to FOIL the County as to pay increases to the "mounted" police officers for their skills - and as to appointment of police officers to such positions, where most of the "mounted patrol" people are related to sheriffs or undersheriffs.
As a Delaware County taxpayer, I have a right to know what exactly I am paying for - as do you, my readers from Delaware County.
So, now the Delaware County police has tasers, pistols, batons/sticks, wheels (vehicles), dogs - and hooves. Brains do not have to be added to that equation.
The dwindling Delaware County taxpayer population can expect lawsuits, defended at their expense, for excessive use of horse force now, in addition to excessive use of dog force, vehicle force, baton and taser force.
Because dumb brutes on the police force come at a price not only to their victims, but also to taxpayers.
So, in the 2nd Circuit jurisdiction (which covers New York State), police has a right to be dumb.
Bearing that in mind, let's look at the recent announcement of the new acquisition of the Delaware County police - the "mounted" patrol.
1/ the training and certification contract for the police force was not bid out for public bidding - as required by law, and that was the obligation of county attorney and judicial candidate Porter Kirkwood to oversee.
Instead, the "training" was done by Delaware County undersheriff Craig DuMont and his wife, on their private farm, without offering that training contract to the public for bidding.
I am going to FOIL the county as to the cost of that training, as well as any documents as to how the training contract was awarded.
The self-dealing no-public-bidding contract was happily announced right after the NYS Comptroller's audit found $129 million worth of public contracts awarded, under Porter Kirkwood's guidance as a County Attorney, without public bidding. Since nobody was (yet) charged with corruption, Delaware County clans presume that corruption may proceed.
The happy picture of the group of "mounted" police included present and former sheriffs and their relatives.
2/ I am also going to check with a FOIL request the claim that the "equine officers" come with no cost to Delaware County. My question - who is handling the liability (any horse owner knows how high insurance is for having horses around people, and horses are going to be used for "crowd control", in the midst of people. Who is going to handle the vet and feeding bills, the boarding bills for the horses etc.
3/ Given that Delaware County police officers are taser-happy, baton-happy and use police vehicles as assault tools upon residents of Delaware County, I expected some "resident constitutional rights" training, yet, instead, Delaware County preferred horseback training for their officers.
4/ I am also going to FOIL the County as to pay increases to the "mounted" police officers for their skills - and as to appointment of police officers to such positions, where most of the "mounted patrol" people are related to sheriffs or undersheriffs.
As a Delaware County taxpayer, I have a right to know what exactly I am paying for - as do you, my readers from Delaware County.
So, now the Delaware County police has tasers, pistols, batons/sticks, wheels (vehicles), dogs - and hooves. Brains do not have to be added to that equation.
The dwindling Delaware County taxpayer population can expect lawsuits, defended at their expense, for excessive use of horse force now, in addition to excessive use of dog force, vehicle force, baton and taser force.
Because dumb brutes on the police force come at a price not only to their victims, but also to taxpayers.
Thursday, October 29, 2015
The 2nd Circuit ruling undermined the earlier heightened pleading standard in federal civil rights cases
In 2007 and 2009 the U.S. Supreme Court decided two cases that, as legal commentators said, shook the foundations of civil rights litigation, compromised legitimate claims.
Commentators also pointed out that the Aschroft v Iqbal and Bell Atlantic v Twombly cases gave too much discretion to federal judges to rely upon their own (unknown to the parties) experience and "common sense" in dismissing the cases, and that the number of dismissals of civil rights cases based on the new "plausibility" standard for pleadings actually grew after these two cases were decided.
It is easy to see that invocation of "experience" and "common sense" of the judge awards to the judge fact-finding functions of a jury - at the pleading stage, and overriding, without a legal basis, the parties choice of juries as factfinders in civil rights cases.
While the Federal Rule of Civil Procedure 8 requires a short pleading describing the essence of the case, not a factual pleading, the U.S. Supreme Court, by the two decisions described in the above link, reverted the pleadings to its ancient form of factual pleadings, putting an insurmountable burden upon civil rights plaintiffs who are supposed to plead out facts before discovery, even if such facts are in the exclusive possession of powerful governmental defendants.
For 8 years after 2007, federal courts merrily tossed civil rights cases for failure to satisfy the heightened pleading standard - even though heightening the pleading standard amounted to amending Rule 8 and Rule 9 (not requiring special pleading of a state of mind in a conspiracy to violated civil rights0, which courts had no right whatsoever to do.
On October 22, 2015, the tide may have started to turn, at least in the U.S. Court of Appeals, 2nd Circuit.
In the case Shamir v New York City Police, the 2nd Circuit has ruled that, even if a certain claim (use of excessive force) was not properly pled, it could be inferred by the court from the general pleading under the 4th Amendment.
Arguably, Shamir overturns the Bell Atlantic and the Iqbal v Twombly cases that required specific pleadings.
It is interesting to see how the reasoning in Shamir will be met by district courts.
I will report on the issue.
Stay tuned.
Commentators also pointed out that the Aschroft v Iqbal and Bell Atlantic v Twombly cases gave too much discretion to federal judges to rely upon their own (unknown to the parties) experience and "common sense" in dismissing the cases, and that the number of dismissals of civil rights cases based on the new "plausibility" standard for pleadings actually grew after these two cases were decided.
It is easy to see that invocation of "experience" and "common sense" of the judge awards to the judge fact-finding functions of a jury - at the pleading stage, and overriding, without a legal basis, the parties choice of juries as factfinders in civil rights cases.
While the Federal Rule of Civil Procedure 8 requires a short pleading describing the essence of the case, not a factual pleading, the U.S. Supreme Court, by the two decisions described in the above link, reverted the pleadings to its ancient form of factual pleadings, putting an insurmountable burden upon civil rights plaintiffs who are supposed to plead out facts before discovery, even if such facts are in the exclusive possession of powerful governmental defendants.
For 8 years after 2007, federal courts merrily tossed civil rights cases for failure to satisfy the heightened pleading standard - even though heightening the pleading standard amounted to amending Rule 8 and Rule 9 (not requiring special pleading of a state of mind in a conspiracy to violated civil rights0, which courts had no right whatsoever to do.
On October 22, 2015, the tide may have started to turn, at least in the U.S. Court of Appeals, 2nd Circuit.
In the case Shamir v New York City Police, the 2nd Circuit has ruled that, even if a certain claim (use of excessive force) was not properly pled, it could be inferred by the court from the general pleading under the 4th Amendment.
Arguably, Shamir overturns the Bell Atlantic and the Iqbal v Twombly cases that required specific pleadings.
It is interesting to see how the reasoning in Shamir will be met by district courts.
I will report on the issue.
Stay tuned.
I am no longer supporting Gary Rosa in Delaware County judicial race
I wrote a lot of posts on this blog criticizing judicial candidate Porter Kirkwood currently running for Delaware County Family Court in opposition to Gary Rosa, a judge of Middletown Town Court.
I stand by every word I wrote about Porter Kirkwood. My posts are based on my personal experience, reports from credible witnesses and verifiable and verified documentary evidence.
Yet, at the end of some posts, I put in, as a conclusion for my criticism of Porter Kirkwood - "vote for Gary Rosa".
Those words I withdraw. I no longer support Gary Rosa, mainly because of his recent shady pick of a law clerk.
Here is a support letter for Gary Rosa from a Delhi attorney Nancy Deming:
She seems to say all the right words. Yet, she omits important information, which, to me amounts to a misrepresentation and she misrepresents her experience and specialization to the public, which Gary Rosa and his campaign endorses. Not a good sign for Gary Rosa. While Kirkwood is a known crook, Gary Rosa starts to show potential in the same direction, and I do not know which case is worse for a judge.
First of all, Nancy Deming's main practice was matrimonial, for years, and that is Supreme Court. She started to do Family Court only when divorces became far between in Delaware County. As I wrote recently on this blog, when I brought a judgment roll in a divorce case (finalizing documents) to the Delaware County Clerk's office several months ago, they were extremely surprised that divorces are still happening in Delaware County and told me that they did not finalize a divorce for a long time.
I wrote about Nancy Deming's role in the current judicial elections back in February of 2015.
In that blog I pointed out, among other things, that Nancy Deming is a member of the Judicial Qualifications Committee for New York State Supreme Court, Appellate Division 3rd Judicial Department, and her approval of all judicial candidates for purposes of elections gives her favored position in front of all the judges if elected.
After my blog, Becker retired and Northrup ran for his place.
Nancy Deming had to approve Northrup, too, as qualified to run for a judge.
So, Nancy Deming had and continues to have her finger in three pies at the same time.
Even if Gary Rosa who "chose" her as his future law clerk, is not elected, Nancy Deming and her attorney husband James Hartmann, also of Delhi, will have favored positions in front of judges Kirkwood and Northrup - because Nancy Deming approved judicial qualifications for judicial elections of both of them. Sweet deal.
I wrote in my February 2015 blog that it is not the first time when Nancy Deming timely enters public offices with resulting personal return on such an investment. That several years ago Nancy Deming was a member of Delaware Academy School Board - when her son was in school, and stopped offering her candidacy for the board when her son graduated.
The return was very clear - that board never disciplined a child of a member, no matter what that child did, I know about it as an attorney representing students before that Board.
So, the return on being the school board member for Nancy Deming was hedging against the risks that her son would do something stupid (as all youths may do), be disciplined and mar his reputation and record for college. So, Nancy Deming added a record of "public service" for herself while the true reason was protecting her son and continuing with the board's corrupt practice of not disciplining board members' children.
It was questionable from the very beginning for Nancy Deming to join the judicial qualifications committee to approve of judicial candidates in the very courts where she and her attorney husband practice.
It was to allow Nancy Deming to plant dragon seeds of corruption and see them grow into favoritism in court cases.
Yet, Nancy Deming went farther than simply having favoritism in court cases now.
See, court cases in Delaware County have become few and far between, actually making it questionable why two judicial seats are needed
Very possibly, the current caseload that Nancy Deming has cannot sustain her well-being as an attorney.
So, Nancy Deming now has an even better return on investment than it initially appeared, not simply favoritism in court cases that may come or not come, but a stable state job, with pension and medical benefits for herself and her attorney husband James Hartmann, as well as a favored position for her attorney husband James Hartmann as being related to a judge's court attorney, which instantly grants him a favored position in any court.
Courts are notoriously reluctant to impose sanctions upon attorneys who are related to court personnel, especially to a judge's law clerk. At this very time, an appeal is pending asking for costs and attorney fees in an 8-year litigation, against Nancy Deming's husband James Hartmann, attorney fees that can bankrupt the Deming/Hartmann family. So, getting a cloak of employment with a judge is a way to insulate Deming's husband Hartmann from any possibility of ever getting sanctioned by any court and giving him a carte blanche in committing any misconduct with impunity.
And the medical coverage of Nancy Deming's family for Delaware County and state taxpayers will be staggering.
According to court records, James Hartmann had a major surgery in 2013 and a major surgery in 2014.
His medical care must be extremely expensive.
So, the Deming/Hartmann family caught the opportunity where three judicial candidates are obligated to Deming for approving them as a judicial candidate, and got an offer from one of the three candidates for a law clerk, a position that pays well over $100,000 and fully covers medical benefits of Deming and her spouse.
Just know that when you are voting for Rosa now, you must be voting to approve the expenses of medical treatment for James Hartmann, Rosa's court attorney's husband, even if you yourself do not have money for your own medical treatment and medical treatment of your spouse and children - but money for Hartmann's expensive medical treatment will be squeezed out of your pocket through taxes anyway.
--
I also noticed recently one more shady supporter of Gary Rosa, a "court expert" Eileen Treacy, and I am wondering whether her support is a result of another sweet deal in the making - her support in return for her appointment as a court expert in child sexual abuse cases if Gary Rosa is elected as Family Court judge.
Here is Eileen Treacy's support of Gary Rosa.
As part of her support of Gary Rosa, Eileen Treacy writes the following:
"I have been qualified as an expert witness in family and criminal courts throughout New York state about 450 times in the areas of developmental psychology and child sexual abuse over the past 31 years. I have had ample opportunity to observe many judges’ temperament and intellect. There is no question in my mind that the person who is unquestionably qualified and capable of being our Family Court judge is Judge Gary Rosa."
Eileen Treacy's name, in fact, is well known in civil rights litigation, because Eileen Treacy has orchestrated one of the worst wrongful conviction for alleged "ritual sexual abuse" of children - which was all a lie, and where Eileen Treacy, in my opinion, should have been criminally prosecuted for her role in the case.
It is interesting that Eileen Treacy does not mention in her support of Gary Rosa that she testified as an expert outside of New York State.
The case of People v Kelly Michaels was in New Jersey. I had that case as part of my civil rights litigation curriculum in law school.
Here is one description of the case, with a quote from that description:
"The state's main expert witness, Eileen Treacy, testified for eight days. Yet, she had no real academic qualifications. She was eight years away from obtaining her PhD in psychology. She was not licensed as a therapist in New York where she worked at a clinic for sexually abused children, nor in New Jersey, where she testified. In a gross conflict of interest, Treacy both helped to choose which of the children would testify, and also functioned as the "independent" expert vouching for their credibility. Meanwhile, Kelly's defense attorneys were not permitted to bring in their own expert witnesses who would have testified that their client did not exhibit the normal signs for a child molester."
Please, note what happened to the person against whom Eileen Treacy so creatively testified for 8 hours in New Jersey:
"After a nine month trial and 13 days jury deliberation Michaels was convicted on all 115 counts and given a 47 year sentence."
The 21-year-old female, a pianist who worked in the daycare when she was charged with alleged sexual abuse, to the point of smearing feces upon her piano chair and putting daggers up children's anuses - after which children (according to their interviews) smiled and said "thank you" - that is just a fraction of what Eileen Treacy elicited out of children in her interviews which were later branded inappropriate by the New Jersey Supreme Court and described in a book "No Crueller Tyrannies":
Quote
--------
Unquote
----------
So, Eileen Treacy "explained away" even the children's statements that Kelly Michaels DID NOT touch them - to mean the very opposite.
Her "indicators" of child abuse were later ruled as not based on any scientific evidence by the reversing court, and the author of those "indicators" later made a statement in the press pointing out that the "indicators" that he published were never meant for diagnosing sexual child abuse, and were never scientifically proven to be able to make a differentiated diagnosis. Yet, Eileen Treacy used those unproven theories to put a young woman in prison for 47 years, and it is not Eileen Treacy's effort at all that got Kelly Michaels out of prison in "JUST" 5 years. Imagine 5 years of a young woman's life wrongfully spent in prison on horrible charges of child sexual molestation.
Eileen Treacy sent an innocent woman to prison for 47 years while damaging children with interview suggesting sexual abuse which did not and could not happen. Think about a child who suffers an injury where a dagger is being put up his anus. Will he smile and say thank you? How about no damage to his anus? That did not deter Eileen Treacy one bit.
Eileen Treacy should have been cast out of her profession after the Kelly Michaels case, prohibited to practice therapy, psychology and definitely prohibited to testify as a court expert in sexual abuse cases.
That she continued to do that, as she says, for decades, after the Kelly Michaels case, shows very well that courts in sexual abuse cases (which Family Court handles as a civil matter) are not interested in the truth, and are not interested in protecting children from "child protectors" who put ideas into children's heads which were not there to begin with - as Eileen Treacy did in the Kelly Michaels case.
Here is yet another report about the Kelly Michaels case.
If Eileen Treacy moved to Margaretville (as her letter suggests) and is now expecting a handout from Gary Rosa in court appointments as an expert in return for support of his candidacy in judicial elections - I am against Gary Rosa.
I stand by every word I wrote about Porter Kirkwood. My posts are based on my personal experience, reports from credible witnesses and verifiable and verified documentary evidence.
Yet, at the end of some posts, I put in, as a conclusion for my criticism of Porter Kirkwood - "vote for Gary Rosa".
Those words I withdraw. I no longer support Gary Rosa, mainly because of his recent shady pick of a law clerk.
Here is a support letter for Gary Rosa from a Delhi attorney Nancy Deming:
She seems to say all the right words. Yet, she omits important information, which, to me amounts to a misrepresentation and she misrepresents her experience and specialization to the public, which Gary Rosa and his campaign endorses. Not a good sign for Gary Rosa. While Kirkwood is a known crook, Gary Rosa starts to show potential in the same direction, and I do not know which case is worse for a judge.
First of all, Nancy Deming's main practice was matrimonial, for years, and that is Supreme Court. She started to do Family Court only when divorces became far between in Delaware County. As I wrote recently on this blog, when I brought a judgment roll in a divorce case (finalizing documents) to the Delaware County Clerk's office several months ago, they were extremely surprised that divorces are still happening in Delaware County and told me that they did not finalize a divorce for a long time.
I wrote about Nancy Deming's role in the current judicial elections back in February of 2015.
In that blog I pointed out, among other things, that Nancy Deming is a member of the Judicial Qualifications Committee for New York State Supreme Court, Appellate Division 3rd Judicial Department, and her approval of all judicial candidates for purposes of elections gives her favored position in front of all the judges if elected.
After my blog, Becker retired and Northrup ran for his place.
Nancy Deming had to approve Northrup, too, as qualified to run for a judge.
So, Nancy Deming had and continues to have her finger in three pies at the same time.
Even if Gary Rosa who "chose" her as his future law clerk, is not elected, Nancy Deming and her attorney husband James Hartmann, also of Delhi, will have favored positions in front of judges Kirkwood and Northrup - because Nancy Deming approved judicial qualifications for judicial elections of both of them. Sweet deal.
I wrote in my February 2015 blog that it is not the first time when Nancy Deming timely enters public offices with resulting personal return on such an investment. That several years ago Nancy Deming was a member of Delaware Academy School Board - when her son was in school, and stopped offering her candidacy for the board when her son graduated.
The return was very clear - that board never disciplined a child of a member, no matter what that child did, I know about it as an attorney representing students before that Board.
So, the return on being the school board member for Nancy Deming was hedging against the risks that her son would do something stupid (as all youths may do), be disciplined and mar his reputation and record for college. So, Nancy Deming added a record of "public service" for herself while the true reason was protecting her son and continuing with the board's corrupt practice of not disciplining board members' children.
It was questionable from the very beginning for Nancy Deming to join the judicial qualifications committee to approve of judicial candidates in the very courts where she and her attorney husband practice.
It was to allow Nancy Deming to plant dragon seeds of corruption and see them grow into favoritism in court cases.
Yet, Nancy Deming went farther than simply having favoritism in court cases now.
See, court cases in Delaware County have become few and far between, actually making it questionable why two judicial seats are needed
Very possibly, the current caseload that Nancy Deming has cannot sustain her well-being as an attorney.
So, Nancy Deming now has an even better return on investment than it initially appeared, not simply favoritism in court cases that may come or not come, but a stable state job, with pension and medical benefits for herself and her attorney husband James Hartmann, as well as a favored position for her attorney husband James Hartmann as being related to a judge's court attorney, which instantly grants him a favored position in any court.
Courts are notoriously reluctant to impose sanctions upon attorneys who are related to court personnel, especially to a judge's law clerk. At this very time, an appeal is pending asking for costs and attorney fees in an 8-year litigation, against Nancy Deming's husband James Hartmann, attorney fees that can bankrupt the Deming/Hartmann family. So, getting a cloak of employment with a judge is a way to insulate Deming's husband Hartmann from any possibility of ever getting sanctioned by any court and giving him a carte blanche in committing any misconduct with impunity.
And the medical coverage of Nancy Deming's family for Delaware County and state taxpayers will be staggering.
According to court records, James Hartmann had a major surgery in 2013 and a major surgery in 2014.
His medical care must be extremely expensive.
So, the Deming/Hartmann family caught the opportunity where three judicial candidates are obligated to Deming for approving them as a judicial candidate, and got an offer from one of the three candidates for a law clerk, a position that pays well over $100,000 and fully covers medical benefits of Deming and her spouse.
Just know that when you are voting for Rosa now, you must be voting to approve the expenses of medical treatment for James Hartmann, Rosa's court attorney's husband, even if you yourself do not have money for your own medical treatment and medical treatment of your spouse and children - but money for Hartmann's expensive medical treatment will be squeezed out of your pocket through taxes anyway.
--
I also noticed recently one more shady supporter of Gary Rosa, a "court expert" Eileen Treacy, and I am wondering whether her support is a result of another sweet deal in the making - her support in return for her appointment as a court expert in child sexual abuse cases if Gary Rosa is elected as Family Court judge.
Here is Eileen Treacy's support of Gary Rosa.
As part of her support of Gary Rosa, Eileen Treacy writes the following:
"I have been qualified as an expert witness in family and criminal courts throughout New York state about 450 times in the areas of developmental psychology and child sexual abuse over the past 31 years. I have had ample opportunity to observe many judges’ temperament and intellect. There is no question in my mind that the person who is unquestionably qualified and capable of being our Family Court judge is Judge Gary Rosa."
Eileen Treacy's name, in fact, is well known in civil rights litigation, because Eileen Treacy has orchestrated one of the worst wrongful conviction for alleged "ritual sexual abuse" of children - which was all a lie, and where Eileen Treacy, in my opinion, should have been criminally prosecuted for her role in the case.
It is interesting that Eileen Treacy does not mention in her support of Gary Rosa that she testified as an expert outside of New York State.
The case of People v Kelly Michaels was in New Jersey. I had that case as part of my civil rights litigation curriculum in law school.
Here is one description of the case, with a quote from that description:
"The state's main expert witness, Eileen Treacy, testified for eight days. Yet, she had no real academic qualifications. She was eight years away from obtaining her PhD in psychology. She was not licensed as a therapist in New York where she worked at a clinic for sexually abused children, nor in New Jersey, where she testified. In a gross conflict of interest, Treacy both helped to choose which of the children would testify, and also functioned as the "independent" expert vouching for their credibility. Meanwhile, Kelly's defense attorneys were not permitted to bring in their own expert witnesses who would have testified that their client did not exhibit the normal signs for a child molester."
Please, note what happened to the person against whom Eileen Treacy so creatively testified for 8 hours in New Jersey:
"After a nine month trial and 13 days jury deliberation Michaels was convicted on all 115 counts and given a 47 year sentence."
The 21-year-old female, a pianist who worked in the daycare when she was charged with alleged sexual abuse, to the point of smearing feces upon her piano chair and putting daggers up children's anuses - after which children (according to their interviews) smiled and said "thank you" - that is just a fraction of what Eileen Treacy elicited out of children in her interviews which were later branded inappropriate by the New Jersey Supreme Court and described in a book "No Crueller Tyrannies":
Quote
--------
Unquote
----------
So, Eileen Treacy "explained away" even the children's statements that Kelly Michaels DID NOT touch them - to mean the very opposite.
Her "indicators" of child abuse were later ruled as not based on any scientific evidence by the reversing court, and the author of those "indicators" later made a statement in the press pointing out that the "indicators" that he published were never meant for diagnosing sexual child abuse, and were never scientifically proven to be able to make a differentiated diagnosis. Yet, Eileen Treacy used those unproven theories to put a young woman in prison for 47 years, and it is not Eileen Treacy's effort at all that got Kelly Michaels out of prison in "JUST" 5 years. Imagine 5 years of a young woman's life wrongfully spent in prison on horrible charges of child sexual molestation.
Eileen Treacy sent an innocent woman to prison for 47 years while damaging children with interview suggesting sexual abuse which did not and could not happen. Think about a child who suffers an injury where a dagger is being put up his anus. Will he smile and say thank you? How about no damage to his anus? That did not deter Eileen Treacy one bit.
Eileen Treacy should have been cast out of her profession after the Kelly Michaels case, prohibited to practice therapy, psychology and definitely prohibited to testify as a court expert in sexual abuse cases.
That she continued to do that, as she says, for decades, after the Kelly Michaels case, shows very well that courts in sexual abuse cases (which Family Court handles as a civil matter) are not interested in the truth, and are not interested in protecting children from "child protectors" who put ideas into children's heads which were not there to begin with - as Eileen Treacy did in the Kelly Michaels case.
Here is yet another report about the Kelly Michaels case.
If Eileen Treacy moved to Margaretville (as her letter suggests) and is now expecting a handout from Gary Rosa in court appointments as an expert in return for support of his candidacy in judicial elections - I am against Gary Rosa.
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