Georgia defense attorneys filed a lawsuit seeking records of ex parte communications between a judge and a prosecutor

A lawsuit has been filed by criminal defense attorneys in Georgia, Cobb County, seeking full access to video and audio recordings of court proceedings in criminal cases before Judge Reuben Green.

The reason for the lawsuit is that Judge Green, according to court security videos, engaged in ex parte communications with prosecutors in the absence of defense attorneys and defendants.

When a defense attorney filed a Freedom of Information request and obtained copies of video and audio recordings from the Sheriff's Department (that handled court security and was the custodian of court security tapes), the judge called the County Attorney and yelled at her for releasing the damaging videos and audios without a "consultation" with him.

Then, reportedly, the policy of access to records was changed, allowing access, on demand, to video recordings, but requiring inquirers to sign a "confidentiality agreement" as to audio recordings of criminal proceedings that were supposed to be open to the public.

In the already-released audio recordings the judge allegedly tells prosecutors, without presence of defendant or defense counsel, that he hopes that the jury will "do the right thing".

 "A few weeks later" - after the "do the right thing" ex parte conversation with prosecutors, the judge, a former career prosecutor, "when talking to prosecutors about defendant Borja Francisco Escobar, who faced drug-related charges, Green began referring to Escobar as “Pablo,” apparently in reference to the notorious Colombian drug lord. Green then indicated he would give Escobar a 25-year sentence, even though Escobar had yet to stand trial."

Apparently, the judge made up his mind as to the defendant's guilt before the trial.

Moreover, several motions to vacate criminal convictions were reportedly filed.

One of them asserts that a former juror came forward and stated that, when a criminal jury was deadlocked and a mistrial declaration was required, Judge Green came to jury deliberation room and, without presence of prosecution or defense, told the jury that he will not accept a deadlocked (mistrial) decision, sent them home, and they convicted the defendant the next day after 45 minutes of coerced deliberation.

Apparently, it was easier for the holdout juror to convict the defendant than to disobey the judge who said he will not accept a mistrial.

The case shows how CRITICALLY important are court surveillance cameras with audio and video recording, and how CRITICALLY important it is to have such recordings preserved for a substantial time, so that the defense and the public can review such recordings months and even years after a criminal conviction.

Georgia is a death penalty state, by the way, and having a judge who is nothing more than a behind-the-scenes aide to the prosecutor is not only illegal - it is absolutely disgusting.

Andrew Cuomo's suggestions to improve business climate in New York - do not touch corruption, expand occupational regulation instead of deregulation, distract and rule

On June 3, 2016, New York Governor Cuomo announced "recommendation to improve business climate" in New York.

That is the same business climate that is based on rampant corruption of the New York State government - including Cuomo himself.  I wrote about Cuomo's shenannigans about buying judges - he bought, only on my knowledge, three judges of the Court of Appeals so far (and that's only judging from records available to me, there may be more), Leslie Stein, Eugene Fahey and Chief Judge Janet DiFiore.

Naturally, the "recommendations" did not include the most sensible approach:

1) clean up the government by enhancing efforts to fight corruption;
2) enact new laws stripping corrupt officials of immunity and allowing private lawsuits against them - which will be an easy and financially efficient way to find corrupt public officials and then prosecute them criminally; the public will do the preliminary work through investigation and discovery through court at the litigants' own expense;
3) fight price monopolies for heating oil and gasoline - it makes no sense that in New York State where gas is needed in larger quantities, prices for it are higher than down South when gas is not needed in the same quantities for heating;
4) reduce property taxes and prohibit foreclosure on properties for inability to pay taxes.

Those measures were, of course, not recommended.

Instead, the recommendations to improve business climate in new York included:

1. "Evaluating and repealing or modifying the weekly pay mandate in Labor Law as it relates to employers with less than 1,000 state employees.
2. Encouraging localities to delay implementing or enforcing local laws on the use of Microbeads (any solid plastic particle that is less than 5 millimeters that is used for the purpose of exfoliating or cleansing; often found in cosmetic products) so as to comply with recently implemented Federal law.
3. Achieving uniformity in regulations regarding the use of plastic bags at retail stores.
4. Authorizing minority non-Certified Public Accountants to have ownership of Certified Public Accounting firms.
5. Achieving uniformity in regulations regarding the use of chemicals in children’s toys.
6. Modifying NYS Department of Labor regulations to update housing and other allowances for farm employees to be more reflective of current costs.
7. Moving farm tax assessment functions from the NYS Department of Taxation and Finance to the NYS Department of Agriculture and Markets to acheve greater efficiencies.
8. Speeding up phase-in time for exemption thresholds for the estate tax.
9. Providing increased funding for the Farmworker Housing Program through the NYS Department of Housing and Community Renewal.
10. Expediting the approval of wireless facility upgrades at existing locations throughout the state.
11. Adopting a statewide standard for small scale, residential solar installations.
12. Reforming the NYS “Excelsior” jobs program to help increase economic activity.
13. Repealing NYS DMV rules relating to commercial truck inspections, enforcements, and penalty provisions in order to provide relief to employers for minor violations.
14. 14.Clarifying NYS Industrial Development Agencies’ (“IDA’s”) authority to provide financial assistance in the form of loans and grants.
15. Updating Business Corporation Law regulations with respect to items such as veilpiercing provisions, notice requirements for LLCs, age requirements for incorporators and rules for naming a corporation.
16. Updating Abandoned Property Laws as they relate to Gift Cards and escheat laws."

Those were short-term recommendations - to improve New York business climate.

Long term recommendations are these:

1. "Clarifying the standard for a sales tax nexus based on the presence of purchasing agents in New York State.
2. Updating and streamlining New York’s State Environmental Quality Review Act (“SEQRA”) and other land use/project review processes. SEQR requires all state and local government agencies to consider environmental impacts together with social and economic factors during discretionary decision-making.
3. Evaluating and adjusting the “Tax Base Growth Factor” under the real property tax cap to potentially include economic growth for various projects.
4. Updating and modernizing “reportable quantities” as they relate to various hazardous substances.
5. Instituting Court reforms to add additional commercial court judges.
6. Allowing not-for-profits to issue student stipends in Career and Technical Education programs.
7. Increasing and expanding use of Career and Technical Education (“CTE”) certifications.
8. Investigating legislative solutions to address scheduling practices such as “on-call shifts” and “predictive scheduling.”
9. Modifying regulations regarding the establishing Life Insurance Capital Reserves.
10. Removing small business restrictions with respect to Minority and Woman owned business enterprises (“MWBE”)."

It is clear that, for Cuomo, the only court reform that New York state needs is to add some commercial judges - not to clean up the judiciary of the rampant corruption where practically every judge in New York state considers it not beyond him-/herself to engage in neglectful, abusive and/or unethical behavior (ex parte communications as just a relatively minor example) - knowing that no discipline will ever reach them.

Also, the long-term recommendations of Cuomo's commission as to CTE's  are contrary to economic trends.

While President Obama issued a report in July of 2015 indicating that over 30% of the country's labor force is subject to occupational licensing and occupational licensing may be stifling the economy of the entire country, New York, under Cuomo's "governance", plans to "increase and expand" occupational regulations through "career and technical education certifications" - instead of planning to deregulate and letting people work and earn a living without control of the government.

Here are "recommendations that require further discussion and review" (obviously which the hastily assembled special interests group could not fix in the 2 months of its work - why should a task group reviewing such an important issue as changing business climate to help the economy of a huge state had an extremely short 2-months' deadline, nobody knows):

1. "Implementing additional Workers’ Compensation Reform, including, but not limited to, improving municipal employer and county plan member access to public selfinsured pools, and finalizing durational caps on Permanent Partial Disabilities (“PPD”).
2. Implementing Insurance Reforms.
3. Expanding access to natural gas for manufacturing facilities.
4. Adopting measures to provide price protection to large energy consumers from Public Service Commissions (“PSCs”) imposed energy assessments and regulatory costs under Reforming the Energy Vision (“REV”) clean energy standards.
5. Undertaking a review of environmental regulations which exceed or differ from underlying federal requirements to identify unnecessary, non-beneficial compliance requirements.
6. Supporting legislation that would remove the Unemployment Insurance requirement for agricultural employees working under an H2A visa.
7. Restoring five Unemployment Insurance tax table rungs applicable to low experience-rated employers.
8. Reviewing and amending unnecessary restrictions on physical and operational improvements and capital investments that improve efficiency and competitiveness and/or reduce energy emissions and use.
9. Discussing the creation of a State Insurance Advisory Board.
10. Changing legislation to allow for the application of the False Claims Act to tax matters.
11. Setting time-limits for the Department of Financial Services to conduct audits and examinations.

I do not believe, though, that bleeding of population into other states will stop unless New York would start to 

1. clean up the act of its corrupt government, including and especially its corrupt judiciary, as well as 
2. reduce taxes, 
3. deregulate a large number of currently regulated professions where government regulation does not help the consumer, but instead hurts the consumer and the provider alike and
4. fight price monopolies in the oil industry.

Since all of the above 4 necessary changes to the New York economy are not going to happen, Cuomo will not be able to stop the bleed of population from New York.

And without enough population, and population able to actually buy products and services, businesses will improve their "climate" right into extinction.

Of course, for each recommendation, with Cuomo's propensity for corruption, we will need to look for financial "sponsors" of any such recommendation and for tricks and "fine-print" benefits for such sponsors.

And I will be diligently researching the recommendations, its potential sponsors, and especially the highlighted recommendations, and will be reporting my findings on this blog.

Stay tuned.

What is judicial misconduct in Mississippi is business as usual in New York

In Mississippi, a judge was just reprimanded for, among other things, enrolling criminal defendants in drug court who did not volunteer (because such enrollment presupposes a plea to the criminal offense, and waiver of multiple constitutional rights).

In New York, Judge Mulvey who ORDERED a judge (Madison County Judge Biaggio DiStefano) to do just that, enroll defendants into drug court while they did not volunteer - was promoted to the Appellate Division instead of being disciplined, and the judge who insisted on following the law, Judge Biaggio DiStefano, was first demoted by Judge Mulvey and then forced into early retirement, see my blog about that here.

So - what is judicial misconduct in Mississippi, is apparently, not only business as usual, but a basis for rewards to the corrupt judge.

No wonder people are running from New York.

A juror backlash against #JudgeAaronPersky - a new way for the public to fight judicial misconduct

Judge Persky, despite the national and international efforts to recall him because of his outrageously lenient sentence given to a rapist of an unconscious woman, was just re-elected - since he ran unopposed.  And while sending a message to the community that the woman is to blame herself for drinking, partying - and being raped by a white privileged man behind the dumpster.

But, while efforts are mounting to recall Persky, he is already getting his comeuppance in the courthouse - from potential jurors.

Reportedly, now potential jurors refuse to serve under him.

20 potential jurors so far refused to serve under Judge Persky because of the mockery he did out of the jury verdict in the #Stanfordrapist's case. 

I understand their feelings completely.

If they render the verdict of guilty, Judge Persky will simply make it disappear by a next-to-nothing sentence if he "feels" to favor the already convicted defendant, so what's the point?

So, when we are talking about giving absolute judicial immunity for malicious and corrupt acts on the bench (like Judge Persky's) as a matter of public policy - made up by the judiciary, bypassing the legislatures - the public appears to strongly disagree, and offer their own way of fighting it, by refusing to serve as jurors under the dishonest judge.

Who would expect such a turn of events?

But, that's people's true answer to what Persky is doing.

And, since the public started to oppose judicial misconduct by refusing to serve as jurors under a misbehaving judge, and that act of civil disobedience has been publicized, it can happen in other courts, in other states, and in regards to other misbehaving judges.

Let's see whether this trend will take.

A Georgia judge #JDavidRoper denies name change to a transgender man as public fraud and offensive to public mores and sensibilities

Superior Court Judge in Georgia J. David Roper has recently denied, according to reports in the press, a name change to a transgender man claiming that it was "fraud" and that the judge disapproves name changes from gender to gender.

Apparently, with what is happening now with the boycotting of North Carolina events because of its discrimination against transgender people, judge Roper is seeking publicity for himself.

Well, Judge Roper has had a lot of publicity lately without his "name fraud" ruling - a year ago a court clerk (!) filed an affidavit accusing the judge of “persistent practice of trying to micromanage the clerk’s office” through “checking out original files relating to cases assigned to him and keeping them for months at a time.”

Wow - first, that is what ALL judges do in Delaware County, NY - ALL of them.  They check out court files without written notations that the file is with them, do not return them for months - or years, actually, including the time when appeals of their decisions are pending and their withholding of records prevents perfecting the appeals, accept filings bypassing the Clerk's office, file with the Clerk's office wherever they want (or whenever they are caught holding onto the files) or give away records from the file to the parties they favor during the pendency of appeals against such parties.

Oh, brother - that is a felony in Georgia.

We are ruled in New York by felons.  Because, in New York there are also rules of filing and keeping records in the court file, but rules are not followed and who is going to prosecute judges - the DA for whom local judges bend over backwards and whose license is in the hands of the judiciary?

But, back to Georgia.

The clerk who lost it in Georgia, stated in her affidavit against the judge that "“[h]e marks documents filed with his own filing stamp, but does not timely send them to the clerk’s office for recording,” and that Judge Roper "would get irritated with her staff when they asked him to return records."

Judge Roper seems to get irritated with a lot of things - not only the lawful requests of the clerk for the judge to follow the law about filing and keeping of the court records, but also about people's right to ensure that their name reflects their gender identity.

The clerk also stated in the affidavit that "“Judge Roper has in the past checked out files, kept these files for months, and sometimes over a year, had lawyers file additional documents with him and has kept litigation files that are a matter of public record away from public inspection and review,” Mason wrote in her affidavit. “This practice is contrary to the law and makes it impossible for the press and public from seeing files that are by law subject to public inspection.”

Oh, wow.

This is like a breath of fresh air to me.

For a court clerk, instead of bending over backwards to accommodate ANY - and, I mean, ANY - illegal shenanigan of a judge, simply to keep her job, this clerk is actually insisting that a judge must follow the law, in an open affidavit filed against the judge.

Incredible.

Of course, Judge Roper actually asked for it - as I just wrote in my other blog today, sometimes judges forget themselves with their criminal shenanigans and step just too far.

Stepping too far in this case was when Judge Roper tried to hold the court clerk in criminal contempt of court:

"Mason’s affidavit comes in response to a contempt complaint that Roper filed against her June 1 (2015 - T.N.)  for “willfully failing to comply” with an order Chief Superior Court Judge J. Carlisle Over­street issued in January about how public documents should be filed."

Well, the clerk stated exactly how the documents should be filed - or are filed by Judge Roper - in her affidavit.

"Under Georgia law, any public officer who alters, defaces or falsifies any minutes, document, book or proceeding belonging to the state can face a felony charge and between two to 10 years in prison" - and it should be this way.

And not only in Georgia.

Of course, the judge dropped citation against the clerk when the social media fury was unleashed in her support - so much for judicial independence.

Well, now Judge Roper is right back into the media attention, when he tried to impose his own "mores" and "sensibilities" upon the public - and deprive a person of his identity because the judge believes, reportedly, that:

"Name changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public.  Such name changes also offend the sensibilities and mores of a substantial portion of the citizens of this state."

Who could tell that court proceedings are to be decided based on "sensibilities and mores of a substantial portion of the citizens of this state"?

I thought, such issues are issues of individual liberty and autonomy, to be decided under the Due Process Clause of the 14th Amendment, not by a majoritarian vote.

And, as to vote - I wonder where did the judge get that idea, that name changes "offend the sensibilities and mores of a substantial portion of the citizens of this state".

Is Judge Roper some kind of a polling agency?

An appeal was filed from Judge Roper's decision, and I will continue to cover this story.

Stay tuned.

The tide regarding judicial misconduct is turning - with law professors from elite law schools joining the fight

Absolute judicial immunity for malicious and corrupt acts on the bench was self-gifted by the judiciary to itself on the claims that such immunity - again, for malicious and corrupt acts on the bench - somehow protects judicial independents.

Well, the public never bought this crap, and it appears that the legal establishment starts to shift, too.

I wrote on this blog about a George Mason Law professor Ilya Somin who openly criticized the U.S. Supreme Court Justice Sonya Sotomayor for her unconstitutional claim that she would make attorneys work for free in order to be entitled to earn a living at all, and who instead suggested the idea previously offered only by economists and legal bloggers like me - to deregulate the legal profession if regulation does not help, but instead hurts the public and contributes to the growing "justice gap".

That's the same George Mason school where professors rebelled against the law school's collective statement that the faculty is grieving the passing of the U.S. Supreme Court Justice Antonin Scalia, and opposing efforts to rename the school after Antonin Scalia, by taking an action through the faculty Senate - because of Antonin Scalia's misconduct that was revealed in his court decisions and in the press.

Now, a Stanford Law professor leads the efforts to take off the bench a just-re-elected judge Aaron Persky because of his unduly favorable decision in a rape case and demeaning of rape victims.

Law professor Michele Dauber delivered a petition to the California Commission for Judicial Performance. While the petition is asking for a "recall" of the judge, I wonder if the California Commission can simply take Persky off the bench for obvious misconduct.

In any event, it is clear that the issue of judicial misconduct, a recent taboo, an "unmentionable", is finally making front lines in mainstream media and is subject of petitions of law professors to recall judges because of their improper verdicts, as well as is causing national and international outrage is apparent that the tide toward judicial misconduct is turning.

Maybe, just maybe, with the help of social media that spread such news like a forest wildfire, we will not wait for long before legislatures and other government authorities in charge of judicial discipline, might have no choice soon but to make changes in judicial accountability rules and practices, at least not to be voted out of office.

Tatiana Neroni and Frederick Neroni, magnets for secret court proceedings and decisions

Court proceedings - and decisions - are presumed to be public in the U.S. and in the State of New York.

That is a guarantee of Due Process and the 1st Amendment.

Openness of court proceedings provide an assurance for the parties that the public can come and observe the court proceedings, can come and look at documents filed in those proceedings - and verify that proceedings are fair, after all, court proceedings are financed by taxpayers and taxpayers have a right to know that their money is not misspent in personal vengeance.

Yet, the presumption of openness of court proceedings does not work for me or my husband somehow - we keep being prosecuted in secret court proceedings and keep receiving ex parte decisions made without notice to me or opportunity to be heard in opposition.

I will list those decisions:

June 11, 2014 - NYS Supreme Court Appellate Division 3rd Judicial Department - a decision that merged, ex parte, without notice or opportunity to be heard, my disciplinary case with the case of my already disbarred husband (the court lost jurisdiction as to him as of July 7, 2011, 3 years prior) and transferred the case to the 4th Department based on an "application" of my disciplinary prosecutors.

Neither Mr. Neroni nor I received a notice of that application, or were given an opportunity to be heard on that application.

The application was not transferred, with the other documents, to the 4th Department from the 3rd Department.

The 3rd Department adamantly refuses to give me or Mr. Neroni access to that unlawfully withheld and secret ex parte application - to this day.

My disciplinary proceedings in State Court - in New York, an attorney has a right to open her own disciplinary proceeding by a simple written waiver of privacy.  I waived my privacy several times in 2014 and 2015, in writing.

The court refused to open my proceedings until it suspended my law license.

Moreover, the sealing of the proceedings, which is done in New York to ensure privacy of the attorney and nothing else (and I waived my privacy several times, in writing) was used by the disciplinary prosecutor #MaryGasparini to file criminal charges against me when audio tapes of conferences in those proceedings, as well as description of misconduct in those proceedings, were posted on this blog.

The 4th Department allowed the illegal criminal charges to pend for nearly 5 months before dismissing them, and then allowed the prosecutor who was a witness in a criminal proceedings against me, to continue prosecuting me, in violation of my due process rights.

My husband's trial in Mokay v Mokay in April of 2015 (you can read about the "Mokay saga" by typing the word "Mokay" in the search box on the right, there are a lot of blogs about this case) was held not only ex parte, in my absence, during my documented medical leave, but also while the judge instructed court personnel to mislead the public and tell observers from the public that the trial is not happening, while it was.

My order of suspension in state court, even though a public document, does not make public the real reasons for suspension, and thus constitutes a secret order of suspension.

The order of suspension does not state the real reason for my suspension - that I was punished for making a motion to recuse a judge (for which in other jurisdictions the punishing judge, and not the attorney, is subject to discipline and criminal charges for abuse of process).

The order of suspension is secret as to the aggravating circumstances, only stating some "mysterious" "abuse of legal process" - while I was never served with specifications of what is sought to be used as aggravated circumstances against me.

So, my "public" order of suspension is, in fact, a secret order - as far as the public is concerned, because after reading it, the public will still have no clue as to what was the reason of my suspension.

My secret order of suspension in federal court - there is NO public order of suspension in the U.S. District Court in the Northern District of New York, you will not find a court proceeding against me on Pacer filed and resolved in November of 2015, even though on attorney lookup I am listed as "suspended" by that court, and even though in various court proceedings claims are made that I am suspended in that court as of November 18, 2015.

Of course, since attorneys admitted to practice in any court are deemed "officers of the court", and I was admitted in an open-court swearing-in ceremony, removal of me as the officer of the court can only be done through a public order, and there is no such public order of suspension.

Not to mention that if my discipline is announced publicly, the order of suspension and the disciplinary proceedings that have led to it, must also be open to the public review - Star Chamber proceedings are not legal in the U.S., or at least that is what is claimed as part of the "rule of law" to pretend legitimacy of judicial power in this country.

Now a series of ex parte communications in the Argro case that I just blogged about today - 

• a motion against me was made, scheduled (twice) and orally argued ex parte;
• my own motion, which was filed on notice and initially scheduled on notice to me, was discussed ex parte in an ex parte personal appearance not noticed to me, rescheduled in that ex parte proceeding and the transcript of the ex parte proceeding was sealed and made secret from me and the public.

I understand that to unseal my disciplinary proceedings in state and federal court, allow the public to the Mokay trial, hold the Mokay trial as it was supposed to be held, with a jury, and with public observers, allowing me full due process in motion practice in the Argro case - would be a disaster for those who would like to conceal their own misconduct.

But, openness and transparency of court proceedings is designed exactly for that purpose - so that the public would see that the integrity of court proceedings are not undermined.

The pattern of behavior of state and federal courts towards me and my husband - at least through the secret orders, withheld documents, secret proceedings and ex parte communications - show that there is plenty to hide for the government and connected attorneys the government colludes with.

The pattern is only aggravated by the fact that secret proceedings and secret orders usually appear after we either make a "sensitive" Freedom of Information request with the court system, or file a lawsuit against a public official seeking such sensitive information.

Of course, the tactic of making any proceedings, or orders, secret, only proves that persecution against my husband and myself is politically motivated.

But, at this point the judiciary in the U.S. has become so brazen and shameless (because of self-gifted absolute immunity for malicious and corrupt acts) that they do not really care.

Well, sometimes when judges do not really care about criminality of their actions, they can go too far, and finally, at some point, after some media campaign, the system is not comfortable any longer in associating with criminals.

I am not naive to believe that all of the judges who routinely commit misconduct (including those who engaged in ex parte communications and secret court proceedings and decisions) will suffer any discipline - after all, the judiciary and legal establishment has made sure that those who handle judicial discipline are either judges themselves, or are heavily depending for their own livelihood upon judges - but lately, according to recent court cases, social media and even mainstream media - something has started to give in the court of public opinion regarding rampant judicial misconduct in this country.

It appears that the tide is turning, and not so slowly, by the way.

Let's see what happens.