The shrunk trial

I hold my breath to learn how it was possible to fit 4 days of jury trial into 1 day of bench trial, which is what Delaware County Supreme Court did in the Mokay case, using my diagnosed medical leave as an excuse to proceed without me, my client or the jury.

Will wait for the transcript to surface.

In New York, a judge can now overrule a doctor in a medical diagnosis

That's exactly what judge Kevin M. Dowd did, by forcing me, as a defense attorney in a civil jury trial case, to go to trial while it was impossible for me because of my back injury to appear.

The back injury was diagnosed, documented, with a doctor's note provided to the court.

When I did not appear, because of a legitimate medical leave, the judge just dismissed the jury and conducted a bench trial.  

And the whole reason for not giving me an adjournment was ostensibly the inconvenience for the jurors.

I knew only one other judge who constantly diagnosed medical conditions in Delaware County courts, it's Judge Carl F. Becker.

Based on his "diagnoses" at trials, he is a dentist, an eye doctor, an OB/GYN, a surgeon and what not else.

Now Judge Dowd joined the ranks.

And I thought practicing medicine without a license was a crime...

Delaware County Supreme Court, New York, parades its bigotry against immigrant female attorneys

When attorney James Hartmann of Delhi, NY was (allegedly) ill in 2013 and in 2014, right before the jury trial in the Mokay v. Mokay action, Delaware County Index No. 2007-695, see description of the Mokay saga here and here, plaintiffs' "trial co-counsel" sent a letter (no sworn statements from medical doctors) to Judge Dowd - and those jury trials were immediately adjourned, for an indefinite time, both times over my objection.

When I got ill (back injury, I could not stand, sit or walk because of pain), and had a medical leave, issued by a physician after the physician personally saw and diagnosed me, excusing me from work from April 6, 2015 to April 20, 2015, Judge Dowd did the following:

1) refused to acknowledge validity of my medical leave, issued by a professional physician after seeing me personally and diagnosing me;

2) threatened to "secure my appearance" at trial, and, when I did not appear - because I was injured, on medical leave and COULD NOT appear,

3) then the court, whichever judge was presiding, upon information that I have, dismissed the jury and conducted a bench trial (scheduled with the jury for 3-4 days) in one or 1.5 days.

Yet, the jury trial scheduled for April 7, 2015 and that had to be adjourned because of a documented illness of defendant's counsel, was not waived in writing by the Defendant, as required by the New York State Constitution.

So, that will be one interesting appeal...

And - as to medical leaves -  a precedent has been set that in the Delaware County Supreme Court, State of New York, medical leaves are valid only if they are issued (even if only by Harlem Law Office) for American-born male attorneys (whose wives are on the "judicial candidate qualifications committees" and who are hired for trial by sons-of-judges who are unsinkable no matter what they do).

For Russian-born female attorneys and their clients, no physician-issued medical leaves are valid, it is the court who makes its own "medical diagnosis"  - and that "diagnosis" can only be against such an immigrant attorney, and, apparently, against her client.

It's easy, immigrant attorneys!  Just don't get ill - and you and your clients will be all right in the openly bigoted Delaware County Supreme Court.

Can a judge who orders attorneys to commit attorney misconduct and engage in ineffective assistance at a jury trial remain on the bench?

Since courts are created as an institution to maintain the rule of law in the country and prevent the country from sinking into chaos, unlawful decisions of judges are especially dangerous.

Here I will address two decisions of Judge Dowd (communicated to me through his law clerk Claudette Newman to whom Judge Dowd delegates a lot of his duties), in a case Mokay v. Mokay, Delaware County Supreme Court, Index No. 2007-695.

Judge Kevin Dowd recently issued an order that, if I cannot try the case, an attorney without any trial experience must then do it.

Of course, it is inappropriate for an attorney to try a case when coming to the team as a 2nd counsel only 2 weeks before trial, and against the wishes of the client who hired the 2nd counsel for a limited purpose of assisting the trial counsel, not trying the case.

Such conduct would subject an attorney to malpractice claims and disciplinary prosecution.

Yet, the court ordered exactly that.

The 2nd attorney had no choice but to request the client to release her on consent, which was done.

The court then ordered the trial counsel, despite her doctor-authorized medical leave, injury and pain, to still come and try the case, or else the court threatened to use "legitimate means" to "secure her attendance" at that trial.

Of course, making a counsel who is injured and in pain to appear and try the case, on top of violation of counsel's own constitutional rights, is a violation of the client's right to an effective representtion of counsel.

A counsel who is injured to the point of having a doctor-issued leave from work for 2 weeks because of injury, pain and medication, simply cannot provide an effective assistance of counsel in a jury trial.

Yet, that's exactly what the court ordered, and threatened to "secure attendance" of the trial counsel if she does not show up.

Of course, that threat put extra stress on me, shot my already high blood pressure even higher and prevented me from taking the medicine I need, because the medicine makes people drowsy and, in the event Judge Dowd uses his allegedly "lawful means" of "securing attendance" against me, today or during the next days, I must be non-drowsy to be able to oppose these unlawful actions.

So, in retaliation for my motions to recuse on behalf of my client, I am punished by the judge by not allowing me the most basic of human rights - to have doctor-prescribed treatment and to be able to get better.

I should not be put into this position, of course, but, since Judge Dowd so far was not disciplined no matter what he did, he thinks he can continue to disregard applicable law in whatever way he and his law clerk like.

Of course, this is not the rule of law, but that is what we have in our neck of woods in upstate New York.

Will the judge ever be disciplined for practically ordering two attorneys to engage in ineffective representation of counsel, simply because Judge Dowd could not accept that Americans with Disabilities Act compels him to grant a medical adjournment to my client, the same way as Judge Dowd already granted TWO adjournments of the same jury trial to the plaintiffs?

I do not know.

So far, NONE of my complaints against judges in New York who committed misconduct, complaints that were supported by irrefutable evidence (affidavits of witnesses, court records), resulted in discipline, and this is the fate of not only of my complaints, but of the overwhelming majority of complaints against judge in the entire country.

Usually, only criminal charges can unseat a judge, and a judge is charged with a crime only when the crime cannot be hidden any longer and is of extremely embarrassing nature.  

Yet, one never knows.  Maybe, at some point, the NYS Commission of Judicial Conduct will recall why it was created - certainly not for whitewashing judicial misconduct, but for investigating and prosecuting it to protect the people whose lives rogue judges ruin.

Waiting for the "lawful means" to secure my attendance in court - despite a medical leave due to injury

Yesterday, Judge Kevin M. Dowd, through his law clerk Claudette Newman, threatened me that if I do not show up for trial today, despite my medically documented injury and medical leave for two weeks, he will use "lawful means" to "secure my attendance" in court.

So, I am in bed waiting for the SWAT team to show up.

I wonder what "lawful" means can "secure attendance" in court of a medically confirmed injured person and can force her to work when her doctor says she can't.

No matter what Judge Dowd orders, my injury will not instantly heal because of his rulings...

And I wonder, if Judge Dowd proceeds to trial today in Mokay v. Mokay, Delaware County (New York) Index No. 2007-695, without me as Defendant's attorney, what law that the judge read allows him to put an injured attorney before a Hobson's choice - either aggravate her injury and appear in court to try the case, whether she can or cannot physically do it, or to forfeit her client's rights.

And is it any surprise that Judge Dowd used this newly created "law" against an immigrant female attorney and her client who is also her husband - while granting multiple medical adjournments in the same case of the same jury trial without any competent evidence of injury to American-born male attorneys for the asking, with a smile?

Does not seem like a coincidence to me.  Seems more like bigotry.

Judge Kevin M. Dowd threatened to "secure my attendance in court" despite my sick leave - how much baser can this man get?

I REQUEST HELP FROM THE INTERNET COMMUNITY BY A MAXIMUM REPOST OF THIS ARTICLE AND OF MY STORY ON SOCIAL MEDIA.

A JUDGE IS ABOUT TO HURT ME TOMORROW BY ATTEMPTING TO DRAG ME INTO THE COURTROOM DESPITE A MEDICAL LEAVE BASED ON BACK INJURY. 

Here is my story.

I am injured and in pain.

My doctor had given me a leave from work for two weeks, as well as prescription medication to help with the pain that makes me drowsy.

Based on that, I asked Judge Kevin M. Dowd assigned to our Supreme Court case in Delaware County, New York, to adjourn the jury trial that is to start tomorrow.

I notified the judge about my injury back since Friday, yet, I could not get an appointment with my doctor on Friday, so I got it today.

Judge Dowd required from me a "sworn statement" from my medical provider.

He did not require anything like that from my opponents when he granted TWO medical adjournment of the same trial in 2013 and 2014, just granted those adjournments, over my objection, for the asking, with later-provided copy of a letter (not the original of an affirmation) from the trial attorney's physician.

What did Judge Dowd do when I provided my medical leave from me and requested an adjournment?

Did he tell me to get better and grant the request?

No, Judge Dowd, through his law clerk Claudette Newman, denied me the adjournment request, and told me the following:

.

Once again, I have a legitimate leave from work based on back trauma, and Judge Dowd knows it.

That is all I need, under the Americans with Disabilities Act, not to do any work anywhere.

Yet, Judge Dowd threatens to use "legitimate means" (while there aren't any) to "secure my attendance".

I wonder how the "securing" will be taking place - will I be forcibly ripped out of bed, carried to the courthouse in my pajamas, put behind the counsel desk while aggravating my injury (possible bulging disk) and do what then?  Not allow me to leave that courtroom?

Judge Dowd's behavior is really getting out of whack.

Yet, Judge Dowd is not original in what he is attempting to do.

Recently, a Judge in Minnesota pulled such a trick with a female attorney (why male judges keep harassing female attorneys who moved to recuse them or who sued them - does anybody knows?),

According to a report about the attorney's federal lawsuit, the attorney was grabbed by the sheriff's department during a break in the hearing (after she moved to recuse the judge), then, according to the federal lawsuit of that attorney, the sheriff's department employees stripped her of her cell phone, notes, glasses and shoes (!), strapped her to a wheelchair, wheeled her into the courtroom, where the judge ordered her to proceed with doing the trial - without shoes, glasses, notes, pen or paper, and while strapped into a wheelchair.

Judge Knutson out of Minnesota also filed a complaint to the Bar authorities against the female attorney who he ordered to proceed into trial while strapped in a wheelchair by the sheriff's employees, stripped of her glasses, shoes, pen, paper and notes.

Yet, at the least, the attorney in question was not injured at the time of the judge's outrageous behavior.

I am.

I guess, Judge Dowd wants to outdo that.  

Stay tuned as to what Judge Dowd will do next.

You've been denied access to your own records in a currently pending court proceedings that can take your livelihood, by a court that is not supposed to have those records, but admits it has them - why ask again?

I have written on this blog that the Appellate Division Third Judicial Department transferred my disciplinary proceedings to the Appellate Division Fourth Judicial Department, by a "confidential" order of June 11, 2014 that relied upon "Petitioner's application and papers submitted in support thereto".

So, there allegedly was an application (a written motion) and papers in support of that application.

That motion and those papers were never served upon me, so that was a clear ex parte communication, which is misconduct on behalf of both the attorneys (disciplinary attorneys!) who made such an application and the court (the disciplinary court!) that accepted and ruled on it. 

So, I guess it is all right to break the law while trying to enforcing the law against somebody else, isn't it?

The order of transfer of June 11, 2014 ordered the transfer of ALL the records of my disciplinary proceedings.

It says that the order was granted upon the "Application by the Committee on Professional Standards" and "upon the papers filed in support of the application".

Obviously, the application for the transfer, as well as the papers supporting the application, are part of the record of my currently pending disciplinary proceedings and had to be transferred with it to the 4th Department, not to mention that such an "application", before being reviewed, has to be first served upon me as a party to the proceedings, which was never done.

I asked the clerk of the 4th Department for a copy of that "application", papers in its support and proof of service of the same upon me.  Since the order of June 11, 2014 somehow added my husband to the caption, my husband also asked for the same.

The 4th Department answered that it did not receive the application among papers of my disciplinary proceedings.

I moved to dismiss proceedings in the 4th Department for lack of jurisdiction since the 4th Department could not proceed on an incomplete record.

The motion was denied without an explanation.

I moved to vacate, renew and reargue the motion that was denied without an explanation, and asked for a reasoned decision this time, as a matter of due process of law.

The motion was denied without an explanation, and with an imposition (without a hearing) of an anti-filing injunction and a sealing order on the basis of Judiciary Law 90 which does not support imposition of sealing orders.

One of the judges who decides the case in the 4th Department, Eugene Fahey, was elevated to the Court of Appeals and recently participated in the denial of a constitutional appeal as of right to me in another case, once again without a plausible explanation.

One of the judges who decided the order of transfer in the 3rd Department, Leslie Stein, was also elevated to the Court of Appeals.

So, engaging in judicial misconduct in this state against a "difficult" attorney who criticizes judicial misconduct is grounds for a promotion.

But, the interesting part is that I keep asking for access to the "application", and now I've got two answers - 

1) from the Third Department court that acknowledged that all records of the current disciplinary proceedings was to be transferred to the 4th Department, but denied to me access to the "application", as if it was still had it, despite the order of transfer:

and

2) from the office of the NYS Court Administration, which attached to its answer the previous answer by the 3rd Department.

 

 

The answer of the NYS Court Administration is blunt:

you were already denied access to it - why ask again?

The NYS Court Administration also states, somewhat vaguely, that "the clerk where the matter is handled typically is the custodian of the court records".

First of all, the clerk of the court "where the matter is handled" is not "typically" the custodian of the court records, but, as a matter of law is the ONLY custodian of the court records.

If it is only "typically", then who ELSE may be the custodian of that court's records?

Yet, neither the 4th Department, nor the 3rd Department, nor the NYS Court Administration gave me answers to the following questions:

(1) Why the "application" was not transferred from the 3rd Department to the 4th Department despite the order of transfer of June 11, 2014;

(2) What is the legal grounds for the 3rd Department, which is no longer the court of record (by its own order of transfer), holds on to a portion of my record that the 4th Department must be using in its decision of a motion for a SUMMARY JUDGMENT in the currently pending proceedings, which requires reliance upon the FULL RECORD.

Apparently, the 3rd Department, no longer the court of record, is blatantly interfering in the course of my disciplinary proceedings and the NYS Court Administration is condoning this behavior.

By the way, I asked the 3rd Department to recuse from multiple other appeals because of this misconduct, and the 3rd Department refused, again, without an explanation.

I guess I will have to ask some other authorities to help the NYS Court Administration and the Appellate Division Third Judicial Department to better understand their own duties.