A former Deputy Sheriff in Delaware County, NY, was just indicted for assault and attempted murder of his wife.
Well, at least former Deputy Sheriff Theodore Tiska was indicted.
Yet, there is another former Deputy Sheriff of Delaware County, NY, employed by the Deposit Police Department, armed and on the loose, who attempted to kill two women, on January 16, 2013 and on September 5, 2014, and was never prosecuted (because his uncle works as an investigator in the local District Attorney's office).
Derek Bowie likely attempted to kill Kylie Smith on January 16, 2013 - judging from court papers - by first fracturing her ribs and then sitting on them and shifting his weight on them, which could cause the ribs to penetrate Kylie Smith's heart or lungs or other vital organs.
And, Derek Bowie attempted to kill Barbara O'Sullivan by ramming a police patrol vehicle back into her while she was videotaping Derek Bowie's misconduct with a tablet.
Neither of these assaults and attempts to murder were investigated by the Delaware County District Attorney's office employing Derek Bowie's uncle Jeff Bowie as an investigator.
Instead, Barbara O'Sullivan was criminally prosecuted - charges against her finally had to be dismissed in February of 2016, but then her two dogs died and her house burned down under suspicious circumstances, where she is lucky she escaped alive, and nobody is investigating that either.
What else is new in Delaware County, New York...
Friday, May 6, 2016
What judges in Texas are locked up for, judges in New York are praised and rewarded. The cases of Christopher Dupuy and Carl Becker
I wrote on this blog that my law license was suspended - without a required hearing - based entirely on sanctions imposed upon me by the now-former judge Carl Becker, who sanctioned me for making motions to recuse him based on lack of documents proving legitimacy of his elections in 2002, and based on appearance of impropriety and appearance of multiple conflicts of interest.
Not to mention that Judge Becker sanctioned me - and my pro bono client - after we both sued him, and the lawsuit was pending at the time sanctions were imposed.
Now, other jurisdiction approach the issue of judicial disqualification quite differently.
A lot of states have the following layers of protection for lawyers making motion to recuse a judge:
1) a peremptory challenge to a judge allowing an attorney to remove one judge from the proceedings without explaining reasons why (same as there are rights for peremptory challenges to jurors);
2) a rule prohibiting the challenged judge from ruling on any issue in the case, including the motion to recuse, once the motion is filed; the motion must be transferred and decided by another judge, and the case is stayed until that is done;
3) a rule allowing the challenged judge to rule on legal sufficiency and/or timeliness of the motion to recuse, but not on the merits.
A lot of states have one, two or all three above protections for lawyers.
New York State has none.
New York State allows challenged judges not only to rule on the merits of a motion to recuse, but to retaliate against the moving party - by sanctions (as was done with me and my pro bono client), and by physical force, as was done by Judge Kevin Dowd with a pro se litigant who dared to move to recuse him.
As I am learning now, other states also deal differently than New York in case judges retaliate against litigants or attorneys for making motions to recuse, or for even presiding over cases of parties who had pending lawsuits against judges.
In South Carolina, a "Merit Selection Board" of judges canned for re-election judge F.P. ("Charlie") Segars-Andrews who withdrew her pledge to recuse because of a conflict of interest and who has ruled in favor of the party and attorney who has benefited the judge's husband with a $300,000 bounty shortly before the judge presided over the case.
In Texas, the State Attorney General brought criminal charges against judge Christopher Dupuy for doing exactly what Judge Becker did to me - retaliating for making a motion to recuse.
In Texas, the now former Judge Christopher Dupuy was criminally charged for retaliation against attorney Lori Laird for making a motion to recuse the judge with abuse of office, perjury, taken off the bench on petition of State Attorney General and convicted of perjury and abuse of office on charges presented by State Attorney General.
At sentencing, a Texas judge reportedly told Judge Dupuy this:
"You brought an incredible dishonor to yourself, your name and this profession. ... Anybody who reads or knows about this case makes our job as judges harder because of what you did."
Judge Christopher Dupuy, by the way, tried to have his criminal prosecutor sanctioned for bringing criminal charges.
And, in North Carolina, a judge was censured for presiding over a case of a party who had a pending lawsuit against a judge.
In my case,
The bottom-line - New York is a real wonder world when it comes to the rule of law.
Not to mention that Judge Becker sanctioned me - and my pro bono client - after we both sued him, and the lawsuit was pending at the time sanctions were imposed.
Now, other jurisdiction approach the issue of judicial disqualification quite differently.
A lot of states have the following layers of protection for lawyers making motion to recuse a judge:
1) a peremptory challenge to a judge allowing an attorney to remove one judge from the proceedings without explaining reasons why (same as there are rights for peremptory challenges to jurors);
2) a rule prohibiting the challenged judge from ruling on any issue in the case, including the motion to recuse, once the motion is filed; the motion must be transferred and decided by another judge, and the case is stayed until that is done;
3) a rule allowing the challenged judge to rule on legal sufficiency and/or timeliness of the motion to recuse, but not on the merits.
A lot of states have one, two or all three above protections for lawyers.
New York State has none.
New York State allows challenged judges not only to rule on the merits of a motion to recuse, but to retaliate against the moving party - by sanctions (as was done with me and my pro bono client), and by physical force, as was done by Judge Kevin Dowd with a pro se litigant who dared to move to recuse him.
As I am learning now, other states also deal differently than New York in case judges retaliate against litigants or attorneys for making motions to recuse, or for even presiding over cases of parties who had pending lawsuits against judges.
In South Carolina, a "Merit Selection Board" of judges canned for re-election judge F.P. ("Charlie") Segars-Andrews who withdrew her pledge to recuse because of a conflict of interest and who has ruled in favor of the party and attorney who has benefited the judge's husband with a $300,000 bounty shortly before the judge presided over the case.
In Texas, the State Attorney General brought criminal charges against judge Christopher Dupuy for doing exactly what Judge Becker did to me - retaliating for making a motion to recuse.
In Texas, the now former Judge Christopher Dupuy was criminally charged for retaliation against attorney Lori Laird for making a motion to recuse the judge with abuse of office, perjury, taken off the bench on petition of State Attorney General and convicted of perjury and abuse of office on charges presented by State Attorney General.
At sentencing, a Texas judge reportedly told Judge Dupuy this:
"You brought an incredible dishonor to yourself, your name and this profession. ... Anybody who reads or knows about this case makes our job as judges harder because of what you did."
Judge Christopher Dupuy, by the way, tried to have his criminal prosecutor sanctioned for bringing criminal charges.
And, in North Carolina, a judge was censured for presiding over a case of a party who had a pending lawsuit against a judge.
In my case,
- the New York State Attorney General refused to bring a "quo warranto" proceeding against Judge Becker to remove him from office or to prosecute him for fixing cases for friends and abusing his office by retaliating against me and my clients,
- then, the New York State Attorney General represented Judge Becker in two lawsuits that I brought against him, one in state court, and one in federal court, for retaliation through sanctions imposed on me and my pro bono client by Becker after we sued him in State court; and asked, on Becker's behalf, to dismiss the lawsuits and leave us without a remedy - which was done;
- the NYS Commission for Judicial Conduct refused to sanction Becker, despite Becker's presiding and sanctioning a party and her attorney while having a pending lawsuit filed by that party and attorney against him, and instead
- I was suspended without a hearing for making motions to recuse Becker.
The bottom-line - New York is a real wonder world when it comes to the rule of law.
Some judges just love Drug Courts. For a reason.
In Tennessee, a male judge reportedly presided over Drug Court.
And befriended a female probationer.
And had sexual relations with her.
And had her introduce the judge to her own drug supplier, after which the judge started to use the probationer's drug supplier to supply the judge himself with drugs, to feed his addiction.
And the judge tried to fix cases for the probationer/girlfriend, without disclosure of the sexual relations with the probationer to any parties involved.
And the judge lied to other judges misrepresenting to them that the probationer/supplier of drugs is a good moral person.
And did not disclose that the probationer in question ran a drug ring of suppliers.
The name of the judge was Richard Baumgartner.
And he was charged and convicted by the feds for the crime of "misprision of felony" - non-reporting of commission of drug felonies, where a big part in the conviction was that the judge concealed and misrepresented to other judges the probationer's role in a drug ring.
This is former judge Baumgartner's story, told in the prosecutor's petition in opposition to Baumgartner's petition for a writ of certiorari - which was denied:
So, whenever any judge expresses a particular interest, love and promotion of Drug Court, beware.
The judge's love of that particular court may have more than public interest in mind.
And befriended a female probationer.
And had sexual relations with her.
And had her introduce the judge to her own drug supplier, after which the judge started to use the probationer's drug supplier to supply the judge himself with drugs, to feed his addiction.
And the judge tried to fix cases for the probationer/girlfriend, without disclosure of the sexual relations with the probationer to any parties involved.
And the judge lied to other judges misrepresenting to them that the probationer/supplier of drugs is a good moral person.
And did not disclose that the probationer in question ran a drug ring of suppliers.
The name of the judge was Richard Baumgartner.
And he was charged and convicted by the feds for the crime of "misprision of felony" - non-reporting of commission of drug felonies, where a big part in the conviction was that the judge concealed and misrepresented to other judges the probationer's role in a drug ring.
This is former judge Baumgartner's story, told in the prosecutor's petition in opposition to Baumgartner's petition for a writ of certiorari - which was denied:
So, whenever any judge expresses a particular interest, love and promotion of Drug Court, beware.
The judge's love of that particular court may have more than public interest in mind.
Thursday, May 5, 2016
The lofty causes and dirty hands of child protective services
I've just put in another blog post in my "Protect from CPS" blog, more on federal financial incentives for CPS to sell children to their friends out of foster care, for federal money.
It is available here.
It is available here.
The stubborn D.C. Circuit Court of Appeals added to the death toll of occupational - and attorney - regulation in the United States
In July of 2013, the U.S. Court of Appeals for the D.C. Circuit invalidated as unconstitutional the setup where Amtrak, a for-profit corporation was given by Congress in 2008 a joint authority with the Federal Railroad Administration (FRA) to issue “metrics
and standards” addressing the performance and scheduling of passenger railroad services.
The D.C. declared unconstitutional Amtrak's regulation of the railroad industry, on the basis that the U.S. Congress may not delegate a governmental function to a for-profit corporation.
"Because Amtrak must "be operated and managed as a for-profit corporation," 49 U.S.C. § 24301(a)(2), the fact that the President has appointed the bulk of its Board does nothing to exonerate its management from its fiduciary duty to maximize company profits."
And that purpose to maximize profits may run afoul of the governmental interest to promote the best interests of the public in such regulation.
On March 9, 2015, the U.S. Supreme Court reversed and remanded, saying that the status of Amtrak as a for-profit corporation, does not preclude it from being ALSO appointed as a regulator of an industry.
On remand, the stubborn D.C. appellate court struck at Amtrak for the second time.
On April 29, 2016, the D.C. court invalidated the arrangement as unconstitutional once again, now on due process grounds.
The question that the D.C. court resolved was now, after the U.S. Supreme Court's reversal on governmental status grounds, this:
"Conceding Amtrak’s governmental status, the operators—
represented by the Association of American Railroads—ask:
Does it violate due process for an entity to make law when,
economically speaking, it has skin in the game?"
The freight railroads, competitors of Amtrak, argued that the statute in question
"is unconstitutional because it (1) vests rulemaking
authority in the hands of interested private parties, and (2)
empowers Amtrak with power to enhance its commercial
position relative to other market participants".
Ok, so the argument was that "the PRIIA “violates the due process rights of regulated third parties” by “[v]esting the coercive power of the government in interested private parties.”
The D.C. Court provided a great fairness analysis of the issue:
And even greater is the conclusion:
giving a self-interested entity regulatory authority over its competitors violates due process.
The D.C. Court cited to the a U.S. Supreme Court case, Carter v Carter Coal Co., which "invalidated a delegation that empowered one set of competitors to regulate a rival set".
This is yet another illustration that the U.S. Supreme Court does not adhere to its own precedents and creates a patchwork of precedents that contradict one another, hurting rather than helping litigants and undermining the whole concept of predictability of application of the law, which is the main principle of the rule of law.
In analyzing the Carter case, the D.C. court found:
The court then referenced a law review article on self-interest in private-pubic partnerships,
That law review article itself cited as one of the cases the North Carolina Board of Dental Examiners controversy (the law review was written in 2004)
The controversy in the North Carolina Board of Dental Examiners culminated, 11 years after the law review was written, in February of 2015, in a U.S. Supreme Court decision striking immunity of self-interested market players in occupational regulation as to antitrust liability.
Here is the conclusion of the D.C. Court based on Carter v Carter Coal (a 1936 U.S. Supreme Court case that the U.S. Supreme Court seems to have forgotten):
I wholeheartedly agree.
Due process is violated when a self-interested entity is entrusted with the power to regulate the business of a competitor.
So, what now about the disciplinary boards of professionals regulating their own competitors?
Dentists regulating dentists?
Doctors regulating doctors?
Plumbers regulating plumbers?
Lawyers regulating lawyers?
It appears that there is a strong case in support of a notion that such regulation and discipline imposed as a result of such regulation, discipline affecting people's right to earn a living, is:
and standards” addressing the performance and scheduling of passenger railroad services.
The D.C. declared unconstitutional Amtrak's regulation of the railroad industry, on the basis that the U.S. Congress may not delegate a governmental function to a for-profit corporation.
"Because Amtrak must "be operated and managed as a for-profit corporation," 49 U.S.C. § 24301(a)(2), the fact that the President has appointed the bulk of its Board does nothing to exonerate its management from its fiduciary duty to maximize company profits."
And that purpose to maximize profits may run afoul of the governmental interest to promote the best interests of the public in such regulation.
On March 9, 2015, the U.S. Supreme Court reversed and remanded, saying that the status of Amtrak as a for-profit corporation, does not preclude it from being ALSO appointed as a regulator of an industry.
On remand, the stubborn D.C. appellate court struck at Amtrak for the second time.
On April 29, 2016, the D.C. court invalidated the arrangement as unconstitutional once again, now on due process grounds.
The question that the D.C. court resolved was now, after the U.S. Supreme Court's reversal on governmental status grounds, this:
"Conceding Amtrak’s governmental status, the operators—
represented by the Association of American Railroads—ask:
Does it violate due process for an entity to make law when,
economically speaking, it has skin in the game?"
The freight railroads, competitors of Amtrak, argued that the statute in question
"is unconstitutional because it (1) vests rulemaking
authority in the hands of interested private parties, and (2)
empowers Amtrak with power to enhance its commercial
position relative to other market participants".
Ok, so the argument was that "the PRIIA “violates the due process rights of regulated third parties” by “[v]esting the coercive power of the government in interested private parties.”
The D.C. Court provided a great fairness analysis of the issue:
And even greater is the conclusion:
giving a self-interested entity regulatory authority over its competitors violates due process.
The D.C. Court cited to the a U.S. Supreme Court case, Carter v Carter Coal Co., which "invalidated a delegation that empowered one set of competitors to regulate a rival set".
This is yet another illustration that the U.S. Supreme Court does not adhere to its own precedents and creates a patchwork of precedents that contradict one another, hurting rather than helping litigants and undermining the whole concept of predictability of application of the law, which is the main principle of the rule of law.
In analyzing the Carter case, the D.C. court found:
The court then referenced a law review article on self-interest in private-pubic partnerships,
That law review article itself cited as one of the cases the North Carolina Board of Dental Examiners controversy (the law review was written in 2004)
The controversy in the North Carolina Board of Dental Examiners culminated, 11 years after the law review was written, in February of 2015, in a U.S. Supreme Court decision striking immunity of self-interested market players in occupational regulation as to antitrust liability.
Here is the conclusion of the D.C. Court based on Carter v Carter Coal (a 1936 U.S. Supreme Court case that the U.S. Supreme Court seems to have forgotten):
I wholeheartedly agree.
Due process is violated when a self-interested entity is entrusted with the power to regulate the business of a competitor.
So, what now about the disciplinary boards of professionals regulating their own competitors?
Dentists regulating dentists?
Doctors regulating doctors?
Plumbers regulating plumbers?
Lawyers regulating lawyers?
It appears that there is a strong case in support of a notion that such regulation and discipline imposed as a result of such regulation, discipline affecting people's right to earn a living, is:
- a violation of due process;
- an "intolerable interference with personal liberty and private property", and
- "transgresses the very nature of governmental function".
Thank you, the U.S. Court of Appeals for the D.C. Circuit, for putting yet another nail into the closing coffin of competitor-run regulation of professions in the United States.
Wednesday, May 4, 2016
Delaware County's use of force and non-compliance with that use of force by Derek Bowie and Delaware County Sheriff's Department in Kylie Smith's and Barbara O'Sullivan's cases - Part II
Here is the use of force policy of the Delaware County Sheriff's Department (State of New York).
The policy was submitted to the federal court in Kylie Smith's federal lawsuit against Derek Bowie, but Delaware County claimed in responses to my multiple FOIL requests that it has no written policies.
Well, that was a lie, and I wonder how many more lies as to some "secret policies" I, and other FOIL inquirers, were offered by Delaware County in responses to our FOIL requests.
Here are the obligations of Derek Bowie and his supervisors, those obligations had to be followed in Kylie Smith's and Barbara O'Sullivan's case - and never were.
So.
Derek Bowie and Delaware County Sheriff's Department had to do the following after he used force on:
First, Derek Bowie had to undergo "yearly training" as to the use of force - which is FOILable, but was not disclosed by Delaware County in response to my FOIL requests.
Then, the use of force shall be "consistent with the training" - and, therefore, policies regarding training must be made known to the public, which Delaware County Sheriff's Department did not do either.
Specific cases and statutes must be complied with when using force - Article 35 of the Penal Law, "Graham v Connor".
The officer's actions, under Graham v Connor must be objectively reasonable to satisfy the 4th Amendment test.
Running a police vehicle into a witness of police misconduct to smash a tablet with which she was videotaping police misconduct, is not a "reasonable use of force" (Barbara O'Sullivan's case).
Nor is it a reasonable behavior when a police officer's is beating up, fracturing ribs, sitting on fractured ribs and is trying to kill the officer's former girlfriend with the help of his present girlfriend (Kylie Smith's case).
So, Graham v Connor is already out the door.
Also, according to the policy,
Derek Bowie did not do that in either Barbara O'Sullivan or Kylie Smith's case.
He did not "evaluate the need for medical attention or treatment" for either of these women.
And, even though it was responsibility of Derek Bowie to "arrange for medical treatment", Derek Bowie made no effort to do so.
In Kylie Smith's case, Kylie Smith had to go to the hospital herself, and to have her injuries documented without Derek Bowie "arranging" for it.
Derek Bowie was also required to, by policy, to make pictures of his victims' injuries.
He did not do that either.
Derek Bowie was supposed to report immediately to his supervisors about the use of force, and to submit reports to his supervisors in accordance with the required content.
As far as I know, none of that was done, and I will follow up with another FOIL request, as to both cases.
And, as to the supervisors, they had to (1) go to the site of each use of force - which was not done.
They had to either dispatch the investigator to investigate the case "on site", or to video record that with the "dashcam camera" - which was not done either.
NONE of the procedures prescribed by the "use of force" policy were followed in BOTH of Kylie Smith's and Barbara O'Sullivan's case.
And that, ladies and gentlemen, is a pattern.
Of cover up.
The policy was submitted to the federal court in Kylie Smith's federal lawsuit against Derek Bowie, but Delaware County claimed in responses to my multiple FOIL requests that it has no written policies.
Well, that was a lie, and I wonder how many more lies as to some "secret policies" I, and other FOIL inquirers, were offered by Delaware County in responses to our FOIL requests.
Here are the obligations of Derek Bowie and his supervisors, those obligations had to be followed in Kylie Smith's and Barbara O'Sullivan's case - and never were.
So.
Derek Bowie and Delaware County Sheriff's Department had to do the following after he used force on:
- Kylie Smith on January 16, 2013,
- on Alecia Bracci on September 5, 2014,
- on Barbara O'Sullivan on September 5, 2014, and then again
- on Barbara O'Sullivan on September 18, 2014.
First, Derek Bowie had to undergo "yearly training" as to the use of force - which is FOILable, but was not disclosed by Delaware County in response to my FOIL requests.
Then, the use of force shall be "consistent with the training" - and, therefore, policies regarding training must be made known to the public, which Delaware County Sheriff's Department did not do either.
Specific cases and statutes must be complied with when using force - Article 35 of the Penal Law, "Graham v Connor".
The officer's actions, under Graham v Connor must be objectively reasonable to satisfy the 4th Amendment test.
Running a police vehicle into a witness of police misconduct to smash a tablet with which she was videotaping police misconduct, is not a "reasonable use of force" (Barbara O'Sullivan's case).
Nor is it a reasonable behavior when a police officer's is beating up, fracturing ribs, sitting on fractured ribs and is trying to kill the officer's former girlfriend with the help of his present girlfriend (Kylie Smith's case).
So, Graham v Connor is already out the door.
Also, according to the policy,
Derek Bowie did not do that in either Barbara O'Sullivan or Kylie Smith's case.
He did not "evaluate the need for medical attention or treatment" for either of these women.
And, even though it was responsibility of Derek Bowie to "arrange for medical treatment", Derek Bowie made no effort to do so.
In Kylie Smith's case, Kylie Smith had to go to the hospital herself, and to have her injuries documented without Derek Bowie "arranging" for it.
Derek Bowie was also required to, by policy, to make pictures of his victims' injuries.
He did not do that either.
Derek Bowie was supposed to report immediately to his supervisors about the use of force, and to submit reports to his supervisors in accordance with the required content.
As far as I know, none of that was done, and I will follow up with another FOIL request, as to both cases.
And, as to the supervisors, they had to (1) go to the site of each use of force - which was not done.
They had to either dispatch the investigator to investigate the case "on site", or to video record that with the "dashcam camera" - which was not done either.
NONE of the procedures prescribed by the "use of force" policy were followed in BOTH of Kylie Smith's and Barbara O'Sullivan's case.
And that, ladies and gentlemen, is a pattern.
Of cover up.
Delaware County Undersheriff Craig Dumond lies under oath in Derek Bowie's case
Here is the affidavit of Craig Dumond submitted in Kylie Smith's federal civil rights case.
It is sworn August 12, 2015.
Here is what it says, on page 2:
There are no "pattern of complaints" suggesting that the training of police officers as to the use of force is inadequate?
Two lawsuits against the same officer, by look-alike women both assaulted by that officer, and filed one after the other in the same year, are not a pattern of complaints?
But see specifically the last paragraph of the affidavit.
Here, under oath, Undersheriff Craig Dumond states that "other than the present litigation", Undersheriff Dumond is "not aware of any other time Defendant Bowie has been accused of using excessive force during an arrest".
Oh, no?
He wasn't accused by Barbara O'Sullivan in the lawsuit filed in October of 2014?
That same lawsuit where every pleading is copied to Undersheriff Dumond?
I think, as an Undersheriff, Craig Dumond, even with the 2nd Circuit's permission to specifically hire dumb police candidates, cannot hide behind his government-permitted low IQ - because his perjury is very obvious.
And very obviously not prosecuted by the Delaware County Acting District Attorney John Hubbard who needs support of local police officers as voters in his upcoming election.
Personal interest comes first.
Right, Mr. Hubbard?
It is sworn August 12, 2015.
Here is what it says, on page 2:
There are no "pattern of complaints" suggesting that the training of police officers as to the use of force is inadequate?
Two lawsuits against the same officer, by look-alike women both assaulted by that officer, and filed one after the other in the same year, are not a pattern of complaints?
But see specifically the last paragraph of the affidavit.
Here, under oath, Undersheriff Craig Dumond states that "other than the present litigation", Undersheriff Dumond is "not aware of any other time Defendant Bowie has been accused of using excessive force during an arrest".
Oh, no?
He wasn't accused by Barbara O'Sullivan in the lawsuit filed in October of 2014?
That same lawsuit where every pleading is copied to Undersheriff Dumond?
I think, as an Undersheriff, Craig Dumond, even with the 2nd Circuit's permission to specifically hire dumb police candidates, cannot hide behind his government-permitted low IQ - because his perjury is very obvious.
And very obviously not prosecuted by the Delaware County Acting District Attorney John Hubbard who needs support of local police officers as voters in his upcoming election.
Personal interest comes first.
Right, Mr. Hubbard?
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