Yet another reversal - on the law - of the "move up or move on" judge John Lambert of Otsego County Court

On October 22, 2015 Judge Lambert, of Otsego County Court, was reversed - again, and reversed on the law - again (and criminal indictment dismissed), which is pretty bad for a judge.

It means that Judge Lambert did not do his job and allowed Otsego County to waste money on a trial that did not have to happen, Judge Lambert had to dismiss the case and not to allow it to go to trial - which, of course, Judge Lambert did not do, because he was catering for his former boss, Otsego County District Attorney John Muehl.

So far, Judge Lambert has 16 reversals and modifications, most of them on the law, over the period of 2011 to 2015, less than 5 years. That is more than 3 reversals per year, which is pretty bad for a judge.

The latest reversal is of a much publicized case of the alleged fraud by an insurance broker - who is now vindicated, and his insurance licenses in various states revoked because of the criminal proceedings will have to be restored.

All of that injury to the insurance broker Mr. Michaels did not have to happen, had Judge Lambert done his job.

Yet, Judge Lambert not only did not dismiss a legally insufficient case before trial, but, after an improperly obtained conviction he denied Mr. Michaels bail and sent an over-60 individual to jail making him to have to hire counsel to apply for bail pending appeal from the appellate court.

This reversal is extremely embarrassing for Judge Lambert and is showing him in a very bad light, as an incompetent judge who should be handling criminal felony cases.

This is not the first felony case I am aware of that Judge Lambert handled where Judge Lambert cavalierly denies pretrial motions and forces people into plea bargains by forcing them into trial and threatening to sentence them to prison for a maximum time or to any time if the whole idea of prison can coerce a person to plea.

So, Judge Lambert is a "move up (appeal) or move on (accept it)" judge - that's what he and his court attorney Mark Oursler regularly tell people when they point out the judge's mistakes that can be corrected in the judge's own courtroom, without forcing people to go for costly appeals.

Also, Judge Lambert is, apparently, a wrongful conviction judge who is regularly reversed on the law, which means he does not know the law and should not be presiding over ANY cases, and especially cases where child custody and people's liberty and criminal records are at stake.

Here is the record of Judge Lambert's reversals so far:

Date of reversal	Name of case	Name of lower court	Why reversed
1. January 6, 2011	Estate of Susie M. Walker, deceased	Delaware County Surrogate’s Court	On the law, the court erroneously granted a summary judgment to an objector and refused to accept a will for probate
2. February 17, 2011	Matter of Daniel M. v Lois L.	Otsego County Family Court	Reversal of denial of restitution to the victim of domestic abuse, Article 8 petition
3. October 27, 2011	MICHAEL PETROLLE,       v SHAWN GLAVIN,	Otsego County Court	Judge Lambert, on an appeal from a town court, improperly reduced the amount awarded on a defendant’s counterclaim, the amount was restored.
4. February 16, 2012	CHARLOTTE BERGSTROM v.              ROSE McCHESNEY	Delaware County Supreme Court	Lambert wrongfully denied a motion for a summary judgment in an action to quiet title to a parcel of real property where there was no rebuttal by defendants.
5.  October 18, 2012	Matter of Ryan Ruple v Shannon Harkenreader	Otsego County Family Court	Reversed the order to the father released from prison to engage in education and therapy as condition precedent to unsupervised visitation of the child, reversed denial of father’s access to school and health record of the child
6. October 17, 2013	Delaware County v Leatherstocking Care LLC	Delaware County Supreme Court	Judge Lambert wrongfully denied a motion to dismiss a fraud claim and wrongfully granted motion to dismiss unjust enrichment claim
7. April 3, 2014	People v Emanuel P. Medeiros	Otsego County Court	2 counts of the indictment vacated and remanded for a trial, on the law, for failure of Judge Lambert to advise the jury about the law of accomplice liability
8.  April 3, 2014	People v Cody Fancher	Delaware County Supreme Court	A conviction for criminal mischief reversed because People failed to satisfy an element of value necessary for a felony conviction
9. July 3, 2014	Frederick  Babcock	Delaware County Supreme Court	On the law, the court erroneously allowed the plaintiff to serve a late notice of claim
10. July 3, 2014	Town of Delhi v Ernie Telian	Delaware County Supreme Court	Judge improperly dismissed the lawsuit, the lawsuit was reinstated
11. October 16, 2014	Bufton Clark, Inc. v Hillside Companies, Inc.	Delaware County Supreme Court	Judge Lambert wrongfully granted to plaintiff a motion for partial summary judgment, with damages, vacated.
12. October 16, 2014	In the Matter of RICHARD W.    HOYLE JR., VICKI SALISBURY HOYLE,                     Appellant.	Otsego County Family Court	Judge Lambert improperly granted a child support petition despite an existing stipulation precluding the filing of such a petition, reversal on the law
13. January 8, 2015	Macaluso v Macaluso	Delaware County Supreme Court	Equitable distribution in a divorce action is modified, on the law, and the matter remanded back to court because the judge, in a bench trial, attributed defendant husband’s the totality of pension and his home bought before the marriage as marital property.
14. January 8, 2015	Melissa Beardslee v Calvin Beardslee	Delaware County Supreme Court	Judgment modified – Judge Lambert wrongfully denied to defendant husband in a divorce action separate property contributed to payment of marital debt
15. January 22, 2015	People v John Tubbs	Delaware County Court	Risk level III for a sex offender not supported by clear and convincing evidence – or by any evidence, risk level reduced to level II
16. October 22, 2015	People v Norman J. Michaels	Otsego County Court	On the law, and the indictment dismissed, a finding of fraud beyond the reasonable doubt could not be made by any reasonable jury that defendant had intent to defraud where no documents prohibiting issuing insurance policies for people outside of the region existed

So should we boil those criminal defendants - slowly? To save our tax dollars?

I wrote on this blog about a judge from Mississippi who thinks that all criminal defendants are criminals while they are still covered by the presumption of innocence.

If judges are that illiterate as to the concept of the presumption of innocence, what can be said about the public, especially during our Internet and especially social networking age. 

Here are some comments from Facebook as to what needed to be done immediately to criminal defendants accused of crimes and covered by presumption of innocence.

The defendant in the case was accused of allegedly burning children by allegedly bathing them in water that was too hot.

The defendant's picture, name, age and accusations/charge were published in the newspaper article.

Here are the suggestions of the public, the potential jurors:

That is quite a range of options.

Remember, children are alive, and the criminal defendant is only ACCUSED of committing a crime at this stage.

Yet, we can:

1. boil him;
2. boil him specifically in oil;
3. kill him without a trial or death row if he intentionally hurt a child - how that can be verified without a trial, is not suggested;
4. "do the same thing to him";
5. allow a commentator to run the defendant's next bath since prison is too good for him - with the obvious results that he will not survive that bath;
6. "eye for an eye" - whatever that means in this context;
7. hang him by the neck until dead;
8. shoot them between the eyes on the date of publication of the accusation;
9. throw him in a pot;
10. put him in a cauldron over open fire;
11. let 25 Moms corner him, and put him in scalding water, till he goes to the regional burn center;
12. burn him at the stake;
13. torture him and then hang him.

Once again, quite a range, and imaginations and creativity run wild of how exactly to torture and kill the defendant (an identified specific person, whose name, age, face and location are described in the publication).

Here is another set of comments, about a mother accused of having neglected her children or having caused burns on her children because ALLEGEDLY burns were found on children - and in a string of comments to that publication, a voice of reason appeared, a person who knew about the case who said that not only the children were alive, but that social services misrepresented insect bites on children as burns - and such misrepresentations, I can attest to it as an attorney representing parents in cases brought against them by social services - happens ALL the time.

So, here are the comments about the mother following a publication stating that the mother is ACCUSED of allegedly having caused the burns on the children - while the mother remains presumed innocent:

Once again, the commentators got creative and suggested that:

1. that the defendant's "smirk" should be beaten off her face;
2. that the defendant's face must be burnt;
3. that the defendant should be given a life sentence in prison;
4. that the defendant's children should be taken away from her;
5. that the defendant should be sterilized for free, "no more babies";
6. that the defendant should be set on fire;
7. that the defendant should be burnt with cigarettes "and keep burning her";
8. that the defendant should be instantly sentenced to death without wasting taxpayer dollars on her;
9. that the defendant should be burnt slowly and let to suffer, then she will burn in hell;
10. that the defendant should be burnt at the stake on live TV, and that her children - who are very much alive and only suffered insect bites (certainly not from their mother) - should "RIP".

Of course, all of these commentators should be spotted and taken out of jury pools, for cause, permanently, and such publications provide a galore for criminal defense attorneys in OTHER cases in creating a whole database of potential jurors to be stricken for cause.

Yet, for the particular defendant about whom the comments are made, publicity turns in a nightmare.

Of course, there is not even a hint of possibility for a fair trial left for such a defendant after just one publication, and there is no point telling anybody that the publication is just "local", not when all local media sources are on the Internet - and specifically, on Facebook, and not when Facebook has recently introduced search inside Facebook by keywords.

What is the remedy?

A radical solution is to prohibit ANY pre-trial publicity and to RIGOROUSLY punish police and prosecutors for making press-releases about charges being filed.

That is an especial necessity because such publicity triggers the need for the defendant and his attorney to try to undo the harm caused by such publicity - which may be impossible once the publication is made, since first impressions (from the publication and what was fed to the newspaper by the police and prosecution) may have the most lasting effect on the public.

Part of the solution is, of course, education of the public.

Drilling from kindergarten about the meaning of presumption of innocence.

Of course, that will make the work of the police much more difficult, with less people to be duped about their rights, but otherwise criminal defendants cannot have the right to a fair trial, and may be steered into plea bargains, especially in really bad cases in death penalty states, simply to avoid execution IF convicted - by a biased jury where, from the time the person was accused, and the accusation was plastered all over Facebook, the verdict was already there - burn him.  Slowly.

The Florida Bar tries to prevent the impending doom of deregulation by measure aimed to find and entrap competitors and get more funds for lawyers

In February of 2015 the U.S. Supreme Court has started what can be viewed as deregulation of occupations regulated by the government.

In its seminal decision, North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court stripped disciplinary/licensing boards run by supermajorities of market players, the regulated professionals, of antitrust immunity.

In other words, the U.S. Supreme Court allowed civil lawsuits against members of disciplinary boards for their actions in disciplining and license denial, suspension or revocation for "self-regulators" of the profession where it can be found that they asserted anti-competitive interests and not the interests of the government in consumer protection that is claimed as the official basis for occupational regulation to exist.

Even though the case was about Dental examiners, it was fully applicable to all similarly regulated professions, and that's why bar associations fought that decision before it was made.

In November of 2013 the North Carolina Bar Association filed a brief with the Federal Trade Commission opposing the denial to the Dental Board of antitrust immunity.  

In 2014, an amicus brief was filed with the U.S. Supreme Court by the North Carolina, Nevada, West Virginia and Florida Bar Associations, asking for antitrust immunity for market players "regulating" their own profession.

After the oral arguments, in fear that the decision will be not the way the bar associations wanted and that it will affect the power of the American legal elite to run its own profession - for its own benefit, and not for the benefit of the consumers - bar associations and courts in different states created "commissions" I wrote about previously and am writing about in this blog.

New York created a Statewide Commission for Attorney Discipline claiming that it is created to protect consumers and provide efficient and fair attorney discipline.

The Commission was founded by an insider, made out of insiders who caused problems they were allegedly appointed to resolve, and those insiders ran the Commission in a way designed not to bring about any meaningful change and not to allow the public to know what the Commission is doing - or not doing (you can do the word search on this blog for "commission for attorney discipline" to see the multiple blog posts on this subject.

The Florida Bar, faced with the issue of antitrust liability (lawsuits for treble damages for the loss of professional licenses) for regulating the profession not in order to help consumers, but in order to eliminate competition, created a commission for "access to justice".

Its recent report, heralded (by the Florida bar itself) as evidence that they are doing something positive to relieve the access-to-justice crisis that they themselves cause by lobbying and enforcing laws criminally punishing unlicensed individuals who help indigent people to access justice.

Their recommendation of reform are, predictably, nothing short of self serving.

The recommendations DO NOT include a request for the Florida Supreme Court to introduce supermajorities of consumers in regulation of the legal profession - in order to comply with the U.S. Supreme Court decision in the North Carolina Bar of Dental Examiners.

The recommendations DO include provisions that, taking into account the continued existence of unauthorized-practice-of-law criminal laws, can be considered as nothing short of finding and entrapping competitors of Florida lawyers.

The Florida bar association offered to create "a Gateway Triage" to provide legal consumers with access to legal services, and, for those who cannot afford a laywer, to some information services.

At the same time the same Florida bar undertakes investigations and prosecutions for unauthorized practice of law and issues advisory opinions on that subject, being, thus the source of law on the issue of regulation which is handled, as the U.S. Supreme Court indicated in North Carolina Board of Dental Examiners v FTC, may be a federal antitrust violation (which is also a crime).

The Florida bar also requested the courts to consider allowing "unbundled" legal services which allegedly will make it easier for lawyers to "ghostwrite" pleadings without appearing in the case.

Yet, the stress is that only lawyers can ghostwrite pleadings - and, since the lawyer is not appearing in the case, such a permission, if such ghostwriters are not required to be identified in the case - already amounts to a request to deregulation.

After all, there is no rational basis why an UNKNOWN individual (lawyer or not lawyer) can ghostwrite a pleading behind the scene without ever being identified to the court as appearing for a client, but cannot ACTUALLY appear for a client in court.

Such permissions, made by the Florida bar in the face of impending doom sounded out as early as in May of this year by the American Bar Association pointing out the effect on the legal profession of the North Carolina Board of Dental Examiners v. FTC, clearly indicate that protection of consumers is very far from the bar association's mind, but protection of its own livelihood and status quo, complete with illegal "self"-regulation in violation of federal antitrust laws is very much at the front of their thinking.

Deregulation of the legal profession WILL COST NOTHING to taxpayers.

No disciplinary committees needed, no funds for opposing civil rights and antitrust lawsuits of lawyers needed, and consumers will choose who they want to access courts, thus relieving the access-to-justice crisis.

No, the Florida bar could not have that, it will mean loss of power and loss of financial advantage of such proportions that the declared considerations of access to justice for indigent consumers simply went down the drain.

Instead, the Florida Bar suggested another band-aid for the sinking ship:

to grab the so called "cy pres" funds (undistributed leftovers in class settlements) to finance legal aid services:

quote
-------

Funding Subcommittee: One recommendation to the Florida Supreme Court passed unanimously (with officers of The Florida Bar Foundation recusing themselves from voting):
• Recommend that the Florida Supreme Court approve consideration of a cy pres rule in Florida. Currently, Gywnne Young explained, the cy pres rule allows for residual funds from a class-action settlement, which haven’t been distributed to the plaintiffs, to be given to charitable groups on an ad hoc basis. The proposed cy pres rule would require that the funds go to legal services. The funds would go to The Florida Bar Foundation or “other qualifying legal aid groups.” Young said in 2012, California had almost $9 million go to legal services from cy pres awards, and recently Washington State’s legal services received about $6 million from cy pres awards.

unquote
--------- 

It is clear that such funds are few and far between and that the source for such funding is not stable.  With millions of cases pending in court, 9 million diverted to foundations which will mostly be used on administrative expenses and medical and pension benefits, will not even make a dent in the access-to-justice crisis which is CAUSED by the legal profession and must be relieved not be means of continuing to fuel more funds into that legal profession and its various "associations" and "approved foundations".

Moreover, courts are not legislators and may not set up policies of who gets the cy pres funds.  Cy pres is an equitable principle not subject to statutory approval, and our courts went so far as creating for themselves a concept of absolute judicial immunity for MALICIOUS and CORRUPT acts on the bench allegedly to assure their own independence.

Now the Florida bar tries to influence judges in present and future class action cases in order to have the judges, without consent of class members, to distribute the cy pres funds not to the class members who appeared in the action, but to the legal aid services - and thus to fund out of their own pockets the problem that the rich attorneys created by refusing to cede power of criminal "self-regulation".

So, Florida legal establishment got inventive in the face of the impending inevitable (from historical point of view) doom of regulation of the legal profession - at least the way it is done now, by its own market players.

But the Florida Bar's inventiveness certainly was not aimed at helping consumers of legal services in the state of Florida.

Note what a law professor told the American Bar Association for its article about the impact of the U.S. SUpreme COurt decision stripping antitrust immunity from market players regulating their own profession - as applied to the legal profession:

"it is good for access to justice".

It IS good for access to justice.

And a full deregulation of the legal profession allowing consumers of legal services to decide on their own, as competent adults, who to choose for the most important service of representing them in court - without the help of government or anticompetitive interest groups - will be even better.

Delaware County Family Court blocks voters' from verifying Porter Kirkwood's alleged "3000 cases"

I was requested by a group of voters from Delaware County to represent them in verification of the record of the judicial candidate Porter Kirkwood in Delaware County Family Court.

Following my duty as the attorney for my clients, I made a phone call this morning to the Delaware County Family Court.

Representative of the court clerk denied me access to Porter Kirkwood's alleged cases claiming confidentiality.

The clerk refused to answer my question whether she is blocking me from verifying the claimed credentials of Porter Kirkwood, but confirmed that she will not allow me to see an of Porter Kirkwood's case files.  Here is the recording of my conversation with Delaware County Family Court Clerk's office.

Given that access to any of Porter Kirkwood's case files is blocked by Family Court, there is no way for the voters to verify Porter Kirkwood's and his supporters' claim that:

1. Porter Kirkwood has a vast Family Court experience that makes him eminently eligible for the seat of Family Court judge;
2. That Porter Kirkwood's experience surpasses that of Judge Gary Rosa;
3. That Porter Kirkwood handled 3000 Family Court cases;
4. That Porter Kirkwood's performance in those alleged 3000 Family Court cases was good and did not constitute negligence, incompetence and misconduct.

In view of the fact that Delaware County Family Court blocked access of voters to verify Porter Kirkwood's claims in his judicial campaign regarding his allegedly pre-eminent experience and performance in Family Court, Porter Kirkwood and anybody who repeats that claim, obviously without personal knowledge of whether what they are claiming is true or not and without any ability to verify the truth or falsity of the claim, are blatantly committing fraud upon voters.