Donors to Catholic churches in New York contribute to the church's lobbying efforts to deny a remedy to victims of sex crimes

Several years ago I filed a lawsuit on behalf of a victim of sexual abuse (that occurred when the victim was a minor) against the perpetrator of such abuse.

The perpetrator immediately opposed the lawsuit claiming that the lawsuit is precluded by the statute of limitations.

Of course, the same perpetrator was threatening to kill the victim if she would complain about the abuse, and did it exactly for the duration of the statute of limitations that exists in New York for such crimes and civil lawsuits.

Of course, in civil court, a perpetrator who would preclude the victim, by threats, from filing such a lawsuit, would be equitably estopped from raising the statute of limitations.

But that is - in a fair court.

In the court where it was happening, the perpetrator was protected by a local powerful judge, and the victim was afraid to proceed with the lawsuit.

The statute of limitations in sex crimes is a big problem.

When sex abuse against children occurs, it takes courage for the victim to come forward and testify.

In many states, there are no statutes of limitations in sex crimes, and, I would say, that should be the law in all jurisdictions.

In March of 2016 there was a march in New York in support of a legislative bill in New York to:

(1) repeal the 5-year statute of limitations (which limits filing of lawsuits by the victim until 5 years after reaching the age of majority, which is 18 + 5 = 23 years of age in New York); 

(2) give the previously time-barred victims a 1-year window to file their lawsuits.

You know what organization actually put millions of dollars into lobbying in opposition to the bill?

Catholic church.

I do not see Governor Cuomo though issuing any executive orders prohibiting to pour public money into the coffers of various organizations owned and operated by Catholic Church - like he recently did in support of a foreign country, the State of Israel (for which he had no authority whatsoever, as it was a matter of federal national foreign policy).

Churches are public charities receiving tax exemptions from the IRS on the condition that they will not engage in politics.

Catholic Church in New York clearly engaged in politics, attempting to prevent introduction of a certain law that has a potential to bankrupt the church and expose many priests to civil lawsuits, and, possibly, criminal prosecutions, which are currently time-barred.

Here is the text of New York Child Victims Act.

So far, according to the New York Senate's website, the bill is still in the "Committee" - for 3 years, since 2013 when it was introduced.

And the reason why is because it has been stalled by the Catholic Church's lobbying efforts.

When you go to church next time and are expected to donate, please, think what you are donating for.

Because your money has been used so far for lobbying efforts to deny victims of sex abuse - including victims of the clergy, including child victims - a right to a remedy.

Once again on contempt of court - a federal judge from Ohio #DanPolster plays God with his power

Yesterday, on June 9, 2016, the U.S. Supreme Court reversed a case where a former prosecutor, after becoming a judge, refused to recuse from a case where he was a prosecutor and pursued death penalty (by conduct of his subordinates involving fraud upon the court and eliciting perjury) and rejected several habeas corpus petitions and reinstated the death penalty of a criminal defendant.

The name of the case is Williams v Pennsylvania, the name of the judge (now former Chief Judge of the Supreme Court of the State of Pennsylvania) is Ronald Castillo, and I will post a separate blog, or several separate blog about that case, it deserves a detailed issue-by-issue review.

The court relied, among other cases, upon the case In re Murchison, decided in 1955, that is, 61 years ago, where a judge acted in a contempt of court proceedings as prosecutor, judge and jury - accusing individuals of contempt of court, presiding over their contempt proceedings and sentencing them.

Such behavior, where the judge is both the accuser and the adjudicator, was ruled to be a due process violation.

The day before yesterday, on June 8, 2015, a federal district court in Ohio, a federal district judge Dan Polster did exactly what the U.S. Supreme Court just reversed the case for - and what the U.S. Supreme Court in In Re Murchison ruled to be a due process violation.

Judge Dan Polster:

1) started a contempt proceeding against an attorney John V. McDermott - who is not listed as the attorney of record in the case, I checked on Pacer.gov - for allegedly not appearing at court proceedings; and
2) has all intent to presiding over them as a judge - in violation of attorney McDermott's due process rights.

Once again, Attorney McDermott is not listed as attorney of record in the case where the bench warrant was issued.

Here is the letter Attorney McDermott sent to the judge that was filed yesterday.

In the letter, attorney McDermott indicates that he:

1) is not attorney of record in the case;
2) is not admitted in the state or federal court in Ohio; and thus
3) is not subject to jurisdiction of the court;
4) will not drop everything in New Jersey where he works and fly to Ohio at the last minute because the court simply wanted him to be there.

The letter was filed, according to the docket report, yesterday, on June 9, 2016.

On June 7, 2016 Judge Dan Polster granted Defendant Gary McDermott motion to dismiss the case against him.

At the same time, Judge Dan Polster was very upset that Defendant Gary McDermott did not appear at the case management conference held on the same date.

It is apparent that presence of defendant whose case was going to be dismissed was not needed, and the judge's ire about that was simply raw - and unreasonable - exercise of power.

Yet, the judge questioned Gary McDermott who told him not to appear at the case management conference on the day when the lawsuit against him was dismissed by Judge Polster.

According to Judge Polster's order issued the next day, on June 8, 2016, Gary McDermott stated under oath that "attorney John McDermott" advised him not to appear at the case management conference.

Attorney John McDermott was not, once again, attorney of record in that case, nor was he admitted to practice law in the state of Ohio, or in the Northern District Court for the District of Ohio - as attorney McDermott explained to Judge Polster, without waiving lack of personal jurisdiction, in his letter of June 9, 2016.

Judge Polster never had jurisdiction over attorney McDermott, and his order to appear was blatantly illegal.

Non-appearance of Gary McDermott on the date of the case management conference, June 7, 2016, did not make any difference and did not cause any prejudice to anybody because the same judge dismissed the lawsuit against Gary McDermott on the date of the case management conference.

It was clear that there was no point to order appearances in any show cause proceedings, and especially to do that in person, and to order an appearance of a person who was never an attorney of record, not admitted in that court as an attorney and lives and works in another state.

Judge Polster had even less grounds to order such an appearance the next day.  He must have been aware that a busy attorney such as John McDermott could not simply drop everything he was doing in his large law practice and fly to Ohio on a one-day notice that was never served upon him personally or by mail.

Since John McDermott was not attorney of record in that case, he was not subject to electronic notifications.

There is no indication in the docket that attorney McDermott was even served with the order to appear.

It was a matter of courtesy by attorney McDermott - and, probably, a wrong move - to send any letters to the judge acknowledging that he knows about the order issued the previous day, with which John McDermott was never served.

Such a courtesy cost John McDermott dearly - Judge Polster issued a bench warrant when John McDermott, naturally, did not appear on June 9, 2016 at the "Order to Show Cause" hearing.

Moreover, Judge Polster, reportedly, said on Wednesday, that is, on June 8, 2016, before John McDermott's ordered appearance in court on June 9, 2016, that McDermott "will be arrested and he will sit for a good while until I see him," according to the transcript. "If he doesn't like that he can go to the Sixth Circuit or Supreme Court." 

So, 

1. not only Judge Polster had no jurisdiction over John McDermott and had no authority to order him to appear in federal court in Ohio, especially the next day from the order;
2. not only the order was never served upon John McDermott;
3. not only Judge Polster had no right to preside over the contempt proceeding that he initiated as an accuser - as the U.S. Supreme Court ruled in In Re Murchison in 1955 and in Williams v Pennsylvania as of June 9, 2016, but
4. Judge Polster certainly had no right to pre-judge that case by saying that he will first put John McDermott in jail, keep him there "for a good while" and only then review whether John McDermott should have been put in jail in the first place.

This as a very clear case of judicial misconduct.

Attorney John McDermott claimed he will file a complaint against Judge Polster because of it.

Yet, I doubt very much that the complaint will be reviewed, because the judge's misconduct is related to a court proceeding, and such complaints against federal judges are dismissed without review.

But, since a prominent member of legal community John McDermott is the victim of egregious judicial misconduct here, I wonder if he and his friends would pull some weight and have rules of judicial discipline in federal courts revised.

Because in this country only the law of connections work - for good or for bad.

I will continue to cover this story.

Stay tuned.

Judge Persky was just re-elected for another 6-year term - running unopposed

I've just posted a blog about two nightmare judges in New York - Richard Northrup and Kevin Dowd - who were elected while running unopposed.

Yet another nightmare like that just happened in California where Judge Aaron Persky, the one who gave a 6-month sentence to the Stanford rapist Turner Block, was just re-elected to a 6-year term.

As the report says, the voters "did not get to oust" the judge because her ran unopposed.

And that is, despite an international outcry to oust Judge Persky, an online petition that has gathered hundreds of thousands of votes to oust him and members of legislature calling upon him to resign and pledging to oust him if he doesn't.

It is clear that Persky is not resigning - he adamantly continued his election campaign and was re-elected unopposed.

By the way, the Stanford rapist case is not the first time when Persky made a decision favoring rapists.

In a civil trial alleging sexual assault by a group of De Anza College baseball players sued for allegations of gang rape, Persky derailed the case, which resulted in dismissal of the lawsuit against two of the defendants and private settlement against others, by admitting into evidence IRRELEVANT Facebook pictures of victims in revealing clothes made 6 months after assault.

It is apparent that the judge, same as in the Stanford rapist's case, sends a message that the victims were themselves to blame.  You dressed scantily - don't complain when you are gang-raped, that's the message.

Same as in the Stanford case - you went to a party and got drunk, don't be surprised that you found yourself raped behind a dumpster, and your rapist will get a rehab-length of incarceration only because a longer term will be too hard for his tender sensibilities.

Great message from a judge to the public.

And - he was just re-elected for 6 more years.

The public can expect the same kind of rulings from him in the future.

I wonder whether Persky will be removed or even disciplined for abusing his discretion in the courtroom and using it to humiliate and demean victims of sexual assault - we'll see.

Judge Richard Northrup of Delaware County, NY, re-enters - as a judge - a case from which he was recused as a prosecutor, for purposes of choosing a judge

I was advised that Richard Northrup, after recusing as a prosecutor from a case where I was a defense attorney before my suspension, filed an ex parte affirmation with the court as a prosecutor requesting transfer of the case to another court (which he at that point had no right to do), but he did not stop at that.

Northrup then became a judge, re-entered the case where he was a - recused - prosecutor and engaged in ex parte communications with judges in local justice courts (several of them) offering to preside over a case of my former client, proceeding without me pro se.

After one judge recused, Northrup offered the case to another judge.

Then, somehow Judge Rosa got involved and, also based on an ex parte communications with judges and prosecutors, sent the case to yet another judge, without vacating Northrup's sending the case to a different court.

So, now the case has been sent to two different courts - to one by Judge Norhtrup, the former prosecutor in the case, and another by Judge Rosa, who is also full of conflicts of interest in that particular case.

The case involves not only ex parte communications of ALL judges who so far were involved in that case, and those are:

1. Yvonne Pagillo, of Walton Village Court;
2. Douglas Card, of Deposit Town Court;
3. Joseph Cawley, Chief Administrative Judge of Criminal Courts in the 6th Judicial District;
4. Robert Mulvey, at that time Chief Administrative Judge of the 6th Judicial District;
5. Michael Coccoma, Chief Administrative Judge of upstate New York;
6. Richard Northrup, Delaware County Court judge (and former recused prosecutor);
7. J. Neal Phelby, Deposit Town Court;
8. Gary Rosa, Delaware County Court judge;
9. Michael T. O'Brien, Hancock Town court judge;
10. Herbert Buckley, Hancock Village court judge.

10 judges.  From the top administrative level to the justice court level.

On a traffic ticket case.

All engaged in ex parte communications with the prosecutors in fixing the case.

And that is not just me talking about it - I have documentary evidence regarding such ex parte communications.

Apparently, the rule of ex parte communication does not exist any more.

New York State Commission for Judicial Conduct repeatedly tossed my documented complaints against judges who engaged in ex parte communications.

So, judges now believe that ex parte communications with the prosecution in Delaware County cases is the new law.

Defense counsel and litigants - beware.

By the way, JUST YESTERDAY the U.S. Supreme Court JUST reversed a case, Williams v Pennsylvania, where a former prosecutor who sought a death penalty then re-entered the case AS A JUDGE and decided against the death penalty defendant FOUR habeas corpus petitions, and that is, in a case where the judge's own behavior (or that of his subordinates) in concealing exculpatory evidence and eliciting perjury from a witness on several material issues, not just one, was at stake.

I will provide a more detailed analysis of Williams v Pennsylvania in a separate blog, believe me, the case is bad.

It has been held a violation of due process where a former accuser, a prosecutor reappears in the case as a judge and makes adverse determinations against the defendant.

That is even more of a misconduct where the former prosecutor recused from the case because of an ex parte communication with one judge (Yvonne Pagillo), then made an ex parte motion to recuse before another judge (Robert Mulvey), after he was disqualified, made another ex parte application in writing to yet another judge (Joseph Cawley asking without any authority to transfer the case), then re-entered the case as a judge and engaged in ex parte communications with at least three more judges - 

1. Douglas Card;
2. J. Neal Felby and
3. Michael O'Brien

Northrup, apparently, was very much interested in fixing the case, even after his recusal as a prosecutor.  

Defense attorneys and litigants - be aware of yet another proof of Northrup's dishonesty.

By the way, Northrup's decision assigning Judge O'Brien was never even sent to the defendant.  And, of course, Northrup's communications with other judges were never provided to the defendant (with Judges Card, Felby and O'Brien), nor to me as the defendant's counsel before my suspension (with Judges Mulvey and Cawley).

Remember - Northrup ran for the judicial seat unopposed, so the only vote that he needed to be elected was his own.

Litigants are saddled with Northrup for 10 years, Northrup just started - and so far has outdone even his predecessor and buddy Carl Becker in misconduct.

There is another in-famous local judge who was also elected without any opposition, the mentally unstable antisemitic Judge Kevin Dowd from Chenango County Supreme Court who: 

• raves about law schools building urinals in his honor during child custody proceedings, 
• holds ex parte trials to which he instructs court personnel not to allow public access, misleading the public that the trial is not being held;
• admits evidence by boxes without looking at it - if it comes from a "connected" attorney;
• blocks access to that evidence when his decisions are appealed;
• gives away evidence during the pendency of appeal precluding the appeal from being perfected;
• employes as court reporters Facebook friends of his long-time female law clerk to whom he has, apparently, tender feelings (Dowd reacted very personally to a motion to recuse involving her clear misconduct);
• allows antisemitic court personnel to engaged in violent revenge against Jewish litigants who dared to complain against them;
• throws Jewish litigants out of the courthouse for making motions to recuse him - after granting such motions, and claims that any motion to recuse is a disruption of court proceedings which entitle him to use armed court security against the moving parties.

Litigants are saddled with Dowd until 2026, according to NYS Unified Court System's website - unless Dowd retires earlier.

It is very clear that whether a judge should or should not be elected, should not depend on just one vote - the judge's own.

Yet, that's what happened in Northrup's and Dowd's case.

I do not know what the solution should be - but when a judge is running unopposed, I believe that rules requiring a minimum of a certain, and high, percentage of votes from the population of the District should be introduced, otherwise the judge is elected simply by himself, his friends, family, relatives and colleagues, and by those who paid for his election campaign and expect favorable decisions from him as a result.

For a story about yet another dishonest judge elected unopposed, from another state - stay tuned.

The $368,332 "Moon Boon" of Delaware County DSS to Delaware County prosecutors - 4 times fatter than the $91,457 "Muehl Boon" to Otsego County prosecutors

I wrote on this blog previously about the Otsego County (NY) District Attorney John Muehl's contract with the Otsego County DSS for $91,457 to prosecute the poor.

Guess what, the present Delaware County (NY) Judge Richard Northrup - Delaware County District Attorney in 2014 - had a 4-times sweeter deal with the then Delaware County DSS Commissioner (now former) William Moon.

The contract of Delaware County DSS with the Delaware County District Attorney, signed in 2014 by William Moon and Richard Northrup, is for over $368,000, for the same purpose - to pay for investigators to investigate and prosecute social services fraud.

The interesting thing is that Otsego County has a population of 60,636 (in 2015) with a population density of 61 people per square mile (a reduction of population of 2.6% since 2010).

"The median income for a household in the county was $33,444, and the median income for a family was $41,110. Males had a median income of $29,988 versus $22,609 for females. The per capita income for the county was $16,806."

Delaware County has a population of 46,722 (in 2013) - actually, the population has dwindled since then, as evidence by the fact that a maternity hospital announced this year it is closing, and the community pool in Delhi, NY, the County seat, is not going forward.

The population density is 33 people per square mile.

"The median income for a household in the county was $32,461, and the median income for a family was $39,695. Males had a median income of $27,732 versus $22,262 for females. The per capita income for the county was $17,357."

Average per capita income in both counties is about the same - around $17,000 a year.

$17,000 is around 150% of the Federal Poverty Guidelines.

Since the majority of populations in the two counties are poor, that entitles residents in both counties to a number of subsidies from the government, see the schedule here.

Of course, there is a possibility that people apply where they are not eligible - but, since population in both Counties is also not quiet advanced in education, it is for those reviewing the application to reject and explain that to people, not to prosecute the admittedly poor population for being poor - but not eligible for help.

Yet, the approach in both counties is that public money needs to be poured into paying extra to the District Attorney's office for prosecutions on behalf of DSS, practically hiring the elected county official to provide his investigators to work for pay for certain class of cases - to recover federal money, by the way.

And, Otsego County DA got paid 4 times less than the Delaware County DA by the respective Social Services Departments.

Over $91,000 paid to Otsego County DA Muehl, out of the pockets of the poor-on-the-average Otsego County taxpayers - to prosecute the poor more vigorously.   And to take resources away from prosecuting rampant corruption in Otsego County government.

In Delaware County, with less population and less population density, but the same levels of eligibility to government subsidies as in Otsego County, the levels of fraud in the use of government subsidies must be statistically lower.

If population in Delaware County is 30% lower than in Otsego County, then the numbers of fraud should be statistically lower by about the same levels.

So, the contract to bribe the District Attorney's office into dedicating its limited personnel to prosecute the poor and not other crimes in the county should be 30% less - around $60,000.

Right?

Wrong.

The contract to bribe Dick (oops, Judge) Northrup into prosecuting the poor - and not the rampant corruption in the Delaware County and its Department of Social Services - was $368,332, according to release of records I obtained from Delaware County on a FOIL request last week.

That is 4 times higher than the bribe of Otsego County DSS to Otsego County DA, and 6 times higher than what than what that amount would have been if compared with Otsego County contract and pro-rated by comparative population levels.

Now you have the answer why Dick (Judge) Northrup did not prosecute corruption in Delaware County government.

Now you have the answer why members of Delaware County government wanted Dick Northrup on the bench so badly - and put him there.

Now you have the answer why Dick Northrup chose not to prosecute his investigator Jeff Bowie's nephew Derek Bowie for two assaults and one attempted murder.

Jeff Bowie was a cash cow.  

The contract was not a flat-rate contract, but "services-based".  So, Dick Northrup had to earn his keep.

And, by the way, the contract for $368,332 for "services" of DA's investigator to work for DSS was signed after the press raised in 2013 the issue why DSS investigators were employed in the DA's office in the first place.

So, instead of laying off DSS investigators working out of the DA's office, DA Northrup signed a contract with DSS to provide paid investigations to the DSS.

Of course, when you are providing paid services to somebody, you have an incentive to overlook any transgressions - such as: crimes - in those who pay you.

One doesn't bite the hand that feeds one, right?

So, Northrup provide paid services to DSS, to the tune of $368,332 of taxpayers' money - and that's only in 2014.

And, when I called the DA's office in 2014 asking to prosecute then-judge Carl Becker (friend of Bill Moon) and the Republican Election Board Chairman Bill Campbell for forgery of public records and fraud, it is now more clear why such a request was rejected.

One doesn't bite the hand that feeds one.

Of course, the DA's office investigators must investigate all reported crimes - and not because somebody pays them extra to investigate some reported crime and not to investigate others.

But, that's not how it happens in Delaware - and Otsego - Counties.

And, Northrup got his reward for his corruption - a judgeship, with his salary immediately perked up, several months into his election.

When you are told that Dick Northrup is not an "Honorable", don't believe it.

It's a job title, nothing else.

Nothing can make a corrupt public official honorable.

But, the question is - will the Delaware County Judge Northrup and the Delaware County former DSS Commissioner Moon be investigated and prosecuted for corruption for this contract?

I doubt that.

After all, John Hubbard is the one who refused to prosecute Carl Becker - without disclosing that Carl Becker was his law partner, and John Hubbard and Dick Northrup did not disclose that fact for 13 years that Becker was on the bench, while appearing in front of him and obtaining thousands of criminal convictions - where all of defendants can now claim convictions were improper and seek their reversals, simply because John Hubbard's involvement with Carl Becker was not disclosed, and that will come at a price to Delaware County taxpayers.

But - corruption pays in Delaware County and in the State of New York.

Honor doesn't.

A California Judge who was censured for having sex with two women in chambers just got re-elected

I wrote in this blog about a California judge Scott Steiner who was censured for having sex in chambers with two women, see my blogs from 2014 here and here.

One woman was an attorney practicing in front of the judge, and the other was the judge's former intern - and the judge, after having sex with her, advocated on her behalf with the local District Attorney's office for her employment.

Guess what - Judge Steiner just got re-elected, in a contested election.

Meaning, the voters support and condone such judicial behavior.

So - judges, have sex in chambers with your interns and pay back for sex with jobs in high places.  

The public approves.

Talking heads thumping Trump for criticizing Judge Curiel are in denial of existing law and practices in American courts

For years, the media avoided like plague the issue of judicial impropriety and bias.

For the last couple of days, the talking heads on TV and the media discuss nothing else.

Because it is safe to do so now - because thinking is not required to just say: to accuse a judge of appearance of impropriety is:

1) racist;
2) unamerican;
3) makes the accuser unfit to be a president.

Of course, it is not just the race of Judge Gonzalo Curiel that drove Donald Trump to raise the appearance of impropriety in Judge Curiel presiding over the case of Trump University and repeatedly ruling against Trump University.

It is what is called the "totality of circumstances" including:

1) the heritage of Judge Curiel - his parents were both Mexican immigrants, and,  with all the frenzy in the media, I did not see any efforts to uncover and produce documents indicating that Judge Curiel's parents entry into this country was legal;

With the amount of money thrown into this media frenzy, to rely upon statements of Judge Curiel's brother Raul that his parents entered the country legally is irresponsible journalism.

Trump is right to raise the issue that a large part of Trump's election campaign is to build a wall and prevent further illegal immigration from Mexico.

It is nonsense to say that a judge would not feel for his immigrant parents (now deceased) and would not try to use his position of power to hurt a critic (fair or unfair) of his heritage - and it is especially so when the judge is honored in supporting the "community" which honors as its part organizations of illegal immigrants.

I wrote on this blog about a lot of different motives for judges to act as advocates and not as impartial tribunals.

The triggers range from being an athlete (like the defendant), a churchgoer (while the defendant went to the same church choir), and most definitely, the race.

The media accuses Trump of being a "racist", "unamerican" for "assaults on a judge".

There was no physical assault.

There was criticism.

Can a party in litigation raise the appearance of impropriety?

Sure.

And, are there legal standards in this country indicating that NOT taking into account the race of the factfinder is a violation of the litigant's due process of law?

Sure.  The media conveniently forgets about that.

On May 23, 2016, the U.S. Supreme Court overturned a death sentence because it was meted out to a black defendant by an all-white jury - in 1987, that is 30 years ago:

"The State’s new argument today does not dissuade us
from the conclusion that its prosecutors were motivated in
substantial part by race when they struck Garrett and
Hood from the jury 30 years ago. Two peremptory strikes
on the basis of race are two more than the Constitution
allows.

The order of the Georgia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion." 

In other words, the U.S. Supreme Court, in 2016, overturned a death sentence - that a judge allowed - which was motivated by race of the fact-finders.

Which means, race of the fact-finders matters.

Very much so.

Why do we actually strive for "judicial diversity"?

Why do we want more judges of color on the bench?

The U.S. Supreme Court Justice Sonya Sotomayor answered that question:

In 2001, Sonia Sotomayor, then an appeals court judge, "gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”"

Sonya Sotomayor was recently in the middle of a controversy with her other statement - to force lawyers to provide free services for the poor as a condition of having a law license.

That statement of Sonya Sotomayor was vigorously discussed in the press.

The 2001 - on point - statement of Sonya Sotomayor that the ethnicity and sex of a judge "may and will make a difference in our judging" is all but forgotten, and Trump is jumped upon - for saying the same.

That the ethnicity of a judge does matter and, in his case, does raise an appearance of impropriety.

Sonya Sotomayor, in her famous speech, rejected the notion that it does not matter that the decision is made by a white or non-white judge, by a man or woman (which is how it should be).

Sonya Sotomayor, who was since PROMOTED to the U.S. Supreme Court, thinks otherwise:

"In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

That's EXACTLY what Trump doesn't want in a judge in his case.

A "wise Latino man" who would draw from and based his decisions not upon the record and the law, but upon the "richness of his experience" - and from the "richness of experience" of his Mexican immigrant parents, now both deceased, and thus even more honored by the judge.

In other words, Trump wanted to exclude a possibility of Judge Curiel making a decision in  his case based on extra-judicial factors - which is EXACTLY what the "wise Latina woman" Sonya Sotomayor was calling upon judges to do since 2001.

2) Affiliations of Judge Curiel with advocacy organizations for illegal immigrants

It was discussed in the media ad nauseam whether Judge Curiel's participation in a lawyers' group which itself is affiliated with the nationalist La Raza movement raises an appearance of impropriety.

From the point of view of ensuring a right to a fair trial for Trump University - where its founder has pledged to fight illegal immigration from Mexico, and made offensive statements against Mexican immigrants equating them with criminals - Trump has a point, and that is especially given the speech of Sonya Sotomayor and her "wise Latina woman" drawing upon her experiences as opposed a white man who "didn't live that life".

Trump also has a point where Judge Curiel:

• sat on panels awarding scholarships to illegal immigrants; where 
• the organization he sponsors honored him for "support of community" and of the La Raza San Diego Association as recently as on May 26, 2016;
• organizations of illegal immigrants are considered by the San Diego Lawyers Association as part of the "community" that Judge Curiel was just honored for serving so well;

That would give any litigant enough pause and a basis to make a motion to recuse judge Curiel.

The reason why Trump's lawyers do not make such a motion is not because it is not merited, but because the current climate of sanctions against attorneys who make motions to recuse, and the media frenzy around the case intimidated the lawyers into considering their own interests (in not being sanctioned and not losing other business and not to be boycotted) over and above the interests of their client.

3) What would also give me pause is the answers of Judge Curiel at his confirmation hearing before the U.S. Congress.

In his answer to questions ## 6 and 8 below (which was pre-prepared by Judge Curiel), Judge Curiel put precedents of the U.S. Supreme Court and federal appellate court, even erroneous (unconstitutional?) precedents, above the U.S. Constitution - while such precedents are NOT part of the Supremacy Clause, DO NOT trump the U.S. Constitution, and ARE NOT binding upon any court if they are made in violation of the U.S. Constitution.

I received recently an e-mail from an individual in some advocacy group appealing to members of the e-mail list to distance from Trump and not to discuss the issue whether there is or there is no appearance of impropriety in Judge Curiel presiding over the class lawsuit against the Trump University.

The e-mail was pointing out that it is the wrong person and the wrong situation where the appearance of impropriety should be raised, in other words, not a "perfect showcase".

I disagree.

The media's silence - in general - on the issues of judicial misconduct, bias, and impropriety, of judges of all races and genders - and the media's frenzy once a prominent, and much hated (deservedly on many points), presidential candidate raises this issue, and the way the public responds, after being heated up by the cues from the mass media, actually warrants and even mandates a response from those of use who see what is really going on.

It is not inappropriate to raise ANY issues raising the appearance of impropriety.

The right of access to court, the right to an impartial judge, the right to a fair trial are all fundamental constitutional rights, guaranteed by the 1st, 5th and 14th Amendment.

The right to criticize a member of the government - any member, including a judge - is a fundamental constitutional right, guaranteed by the 1st Amendment to any one of us, including a presidential candidate, no matter how he is hated by some people, and no matter whether that hate is deserved or not.

A Latino U.S. Supreme Court Justice Sonya Sotomayor endorsed judicial decision-making influenced by race and gender of the judge, and drawing on the judge's background and experiences outside of the record.

I do not see the media talking heads criticizing her.

The pleading standards in federal court - the infamous Iqbal and Twombly cases - allow judges to draw upon their own extrajudicial experiences.

Once again, Judge Curiel is allowed by the U.S. Supreme Court precedent - which he pledged to follow at his confirmation hearing, whether it is erroneous (unconstitutional) or not - to draw on his own personal experiences in deciding court cases.

I do not see the media criticizing or even mentioning Iqbal and Twombly cases.

I only see the media in a frenzy DENYING that Judge Curiel would do what the precedents allow him to do.

And I only see the media eating alive Donald Trump for saying that doing what Sonya Sotomayor claimed a judge must be doing, and what the U.S. Supreme Court in Iqbal and Twombly allowed judges to do - drawing upon their own personal experiences in deciding cases - which is what Trump discerned in Judge Curiel's decisions - was wrong.

It is wrong.

Let's sum it up.

1) Race matters in court decision-making, as ruled in:

Batson v Kentucky, 476 U.S. 79 (1986);
Foster v Chatman, (May 23, 2016)

2) Drawing upon a judge's personal experiences related to his racial heritage should be done as part of judicial decision-making - according to the U.S. Supreme Court justice, a "wise Latina woman" Sonya Sotomayor.

3) Drawing upon a judge's personal experience in deciding federal cases is allowed at the pleading stage, for purposes of deciding a motion to dismiss before reviewing any evidence in the case - by a U.S. Supreme Court case 

Ashcroft v. Iqbal, 556 U.S. 662 (2009):

"whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and common sense" - see criticism of that decision here and here.

In 2010 there was an empirical study conducted of decisions made by judges of different races.

The article describing the study actually indicated that racial diversity in the judiciary is important because:

"[i]t is essential that judges have an ability to relate to a rapidly growing diverse culture and the experiences of minorities vulnerable to White people in positions of power within industries predominantly controlled by Whites."

A judge's "ability to relate", or empathy to a certain class of litigants, is called "bias".

A judge should be even-handed, impartial and should correctly and fairly apply the existing law, based on the record of the case - that's all the judge has to do.

If in any judicial confirmation hearings, a judge would be tested for his or her "ability to relate" to various classes of litigants - there will be a media frenzy of another kind, condemning the judicial candidate for seeking his judicial seat to promote interests of a certain class of litigants to which the judge "relates".

The existing law, the existing studies, statements of a presently sitting U.S. Supreme Court Justice clearly indicates that race matters in judicial decision-making.

Many litigants, mostly pro se (because attorneys are afraid to raise the issue) are raising the issue - in pleadings and in social media - that judges make decisions in favor of people with backgrounds similar to the judge, including ethnicity, religion, church, cultural values etc.

But, when such an issue is uttered by a presidential candidate - the media immediately calls him racist, and political capital is made on bashing him.

Based on the facts at his disposal, and existing laws and practices as described above, Trump had every right to raise the issue of appearance of impropriety in Judge Curiel presiding over his case and repeatedly ruling against his institution.

The taint is not removed by claims that Judge Curiel's decisions are supported by evidence.

For purposes of fairness of adjudication, appearance of bias and impropriety is as important as the actual bias and impropriety.

And, if the media really wanted to protect a judge from racist attacks - the media should protect the recently suspended Judge Olu Stevens of Kentucky - a black judge who was suspended by a racist judicial system for insisting that the anti-racist law, Batson v Kentucky, is followed in the racist criminal justice proceedings.

The black judge Judge Olu Stevens actually called out a white prosecutor for being a racist.

And was suspended for his efforts to enforce the anti-discrimination law.

I don't see any media frenzy defending Judge Olu Stevens though.

A judge has no claim for racial discrimination where he is in a position of power to decide a case of a litigant, is allowed to draw upon his personal experience to make such a decision, and where the top judges in the country encourage judicial decision-making based on the judge's racial heritage.

Don't fall into the trap of bashing Trump on this issue.

It is not un-American to question impartiality of a judge.

It is not un-American to try to secure a fair trial for yourself, by statements in court and out of court.

It is not un-American to criticize a judge in a public forum, including for decisions based on the judge's racial heritage.

I will never forget how a black client, an Army Veteran who went through combat where his country has sent him,  a man with no criminal record, told me about civil court proceedings in front of white judges - "they are not ready to see the likes of us without shackles".

That was not in the Bible Belt states.  That was in the State of New York.

Race in judicial decision-making matters.

To deny it is to deny the obvious.


If there can be prejudiced decisions by a white judge against a black litigant, there can be prejudiced decisions by a judge of any race against a representative of another race.

How to fight ethnic-based bias in judicial decision-making?

On a case by case basis.

Like Trump is doing.

To support Trump-bashing at this time, when he had every right to raise the issues he is raising, is to deny yourself in the future a possibility to raise issues of judicial impartiality and appearance of impropriety in court proceedings, and I am talking about litigants of any racial and ethnic background.

You have a right to a fair trial.

You have a right to a judge who is, at the very least, not an advocate for a group you are criticizing or whose access to the U.S. you are trying to restrict, and especially not an advocate because of blood ties.

You know the saying - "blood is thicker than water".

It is.

In racial and ethnic issues, too, and judges are human.

When a litigant feels he is treated unfairly and may be the victim of an ethnic-based judicial bias, he must be able to raise that issue.

It is a legitimate issue ensuring access to court and the right to impartial judicial review and fair trial to all of us.

Don't sell yourself out, don't fall into the traps of the talking heads.

They have money to make - as well as politicians who condemn Trump for "judge-bashing" to make political capital out of it.

On our backs.

And, before continuing to bash Trump, please, consider reading these law review articles:

Cornell Law Review, 2009 - "Does unconscious racial bias affect trial judges?" 

An article claiming that judges stereotype - and make their decisions - based on judge's own race and race of litigants in front of them.

This article, measuring sentences by white judges against white and minority defendants.  If a white judge on minority defendant bias exists, a minority judge on white defendant bias may exist, too - don't you think?

Yet another study on race-based judicial bias claims that "[s]ince African American judges have likely experienced discrimination themselves, they can recognize more complex and subtle forms of racial harassment".

If you are in a jury pool, and you have "likely experienced" the type of crime you are judging - you will be taken off the case, because there is a high likelihood you will act as an advocate.

Judge Curiel - let's remember that - was raised in poverty, by two laborer Mexican immigrant parents who both died young, likely because of their hard labor past.

And finally, there are many judges in the district court where Judge Curiel "serves".

Once again, Judge Gonzalo Curiel was picked to be assigned to 2 out of 3 lawsuits against the Trump University, out of 16 available judges:

1. Cynthia Bashant - white Non-Hispanic female, no evidence of immigrant parents;
2. Anthony J. Battaglia - white non-Hispanic male, no evidence of immigrant parents;
3. Cathy Ann Bencivengo (nee Palumbo) - a white female, possibly Hispanic, no evidence of immigrant parents;
4. Roger T. Benitez - Hispanic, immigrant, born in Havana, Cuba;
5. Larry Alan Burns - white male, U.S.-born, no evidence of immigrant parents;
6. Gonzalo P. Curiel - Hispanic, born to Mexican immigrant parents;
7. William B. Enright (born 1925, 91 years old) - a white Non-Hispanic male, no evidence of immigrant parents;
8. William Q. Hayes - white non-Hispanic male, no evidence of immigrant parents;
9. John A. Houston - African American, no evidence of immigrant parents;
10. Marylin L. Huff - white non-Hispanic female, no evidence of immigrant parents;
11. M. James Lorenz - white non-Hispanic male, no evidence of immigrant parents;
12. Jeffrey T. Miller - white non-Hispanic male, no evidence of immigrant parents;
13. Barry Ted Moskowitz - white non-Hispanic male, no evidence of immigrant parents;
14. Dana M. Sabraw - a male judge, has a Japanese immigrant mother
15. Janis L. Sammartino - white female, no evidence of immigrant parents
16. Thomas J. Whelan - white male, no evidence of immigrant parents

The state of California where the court sits has the following demographic composition:

According to 2014 US Census Bureau estimates, California's population was:

• 73.2% White, 
• 6.5% Black or African American, 
• 14.4% Asian, 
• 1.7% American Indian, 
• 0.5% Pacific Islander and 
• 3.7% from two or more races. 

By ethnicity, 

• 38.6% of the total population is Hispanic-Latino (of any race) and 
• 61.4% Non-Hispanic (of any race).[11]

Ok, so the population is more than 1/3 Hispanic.

Out of 16 judges of the court - 2, possibly 3 Hispanic judges, that is 12 to 19%.

Once again - there are 38.6% of Hispanic people in population, and 12 to 19% (I am not sure about Judge Bencivengo/Palumbo).

That is less than 1/3 of the proportion of Hispanics in the population.

There are 14.4% Asians in California's population.

There is 1 (one) judge who is half-Japanese in the court.  That is 6% of the court, more than 2 times less than the proportion of Asians in the population.

There are 6.5% of African Americans in the California population - and there is only one African American judge, about the same as proportion of the population (the question is though why the African American population is so scarce, twice less than the average in the U.S. - is California actively discriminating and preventing African Americans from settling in?).

Four females out of 16 judges, too.

So, the court where Judge Curiel serves was composed as a mysoginistic white male-dominated body.

There are only 2 (possibly, 3) Hispanic judges on that body.

There are only 3 judges who have any personal experience with immigration - one judge was born in Havana, Cuba, one judge has a Japanese immigrant mother, and the third judge, Judge Curiel, has two Mexican immigrant parents.

Judge Curiel is the ONLY judge out of 16 judges who has Mexican immigrant parents.

Trump is fighting illegal immigration, specifically out of Mexico.

Is it a coincidence that out of the body that was composed in such a way that it is dominated by white male judges (it is not Trump who made up that court that way), the judge assigned to him is the ONLY judge with Mexican immigrant parents?

Don't talk racism.

Talk common sense.

Judge Curiel was picked for this case for a reason.  And he is doing his "job" well.