"Don't believe the plumber!" - or, on constiutionality of mandatory alibi disclosure to the prosecution and whether the California #JudgeEleanorHunter will be investigated for helping the prosecution obtain a wrongful murder conviction

Murder is the most heinous of known crimes.

We all have only one life, and there is no adequate remedy for taking it.

From time immemorial investigation and prosecution of murders were given by all kinds of governments the utmost serious consideration..

In our country, which is founded upon the U.S. Constitution - there are several principles, in view of the gravity of charges in murder cases, which protect all criminal defendants charged with murder - throughout the country, in all states.

I will name only a few of those federal constitutional principles, which are relevant to the case I am going to describe today.

The 5th Amendment to the U.S. Constitution grants to the criminal defendant the right to remain silent (the right against self-recrimination) - throughout the criminal proceedings.

The burden of proof is at all times in the criminal proceedings upon the prosecution.

It is the prosecution that has to produce evidence and persuade the jury that:

1) the defendant, identified by incriminating evidence and/or witnesses
2) was at a certain place
3) at a certain time, and
4) caused the death of the named victim
5) in a specific way.

Being at the time of the crime at the place of the crime is part of the proof that the person committed the crime of murder.

Yet, the accused may not have been there at the time of murder, or at all, which is called an "alibi".

It is obvious that, under the 5th Amendment, a criminal defendant does not have to prove anything - including that he was not there, and that, instead, it is the burden of the prosecution to prove, instead, that the criminal defendant was at the place of killing at the time of killing (and that he actually killed the victim).

Yet, several states, including, unfortunately, the State of New York, requires the criminal defendant, to notify the prosecution of the defendant's intent to raise the alibi defense and to provide to the prosecution with the alibi information. 

For example, New York Criminal Procedure Law 250.20(1) requires the defendant to provide the following "Notice of Alibi":

Note that in New York - as in any other state - there may be a considerable time from arraignment to the actual murder trial, including discovery, pre-trial motions and pre-trial motion hearings.

Yet, the defendant in New York must provide to the people "within 8 days of service" all information about his alibi defense - in violation of the 5th Amendment right to remain silent.

So, for example, if the People in a New York case serve upon a criminal defendant (as prosecutors routinely do) a Demand for the Notice of Alibi Defense at arraignment, the defendant must provide to the people the alibi information within 8 days of service - or lose ability to raise the alibi defense (the defense of ACTUAL INNOCENCE) at trial.

Once again, if the criminal defendant in New York does not agree to violation of his 5th Amendment right to remain silent, he must face a possibility of a wrongful conviction, because he will be PRECLUCED, procedurally blocked, from presenting the defense of actual innocence, the alibi defense

- while the proof that the defendant was at the time and place of the crime is actually part of the prosecution's burden of proof.

Yet, while criminal defendants in New York must produce to the prosecution information pertaining to their alibi defense within 8 days of service of the demand, the People are not obligated to provide to the defendant the names and addresses of witnesses who will testify that the defendant was at the scene of the crime at the time of the crime - even though People have to provide to defendant 10 days before trial (!) the list of rebuttal witnesses.

First of all, it makes no sense to claim that, when the defendant says he has a witness who can testify that the defendant is not at the place and time of the crime, while the prosecution will, after reviewing that evidence, present at trial a witness who will testify that the defendant was at the place and time of the crime, such prosecution's witness is somehow not a "rebuttal" witness - as a matter of law.

A rebuttal witness is usually the witness that testifies after the witness for the defense and rebuts what he defense witness says.

Yet, since the defense, according to the 5th Amendment, has a right to remain silent and present no witnesses at all, NORMALLY the prosecution cannot even prepare rebuttal witnesses - because, under the 5th Amendment, demanding ANY discovery from a criminal defendant is unconstitutional.

In New York though (and in all other states that require an alibi defense), since the defense is forced to disclose its alibi witnesses as early as 8 days after arraignment (if the demand for the notice of alibi is made at arraignment, which is usually the case), the witness the prosecution puts on in its direct case (not rebuttal) is factually a rebuttal witness of the alibi defense provided to the prosecution in the required notice.

Also, note the discrepancy in time - the defendant must provide the alibi disclosure to the People 8 days after arraignment if served with notice at arraignment. 

On the other hand, the People must provide the names of rebuttal witnesses to the defendant only 10 days before trial (where pre-trial preparation may take months if not years - a huge advantage improperly given to the prosecution), or not at all, because the prosecution will not disclose the identity of the de facto rebuttal witnesses who will testify that the defendant was at the time and place of the crime.

Note also at least two problems that may arise with timely production of alibi witnesses or evidence:

1) a defendant may be inable to identify such witnesses, even though he knows there are plenty of witnesses - such as, defendant's alibi is, for example, that at the alleged time of the crime he was in a crowded public place, but did not know the names of people surrounding him who saw him;  if the defendant later on learns names of such witnesses, he may be precluded from presenting them;

2) the prosecution often does not clearly identify time or place of the crime, making it impossible for the defendant to provide an alibi defense for the particular time and place - as an example, a defendant may drive through a certain place on a daily basis, but had an alibi of being at another place at a certain time of the day for a certain day, but the time and place of the crime are given within large margins (on or about 1st through 31 of October, in the town of X, without the exact location within the town of X).

As unfair as it is though, if a criminal case is tried in New York, one thing you know - since the Notice of Alibi is not only served upon the prosecution, but is also filed with the court, the judge, from early on in the proceedings, knows the identity of the defense alibi witness.

Not so in California.

In California, the notice of alibi was required, for a short time, but then the requirement was removed as unconstitutional.

So, one needs to look into the circumstances of a particular case to see whether, at the outset of a criminal trial, the judge actually knew:

1) that the defense is going to present an alibi witness; and
2) the identity of the alibi witness.

In California, an appeals court this month has reversed a murder conviction and a 114 year prison sentence of a black man, Vincent Tatum

convicted by a jury and sentenced by a white judge Eleanor Hunter,

a career prosecutor appointed by Governor Schwarzenegger in 2005.

Like the robe-tossing judge McBain I wrote about yesterday, Judge Hunter, as a career prosecutor, was raised and bred on the notion of impunity for whatever she does on the job.

So, what she did at the murder trial of plumber Vincent Tatum looks like a prosecutorial stint she learnt on the job as a prosecutor (and she prosecuted many murders, and now there is a question as to how honest were those prosecutions and convictions obtained by her).

When addressing the jury candidates at the time of voir dire (jury selection), Judge Hunter, under the guise of an explanation as to what constitutes a pre-judgement, pointed to her own personal views of pre-judgment - that she would never believe a plumber because of her own personal experiences with plumbers.

The defendant was a plumber.

The defendant's alibi witness was a plumber.

The case rested upon credibility of the alibi witness.

The prosecution - improperly and apparently without control from the judge - vouched to the jury that the alibi witness is lying.

The jury did not believe the plumber - because the judge didn't.

And convicted the defendant, also the plumber.

For murder.

And Judge Hunter - who dislikes plumbers because of her personal experiences with plumbers - sentenced a defendant plumber for 114 years in prison.

Now that the appellate court has reversed this "plumbing conviction" - and sentence of 114 years, California taxpayers, no doubt, will be asking its government, and the federal investigating authorities, the 10-million-dollar question:

• Did Judge Hunter know, before she made her extraordinary disclosure about her personal pre-judgment of credibility of plumbers - while presiding over a case where a plumber was charged with murder - that (a) the defendant was a plumber, and that (b) the defendant's alibi witness was a plumber?

It appears highly likely that she did, otherwise it is really extraordinary for a judge to, on the one hand, instruct the jury to be impartial and not to pre-judge, and, on the other hand, lead the jury by personal example and tell them that the judge herself does prejudge credibility of a certain class of people.

Actually, if Judge Hunter disbelieves ALL plumbers because of her personal experience with some of them, Judge Hunter should be taken off the bench - because otherwise litigants appearing in front of her will be forever in the dark figuring out whether Judge Hunter, because of some other personal experiences, automatically disbelieves other people, simply because they belong to certain professions, or maybe classes, or are joined by other factors uniting them with those who personally offended judge Hunter in the past.

Moreover, it is just too much of a coincidence when a judge, who was a career prosecutor in murder cases in the past, makes such an extraordinary personal observation at the time of jury selection in a murder case of a plumber - about her own prejudgment and not believing plumbers.

It is simply too much of a coincidence to claim that the judge did not know that the defendant in front of her was a plumber, and that his alibi witness to be presented later on at trial was a plumber, too.

Murder trials are extraordinary costly - because the state, at least formally, must provide extraordinary procedural protections to the accused.

If what Judge Hunter did was deliberate, she deliberately:

1) fixed a court case - which is a crime;
2) brought about a wrongful conviction and sentenced a person belonging to the class she does not like, after she brought about the wrongful conviction by her misconduct, to 114 years in prison; and
3) cost California taxpayers an extraordinary amount of money for the pre-trial proceedings, the trial (which will have to be all re-done now) and for the appeals, which would not have been necessary but for her behavior.

It is interesting to know whether Judge Eleanor Hunter will be investigated and prosecuted as an attorney, as a judge and criminally for her extraordinary misconduct.

It would also be interesting to know whether Judge Eleanor Hunter will be taken off the bench as unfit for judicial office, since she admitted that she forms pre-judgment of people's credibility based on their belonging to certain professional groups and because of personal experiences.

A judge must be able to be neutral.  Judge Hunter admitted she is not neutral if a litigant in front of her triggers her recollections about negative personal experiences, where personal experiences of judges are not part of the record, and there is no possibility for litigants to verify whether the judge's credibility determinations were or were not triggered by the judge's personal experience.

Judge Hunter is just too much of a danger to litigants.

She already cost defendant Vincent Tatum years in prison and tremendous stress.

She already cost California taxpayers hundreds of thousands of dollars spent on criminal investigation and prosecution of Vincent Tatum which will have to be all redone now.

I believe, Judge Hunter's other cases, and her cases as a prosecutor must now be thoroughly investigate to see what kind of tricks she used to pave her way to judgeship there.  It is unlikely the judge pulled a dishonest trick for the first time in her life - usually where there is immunity for corrupt acts, the immunity that covered Judge Hunter her entire career as a prosecutor as a judge, such immunity breeds what it covers - corruption.

I wonder whether Judge Hunter will be investigated whether she received any financial reimbursement to do what she did, or whether her misconduct was "gratuitous" - just to help a fellow prosecutor win a murder case.  And bring about a wrongful conviction.   No big deal, happens all the time in this country, right?

I will continue to cover this story.

Stay tuned.

On judges tasing litigants and the necessity to legislatively abolish judicial immunity

In February of this year I wrote about a Maryland judge Robert Nalley (a white man) who ordered tasering of a black criminal defendant for making constitutional arguments in court for himself.

The judge was then charged with a misdemeanor only (for assault with grave physical injury!), ordered to pay a fine, serve probation only and taken off the bench.  Still, no jail time - and just a slap on the wrist.  Barred from serving as a judge any more?  He is 72, it's not a big loss for him.

Here is Judge Nalley - bow tie and all, does not look like a dangerous violent criminal that he is, does he?

You might imagine that there can be nothing more disturbing about a courtroom proceeding than a judge ordering to taser a handcuffed litigant for making constitutional arguments to the judge.

But no - there is.

It is when the judge not only orders to taser a litigant for making arguments to the judge (including arguments pertaining to misconduct and appearance of impropriety of the judge, requiring recusal of the judge), but when the judge actually tosses his black robe and JOINS in the tasering efforts.

And that is what a Michigan judge John McBain, reportedly, just did.

Here is the official biography of this "honorable" judge.

Judge McBain was a career prosecutor before coming to the bench, he worked as a prosecutor, first in Florida, then in Michigan, since he was admitted to the bar, since 1988 and until 2002 when he was first elected as a judge.

Both prosecutors and judges in this country are given by courts a gift of absolute immunity for malicious and corrupt acts - and that sense of impunity breeds in prosecutors and judges the idea that they can do ANYTHING, literally, ANYTHING in court, with impunity.

So, Judge McBain was faced with a litigant who was charged with contempt of court - violating an order of protection.

Since such charges are criminal in nature and may involve jail time, the litigant was entitled to an attorney, an appointed attorney if he could not afford one.

There is no indication in reports regarding what the press calls a "scuffle" in the courtroom that any attorney for defendant Jacob Larson was present.

The video of court proceedings shows that the defendant appeared in front of the judge without an attorney - the only other man in the picture is the court attendant who is handcuffing the defendant.   After the court attendant roughly handles the defendant, the judge himself apparently joins, and together the two men knock the defendant down on the floor, and that is accompanied by the judge's yelling "taser him right now".

The judge was "upset" (that is the polite word) because the defendant:

1) talked about the judge's own daughter, and
2) raised the issue that the judge is "buddy-buddy" with the subject of the order of protection that the defendant allegedly violated.

Since the defendant's alleged violation of the order of protection occurred out of court, his contempt of court proceedings were entitled to an evidentiary hearing and an attorney representing him there.

Judge McBain did not assign an attorney, discussed the charges with the unrepresented defendant directly, and engaged in a verbal scuffle because defendant hurt his feelings personally - while the ONLY thing that Judge McBain could ethically do under the circumstances was to RECUSE from the action.

Instead, the judge not only ordered tasering of a litigant because the judge did not like the litigant discussing the judge's daughter and raised the issue that the judge may be too familiar with the opponent in litigation, but joined in physically overpowering the defendant.

Every concept of "neutral arbiter" of judicial proceedings, of course, was ripped off these proceedings, together with the black robe.

Judge McBain's robe should remain where Judge McBain left it - ripped off him, for good.

And, Judge McBain should also be disbarred for his behavior.

This is not a petty "ethical violation".

This is a violent outburst of a judge of 14 years and an attorney of 28 years of experience who knew better.

The judge instead:

1. had to assign counsel for the defendant - but didn't;
2. had to hold an evidentiary hearing before sending the defendant to jail - but didn't;
3. had an obligation NOT to discuss with the defendant the merits of the case until the defendant appear in court with counsel - which the judge did not do, provoking the defendant into discussing issues that were personal to the judge;
4. had to recuse because his own daughter and his personal relationship with the opponent in litigation were issues in litigation - but didn't;
5. and instead ordered handcuffing, tasering of a pro se defendant and bodily participated in the scuffle;
6. and ordered jailing the defendant while he was disqualified from doing so by his personal involvement.

The question I would also ask - why did Judge McBain toss his black robe before he joined the brutal overpowering of a litigant in the courtroom?

To confuse the viewer into believing that the second man joining the first who is tackling a defendant on the floor is simply a second court attendant, white shirt and all - instead of a judge?

So, the judge knew exactly what he was doing and thought his actions through to the point of attempting to deceive the viewers of the court recording, to beat the future charges of misconduct?

John McBain is not simply a violent man.

He is a violent man who knows that he is COMPLETELY IMMUNE for what he is doing in the courtroom during the court proceedings.

If Jacob Larson, the man the judge PHYSICALLY tackled during the court proceedings, sues judge McBain, the case will be dismissed based on judicial immunity.

And that is the best illustration of why judicial immunity MUST be abolished legislatively - because it allows the judge TO COMMIT VIOLENCE in the courtroom.

Imagine that this judge not just tackled a litigant, but shot him, right in the courtroom.

And, we do not know whether judges have guns on them during court proceedings or not.

If a judge shots a litigant or anybody else during a court proceeding, he will STILL be immune from a lawsuit.

Judge John McBain is a violent man who engaged in a physical assault upon a litigant who presented no danger to safety other than VERBALLY protesting against unlawful actions of Judge McBain.

And, Judge McBain is a product, as a prosecutor and as a judge, of a mentality that was in-bred into him over 28 years of his experience as a judge and a prosecutor, since he was admitted to the bar, for his entire legal career that anything - ANYTHING - he does in the courtroom will be covered by immunity, so he can just go ahead and do whatever he wants.

Note that the defendant raises the issue that the judge cannot simply send him to jail - even if that was expressed not in the most courteous language:

Defendant:  You cannot do this sh*t!
McBain:      Appeal it.

I described this "move up or move on" tactic regularly utilized by New York judges, on this blog:

• a tactic that is wasting taxpayer money by forcing appeals that should not have happened had the judge simply followed the law as he or she is supposed to,
• a tactic that is discriminatory against pro se litigants and non-moneyed litigants, because an appeal is a costly endeavor, and
• a tactic that destroys in litigants their belief in the rule of law and integrity of the judiciary.

So, it is the taxpayers' resources that will be wasted on appeals from Judge McBain's illegal decisions aimed at using his paid position of power, as a public servant, to fix his personal grudges against a defendant who dared to mention the judge's daughter and the judge's potential personal relationship with a litigant in open court.

Will Judge McBain be required to reimburse taxpayers of the State of Michigan for that waste?

I doubt it - unless there is public pressure to make Judge McBain do it.

Judge McBain engaged in a violent act in his courtroom apparently believing that he is immune from lawsuit for his action - and that, likely, he will not be charged or disciplined as a judge or as an attorney, because who is going to discipline him - attorneys appearing in front of him, whose licenses are in the hands of judges, just like him?

Nobody stopped the judge - on the video - from doing what he was doing.

Nobody confronted the judge - even though there are people shown sitting in that courtroom.

Everybody is afraid and thinking that WHATEVER the judge is doing is right.

Right?

What kind of country have we become that we allow this to happen in front of our own eyes, in a public courtroom?

We will see in the future whether the State of Michigan will have the decency of having Judge McBain disbarred, taken off the bench and charged with assault.

I will continue to cover this story.

Stay tuned.

Over a 1,000,000 views and a hurricane of news on the recently taboo topics of judicial misconduct and corruption

My husband and I, and our 8 pets have survived our first hurricane in South Carolina, and a week without electricity. 

When we finally got electricity - and high-speed Internet - again, I was amazed, first, that the blog has now reached over a million views:

I thank my readers for their attention to the not so easy topics I am covering on this blog.  I appreciate you attention and will strive to provide good coverage of access-to-justice issues, which include independence of court representatives and necessity for transparent, honest, unbiased and competent judiciary - something that our nation is lacking at this time, in my personal opinion, of course.

What was also amazing, after just a week of my absence from the blogging scene is the avalanche of news that have been posted on the subject of attorney misconduct, judicial misconduct and impropriety, and judicial corruption.

When I was starting this blog 2.5 years ago, the topic of attorney misconduct and judicial misconduct was a definite taboo in the news.

The fact that this topic is now discussed more and more actively, and I would say, aggressively, not only in social media, not only by us bloggers, but also by mainstream media, indicates just how influential the rapid exchange of information through social media has become.

Mainstream media has no choice but to pick up and cover these previously "taboo" topics, too.

I must add that the public is becoming very vocal as to what it does not like in its government - and I doubt that the government can ignore such a powerful voice.

For example, reportedly, over 40,000 people have signed a petition to remove from the U.S. Senate Judiciary Committee Senator Jeff Sessions from Alabama, a Trump supporter, who claimed that grabbing women by their genitals does not constitute a sexual assault.

The public considers the Senator's post in choosing the nation's federal judges and setting laws regarding federal courts too important to be entrusted to a sexist jerk, even if he is an old sexist jerk.

In Rhode Island, a female litigant has filed an ethic complaint against a judge who handled her sexual abuse lawsuit against a Catholic priest without disclosure - in his mandatory financial statement, too - that for years, Rhode Island Supreme Court Judge Francis X. Flaherty

has had a leading role in Catholic church, and thus should not have been presiding over her lawsuit against a Catholic priest alleging sexual abuse.

And, in New York, a state Supreme Court judge Michalek, convicted of a felony and disbarred, is now a "cooperating witness" in a corruption investigation against a political power broker.

And in Texas, an appellate judge was exposed for receiving $11,000 in campaign contributions from attorneys appearing in front of the judge for the past 2 years only.

And in Missouri, increased public interest in judicial elections is noted, and the question that judicial candidates are bought by those contributing to their election campaigns, is publicly raised and debated.

And, finally, New York Times raises the issue of improper failure to recuse by U.S. Supreme Court justices and questionable exercise of discretion by the U.S. Supreme Court.

New York Times correctly questions

• why the U.S. Supreme Court Justice Elena Kagan did not recuse from the "Affordable Care Act" case after participating in that case as a representative of the U.S. Justice Department, and
• why the U.S. Supreme Court justices Stephen Breyer and John Roberts did not recuse from cases of corporate litigants whose corporate stock they held; and
• why the U.S. Supreme Court self-servingly refused to take a 1st Amendment case about protests on the plaza in front of that same U.S. Supreme Court.

Corrupt judicial candidates, conflicts of interest in the judiciary, in its top echelons - the top state courts and even in the U.S. Supreme Court justices - topics which were only hushed and tabooed now plunge into mainstream.

You know why?

The American public is not dumb, and it does not want to receive in its courtrooms - instead of fair resolution of disputes - abuse by bought judges.

Through exchange on social media, through its own experiences in the courtroom, it sees that the "presumed integrity" of the "honorable" judiciary that gives itself immunity from malicious and corrupt acts is a mockery of the rule of law that the American public as the employer of its judges, is entitled to.

And, the movement to clean up the judiciary and make it more transparent, more accountable to the people, and actually adhering to the rule of law instead of the rule of "discretion" (whim) is on the rise, too.

I am glad the tide has started to turn, at least judging by the news.

And, I believe that, propelled by instant information sharing in the social media, possibility of real reforms of our judicial system does not seem a utopia any more.

Hurricane Matthew

Just a brief notice to my readers that the author of this blog is located in South Carolina where Hurricane Matthew is expected tonight or tomorrow.

We may soon lose electric power, and the outage may last for a long time, and if that happens,  I will be unable to blog frequently,  as I usually do.

The blog will resume as soon as it will become possible.

Sullivan County Judge Frank Labuda has taken a forced leave pending criminal investigation into a possible assault with the use of an ATV

There are bizarre news - and there are even more bizarre news.

I appeared in front of Sullivan County (New York) Judge Frank Labuda as a criminal defense attorney.

Here is Judge Labuda's photo:

He was tough, but I cannot say he was unfair.

And, even though I did not appear in front of Judge LaBuda often, so my experience is limited, I never saw him lose his temper.

That's why I perceived the news that Judge LaBuda took an "annual leave pending investigation" - a criminal investigation - into his brother's complaint that Judge LaBuda allegedly ran over his brother in an ATV as extremely bizarre.

Of course, as every criminal defendant, Judge LaBude is entitled to a presumption of innocence, and we will see how the case will unfold.

And, reportedly, Judge LaBuda maintains his innocence and that it was an accident, while his brother insists that it was intentional.

Peter LaBuda reportedly suffered a broken legs and several broken ribs.

The Sullivan County DA requested New York State Attorney General to investigate as a special prosecutor.

Yet, there will be a pronounced conflict of interest in such an investigation, since New York State Attorney General is, by statute - Public Officers Law 17 - an attorney for all State judges, including judge LaBuda.

The interesting detail is that Peter LaBuda's girlfriend, "lawyer Cheryl Beverson, has sought orders of protection on his behalf, filing in Delaware County".  Cheryl Beverson is of Middletown, New York.

It is unclear why the filing was done in Delaware County if the incident occurred in Sullivan County.

Peter LaBuda and his girlfriend/attorney Cheryl Beverson claim that the Sullivan County Sheriff's office intentionally did not collect the necessary evidence - they allegedly allowed Judge LaBuda to leave the scene of the incident and did not verify whether Judge LaBuda has been drinking.

Reportedly, Peter LaBuda's daughter (and Judge LaBuda's niece) witnessed "the events".

It is interesting to see whether investigation of a judge will be conducted fairly or will be swept under the rug.  Part of it already was - since the judge was not properly processed at the scene, and the local police refused to require a Breathalyzer test on him.

Of course, even if criminal charges are not brought against Judge LaBuda, a civil case against him for assault and/or negligence is possible.

I will continue to cover this story.

Stay tuned.

New York changes its disgraceful foreclosure law - to a more disgraceful law

In many foreclosure cases where I represented homeowners, I pointed out to the court that it is unfair to indigent homeowners to provide to them assigned counsel after a foreclosure conference when they already defaulted by failing to file an answer (which they obviously did not know how to do without counsel), and without giving them a right to file a late answer.

My motions on that topic were rejected by courts claiming there is no unfairness or unconstitutionality involved in such a situation.

Yet, the lack of comprehension of homeowners who had no legal education, as to how one needs to respond to service of a foreclosure lawsuit, until it was too late (21 days after personal service of a complaint) resulted in innumerable foreclosures across New York State.

Imagine a criminal defense attorney being assigned to a criminal defendant after half of the proceedings is over and after all rights of the criminal defendant are forfeited - that's what was happening in foreclosure proceedings in New York.

Yet, now, finally, New York amended its disgraceful legislation - after, I wonder, how many people lost their homes because they could not afford an attorney and because an attorney was assigned to them only when it was too late.

Unfortunately, the amendment may be even worse than having no amendment at all, since it will create in people a false illusion of trustworthiness of the court as the defendant homeowner's legal advisor, and can lead to even more foreclosures because people will be filing only answers, and no affirmative defenses.

As of December 20, 2016 the following changes come into law, as stated in a recent decision of Westchester Supreme Court that, following the spirit of the legislation that has yet to come into effect, allowed the homeowners to file a late answer, after a foreclosure settlement:

"Effective December 20, 2016 CPLR § 3408 Mandatory settlement conference in residential foreclosure, will be amended to add the following relevant provisions:

(l) At the first settlement conference held pursuant to this section, if the defendant has not filed an answer or made a pre-answer motion to dismiss, the court shall:


1. advise the defendant of the requirement to answer the complaint;


2. explain what is required to answer a complaint in court;


3. advise that if an answer is not interposed the ability to contest the foreclosure action and assert defenses may be lost; and


4. provide information about available resources for foreclosure prevention assistance."

The legislation, of course, did one good thing and two VERY bad things.

The good thing is that finally homeowners will have a right to file a late answer after the foreclosure conference.

The bad thing is that the legislation puts the judge in the position of a legal advisor to litigants, even though judges of New York Supreme Court, by the New York Constitution, may not practice law.

The problematic thing is that there are over 40 so-called "affirmative defenses" that, depending on the circumstances of the case, may be raised, and, if a certain affirmative defense applies, it must be raised at the same time as the Answer, otherwise it will be waived and lost.

One of the most significant of such affirmative defenses in foreclosure proceedings is the foreclosing plaintiff's lack of capacity to sue.

Banks are notorious in having mortgages obtained through agents, without proper formalities, then improperly securitizing already defaulted mortgages and assigning them to security trusts after banks are already went bankrupt, and such chains of assignments usually have at least one, often more, flaws, allowing the homeowner to have the foreclosure action dismissed.

The new version of CPLR 3408 requires the judge to advise homeowners only of their right to file an answer, and "explain what is required to answer a complaint", but I doubt that any judge will give a comprehensive legal advice to homeowners, one of two adversarial parties in litigation in front of that judge, as to what affirmative defenses need to be raised in that answer, what is the significance of raising such defenses and what can be lost if those defenses are not raised in the answer.

Yet, most likely, homeowners will be now lulled into an illusion that since the judge advised them on the law, they will be safe following the judge's advice - and will be filing only an answer without affirmative defenses, thus forfeiting the most significant affirmative defense of the foreclosing plaintiff's capacity to sue.   

As it appears, the new CPLR 3408 is a half-measure and a sellout of homeowners - again - which also puts courts in the awkward position of advisors-adjudicators, a disqualifying position.

The inadequate discipline against California #JudgeEdmundWClarke for mistreating prospective jurors - Part II, juror 4688

I am continuing the report on disciplinary decision (admonition only) against the California judge Edmund W Clarke who was discipline for mistreating 4 prospective jurors in a murder trial.

In the previous blog, I described misconduct of Judge Clarke who retaliated against prospective juror 7122 after that woman, who had a severe anxiety problem, criticized in open court Judge Clarke's clerk for rudeness.

The next victim of Judge Clarke was also a Spanish-speaking female juror, juror 4688 who asked for an excuse from service as a juror in the murder trial because she did not understand English well.

Naturally, that would be a big concern in a murder trial, with a potential life in prison sentence or death penalty, depending on the result of the vote in November of this year.

A juror is a fact-finder of evidence and must be able to understand the language in which the evidence is presented.

Here is the exchange between juror 4688 and Judge Edmund W. Clarke:

Now, being able to say "good morning" in a foreign language does not indicate that the person saying it has any command of that language at all.  Modes of address like that is the first tourists learn in a foreign country, while knowing absolutely nothing of the language other wise.

Yet, that was the immediate hook for Judge Clarke's bullying to start:

Now, whether it is a good idea to live in a country and not know its government language is not relevant here.  Especially that Spanish, increasingly, is used as second government language in many localities in the U.S.

The only relevant question for purposes of jury picking in a murder trial is - is the juror's command of the English language enough to follow the evidence presented in the trial verbally, through documents and testimony in English?

For that, knowledge of how to say "good morning" is definitely not enough.

In some counties in California, according to census and literacy group reports, illiteracy in some counties reaches 34%.  That is, 1/3 of population lacking basic literacy skills.

With that in mind, Judge Clarke's lashing out against the Spanish-speaking juror appears even more outrageous:

Judge threatened the juror who was unsure whether her command of English was enough to be a fact-finder in a murder trial, of lying, and threatened her of having to stay longer in court and away from family and her obligations because of her supposed lie.

There are people who are in this country 25 years and more and do not speak the language - just walk down Brighton Beach in New York City.

Whether that is good or bad, is another question - but it is a fact that it is possible, especially for a Spanish-speaking person, to never learn English at the level required to engage in fact-finding in a murder trial.

Judge Clarke "impeached" juror 4688 by her own answer in the juror questionnaire checking a "yes" box as to the question whether she knows "basic English".

Having a Masters degree in teaching English as a foreign language, I would tell you that the question whether your command of English is "basic" is a trick question.

If a person is illiterate, he or she cannot answer that question.

If a person answers "yes", that is subjective, as what is "basic" for one person, is no knowledge at all for another.

Additionally, a person answering such a question may fear that if they answer "no", some repercussions from the government may follow.

So, judge Clarke, as promised, punished juror 4688 by sending her to sit in the hallway.

Then, he recalled her and started to interrogate, this way:

So, Judge Clarke made juror 4688 to sit in the hallway and used taxpayer money to get a certified Spanish interpreter to interrogate juror 4688 after she waited for the second time to be called back.

Actually, engaging a Spanish interpreter to verify whether the juror knew enough of English to be a fact-finder at a murder trial where facts were presented in English, was useless.  A Spanish interpreter could not prove one way or another whether the juror knew enough of English language to be a juror at a murder trial.

Nevertheless, an interrogation through a Spanish interpreter followed:

Even that did not stop the Jerk Clarke from continuing to embarrass juror 4688.

Through the interpreter, juror 4688 explained why she did not speak English even though naturalized for 25 years - because she was naturalized as a 2-year-old, sent to Mexico and returned to the U.S. as a grown up, so she never needed to study English for a naturalization test.

Even then, Judge Clarke did not simply excuse her, but excused her with an instruction to learn English better so that the court can use her as a juror in the future:

To which the poor woman said that in order to do that, she would have to quit one of her two jobs:

In the case of juror 4688, same as in the case of juror 7122, Judge Clarke also tried to lie to the disciplinary panel, claiming that he did not accuse the juror of lying, but only "expressed skepticism as to her command of English - which was found by the disciplinary panel not to be true:

With all that, amazingly, the Alliance of California judges filed an amicus brief in support of Judge Clarke - the bully in the courtroom, the liar and the abuser of female jurors.

After Judge Clarke mistreated two female jurors, juror 7122 and juror 4688, he mistreated two more in that same case - and both of the other jurors Judge Clarke mocked and humiliated because of their poverty, and still escaped with simply an admonition, and with no attorney discipline, by the way.

I will report on Judge Clarke's misconduct as to two other jurors separately.

Stay tuned.