Nebraska Federal Judge Richard Kopf and New York criminal defense attorney Scott Greenfield bash the Nevada public defender handcuffed for making an argument for her client

I wrote two blogs so far about the handcuffing of a Nevada public defender #ZohraBakhtary that happened this past Monday, May 23, 2016, here and here.

I mentioned that Ms. Bakhtary received no defense from her boss.

Ms. Bakhtary's boss:

(1) did not complain about judge Conrad Hafen's behavior to disciplinary authorities; 
(2) did not direct filing a motion to vacate Ms. Bakhtary's client's conviction because the judge acted as a prosecutor in the case and shut down - and handcuffed - the defense attorney for trying to put on record the necessary arguments for her client;
(3) did not direct filing of a motion to recuse Judge Hafen from all proceedings where Ms. Bakhtary appears, to protect her and her clients from further abuse and further "lessons" taught by the enraged judge.

Ms. Bakhtary's boss only had a closed-doors conference with the judge and emerged out of it "positive" about the future.

There was no apology to Ms. Bakhtary, and the judge continued to bad-mouth her to the media claiming that he has had problems with her in the previous 6 months (without any transcripts of citations to support those claims) - the claims that attorneys who constantly appear in front of judge Hafen denied, claiming that, on the contrary, Judge Hafen was very "complimentary" about Ms. Bakhtary before this incident and never complained about her.

The Clark County Public Defenders Union of Las Vegas, Nevada put in a defense of Zohra Bakhtary in an undated "letter to the editor" - but not in a complaint against the judge (see court surveillance video, without an audio, here, see the letter of CPDU here).

The letter says that what Judge Hafen did was "wrong".  Not that it was egregious judicial misconduct that should earn the judge discipline and get him off the bench.

The public defenders' union does mention in the letter that "handcuffing an attorney who is merely doing her job to teach her a lesson is simply improper and has never been done in the history of Nevada".

So, Judge Hafen made history - history of judicial misconduct that Nevada judicial authorities are not addressing as yet.

The public defenders' letter also points out that Judge Hafen conveniently switched off audio and video capabilities to prevent creating the actual record of what occurred.

Believe it or not, there are strong supporters of what Judge Hafen did to Zohra Bakhtary and to her client who was left without an attorney at sentencing, and who was sentenced because the judge was pissed with the client's attorney trying to do her job.

Here is one of such blogs supporting Judge Hafen and condemning attorney Zohra Bakhtary.

I just want "heroes" to be known to the public, and especially so because at least one of those condemning Zohra Bakhtary is a criminal defense attorney.

The line in the blog of "Ellie Mystal" is simply - Zohra Bakhtary was told by a judge to shut up and she didn't.  She should blame herself, the judge was right, because the judge said he had problems with Zohra Bakhtary before (no transcripts provided) - and one doesn't question what a judge says.

Blogger Elie Mystal of a prominent legal blog "Above the Law" does not quote the full transcript of proceedings where Zohra Bakhtary was taken into custody and handcuffed.  Here is the full transcript (even though it is highly doubtful the transcript is complete, Judge Hafen switched off audio on purpose, after all, so that transcripts made by court employees dependent for their job security on Judge Hafen could conveniently cook transcripts for him).  Blogger "Elie Mystal" of "Above the Law" just quotes bits and pieces - but thinks that Judge Hafen is right anyway.

Of course, Judge Hafen has a murky history of filing fabricated investigations against political opponents of his boss, a District Attorney, and of humiliating male attorneys he did not like, too - by "teaching them a lesson" for not coming into his presence with a tie.

The lesson being a punishment of their clients by having to pay higher legal fee and, possibly, losing a job because they had to either wait in court until the end of the docket or come on another day - all because their lawyer did not come in court in a tie, as the judge wanted him to.

Of course, the alternative was to accept from the judge a "clip-on" "funky" tie and be publicly humiliated - in order to be able to defend a client in a criminal case:

"When Las Vegas Township Judge Conrad Hafen became a judge in 2011 and noticed some attorneys weren’t wearing ties, he went to a thrift store and picked up a few funky ties from the 1960s and ‘70s along with two children’s clip-on ties. He then gave attorneys who showed up without ties a choice: wear one from his thrift store collection, or have their case heard last or even moved to a different day."

It was readily apparent 3 years ago, when the "funky clip-on tie policy" was introduced by Judge Hafen that Judge Conrad Hafen did not have the right temperament to preside over any cases, and especially over criminal cases, where observation of defendant's constitutional rights and not the attire of defense counsel, should be the the main concern of the court.

The supporter of Judge Hafen "Above The Law" blogger "Elie Mystal" pointed out, in endorsing Judge Hafen's order to handcuff a public defender for making constitutional arguments in support of keeping her client out of jail, that the judge said he had problems with her before.

The judge just said it - and it was enough, no transcripts are required confirming Zohra Bakhtary alleged prior "misbehavior".

The judge just said his behavior is necessary to "teach a public defender a lesson" - and that, Elie Mystal claims, is enough grounds to have her handcuffed.

I saved Elie Mystal's shameful blog post in case the author decides to pull it and claim he never said it.

The author, "Elie Mystal", even twitted his condemnation of Zohra Bakhtary, and that's how I found another supporter of Judge Hafen's handcuffing "teaching techniques" -  New York criminal defense attorney Scott Greenfield, "blawger" at "Simple Justice" and managing editor of "Fault Lines".

I guess, clients of lawyer Scott Greenfield should not expect a vigorous defense from him if the judge shuts him down in the courtroom.

Of course, Mr. Greenfield is a male and, probably, never experienced gender-based shouts of male judges who think that a female attorney comes to the courtroom as a target practice for abuse and humiliation by male judges.

And, of course, you can get some insight about Mr. Greenfield's general disrespect to public defenders - or anyone giving poor people free legal advice - from his own statement on his own law blog "Simple Justice":

All he had to say is that nothing in the blog is legal advice.  Period.  Why did he have to go further and bash people for seeking or giving free legal advice?

You can say from these statements that Mr. Greenfield is the champion of the poor - those people who are mainly targeted by the criminal justice system.

A good criminal defense attorney, no doubt.  

Mr. Greenfield's clients will not have to worry about Mr. Greenfield being handcuffed in the courtroom - he will, apparently, never raise a word against a judge committing misconduct in the courtroom.

Mr. Greenfield actually dared to call Zohra Bakhtary's attempts to get a word in edgewise for her client while former prosecutor Judge Conrad Hafen ran roughshod right over her and acted as a prosecutor in the case a "pissing match" with the judge and ineffective representation of client.

Here is what criminal defense attorney Scott Greenfield wrote about the handcuffing episode of a criminal defense attorney for the indigent.

That, essentially, Ms. Bakhtary, a young attorney, ran away with her passion for the client, and failed to provide an effective defense for her client.  And, attorneys who do that have no place in the courtroom.  And, even if Judge Hafen was a jerk, Ms. Bakhtary had to invent ways of handling a judge-jerk to provide an effective defense for her client.

From one male jerk Scott Greenfield about another male jerk judge Conrad Hafen - sounds right.

Of course, Scott Greenfield, in calling Zohra Bakhtary essentially incompetent, failed to mention that her own boss calls her intelligent, effective and well prepared, and that Zohra Bakhtary is actually a Soros Criminal Justice Fellow - an honor bestowed only on very capable lawyers.

Nor did Scott Greenfield refer to a full transcript - same as Elie Mystal, he relies on bits and pieces.

Yet, the only "practical advice" that can be discerned from the piece is:

1) if you see a judge who is a jerk and biased against you and your client, "deal with it" to provide "effective assistance of counsel" - yet, where you have a control freak jerk judge like Hafen, there is no way of "dealing with it" short of disqualification of the judge from the cases, or from the bench.

If a criminal defense attorney is shut down and prevented from making the record for his client, so that the client will not be able to use it on appeal, the only thing that an attorney can do to protect her client's rights is - (1) move to recuse a judge which attorneys very rarely do and which Zohra Bakhtary did not do, and it is very possible that she was under orders from her boss not to make motions to recuse; and/or (2) try to make the record for her client anyway, which is what Zohra Bakhtary tried to do.

Nothing like blaming the victim.

Calling a female criminal defense attorney ineffective and incompetent because she "caused" her own abuse and "caused" illegal sentence without counsel of her client - is the ultimate disqualification for a criminal defense attorney, in my opinion.

Of course, we never know, maybe brown-nosing jerk-judges is attorney Scott Greenfield's tactic of winning cases.  Efficiency over passion, you know.

In comments, more "wisdoms" on effective representation of counsel were revealed.

Such as this:  since Zohra Bakhtary was not an "older" "statesmen lawyer", she should have understood it an acted accordingly, even though the same behavior from an "older attorney" who "earned respect" would not have been treated as contempt of court.

So, a public defender must earn a "seniority right" to make constitutional arguments on behalf of a client?

Good grief.

And, there is a comment indicating that it is ineffective to try to put in arguments for the record when the judge keeps shutting you down because it will still be reflected as "inaudible" in the transcript.

It may be so, but why did Judge Hafen turn off the audio and video recording - and shut down the defense counsel?  Wouldn't the vidoe and audio recording help the stenographer prepare a true transcripts of what was said.

And wouldn't the appellate court then be able to determine, without a transcript, just from observing the video and hearing the audio what really happened?

Wasn't filibustering the appeal and preventing Ms. Bakhtary from making the record on appeal part of Judge Hafen's efforts?

And, there was a comment that what happened was a matter of ego for Judge Hafen because Attorney Zohra Bakhtary made that argument not in chambers, but in an open hearing.

But, sentencing IS an open hearing, and Ms. Bakhtary's client was entitled to his attorney making a record on his behalf.

Moreover, Ms. Bakhtary did not yell, did not use profanities and did not even criticize the judge - she just wanted to put in arguments on behalf of her client.  And was handcuffed for the effort.

There was a comment that pointed out that, in the absence of an audio recording, it is impossible to verify whether the attorney was really talking over a judge or coincidentally talked at the same time as the judge was trying to interrupt her - and was simply finishing her sentence.  The transcript would naturally be more beneficial to a judge who employs the stenographer, that's why the audio (that Judge Hafen shut off) would have been the a better source to assess what occurred.

And, when a commentator points out that judges and attorneys are not equal, so the attorney must shut up when a judge tells him so, this is what the commentator "Alex Stalker", who says he is a public defender but is obviously afraid to reveal his real name, says:

And that's the jist of it.

The judge asked a question, the attorney is answering it, and the judge cuts her off in answering not the way the judge liked.

The judge is calling a female attorney by her first name, while she is calling him "judge" and not "Conrad", by HIS first name.

The exchange reeks of disrespect of a judge of the attorney - under such circumstances the judge should have stepped down.

And this is a prominent federal judge from Nebraska chiming in - in support of Judge Conrad Hafen:

Here is Judge Kopf, the author of not one, not two, but THREE reasons of why he would execute an innocent, here is my blog about it in English and here is in Russian.

Here are some of Judge Kopf's other outstanding statements:

1)  "grow the f**k up"! - to advocates of people victimized by denying equal rights to marry (that was a month before the U.S. Supreme Court ruled that gay marriage is a constitutional right), see my commenting blog about it here;

2) on the judge's long memory about certain attorneys and inevitable retaliation, see Judge Kopfs' blog here and my commenting blog about it here;

3) do not go against the judge's opinion, or else you will be a "stupid, ignorant son of bitch, dumb bastard" - see the "cranky judge" Kopf's blog here and my comment here:

"4. If you send me a brief knowing that you will lose, but you are hoping to “educate” me, you are, in the words of the greatest of all legal minds, Gene Wilder, one “stupid, ignorant son of bitch, dumb bastard.”" 

Judge Kopf asserts his right as a judge to be cranky, disrespectful, humiliating attorneys - to be a petty tyrant in the courtroom.

4) Judge Kopf, a sitting federal judge, white male, is also a racist and obviously dislikes not only black people, but poor black people - he recently ascribed to the American Constitution Society a motto:  "We love poor black people almost as much as we love puppies and kitties", see my blog about it here.

From that perspective, Judge Kopf's comment about Zohra Bakhtary is totally understandable - it totally fits his beliefs, which, of course are not fitting a judge, but Judge Kopf remains on the bench no matter what he says - dealing with death penalty cases, remember? - of predominantly poor black males, who he would send to be executed even if he knows they are innocent.

Once again, this is the comment of Judge Richard Kopf, of the U.S. District Court of the District of Nebraska, about handcuffing of public defender Zohra Bakhtary by Nevada state judge Conrad Hafen:

Judge Kopf accuses public defender Zohra Bakhtary of self-aggrandizing.

Judge Kopf hints that Public Defender Zohra Bakhtary, in trying to make a record for her client was badly prepared and incompetent: 

• "a hapless young lawyer" who allegedly 
• did not prepare to answer the judge's question "with some degree of thought instead of mumbling inanities about justice and irrelevant crap like that".

Great to hear from a judge's mouth that constitutional arguments about liberty for poor criminal defendants are, for a federal judge dealing with death penalty cases, "inanities about justice and irrelevant crap like that".

Judge Kopf also hints that a person with authority (a professor, a judge) is always right and the person criticizing the authority is "a jerk plus an asshole. Yep. That's the ticket!" - Judge Kopf's words, not mine.

All those words - for simply making a constitutional argument on behalf of poor criminal defendants.

From a federal judge whose job is to protect federal constitutional rights of people.

Great.

By the way, Judge Kopf himself has ordered practices in criminal jury cases which are completely unconstitutional, while they exist since 2009 (for 7 years so far), and defense attorneys obviously were afraid to challenge them:

Judge Kopf limits time in presenting opening and closing arguments to the jury, prohibits the attorney from moving around the courtroom during the attorney's speech, which may help the attorney get the jury out of boredom and get their attention.

Moreover, Judge Kopf authorizes his court clerk to cut off the opening or closing statement which is longer than the set time limits - while in a serious criminal case recitation of the evidence alone may take longer than the set arbitrary time limits.

All of those time-limits are introduced in 2009, and Judge Kopf admitted in his blog that he is being treated for several years for cancer.

To accommodate judge's health problems, a rule is introduced cutting short attorney speech to the jury, so that the judge would spend less time in the courtroom?

Judge Kopf also prohibits objections on record during criminal jury trials:

Judge Kopf only allows objections to be done at "bench conferences" which he can decide whether to grant or not.

The most common objection during the trial is to hearsay.  It is a due process problem and a 6th Amendment confrontation problem to convict a person of a crime based on statement of a person who did not testify in court, that's what hearsay is about.

Yet, Judge Kopf does not allow "speaking objections" during jury trials - obviously, also in death-penalty cases.  The State of Nebraska abolished death penalty, but Judge Kopf is sitting in federal court in Nebraska, and the feds did not eliminate death penalty for federal crimes.

Judge Kopf's criminal jury practices do not have an exclusion for death penalty cases.

Federal judges like Judge Kopf do not have authority for legislating, policy-making, and that's exactly what he does with his "criminal jury practices" - while the Chief Judge of the court obviously approves, and the defense bar is afraid for their licenses, and for retaliation against their clients, to raise their voices against such practices.

By the way, preventing the jury and the public from observing objections being made can be also a tactic of the old and ailing Judge Kopf, to prevent the public from seeing that the judge cannot adequately and promptly react to objections.

Judge Kopf's "bench conferences" are also recorded on demand only - while all meaningful portions of criminal proceedings, and objections are certainly a meaningful portion - must be done on record.


Objections in a criminal trial are usually made within a split-second time, and are deemed waived if not made just as the offending evidence (hearsay, violating the best evidence rule etc.) is being introduced.  Asking for a court conference after the fact is not an adequate remedy here.

So, Judge Richard Kopf who eliminated objections in his courtroom as a matter of policy and considers constitutional arguments as "inanities" and "crap", supports Judge Conrad Hafen's "teaching court decorum" tactics.

Handcuffing a beautiful female public defender for a constitutional argument.  An inanity, of course.

I would like to end on a positive note though.

The cavemen's bashing the victim in this case, and accusing public defender Zohra Bakhtary of doing a poor job for her client for actually trying to do her job for her client and being handcuffed for it by caveman judge - is in the minority.

The majority, including the press, is supporting Zohra Bakhtary.

I encourage my readers to read the entirety of the "Dear Conrad" open letter of the National Defenders' Association to Judge Hafen that lacks any deference to the caveman judge which the press, Zohra Bakhtary's boss and even the letter-to-the-editor of the Clark County Defenders' Union displayed.

It calls judge Conrad Hafen out as a rude bully and tyrant.

One point on which I disagree with the letter though is the ending.

What needs to be done is not "stretching out our necks" to be cut, like Cicero did, but remaining alive and demanding to take cavemen judges off the bench.

Like Judge Conrad Hafen.

Like Judge Richard Kopf.

I will continue to monitor this case and report whether Judge Conrad Hafen is going to be disciplined in any way.

Stay tuned.

Criminal justice is available, for sure. If the defendant has money for professional defense.

I've just put in a blog about acquittal - after a 4th trial - of Cal Harris in New York, of charges of murder of his wife Michele Harris.

Here is the list of criminal defense attorneys who represented Cal Harris throughout the proceedings:

Joseph Cawley who represented Cal Harris in 2007, who has found an easier job as a judge in 2008, and who now is a supervising judge for county (criminal) courts in New York 6th Judicial District. 

Cawley recently engaged in ex parte communications with the prosecution for which I have documents on file, so I wonder whether he sold his client out as a defense attorney, too.

Another defense attorney for Cal Harris was Albany-based and recently retired veteran criminal defense attorney Terence Kindlon.

Cal Harris also had representing him the law firm of Easton, Thompson, Kasperek & Shiffrin, L.L.P., Rochester that represented Cal Harris 

• on the losing appeal in the Appellate Division 3rd Department in 2011, 
• on the winning appeal in the New York State Court of Appeals in 2012 where Judge Pigott recently said at the swearing-in ceremony of Chief Judge Janet DiFiore on February 8, 2016 that NYS Court of Appeals "gets to pick its cases" - so Pigott "picked" People v Harris and reversed it, that is another "piece of luck" in having the case reviewed by the Court of Appeals that may have been influenced by the wealth of the defendant's family

And, finally, for the last, and successful, trial, Cal Harris hired attorney Bruce Barket and made the last-minute decision to go with the bench trial rather than a jury.

Bruce Barket is a partner in Barket, Marion, Epstein & Kearon, LLP of Garden City, NY, and is famous for his

"booming voice, constant objections and visible outrage" that reportedly "have been constants at the trial".

The defense team also included, a younger female attorney Aida Leisenring (admitted in 2008) and an older female attorney Donna Aldea (admitted in 1999), 

Presence of female defense attorneys was psychologically beneficial, it was balancing out the "booming voice" of Bruce Barket and preventing the impression that female opinions - and lives - do not matter.

By the way, in Delaware County court, when I was present as a second-chair in criminal trials handled by my husband, Frederick J. Neroni, I was constantly shut down by the usually presiding judge Carl F. Becker who complained behind the scenes of our "double-teaming" and introduced his own rule - "no second chairs", only one attorney can do the trial, the other should be silent.

Apparently, such rules were not applicable - fortunately for the criminal defendant - in Cal Harris'  trial.

It is a big relief for Cal Harris, and a big victory (and, no doubt, an extremely lucrative and expensive case) for his defense attorneys.

Once again, the case of Cal Harris shows what CAN be done in a case where supposedly, all is lost - after 2 jury convictions, one affirmed on intermediate appeal - only with one condition: if criminal defendant or his family has money.

But, a situation where justice is available only to wealthy criminal defendants is not justice at all.

An acquittal of murder from the bench - the extraordinary verdict in Cal Harris' case

Recently a criminal defendant charged with murder of his wife was acquitted of that charge - after the 4th trial.

What is significant in this case is that, even though the first 3 trials were trials by jury, the defendant chose to have his 4th trial be decided by a judge - an extremely dangerous decision, even though it played out well for the defendant.

Judge Richard Mott, 

a former public defender and defense attorney, who had a vast experience in defending murder cases

 did acquit him of all charges.

The case was, from the very beginning, circumstantial.

No body of Michele Harris and no murder weapon were ever found.

Cal Harris maintained his innocence for 15 long years, through 4 murder trials.

My take is that it was natural for the court to conclude that circumstantial evidence, where there was no body, no murder weapon found, and where the first conviction was set aside because a witness claimed he saw Michele Harris hours after her alleged murder with somebody else, suggesting that Cal Harris was being framed.

The evidence in the case was, in fact, not so strong, since the previous, 3rd, jury deliberated for 11 days, and were still deadlocked.

Apparently, the judge had every reason to conclude that the "beyond the reasonable doubt" standard was not reached.

And, in a bench trial, as opposed to the jury trial, People are at a disadvantage (if the judge is not pro-conviction), because they cannot engage in their usual theatrics meant for lay jurors.

*  *  *

It was definitely a big gamble to let a judge to be a fact-finder in a murder case, because judges are usually pro-conviction, because usually judges come from prosecutors.

But, in this case, by whatever chance, the judge's background was that of a public defender and a criminal defense attorney, and there was so much publicity that the defendant had no way of having an impartial jury that would not know about the case and would not be contaminated by 15-year publicity calling Cal Harris a murderer.

For example, in 2012 the New York State Court of Appeals, while reversing the conviction and sending it back for a new trial, said the following:

"Given the high-profile nature of the case, there was significant media coverage in local newspapers and on television, including two national broadcasts, covering Michele's disappearance and defendant's first trial.  Defense counsel made two change of venue motions prior to the retrial, citing "prejudicial publicity." Each motion was denied, as was a third motion made by defense counsel during jury selection."

Moreover, the prosecution made sure it pointed out the family's wealth as Cal Harris' motive to commit murder.

Cal Harris' family wealth comes from selling cars, and a "car salesman" is a derogatory tag in this country, whether you like it or not.

When a politician is called a "used car salesman", that is already a cliche presupposing that all used car salesmen are crooks and inherently unbelievable.

When many people are hurting from bad economy, having a criminal defendant parade one private attorney after another, can cause resentment in the jury just because his family could afford it.

Where the overwhelming majority of population in rural counties in New York is uneducated and poor - Cal Harris' gamble in having a judge preside over his murder trial does not seem so unreasonable, after all.

I cannot end this post on a positive note.

I cannot say that - see, justice was served.

The acquittal was a result of years of work of multiple private - and expensive - criminal defense attorneys and privately hired experts.

That's where the wealth of the family came in handy, to pay for qualified criminal defense, appellate counsel and for qualified experts.

I will run a separate blog describing the list of criminal defense attorneys who represented Cal Harris in this case, they were all private attorneys,  and all not cheap attorneys.

An average criminal defendant in the same position, especially a poor criminal defendant, with an assigned counsel, would have had no chance.

And it is sad that justice hinges so heavily on money.

The Mokay saga continues: it's tough to be stupid - Judge Kevin Dowd and attorney Richard Harlem are rapidly falling into their own traps

I wrote on this blog recently about how judge Robert C Mulvey has fixed, on request of attorney Richard Harlem, the appeal in the Mokay case.

That Mokay case that was previously fixed in the court below by judges: 

1. Robert C Mulvey, through assignments of obedient judges who Mulvey could rely upon to obey Mulvey's illegal case-fixing policy that a judge Mulvey assigns to the case must rule the way Mulvey wanted the assigned judge to rule, or else ( promoted to the Appellate Division and fixed the Mokay case on that end, too);
2. Elizabeth Garry (promoted to the Appellate Division), 
3. Molly R. Fitzgerald (promoted to Mulvey's prior position as Chief Administrative Judge of the 6th Judicial District, the position formerly occupied by Richard Harlem's now-deceased father judge Robert Harlem), 
4. Michael V. Coccoma (promoted first to the position of Chief Administrative Judge of the 6th Judicial District and then to the position of Chief Administrative Judge of Upstate New York, and Chief Fiscal officer deciding issues of lucrative assignments to Surrogate's Court and the no-less-lucrative post-retirement assignments of judges as judicial hearing officers);
5. Carl F. Becker (booted into early retirement, but who knows - I need to check his assignments through FOIL, maybe Becker received some gift for his crookedness, too), and 
6. Kevin Dowd - not yet booted, but not yet promoted either.

But, promotions aside, it does look bad for judges when stupidity of a son-of-a-judge privileged blue-blood attorney who never in his life thought he had to strain a brain to win in court, combined with stupidity of assigned trial court judge, make the Appellate Division look like a bunch of complete idiots.

Which is what Richard Harlem and Judge Kevin Dowd of Chenango County Supreme Court accomplished with flying colors, and continue to do at this time.

Let's reintroduce a brief timeline of relevant events.

On June 12, 2015 Judge Dowd issues a decision after an ex parte trial on damages.  Let's leave apart the issue that an ex parte secret trial barring the public held despite the fact that the defendant's counsel is on medical leave, and without participation of even the plaintiffs, is unlawful on many levels, and concentrate on the yo-yo maneuvers of Richard Harlem trying to position the same unlawful decision as either final (so the lower court has no more jurisdiction over the case), and non-final, at the same time, for different purposes.

Of course, the same as a woman cannot be just a little pregnant, a court of law cannot have "a little subject matter jurisdiction" which disappears as a mirage for one purpose, namely, to hurt Mr. Neroni and help Richard Harlem, and reappears in the fevered brain of Richard Harlem and judges favoring him, whenever it is convenient.

In the June 12, 2015 decision, in addition to damages after an ex parte trial without presence of plaintiffs, Judge Dowd granted to Richard Harlem Richard Harlem's request to make jurisdiction of Judge Dowd in the Mokay matter not final (as it is supposed for a decision after a trial on damages), never-ending.

Even though this a trial court has no authority to make its jurisdiction on damages in a civil case never-ending and to decide the issue of damages (1) in an ex parte bench trial and (2) in a series of subsequent motions, there is nothing impossible for Judge Dowd when he is bending backwards to suit a well-connected attorney. 

Ok, so, based on the request of Richard Harlem, jurisdiction of the Supreme Court is never-ending as of June 12, 2015.

Good for Harlem?

It depends.

In March of 2016, my husband timely perfects his appeal in the Mokay case.

Richard Harlem files a motion to dismiss the appeal on behalf of Daniel Mokay, Andrew Mokay, David Mokay, Patricia Knapp, Christine Reed, and the Estate of Andrew Mokay Sr. because:

1) my husband did not (and could not) include into the Record on Appeal the trial exhibits that Judge Dowd prohibited to show to my husband and/or to me while I was my husband's appellate counsel, even after the June 12, 2015 decision and during the pendency of appeal, and that Harlem stole from the record with Dowd's help - a blog with transcript and audio recordings of telephone conversations with Supreme Court clerk Kelly Sanfilippo is here; and

2) because, according to Richard Harlem, my husband did not include certain decisions required to be included because the appeal was from a final decision of the trial court.

My husband, naturally, opposed Harlem's motion saying, among other things, that:

1) a victim of theft may not be punished for that theft, and the thief should be rewarded for his theft;
2) Richard Harlem is engaged in a systematic fraud upon the court by claiming that

• he represents the purported plaintiff David Mokay on appeal and that 
• he represented the purported plaintiff David Mokay in the court below and 
• by obtaining allegedly on behalf of David Mokay a $300,000 judgment 
• while David Mokay is claiming in a sworn affidavit that he never sued my husband and never hired Richard Harlem or his law firms to do that for him;  
• and while suing on behalf of a non-existing party is a federal criminal offense (recently several New York attorneys were criminally prosecuted and convicted by the feds for that same conduct); and because

3) the Mokay appeal was from a non-final decision of Delaware County Supreme court , made non-final at the request of the same Richard Harlem.  

Yet, as it happens in the cases of nobility, the spoiled son-of-a-judge Richard Harlem cannot have a "no" for an answer, even if that "no" is the result of the law of the case created at his own request.

Apparently, Richard Harlem wanted the best of both worlds - to claim that jurisdiction in the Mokay case in Delaware County Supreme Court is, at the very same time:

1) non-final and never-ending - for purposes of continuing to go back to Judge Dowd and claim more "damages" through a series of motions; and
2) final - for purposes of having the appeal dismissed because the record did not (allegedly) satisfy the rules of appellate court applicable to final decisions of trial courts.

I already described on this blog that Richard Harlem was trying to accuse his purported client David Mokay of perjury to the appellate court with the help of an affidavit from his other client, David Mokay's brother Daniel Mokay.

Daniel Mokay, according to my reliable sources, is the only one of the Mokay children who received anything out of the Estate of their father, and that "something" is $7,000, enough to provide a perjured affidavit against his brother David Mokay on behalf of Richard Harlem.

Accusing one purported client of perjury with the help of another client, in the same case, and on the issue of representation is attorney misconduct, and requires an immediate disqualification of Richard Harlem from representation of anybody at all in the same case, but Richard Harlem is afraid now to lose control over the case, and is digging in. 

But, disqualification is usually obtained in cases where the court's jurisdiction is pending.

Richard Harlem received affidavit of David Mokay on or about April 20, 2016, at the time when:

1) jurisdiction was pending in the Appellate Division - because of Mr. Neroni's perfected appeal; and
2) jurisdiction was pending in the Delaware County Supreme Court - because of the June 12, 2015 making that jurisdiction, at Harlem's request, non-final and never ending.

Richard Harlem did not move to withdraw from the pending appeal, as he was supposed to.

Knowing that his blue blood will carry him no matter what stupidity or fraud he produces, Richard Harlem instead, did the following:

1) On May 9, 2016, during the pendency of his motion to strike the appeal on behalf of David Mokay and other defendants, Richard Harlem files an application for an order to show cause to withdraw in the Delaware County Supreme Court;

2) By filing that motion, Richard Harlem acted as if the order of Judge Dowd of June 12, 2015 made jurisdiction in Dowd's court non-final, and as if Judge Dowd has continued jurisdiction in the Mokay case in the trial court, because when jurisdiction of the court concludes, it concludes for all purposes, there is no point, nor legal grounds in making any motions any more, including a motion to withdraw from representation of anybody at that point.

In his application, Richard Harlem commits yet more fraud upon the court and perjury by claiming, under oath, the following:

Richard Harlem's Affidavit, p. 1:

Richard Harlem continues to claim, under oath, that he is an attorney for David Mokay, while David Mokay stated as of November of 2015, that Richard Harlem is not his attorney, never was his attorney, and that David Mokay never was a party in this action.

Richard Harlem then describes how my husband submitted David Mokay's affidavit to the appellate court - in opposition to Harlem's pending motion to dismiss the appeal on behalf of 6 purported plaintiffs, including David Mokay.

Then, Richard Harlem states, under oath, the following - page 2 paragraph 4:

Of course, signing, under oath, a substitution of attorney, would have been for David Mokay an equivalent of committing a double perjury and acknowledging that 

(1) Richard Harlem, in fact, did represent him, but David Mokay now releases him from that representation, and that 

(2) David is a party in the lawsuit and is going to proceed in the case as a pro se party after David Mokay allows Richard Harlem to withdraw.

Yet, in his affidavit David Mokay provided to Mr. Neroni which Mr. Neroni submitted to the Appellate Division, David Mokay claimed that he has never been a party to that lawsuit and has never hired Richard Harlem or his law firms to represent him in the Mokay lawsuit.

I can give credit to David Mokay, a disabled individual without any legal training, who, according to Richard Harlem's affirmation, refused to sign that fraudulent "substitution of attorney".

Richard Harlem continues to lie by stating under oath the following:

page 2 paragraph 5:

Harlem is presenting the situation as if David Mokay is a capricious and stupid client who IS a party in the case, who does not want Richard Harlem to represent him in that case, but is stubborn and would not sign a substitution of attorney - so such substitution is required by court order.

Yet, the affidavit of David Mokay clearly shows that David Mokay asserts he never was a party in that case, and thus the court has no authority to rule that he IS the Plaintiff in the case where David Mokay claims he ISN'T, and NEVER WAS.

Richard Harlem's affidavit was sworn on May 9, 2016:

As I stated above, the problem of an application for an Order to Show Cause (motion) to withdraw at the level of Delaware County Supreme Court is that such motions to withdraw are made only in an ongoing case, in a case with an ongoing subject matter jurisdiction of the court.

Which means, that Delaware County Supreme Court must still have subject matter jurisdiction in the Mokay case to review any new motions to withdraw from an ongoing proceeding.

Which means that the June 12, 2015 trial decision on damages by Judge Dowd should not be deemed non-final, in order for Judge Dowd to be able to review and resolve the motion.

But, Richard Harlem was arguing at the same time on a pending motion to the Appellate Division that the June 12, 2015 trial decision on damages IS final.

On May 13, 2016 Richard Harlem won the motion in the Appellate Division, and thus, obtained from the Appellate Division a decision that the June 12, 2015 trial decision on damages by Judge Dowd IS final.

Did Richard Harlem promptly notify Judge Dowd that Judge Dowd has lost jurisdiction over the case as of his decision of June 12, 2015, because of the ruling of the Appellate Division on Richard Harlem's request to the Appellate Division to deem Judge Dowd's June 12, 2015 order final and dismiss Mr. Neroni's appeal unless he corrects the record in compliance with rules applicable to appeals of final judgments?

Of course, not.

Let's look at our timeline again as to the yo-yo efforts to deem jurisdiction in the Mokay case in trial court, alternately, final and non-final - as Harlem did.

June 12, 2015 - Judge Dowd grants Richard Harlem's request to make subject matter jurisdiction of Delaware County Supreme Court in the Mokay case never-ending, non-final;

March, 2016 - Richard Harlem asks the Appellate Division to deem the June 12, 2015 decision of Judge Dowd a final decision in the case, for purposes of striking Mr. Neroni's perfected appeal;

May 9, 2016 - Richard Harlem makes a motion to withdraw from representation of David Mokay in Delaware County Supreme Court, which can only be done in cases with ongoing jurisdiction of the court, so Richard Harlem thus claims that the decision of June 12, 2015 was not final - at the same time as he was claiming in the Appellate Division that it was final;

May 13, 2016 - the Appellate Division grants Richard Harlem's motion dismissing Mr. Neroni's appeal because it did not comply with rules of the court applicable to final judgments;

May 13, 2016 - Judge Kevin Dowd signs the Order to Show Cause, acknowledging the Delaware County Supreme Court has subject matter jurisdiction over the Mokay case and that the June 12, 2015 decision was non-final;

May 20, 2016 - instead of notifying Judge Kevin Dowd of the decision of Appellate Division granting Richard Harlem's request to deem Judge Dowd's June 12, 2015 decision as the final decision in the Mokay case in the Delaware County Supreme Court, thus ending jurisdiction of the Delaware County Supreme Court in the Mokay case as of June 12, 2015, Richard Harlem serves Mr. Neroni - no, not with the order of the Appellate Division that provided that the June 12, 2015 decision was final (according to request of Richard Harlem), but with the Order to Show Cause of Kevin Dowd which could only be made if the June 12, 2015 decision was non-final.

It is apparent that Richard Harlem, while trying to save his sorry hide and trying to persuade his remaining clients not to sue him for legal malpractice and fraud, trying to persuade disciplinary authorities not to disbar him and trying to persuade criminal authorities not to lock him up, has made complete idiots both of the appellate panel that ruled for him that Judge Dowd's June 12, 2015 decision is a final decision, and of Judge Dowd who ruled that the same decision is a non-final decision - and both courts did that at Harlem's request made in sworn affirmations or affidavits.

I wonder whether Richard Harlem will finally be picked up by the disciplinary authorities and/or by the feds with a criminal investigation and prosecution.

The fraud has to end, no matter how blue is the blood of the perpetrator.

For how long can this attorney be wasting taxpayer money and committing fraud in several courts against several people?

Is the blue blood of his deceased father and his connections so much stronger than the law?

Is the letterhead of Richard Harlem showing that his deceased father was a Supreme Court judge win over law, fairness and common sense?

Will Judge Dowd and appellate judges continue to bow to this completely incompetent attorney and will continue to make fools of themselves in order to please Richard Harlem and Senator Seward, tenant of Richard Harlem, and other political connections of Richard Harlem?

I also wonder whether David Mokay will oppose Harlem's pathetic perjurous affidavit and motion made without jurisdiction, or will he simply let it go and not file any opposition - because his affidavit of November 2, 2015 that Harlem provided for Dowd's review, already said it all, not requiring to add anything else, and because, based on the Appellate Division's decision of May 13, 2016, the Delaware County Supreme Court has no authority to review any motions at this time, because its order of June 12, 2015 was final, and no motion to vacate that order was made yet.

Let's see how Judge Dowd will rule this time.  I will publish his decision in this case, which becomes more and more entertaining.

Stay tuned.

On target practice against female attorneys: bash public defenders and civil rights attorneys, spare female judges who commit crimes, but "tread very lightly" and "hold back a little bit" in changing illegal rules instituted by men

I just put in a blog describing how female attorneys raising constitutional arguments for the poor are being handcuffed, arrested, embarrassed, humiliated, disrespected and strip-searched in front of male security guards and detainees.

There is a difference in treatment though if a woman commits a crime - but where the criminal is also a judge.

Enters Judge Janet Madonia Calano, an "outstanding woman", a judge and a licensed attorney who committed the crime of fraud and altering public records in 2011 and 2012.

On May 9, 2016, Judge Janet Madonia Calano, a part-time judge of a local court in Westchester County received the discipline of admonishment for delegating judicial decisions to a prosecutor, a local Deputy Town Attorney.

Here are the charges:

Judge Calano is a licensed attorney and remains a licensed attorney "with no record of public discipline", notwithstanding her fraud noted by the NYS Commission for Judicial Conduct (altering court record during investigation against her, adding her "approvals" to dispositions where she allowed the prosecutor to decide those cases).

Altering court records is a crime.  Doing that in order to create a false impression is also a fraud, which is also a crime

An admonishment?

No records of public discipline?

For committing two crimes?

Just because it is a judge and an attorney, and nobody wants to "mar her reputation" - even if she committed a crime?

And, since the local prosecutor expects the judge to rule in the prosecutor's favor, good luck waiting that Judge Calano will be investigated and prosecuted.

You know who did not investigate or prosecute Judge Calano for committing two crimes of altering court records and doing that with intent to defraud the NYS Commission for Judicial Conduct?

Westchester County DA Janet DiFiore, an attorney who was elevated to Chief Judge of New York Courts.

The crime of alteration of public records and fraud was committed in 2012.

Commission of fraud in New York by a licensed attorney is an offense that leads to disbarment.

DA Janet DiFiore did not prosecute Judge Calano for fraud and alteration of public records in 2012, and let that 2-year statute of limitations for such a prosecution lapse.

The NYS Commission for Judicial Conduct was aware of misconduct of Janet DiFiore as a prosecutor, but still endorsed her for the seat of Chief Judge, and recently tossed two meritorious complaints against her without an explanation.

Yet, Judge DiFiore likely committed crimes before her elevation to the position of Chief Judge (and nobody wants to investigate or prosecute that) and did not stop in her corrupt efforts after her elevation.

If Chief Judge of New York State can be allowed to commit crime without any accountability, all other judges can follow suit.

Thanks to DA Janet DiFiore's non-prosecution, thanks to slap on the wrist by NYS Commission for Judicial Conduct, thanks to inaction of attorney disciplinary committees, Attorney-Judge Calano can now continue altering court records and lying in court documents, as a judge, or as an attorney.

Judge Calano clearly stated to the Commission, by the way, that she, "as a woman", had other priorities in the first year of her judgeship than to make sure she follows the law:

Judge Calano, a licensed attorney, preferred not to learn what the applicable law is, and to "tread very lightly", "hold back a little bit" with respect of "making changes in the court" (in other words, in following lawful procedure rather than delegating judicial duties to prosecutors), and had "other priorities" than to follow the law, "including improving court security and learning about handling criminal matters".

I wonder whether Judge Calano told voters during her election campaign that making sure she acts lawfully in court proceedings was not on her list of priorities.

And that, being an "outstanding woman", and "senatorial woman of distinction" (according to Judge Calano's resume I will describe below), she would prefer to "tread very lightly" and "hold back a little bit", not to ire male prosecutors and the fellow male judge - while deciding cases pending in front of her personally.

After all, see what happens to women who do not "tread very lightly" and make pesky constitutional arguments to courts - they are suspended without a hearing, handcuffed, detained, strip-searched, you name it.

No, it's definitely better to "tread very lightly" and "hold back a little bit".

Judge Calano knows what she is talking about.

She is a survivor in the profession still dominated by old white males.

Most likely, Janet Calano's connections in such a lenient disciplinary sentence and in lack of criminal prosecution played a role.

Here is a resume of Judge Janet Calano.

The resume very clearly indicates that, in addition to what Janet Calano did wrong - and what she was admonished for - she also had undisclosed conflicts of interest in presiding over cases prosecuted by a Town of Eastchester Deputy attorney, as a prosecutor, while having ties to the executive and legislative part of the government of the Town of Eastchester, in addition to be the Town judge.

Judge Calano prides herself on having "redrafted" the Zoning Code of the Town of Eastchester and for being an Executive Board Recording Secretary for the "Eastchester School Foundation".

Two many hats for a judge, don't you think?

Calano is also a very "outstanding woman", according to her own resume:

You can't take a "Senatorial Woman of Distinction" and an "Outstanding Woman in the Community" off the bench, disbar her and prosecute her for criminal conduct.

You simply can't.

There are civil rights attorneys and public defenders to be bashed out there, just don't touch connected "outstanding women" committing crimes on the bench.

Protection of the public be doomed.