Bravo to the New York State Court Administration (a select team of its members) for creating a "pilot" program in order to comply with a settlement in one lawsuit - a pilot program that asks for another lawsuit

A Binghamton, NY newspaper announced today, as a positive new court rule aimed at saving costs for taxpayers that arraignments in criminal proceedings off-hours and on weekends will be "centralized" and held - gasp! - in county jails.

In response to my first comment about it

the newspaper answered this:

In response to my rebuttal of those arguments

the newspaper so far answered nothing.

So - this is my public comment on this supposedly benign and beneficial rule introduced by the New York State Court system.

First of all, here is the official press-release as to the rule.

This is that press release in full, if NYS Court administration will decide to remove that press-release for some reason.

Note the players who participated in "making this happen":

• Chief Judge Janet DiFiore - a former prosecutor; DiFiore is known for:
• reportedly, saving Governor Andrew Cuomo and his sponsors from criminal prosecution for corruption when she was the Chair of the Committee for Public Ethics (a public entity reportedly "chock full of cronyism"), the position to which Cuomo appointed her - the deal is described in this book, page 353;

• likely having Governor Cuomo to pay her family back for the great service she provided to him, twice:
• by appointing her husband into the lucrative State Gaming Commission, and the Commission, in turn, appointed him to a New York Gaming Facility Location Board - a goldmine (so, when DiFiore laments in the fate of illegal aliens, know that her family has a financial interest in perpetuating illegal immigrant labor, let's say, at the Saratoga Race track); and
• by appointing DiFiore herself as the head of the entire state judicial system - and, when the New York Senate had a lull before confirming her (possibly, because of multiple people adamantly demanding to testify about her corruption to the Senate, I was personally among them), Cuomo threw in a bone for the Legislature, nominating their own counsel, Michael Garcia, for another vacancy to the New York State Court of Appeals - only after that additional favor by her friend and debtor Cuomo, DiFiore was confirmed as Chief Judge by the Senate;
• previously, she had scandals reportedly for
• employing an illegal immigrant nanny for her children (of course, nowadays she deserves a badge of honor for employing an illegal alien), paying her off the books , while she collected Social Security - and, of course, she escaped liability given that her husband could, according to her own boasting, call on a direct line any of the U.S. Supreme Court justices at any time and had the New York State Governor as her friend and debtor (see about Cuomo's "debt of dishonor" above);

• losing her badge under interesting circumstances and using her influence to hush it up;
• intimidating a reporter who reported corruption of her husband by calling him and yelling at him that her husband actually can call every single justice of the U.S. Supreme Court on a direct line;
• getting elected as a District Attorney through election fraud, corruption and intimidation;
• hushing up deaths of African Americans at the hands of the police within her County, and then, likely, hushing up the criminal investigation into the suspicious death of the only African-American and the only Muslim Judge on the Court of Appeals - Judge Abdas-Salaam; and
• fabricating evidence in criminal cases and intimidating criminal defendants into signing off their right to a grand jury in a case where evidence was fabricating or there was no evidence, in order to prevent the case to be dismissed with the help of a private attorney, trying to prevent transfer of the case from the "tamed" public defender to a private defense attorney - of that I have a personal experience with DiFiore's office as my unsuccessful opponent in litigation;
• giving a generous donation of $940,000 "leftover money" to a powerful non-profit, to fund, allegedly, law intern scholarships - one day before her confirmation; first of all, these are not her money to give away, she had to return it to the donors it she did not use it, second, the timing of the "donation" indicates that there was something fishy that she kept the money, and there might be that she did not even give away the money, but simply laundered it and announced it to the public as a big "good deed" to push through her confirmation;
• as the Chief Judge of the Court of Appeals, she was already involved in at least two scandals in:
• retaliating against critics against her appointment (me, for my testimony against her in the New York Senate, see also here) by abusing her power as the Chief Judge of the New York State Court of Appeals and refusing to hear my mandatory constitutional appeal specifically on judicial retaliation;
• ruling in favor of her own husband in a court case; and
• appointing her own husband to lead the Commission on Constitutional Convention as a wedding anniversary gift;

• Chief Administrative Judge for Upstate New York #MichaelVCoccoma - a former prosecutor; this judge has SUCH a history of corruption that it is not even possible to relate everything I have written about him and his no less corrupt wife (Otsego County Attorney), you can simply keyword-search on the right in the search window his name and his wife Ellen Coccoma's name;

• Chief Administrative Judge for the 4th Judicial District Vito C. Caruso - a former prosecutor;  I do not know this judge personally and cannot say anything critical about him other than all prosecutors-turned-judges retain their prosecutorial mentality on the bench, in my personal experience covering 16 years combined as an assistance to a criminal defense attorney and then as a criminal defense attorney myself;

• Chief Administrative Judge for the 5th Judicial District James Tormey - a bosom friend/roommate of the County District Attorney William Fitzpatrick with whom he recently conspired to harass a female court interpreter, the same #JudgeJamesTormey who was sued for it and escaped liability only by claiming that the woman who he deprived of income by defamatory statements was not really deprived of income because she could go work to another county;  Tormey was sued before that by a female court clerk for retaliation for refusal to spy on a Democratic judicial nominee at the judge's requirement, and New York taxpayers had to pay $600,000 to settle the lawsuit after 4.5 year of litigation; and

• Chief Administrative Judge for the 6th Judicial District Molly R. Fitzgerald who has no experience whatsoever in criminal law, but who has, as a legal advisor, Porter Kirkwood, a former prosecutor. Kirkwood recently lost an election campaign for a judicial seat after he publicly revealed that he participated in out-of-court "death penals" for the disabled and in illegal medical/psychological experimentation on children in foster care, and who ran from the position of Delaware County Attorney amid an FBI investigation.  As a prosecutor, Porter Kirkwood is also known for his exceptional incompetence, that helped him recently to lose a court case when his opponents did not even come to court, and while he had the resources of the entire county at his disposal.  Since Judge Fitzgerald is not known for her competence either, her pick of the law clerk is a perfect match.

The "pilot program" was introduced also with participation and blessing from 5 more corrupt judges:

• Chief Administrative Judge of the State of New York, #JudgeLawrenceMarks, the same Judge Lawrence Marks who had the audacity of cancelling the reach of a criminal statute to a "public-private partnership" of former Chief Judge Jonathan Lippman's choice, in exchange for private donations and who further publicly advertised that partnership, while refusing to release on a Freedom of Information Request the name of the donors for the program; and

heads of all 4 intermediate appellate courts of the State of New York:

• Rolando T. Acosta, Chief Judge of the Appellate Division 1st Judicial Department - whose most recent favors to prosecution included:
• authentication of out-of-the-country and out-of-court testimony on Skype for witnesses of prosecution who prosecution could not otherwise produce for trial - and thus were supposed to lose the criminal case;
• protection of employment records of a police officer from public requests for access to those records in order to verify whether the public employs and pays a torturer;
• Randall Eng, Chief Judge of the Appellate Division 2nd Judicial Department - a former jailer;
• Karen Peters, Chief Judge of the Appellate Division 3rd Judicial Department - a career prosecutor; Peters was personally involved in first whitewashing judges and tossing citizen complaints (not only mine) from investigation as a member of Committee for Judicial Conduct, and then retaliating against attorneys who dared to do their ethical duty and report unethical judges;
• Gerald Whalen, Chief Judge of the Appellate Division 4th Judicial Department - a former partner of Hiscock & Barclays, a well known law firm with tentacles in judicial offices and grievance committees quashing its competition with judicial connections (I wrote a lot of articles about this particular firm, which can by found by word-search in the search window on the right on the blog page), but here is the one listing former judicial clerks that they employ as protection from sanctions, the firm is now called Barclay Damon.

None of these judges have a criminal DEFENSE background, most of these judges are former prosecutors or jailers or, like Judge Acosta, have a clear pro-prosecution stance, and it is obvious that the proposed "pilot program", while heralded as providing defense to indigent criminal defendants, is in reality anti-defense, even though it is propounded as being for the benefit of indigent defendants.

With the exception of Judge Vito C. Caruso, whose background I do not know personally, all of these judges had corruption in their past - you can search this blog for multiple, multiple articles based on original court court documents showing that plainly.

There is a, let's say, an discrepancy between the announced goals of the "state legislature" and the court "pilot program":

• a requirement upon the State of New York as a result of a LAWSUIT against the State of New York for failure to provide DEFENSE COUNSEL to criminal defendants at arraignments in violation of 6th Amendment constitutional right to counsel, as confirmed by the U.S. Supreme Court in Gideon v Wainright 54 years (!) ago - and New York is STILL not in compliance; 

and

• what the Broome County District Attorney presented as the reason for the new pilot program, and Press & Sun Bulletin reported 

Press & Sun Bulletin also quoted Endicott Police Chief claiming that he never had a difficulty to locate judges for local arraignments (which was the whole reason to organize the "centralized arraignment") system, but that he is not against the centralized arraignment system.

But - of course, as a witness of the prosecution, why would the police object in holding court proceedings IN THEIR OWN OFFICE?

Imagine the same happening in any other state and in any other court proceeding - a court proceeding held in the plaintiff's office?

And, New York wants to make this perversity a MODEL for other counties and other states.

But - here is a short summary of the sticky issues that arise with such a beautiful arrangement, after which, as judge Veronica Gorman cogently claimed, defendants' cases will be "farmed out to whatever court it belongs in".

"Farmed out". A great statement by a judge.

And, even though the arrangement is supposed to be for the benefit of criminal defendants and to ensure their right for a criminal defense attorneys at arraignments, the only people interviewed by the Press & Sun Bulleting were a prosecutor, a judge and a police officer.  No criminal defense attorneys.

Because, a criminal defense attorney, if interviewed, could say the following:

No.	Issue	Comment
1.	Does the criminal defendant benefit from arraignment with counsel?	Yes and no. A criminal defendant will definitely benefit by a GOOD counsel at every step of criminal proceedings. Yet, the “chosen” assigned counsel “designated” to attend arraignments, most likely, will be “chosen” not for fighting for their client’s rights against biased judges and corrupt prosecutors. After all, they are assigned by those same judges and their livelihood for continued assignments depends on being “good” to the system. As a result, most assigned counsel prefer not to “stir the pot”, which results in massive waivers of defendants’ rights (without telling them) at arraignment – which is NOT GOOD for the defendant. In NY, all crimes, felonies and misdemeanors, are initially arraigned at the level of justice/Town/City court, not at the level of a County Court.  County Court arraignments only happen after an indictment by the grand jury, and for that arraignments do not have to happen on weekends or at night, there is enough time after the indictment to arrange for a day-time arraignment in County Court. At a felony arraignment at a justice court level, it is important for any defendant, and for an indigent defendant especially, to demand a felony hearing, which must be provided within 144 hours from the arrest, by state statute. The demand for a “felony hearing” has a benefit, whether the hearing will or will not be provided: ·         If it IS provided within 144 hours, the defendant’s counsel gets to hear “raw” evidence, before the prosecutor taught all witnesses how to lie on the stand, and gets to cross-examine those witnesses – which will present an invaluable tool at trial, and may lead to the dismissal of the case; ·         If it is NOT provided, then, under the state law, the defendant MUST be released without bail, for free. Apparently, especially for an indigent defendant having an opportunity to be released without bail is a tremendous boon. Yet, the majority of assigned counsel in New York (I judge by 16 years of experience, first as a legal assistant in a private criminal defense attorney’s office and then as a criminal defense attorney myself, who has heard clients’ accounts about what happened when they had assigned counsel) WAIVE the felony hearing for their indigent clients, thus leaving their clients to rot in jail and giving the prosecution extra time and opportunity to round their wagons and coach witnesses how to lie. Another important right that is usually waived by assigned counsel at arraignment is the right to a speedy trial under CPL 30.30 – a state statutory right in New York. After people announced readiness for trial, they MUST bring the defendant to trial within certain short periods of time, depending on what he/she was charged with, but up to 6 months only (with a felony). Assigned counsel routinely waive state statutory speedy trial restrictions, too, by agreeing to adjournments at arraignment, as a matter of “courtesy” to the prosecution. The next problem for the arraignment in a County jail, as opposed to arraignment in the local court with jurisdiction to handle such arraignment – with some misdemeanors triable at the level of municipality, not county, such an arraignment will be outside of territorial jurisdiction of the municipal court, and thus illegal. The next problem for the arraignment in a County jail is that New York is a large state, with large rural areas, a lot of mountains, bad country roads and snow and ice on those country/mountain roads in winter. Moreover, rural population in New York is poor.  When moving arraignments from municipal courts to a “centralized” locations into large or larger cities, county seats where usually county jails are located, defendants will not be able to have witnesses who can vouch for them come to arraignment to argue for their release on bail, bond or own recognizance. So, with “centralized” arraignments in county jails there is more likelihood that criminal defendants will not be released on bail, bond or own recognizance (ROR’d), and that will result in MORE people left in County jail and MORE expenditures, instead of cuts, for taxpayers – as Press & Sun bulletin claims.
2.	No notice to the public	There are no public notices of arraignments in jail on the Broome County Jail’s website, or any notice to the public where to go to attend such arraignments
3.	Holding a hearing in an office of a party’s witness	County Jails are part of County Sheriff’s Departments. County Sheriff Departments are witnesses for the prosecution in criminal cases. Holding court proceedings in jails, therefore, is holding court proceedings in the OFFICE OF A PARTY’S WITNESS and under that witness’s complete control. No appearance of impropriety, I am sure. No appearance as if judges are acting in concert with the police and prosecution against the defense.
4.	Facility not designed or built for public hearing – safety issue	Courthouses are designed differently than jails, and are designed, from the point of view of public safety, in order to ensure QUICK access of a large number of people to fire exits. Not so in jail where prisoners are, due to security issues, not allowed to take care of their own safety by simply going toward a fire exit. Instead, there is a series of locked doors that have to be passed to navigate a jail. There is, as a result, no way to accommodate a large number of people who would want to be present at a certain arraignment, to ensure the defendant’s right to a PUBLIC criminal proceeding, at ALL stages, or to evacuate a large amount of people from a public hearing in a facility where every single step of the way happens between two locked doors from the entrance to the improvised “courtroom” happens between two locked doors monitored by the police.  Therefore, it is more than likely that such use of jails does not comply with the fire code, and will result in either restriction of the number of people to be present (which would violate the defendant’s right to a public criminal proceeding), or in endangering the public who came to attend that criminal proceeding.
5.       …	Jail security rules: registration of members of the public by name, address and telephone number as a condition of access to a public judicial proceeding	All individuals, as a condition of attendance of a supposedly public criminal proceeding, must provide to the police their name, address and telephone number, in writing.
6.	Jail security rules: “contraband” restrictions of what can be brought into the improvised “courthouse”	Anything other than recording devices and guns or knives can be brought into a courthouse in New York. Yet, when a judicial proceedings is held in a jail, jail security and anti-contraband rules will apply, blocking people from bringing with them what they need – from personal medications to pens, pencils and paper, telephones, tablets and laptops to preserve their impressions from the proceedings in writing.
7.	Jail security rules: restrictions on what can be worn to an open judicial proceeding	I was told by jail guards in Delaware County Jail, for example, that they have “security rules” prohibiting me from wearing a warm jacket over my thin shirt.  I was made to take off my jacket in order to be able to see my client and to freeze in a conditioned room.  No male attorneys wearing sport coats were subjected to the same “security rule”. There are no such rules as to what can and cannot be worn in the courtroom in New York.  Yet, there obviously will be, if judicial proceedings are held in a jail – and this way, many people can be blocked from attending, rendering it NOT a public proceeding, as required by law.
8.	Jail security rules: search of documents	I was told by jail guards in Delaware County jail of their “policy” to search defense counsel FILES and I was blocked from seeing my client when I refused to show the confidential files. Since that requirement was presented to me as a POLICY, I must assume that all other defense attorneys allow such searches when visiting their clients in jail. Therefore, making defense counsel attend judicial proceedings in jail subjects his confidential files to a search by the opponent, police, witnesses of the prosecution, which is a violation of due process, right to counsel and 5th Amendment right to remain silent.
9.	Jail security rules: video surveillance of interactions between defense counsel and defendant	I always had a concern about consulting criminal defendants in jail, for fear that employees of the Sheriff’s department monitoring such meetings through video surveillance would lip-read what is being said – or record it outright.  Recording defense counsel in jail by the prosecution is not unheard of.  Moreover, video and audio recording through the surveillance system is under control of the police, who are prosecution witnesses.
10.	Jail security rules: police control over members of the public for coming and going, including to the bathroom	Whoever visited inmates or pretrial detainees in a County jail in New York knows the routine. ·         You show your ID to the police officer/ guard and you will NOT be allowed into jail without a valid government-issued ID – unlike in the courthouse; ·         You write down in the registration book your name, address and telephone number – which you do not do to enter a courthouse; ·         You subject yourself to a search and leave behind clothes and items that are prohibited to be taken into jail – plainly speaking, you are left with the bare minimum to wear and nothing in your hands or pockets, which does not happen when you enter the courthouse; ·         You go through a metal detector – that is the ONLY thing that coincides with the required procedure when you enter a courthouse; ·         If you are cleared through a metal detector, the first locked door into the jail is opened for you by the Sheriff’s personnel, then closes behind you, and you find yourself in a small room locked on BOTH sides by the police – in a courthouse, you are free to go into the courthouse and navigate it without going through any locked doors or police accompanying you; ·         After you found yourself in a room locked on both sides, an armed jail guard/police officer arrives and takes you through the second locked door, accompanies you through the jail, brings you to the third locked door, a door to the room where you are to meet with the inmate, notifies the surveillance on the radio that you have arrived at that door, the door buzzes to open, you come in – and the door LOCKS behind you. And, you remain in that locked space until the police officer allows you out by unlocking the door, and you need to state your reason why – for coming and going, for going to the bathroom, etc. This is NOT how public meetings work, this is NOT in compliance with open meetings or public court proceeding law, and many people would not attend arraignments in jail specifically because they will feel that they are not members of the public present at public criminal proceedings, but they are prisoners subjected to indignities of being locked up, registered, restricted in every way, locked and monitored by the police at every step.

So, from the location of the arraignment, people having a natural aversion to go to a jail to attend any meeting, including a court proceeding, to jail security rules, to privacy issues to lack of transportation for defense witnesses to get to the centralized arraignment to be heard on bail or release - will all result in:

• members of the public discouraged from attending such arraignments;
• defendant deprived of a PUBLIC arraignment;
• police trying to arrest defendants on weekends and at night to make the arraignment not public;
• defendant will end up deprived of important rights by having an "assigned defense counsel on duty", one in the pocket with the police and prosecution, waiving his rights left and right.

So a group of prosecutors-turned-judges devised a scheme of how to utilize the money that the New York State Legislature gave the New York Court system (and not the Criminal Defense bar, mind, and not criminal defendants themselves, through vouchers), to satisfy the requirements of the settlement in a lawsuit.

Of course, the corrupt prosecutors-turned-judges could only utilize money in a way that serves the prosecution - and they did.

The resulting "pilot" program is hailed by a prosecutor, hailed by the police, hailed by a judge, but nobody cared to ask whether the actual intended beneficiaries of the program - criminal defendants, and defense attorneys - are satisfied with it.

And, as a result of Press & Sun's article pitching the program as a convenience to judges, prosecutors and police "to make it easier to get a defendant before a judge after hours" - a problem that did not exist in the first place, according to the interview with the Endicott Police Chief - 

and simplifying the arraignment as a simple formalit, 

without mentioning important federal and state statutory and constitutional rights that defendants lose through such a "streamlined" judicial proceedings at the prosecution's witnesses' office, readers provided the following understanding of the goal of the new measure in their comments on the Press & Sun Bulletin's article:

Great job, Press & Sun Bulletin.  Great journalism.

Now, let's sum up again how this "innovation" was announced, and how it was perceived.

Declared goal as per press release	Prosecution’s view of the goal	Judge’s view of the goal	Police view of the goal	Public view of the goal
Ensuring indigent criminal defendant’s constitutional right to counsel to comply with a settlement in a lawsuit against the State of New York for violating indigent defendants’ 6th Amendment right to counsel, confirmed by the U.S. Supreme Court in the year 1963, 54 years ago	Convenience to police, cuts of expenses	Convenience to judges	Convenience to police	Consolidation of "services" at arraignment to cut public expenses on such arraignments. Crime control

And what it will actually do is:

• make arraignments of indigent criminal defendants secret proceedings - which will bring yet ANOTHER class lawsuit, based on the issues I listed above.

Count on the "bright" New York State Court Administration to do exactly the opposite of what they were supposed to do -

• violating criminal defendants' rights as a pledge to protect them; and
• literally, asking for a new class lawsuits as to rights of indigent criminal defendants while trying to "ensure compliance" with a settlement in a previous such lawsuit.

Bravo!

Dr Fleming's story, Part II - It is a no-no to know - and spill the knowledge - that a ragingly popular diet may be a fraud and a public health hazard

In the beginning was a Freedom of Information request, about the "wrong" person, on the "wrong" subject.  

I have been writing on this blog about efforts of the government - and simply of politically and financially powerful people - to use occupational licensing not as a tool of protection of the public, but as a tool extermination, political death, destroying reputation, bankrupting and impoverishing people who are competent and good specialists, but whose competence, intelligence, education and credibility are a thorn in the side of somebody's money-making business. 

Whistleblowers regarding lies and misconduct in the government and/or big business are routinely ostracized, fired, "disciplined", some criminally charged and some even killed - as it happened to two people in New York who exposed governmental misconduct, Sunny Sheu and Adam Rupeka, and one person in California, and that is just recently.

People are assaulted, their houses are burnt, they are grabbed and arrested, as it happened to 

• John Walker - a State Representative (!) in Arkansas;
• Omavi Kushukuru - John Walker's attorney, Arkansas;
• Maurice "Mo" Crawley - New York;
• Barbara O'Sullivan - New York.

Those in power organize campaigns to malign whistleblowers names - with some such campaigns ending in an eerie way, like did the one to malign Adam Rupeka, where people bashing him while he was still alive claimed that he was not "some kind of Manhattan project" to be afraid of being murdered - just a couple of days before he WAS actually hunted down and murdered, with his girlfriend, in the country opposite to the one he claimed he was running away to (to put his persecutors, obviously, on a false track and save their lives).

I wrote on this blog how an attorney in Louisiana, #ChristineMire, was suspended for PROVING, with testimony of witnesses, and with documentary and material evidence that powerful people engaged in misconduct.

I wrote on this blog about people who were thrown in prison and charged with felonies for the simple act of seeking governmental records that would have produced evidence of racism of one judge and of corruption of another, or, possibly, of a group of high-ranking judges in the State of Georgia.

I myself lost my law license because the judge whose financial disclosures I sought (and still did not get, after many-many years), was notified of my FOIL requests of his disclosures, retaliated against me and had my license pulled without a hearing, based on his sanctions alone.

The persecution against Dr Richard Maximus Fleming - a brilliant physician, nuclear cardiologist, an inventor and patent holder, an ardent public health advocate, a holder of a law degree, an actor - started with his Freedom of Information Request, against the "wrong" person, on the "wrong" subject - as powerful people later decided.

But first, about Dr Fleming's FOIL request.

Dr Fleming, as a cardiologist, was adamantly against the so-called Atkins diet - which still advertised.

Not only was Dr Fleming adamantly against the Atkins diet that reduced carbohydrates and sugar, but allowed fats - because of his concern that such "diet" will aggravate heart conditions by clogging heart arteries - but he was reportedly the only physician who actually dared to have a study comparing a vegetarian diet with an Atkins diet.

In fact, as it was reported, the opportunity to compare arteries of volunteers enrolled in the study after a year of a vegetarian diet and after some time on Atkins diet presented itself inadvertently - because 16 volunteers out of initial 26 in the vegetarian diet study actually switched to the Atkins diet.

Surprise, surprise! - the clogging in the arteries of those on vegetarian diet reversed by 20%, and the clogging in the arteries of those on the Atkins diet - for less than a year! - was increased by 40 to 50%.  

Yet, Dr. Atkins advertised that it is ok to eat fat as part of a "healthy" diet and for your own health - and many people followed it as Gospel, because, look - isn't it attractive to eat fat to diet?  That's a piece of cake, isn't it - no pun intended.

Dr Fleming may have been the only one physician who actually conducted a comparative study of effects of a vegetarian diet and an Atkins diet, but he was definitely not the only one to openly state that the diet is not just bogus, but dangerous.

From medical associations of physicians, to state and federal legislators and health executive officers, the consensus was that the diet was dangerous.

And still, it persevered - to this day.  Of course, it does not openly advertise any more that you can eat unlimited fats and still "diet", but it does the same by omission - it does not say that you DO reduce fats as part of the diet.

One can only imagine the amount of money that was necessary to, literally, grease the way of the diet into the hearts (pun intended) of its followers, and to make those who were supposed to force removal of that diet from the stream of commerce as dangerous to public health.

One can have a glimpse as to what kind of money was involved simply by the amount of money the widow of Dr. Atkins received (and the new husband and Mrs. Atkins' attorneys fought over) after Dr. Atkins' death, not just from his medical practice, but from his "diet" empire - and, by the way, Dr. Atkins was a cardiologist who had to recognize that what he was advertising to people as a lazy "diet" will actually be killing the "diet"'s followers - hence accusations of malpractice by the Chair of the Harvard nutrition department that fell on deaf ears.

Despite the consensus of the medical community that Dr Atkins' "diet" is dangerous and constitutes medical malpractice, Dr Atkins was, nevertheless, adamant that any claims that his "diet" was dangerous were libelous, and even sued his rival, Nathan Pritykin, who had his own diet and claimed in television debates that the Atkins diet is unhealthy and causes death.

And then came two moments of truth.

First, Nathan Pritykin died, long before Dr. Atkins, in 1984.

Autopsy was performed on his body, and the autopsy was published in order to show his followers that he practiced what he preached, that he did not die from clogged arteries.

Second, Dr Atkins died on April 18, 2003, as, reportedly, one of the 10 most influential people in the world in the previous 20 years.

His obituary quoted Dr Atkins' beliefs that one should not deprive oneself of fatty foods in order to lose weight and be healthy:

"One of the key things about the Atkins diet, he liked to say, was that the dieter did not need to feel hungry. "If you believe that weight loss requires self-deprivation," he told prospective follow- ers, "I'm going to teach you otherwise."

Atkins's dieting method was fairly simple. He believed that if you cut down radically on carbohydrates, you would lose weight, even if you ate steaks, chops, fried eggs and bacon. Fat was not a problem.  Carbohydrates, particularly refined carbohydrates, were. Calorie intake, Atkins said, was relatively unimportant."

Reports of his death at the time included information that he supposedly slipped on ice, fell, hit his head, had a "blood clot", underwent surgery, went into coma and then died.  Reports also had information that Dr Atkins had a heart surgery a year prior, but it was due to an "infection", ostensibly, and not to his "diet" of fatty steaks and eggs over pasta.

And, when a person dies unexpectedly, and when that person is alone when he dies, and when that person is the head of a thriving wealthy empire and there are heirs to the millions of dollars left in the person's estate after his death, an autopsy is expected, if not required.

And that would especially be true when the person who died has been the promoter of a healthy diet - because it provides to his empire a unique opportunity to show that he practiced what he preached and died with a healthy (or at least, an unclogged) heart, and that his DIET is not the cause of his death.

The then-mayor of New York Michael Bloomberg, the rich and powerful person that he was who did not give a fig about what people would think about what he says, reportedly put it bluntly that he did not believe that the cause of Dr Atkins death was his fall, but instead it was his weight and his eating too much fatty steaks.

Under these circumstances, the Atkins empire - if the widow believed, as she claimed, that her husband was maligned, and to preserve the good name of the Atkins diet empire - would have pushed for an autopsy, like Pritykin's next of kin did in 1984.

Yet, the Dr Atkins' widow pushed in exactly the opposite direction - to NOT make the autopsy.

And still, under the circumstances, when the issue was danger to public health not just within the scope of one city, or one state, but the whole country and the world where the Atkins diet (being the diet ideal for lazy people who liked fatty foods) gained wild popularity, autopsy of Dr Atkins had to be performed.

Well, it wasn't.

Dr Atkins' widow made sure of it.

And then Dr Richard Maximus Fleming, the hero of this story,

did the unthinkable - he filed a request with the New York County Association of Medical Examiners for at least the external medical examination report of the body of Dr Atkins.

Being a doctor and a scientist, he preferred seeing a document to participating in speculation.

While asking for these documents, Dr. Fleming made it known to NYC Medical Examiner's office that he was not and never has been Dr. Atkins' physician, so it was clearly a Freedom of Information request by a member of the public, even if Dr. Atkins, not having a law degree at that time, did not put it this way in so many words.

Moreover, Dr. Fleming was a well-known and prominent critic of Dr. Atkins, which was readily verifiable by the NYC Medical Examiners' office while working on the request for documents.

Yet, the NYC Office of Medical Examiners did release the report to Dr. Fleming, making it a public document.

And, Dr. Fleming, a member of the public, having received that document that was issued to him NOT as to Dr. Atkins' physician or member of the family, but simply as to a member of the public, had every right in the world to reveal that document to the public.

Moreover, for revealing that document, Dr. Fleming deserved a medal the size of the State of New York for CONFIRMING what multiple medical professionals and medical associations were claiming for years and decades - that the Atkins diet is dangerous, and may have killed its own creator.

Here is that document.

And the hell broke loose.  The widow was enraged.  The NYC Office of Medical Examiners had nothing better to say than that Dr. Fleming supposedly violated some ethical rules because he asked for documents from NYC Office of Medical Examiners - and they SATISFIED the request, and RELEASED the requested documents, unconditionally.

The report was a bombshell.

It stated that, supposedly, the 72-year-old Dr. Atkins, the creator and promoter of "eat-fat-as-diet" diet, had:

• congestive heart failure;
• suffered a heart attack in the past;
• had a horizontal scar on his abdomen - which, as some medical professionals concluded, could have been the result of a surgery for fat extraction;
• weighed at 258 lbs (117 kilos) at death, which qualified him, according to the body mass index tables, as obese, and
• did not have defensive wounds on him that would have shown that he was conscious when he "slipped on ice and fell" - while there were witnesses asserting that there was no ice at that time at the place of the fall.

In other words, the document could create in a reasonable medical practitioner a belief that Dr. Atkins FIRST lost consciousness because of a heart attack, and only THEN dropped like a log without trying to put out his hands to protect himself - since there are NO wounds on his elbows, while, if a person is falling backwards, a conscious person would have been hedging himself with his elbows to break the fall or mitigate the damage from the fall.

In other words, the document was a condemnation of Dr. Atkins' lifestyle and diet and could strike a death blow to Dr. Atkins' thriving diet empire.

And that is - without the autopsy being done.  And, the document explained very well why the widow "chose" not to perform that autopsy.

The widow, in addition to being enraged, immediately started to push defensive theories.

One of them was that the 6' tall Dr. Atkins actually weighed 195 lbs at the time of the fall and gained over 60 pounds during his last 9 days in the hospital, when he was laying in a coma.

Of course, such theories were rejected by medical professionals.

A prominent physician, Dr. John McDougall, described Dr. Atkins as "grossly overweighed, ... and I'm being kind".

Another physician whom I consulted before running this story, provided some more reasons why such a theory is highly implausible: if that was true, Dr. Atkins widow would have sued the living hell out of the hospital for malpractice - as it IS malpractice to let a patient in a coma gain over 60 pounds (an increase of nearly 1/3 of his body weight) over 9 days.

But, let's return to the FOIL request of Dr. Richard Fleming, and the release by Dr. Fleming of documents that the New York City Office of Medical Examiner voluntarily released to the public.

Did Dr. Fleming do anything illegal in releasing the supposedly "confidential" report?

No.

First, the report should not have been "confidential" in the first place, as it was made on an issue of GRAVE public concern, as we don't know how many lives the Atkins diets has cost the Earth's population.

As I said above, Dr. Fleming deserved a public recognition and award for his effort to expose what surely appeared to be at the very least a gross inconsistency between the claims of Dr. Atkins, as the creator of the Atkins diet, with the reality of his own health and the nature of his death.

And, second, once the document was officially and unconditionally released by the government, on request, to a member of the public, it stopped being confidential and became a public document.

But, the widow of Dr. Atkins was still enraged.

And, supporters of the Atkins diet lashed against Dr. Fleming claimed that Dr. Fleming had a "financial motive" to reveal the documents - his own book where he criticizes Dr. Atkins diet.

And, Dr. Fleming does have such a book trading on Amazon.com,

I will enlarge the font of the Amazon's Publishers Weekly and the Editorial description of the author and will break it infor reading comfort, here:

==

Editorial Reviews

From Publishers Weekly

The author, a nuclear cardiologist and founder of the Fleming Heart and Health Institute in Omaha, Neb., builds on his earlier work (How to Bypass Your Bypass: What Your Doctor Doesn't Tell You About Cholesterol and Your Diet) to identify in this reader-friendly guide 12 risk factors for heart disease. According to Fleming, these factors-which include high blood cholesterol level (over 150), excess weight, elevated homocysteine (resulting from eating too much animal protein) and oxidants in the blood stream-trigger an inflammatory reaction that causes heart disease and may also be responsible for diabetes, arthritis and other serious conditions.

Dismissing bypass surgery and angioplasty as short-term solutions, Fleming claims that his suggested diet, combined with regular exercise such as daily walking, will reverse heart disease without medication or surgery.

He recommends that his diet be adopted in two phases: phase one is composed solely of fruit and vegetables; after consistent improvement in cardiac health has been accomplished, phase two, which adds whole grains, low-fat dairy and moderate servings of protein, may be undertaken.

A variety of sample recipes and menus are provided.

Fleming is opposed to the currently popular high-protein diets for losing weight.

Although his exercise and eating plan certainly promotes health, the diet, which also eliminates caffeine, may discourage those who find it too restrictive.

Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to an out of print or unavailable edition of this title.

Read more

About the Author

Richard M. Fleming, M.D. is the founder and director of the Fleming Heart and Health Institute, located in Omaha, Nebraska. Thousands of people from around the world come to the Fleming Institute for treatment of heart disease, cancer, and nutrition-related disorders.

===

So, we have three competing diets here:

1.  Nathan Pritykin's - who died, whose family allowed his autopsy and published it to prove that he did not die from following his diet;

2. Dr. Atkins' - who died in a way suspiciously hinting that he died from following his own diet, but his widow blocked any way of verifying it, prohibited the autopsy, prohibited the release of the external medical examination, lashed out when it was "inadvertently" leaked anyway on a FOIL request, and spawn wild and scientifically bizarre theories to offset the damage done by the external examination report, even without an autopsy; and

3. Dr. Richard Maximus Fleming's - who is very much alive, but who, since the release of the document that has made him a hero of public health advocacy, has been stripped of his medical license and livelihood and was pushed, after a trial, into a nolo contendere (not admitting guilt) plea for meticulously following in his billing the Medicare manual - and only after the presiding judge, Richard Kopf, legendary for his misconduct and his outrageous blogs (I have written about Judge Kopf on this blog already and will describe his shenanigans in this case in a separate blog) made it perfectly clear, through the judge's outrageous conduct, that Dr. Fleming will not have a fair trial before the jury. 

How he did it? 

As I will explain in detail in the next blog about Dr. Fleming's story, Judge Kopf blocked exculpatory evidence, using cowardice of Dr. Fleming's assigned counsel to play into the hands of the prosecution (and, I am sure, to the delight of the Atkins crowd).

Even then, the prosecution's case was non-existent, so, instead of awaiting the verdict after a trial, they threatened Dr. Fleming that IF he is convicted (which was possible only if Judge Kopf would thoroughly screw with the jury instruction, and block all available exculpatory evidence, which Judge Kopf was obviously ready to do), he will go to prison AND his three children will end up with his ex-wife AND that the ex-wife will be abusing the children.

So, Dr. Fleming was given a "choice", as I wrote before - prison or children. 

He chose his children and pled nolo contendere, to what was not even a crime - his billing practices to Medicare which were charged against him as Medicare fraud, were not only lawful and allowed, but were preferred practices to be used, according the Medicare manual.

But - is it the way for this country to treat its PUBLIC HEALTH ADVOCATES, who risked EVERYTHING to let the public know what danger it is put in by certain people who, for personal financial gain, deliberately put their health at risk?


As to blaming Dr. Fleming for having financial interests, selling a book, at the time when he sought and released Dr. Atkins' external examination report - there is a problem in blaming Dr. Fleming for that.  In fact, two problems.

1. First, Dr. Fleming was ACTUALLY CORRECT in claiming that Dr. Atkins' diet was dangerous - because he, unlike Dr. Atkins' family, backed up his claims with a SCIENTIFIC STUDY, measuring the results of Dr. Atkins' diet, as compared to a vegetarian diet, on actual volunteers - which Dr. Atkins did not do, instead, Dr. Atkins' widow refused to do the autopsy, refused to publish the external medical examination, tried to "explain away" the obvious signs of obesity and heart disease in her late husband by wildly incongruous theories and lashed out against the person whose only fault was that he honestly and openly sought and distributed a TRUE public document - because Mrs. Atkins never claimed that the document that Dr. Fleming distributed and published was forged or contained false information.
2. Second, Dr. Fleming was ACTUALLY CORRECT that this document, and the implications that information in that document contained should trigger an alarm about public health on the highest level - which he tried to do by making the document public and calling attention to it.

So, seeking and revealing a TRUE public document that raised SERIOUS issues of public health, was a POSITIVE and LAUDATORY thing to do, regardless whether Dr. Fleming did or did not have a financial motive to reveal that document.

And, apparently, in order to appease Veronica Atkins and supporters of the Atkins diet, as well to compensate for their own faux pas, the New York City Office of Medical Examiners made a cowardly maneuver: the Medical Examiner retaliated against Dr. Fleming by filing a complaint against him with the Nebraska Board of Medical Examiners.

Which resulted, over time, in an avalanche of sanctions, finding fault, nit-picking, discrediting his business - and finally, a fabricated criminal prosecution, stripping of a medical license and depriving a BRILLIANT and HONEST and BRAVE physician who can SERVE PATIENTS WELL of an opportunity to either serve patients, or earn a living.

While occupational licensing laws exist (and for medical professionals, too) to protect THE PUBLIC from BAD, INCOMPETENT, DISHONEST professionals.

While Dr. Fleming was stripped of his right to serve the public and earn his living for being the opposite - GOOD, BRAVE, HONEST, COMPETENT, and not only a creator of innovative diet, but also a creator of innovative diagnostic methods for heart disease and breast cancer.

Had he been allowed to practice, I wonder, how many lives he could have saved.

Yet, he is not allowed to do that specifically because he tried to pointed out how an unscrupulous doctor, a very rich and influential one, was trying to have people die, but follow his bogus diet.

I will continue publishing Dr. Fleming's story - his court ordeal and the essence of his innovative inventions.

Stay tuned.

On judicial thinking - in Russia and in the U.S.

Recently, Russia has started to shift towards the U.S. in the way it is shaping its judicial system and access to justice, not in a good way, and definitely under the influence from this blessed country.

The shift was towards two things:

• making judicial process less transparent, and
• giving attorneys a monopoly for court representation - just like it is in the U.S., which is familiar for American law firms that are now cultivating the Russian soil.

At this time, people in Russia have a choice who to select to represent them in court (with the exception of criminal court, which is a shame).  They can select, if they so choose, any person and have them represent them in court through a general Power of Attorney.

But, apparently, not for long.

The lawyer lobby has pushed for monopoly and, lo and behold, a bill is pending, authored by the Russian Federal Bar Association - of course, supposedly for the benefit of consumers, even though consumers did not ask for it, and their access to legal services will be restricted, while prices will go up as a result of the introduced requirement for a "mild monopoly" - that court representatives must have formal legal education.

But, Russian lawyer lobby was pushing for this legislation for a long time, so it is not a surprise.  

And, while pushing it, it hypocritically refers to the U.S. experience, claiming that the regulation of the legal profession

(in violation of antitrust laws, see e.g. judicial decisions were

• the U.S. Supreme Court ruled that regulation of a market by market players without neutral state supervision is violation of antitrust law, and where
• a D.C. court ruled that regulation of railroads by Amtrak is a violation of due process of Amtrak's competitors)

through "bench bar associations" is handled supposedly in a "comfortable, sincere and open manner, without accusations of corruption".  I bet, there are no accusation of corruption among licensed attorneys against judges, their own regulators - for a single reason that has nothing to do with "comfort, sincerity or openness" - it is fear, fear that the judiciary will surely and quickly exterminate the critics' right to earn a living.

But, the suggestion that the foxes are absolutely the best guardians of the chicken coop (access to justice) and of one another to ensure that the chickens are safe, is a long-entrenched concept in American occupational licensing in general, and in American attorney licensing in particular.

What came as a complete surprise to me is another piece of Russian pending legislative bill - which echoed with what is going on in our courts: elimination of the so-called "motivational" part of court decisions.

At this time, Russian judges MUST issue two-part court decisions: one part is the so-called "decisional" part (what is it that the court requires to be done), and the other part is "motivational" - the court provides legal basis/authorities, analysis and basis for the court decision.

In America, as a contrast, while people have a due process right to be adequately explained the reasoning why a court would take away their children, liberty, property, or life, it often happens that courts do not provide any explanations at all.

They issue one or two-word decisions like:

Affirmed.

Denied.

Motion denied.

Certiorari denied.

And that's it.

No explanation, no motivation, no legal grounds, no reasoning.

So, that's what is about to be introduced in Russia, too.

And, in connection with introduction of this peculiar assault on transparency and fairness of judicial decisions, it was interesting to see the proposed justification for such a feat.

It is explained to the Russian public that it takes just too long for a judge to put together and write the motivational part for any particular court decision - 5 days on average per court decision.

So, it will save the court system considerable time, the reasoning goes, to just cut out that time and allow the judge to issue decisions without the motivational part - just a judgment, and no explanation is needed.

But, that raises peculiar questions about the specific though process in Russia, as well as in the U.S. where such though process is practiced.

A reasonable reader of this proposal may ask - whoa, wait a minute, aren't we putting a cart before the horse here?

Shouldn't a judge FIRST do some legal research, analysis and reasoning, and only THEN arrive at the decision.

And, if that is the write order of the judicial thinking, why is it so difficult to put all these precedents and results of analysis you just did to arrive at your decision on paper as a motivational decision? Why would it take so much time.

Yet, if what is cut is not writing the motivational decision, but the reasoning, legal research and analysis that comes with it and is supposed to lead to the "decisional" part, doesn't it then mean that judges arrive at decisions without ANY thinking, without ANY reliance on legal research or analysis.

And, won't allowing the "one-word" "decisional" judicial orders, made without any explanation, encourage judges not to think, not to do any research and analysis, but to jump to conclusions and rule arbitrarily, because nobody can demand them to explain why the h*ll they made a decision as stupid and unlawful (or corrupt) as the one they made without a motivational part?

Of course, it was claimed that parties to litigation in Russian courts will still be able to ask for the motivational part of judicial decisions, after the resolution of the case, but, that is a lame excuse for the legislation allowing the court to FIRST, by default, to arrive at a decision, without any explanation - in ALL cases, BY DEFAULT, and only then, IF asked by the parties, to try and invent a motivational part fitting the decision that was likely made without any legal analysis, just to do things quickly (or for a bribe).

The sad part in all of this is that, while in Russia this bill is only being pushed through, in the U.S., the supposed beacon of democracy, making judicial decisions without a motivational part, without any explanation as to reasoning or legal grounds, has long become a rule rather than exception.

So, the rule of judicial thinking in both Russia and the U.S.A. will soon be the same - first decide and never think, reason or provide honest legal analysis or grounds.

On racism in America. Death by statistics.

A white man was convicted of committing murder.

The jury sentenced him to life in prison.

The judge (a white man) overrode the sentence claiming that he already sentenced three black people to death, it would look bad, the jury verdict notwithstanding, if he does not sentence to death a white guy - and he did sentence the white guy to death.

It took 3 judges of the U.S. Court of Appeals for the 11th Circuit to uphold the judicial override and the death sentence based on race and statistics.

Here are these unsung "heroes" of racism in America:

Judge Dale Segrest

who overrode the jury recommendation of a life sentence and sentenced Bobby Wayne Waldrop to death.

His name was cowardly not mentioned in the decision of the federal appellate court, so I am making sure people know who did it in the first place.

Judge Dale Segrest is now retired and is practicing law with his son, advertising his experience as "reassuring":

The retired Judge Dale Segrest

does not advertise on his law firm's website that he considers race as a lawful basis for judicial decisions.

What Judge Dale Segrest does advertise is that he has chosen a building for his law practice "in a renovated historic structure built to quarter Confederate officers in charge of the Tallassee armory".

Judge Segrest then spends a lot of time lauding himself for his "community values", experience, academic work, "thought leadership" and "community service".

And, of course, the 11th Circuit did not have the heart to expose to public scrutiny and scorn the racist old geezer who sentenced a white man to death only to dilute the otherwise racist statistics of death penalty of his court.

I purchased Judge Segbert's book "Conscience and Command" trading on Amazon, but without any feedback, and will provide both the feedback and a review on my blog when the book arrives.

I already admire the book for the dire gall of its author to use the word "conscience" in its title.

On the federal appeals level the heroes who confirmed that a human being can be sacrificed in the United States of America in the 21st century in the very literal sense because his race was necessary to dilute the otherwise all-black statistics of the death penalty are:

• Judge Beverly Martin;
• Judge Stanley Marcus, and
• Judge Adalberto Jordan

And here are credentials of judges who believed that overriding a jury decision in a death penalty case in favor of the death penalty based on consideration of race is legitimate.

#JudgeBeverlyMartin, a career prosecutor of 26 years before coming to the bench (she "concurred in the judgment", with a separate opinion):

Judge Stanley Marcus, a career prosecutor and a law professor

I wonder how #JudgeStanleyMarcus will be explaining his decision to his law students in Brooklyn Law School and in St. Thomas University School of Law.  Or - probably, he will not explain it at all, expecting them to be afraid to ask for fear that he will ruin their entire career in law if they do.

Judge Adalberto Jordan, an immigrant from Cuba and a law clerk to a federal appellate judge and to the U.S. Supreme Court Justice Sandra Day O'Connor

These amiable, smiling, educated, polished people sworn to protect and uphold the U.S. Constitution just sent to death a person who was sentenced to life in prison by the jury of his peers, but for whom a judge made an "exception", because the judge just sentenced to death three black people and did not want the statistics of his death sentencing to appear "too racist", so he just threw in another number to dilute that statistics - and crossed out a person's life.

And these three upheld that.

They first said this:

And then they said this:

The majority - judges Marcus and Jordan - simply ignored that the death sentence was CLEARLY, IN SO MANY WORDS, was based ONLY on the defendant's race, and in order to dilute the otherwise "all-black" death penalty statistics of a racist white judge in the racist state of Alabama.

Instead, they affirmed the death sentence based on their "precedent", after some legal gymnastics during which reason, common sense, justice and any reference to what Judge Dale Segrest did disappeared, and Judge Segrest's name never appeared in the first place.

That was the two-men majority of the 3-judge panel.  Let's see what the "minority", Judge Beverly Martin, wrote in her opinion - agreeing with the "boys" to put to death a person based entirely on black-and-white statistics of the death penalty:

Judge Martin then blabbers for some time that because the claim was "procedurally defaulted" (the defendant , or rather, his incompetent previous "free" attorneys, did not raise it earlier in the appellate process), and because the defendant was found guilty by the jury, it does not matter that he was sentenced to death for the sole reason that #JudgeDaleSegrest wanted to dilute with his body and blood the judge's racist statistics of the death penalty.

But, Judge Martin has already admitted, in plain language, that Judge Segrest, the author of the book having the word "conscience" in its title, did this:

And then she carefully claims that it is supposedly the defendant's position that his death sentence is based on race, implying the judge's actions and words can have any shades of meaning as to the judge's motivations in sentencing #BobbyWayneWaldrop to death.

Tell me, how ELSE can anybody else read the phrase, while overriding the jury life sentence recommendation and sentencing a person to death: "If I had not imposed the death sentence, I would have sentenced three black people to death and no white people"?

But, changing the decision of the jury from a life sentence to death based entirely on the man's race is racism, whichever race the  condemned man is.

Right?

I wonder whether the three appellate judges similarly ruled to affirm a death sentence because they affirmed so many death sentences for black people and needed to dilute the statistics somewhat - because these judges routinely review death penalty cases, and have done a lot of them, I am sure, in their careers.

So, be very afraid, people of the United States of America.

Now, a precedent has been created providing that judicial decisions may be made not on the merits, but on the basis of the race of parties for whom similar decisions were made.

Imagine - the judge took children away from three undeserving fathers of race A, and a deserving father of race B comes in front of him, and upon the merits, he should clearly get custody.  No, we cannot give a child to a father of race B, because it will create an appearance of racism, let us dilute the statistics a little bit and take the child from that father, too.

Or, on the opposite - we decided three breach of contract (defamation, personal injury, you name it) cases against parties with race N,  now a person with race M comes in front of us - let's dilute the statistics somewhat.

Just think what these four "judges" have done to this country.